22 Only the Director-General may apply to the Court for an order under s 107. It may be noted that whilst s 107 incorporates in substance the requirements of Regulation 15(3), it does not set out any other matters of which the Court need be satisfied before an adoption order is made under that section. In particular, there is no requirement under s 107 that, before an order can be made under that section, the arrangements for the adoption of the child be shown to have been made in accordance with the Convention or the laws of the State of origin.
23 Section 107 is silent as to whether it provides an avenue for the making of an adoption order separate from the requirements of Chapter 4 of the Adoption Act, or whether Chapter 4 of the Adoption Act contains the substantive requirements for the making of an order under s 107. If s 107 is a "stand alone" provision, then it is not a provision to the same or comparable effect as Regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations. The reason for that is that the substantive requirements in Regulation 15(1) are not picked up by s 107.
24 The Director-General submitted that:
" The note to s 107 points to Chapter 4 of the NSW Act as containing the criteria to be applied in assessing the suitability of persons for adoption of children from Convention countries … The structure adopted by the NSW Act is for the substantive criteria applicable to all applications (including Convention applications and recognitions) to be contained within Part 4 (scil. Ch 4) (esp s 90). For that reason, Part 4 (scil. Ch 4) should be construed as serving a dual purpose:
a. containing the substantive provisions governing non-Convention applications; and
b. containing the substantive provisions governing Convention applications such as the one before the Court. "
25 I agree that, construing the Adoption Act as a whole, s 107 should not be seen as a "stand alone" provision setting out the whole of the requirements for the making of an adoption order in respect of a child from a Convention country.
26 The question then is whether the effect of Chapter 4 of the Adoption Act (read with s 107) is the same as, or comparable to, the effect of Regulation 15.
27 Part 2 of Chapter 4 deals with the matters to which a "decision maker" must have regard in placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption. The decision maker must take into account the child's culture, any disability, language, and religion, and the principle that the child's given name, identity, language and cultural and religious ties should as far as possible be preserved (s 32). A "decision maker" is defined as follows:
" decision maker in relation to a decision about the adoption of a child means the Court, the Director-General, an accredited adoption service provider, or a principal officer of an accredited adoption service provider. "
28 Clearly, s 32 does not apply to a decision by a Central Authority of the State of origin of a child from a Convention country. Such an authority is not a "decision maker" within the meaning of s 32. However, the substance of the matters to which a decision maker under s 32 is to have regard are also to be given due consideration by the Central Authority of the State of origin pursuant to Article 16 of the Convention.
29 Part 3 of Chapter 4 deals with the selection of prospective adoptive parents. It applies whether the person or couple wishing to adopt a child proposes to adopt a child from within New South Wales, or from a Convention country, or from any overseas country. It enables the Department of Community Services, as the Central Authority of the State of New South Wales to prepare a report pursuant to Article 15 of the Convention.
30 Part 4 of Chapter 4 deals with adoption plans. In my view, that Part is not relevant to the present proceedings.
31 Part 5 of Chapter 4 deals with consents to adoptions. It contains significant differences from the Convention procedures. Division 1 of Part 5 of Chapter 4 specifies who must consent to an adoption. Unless consent is dispensed with pursuant to Division 3 of Part 5 of Chapter 4, the consent of each parent and of any guardian of the child is required in the case of a child who is younger than 18 and has not previously been adopted. Sections 52-65 make detailed provision, not only as to whose consent is required for the adoption of a child, but the procedures to be followed before the consent is effective. To be effective, the consent must not only be an informed consent, but must also be in a form prescribed by the Regulations (ss 58(1)(b) and 61(1)). The person giving consent must have been counselled by a counsellor having qualifications and functions prescribed by the Regulations (ss 57 (definition of counsellor), 61(3) and 63).
32 The Court can dispense with a person's consent, if satisfied that to do so is in the best interests of the child, only in a limited number of circumstances. They are prescribed by s 67(1)(a)-(d). The circumstances in which consent may be dispensed with are that a person whose consent is required cannot, after reasonable inquiry, be found or identified (s 67(1)(a)); that such a person is in such a physical or mental condition as not to be capable of giving proper consideration to the question (s 67(1)(b)); or, if the person is the parent or the guardian of the child, that there is serious concern for the welfare of the child, and it is in the best interests of the child to override the wishes of the parent or guardian (s 67(1)(c)); or in certain cases where authorised carers of the child apply for adoption (s. 67(1)(d)).
33 These provisions are substantively different from the Convention procedures. Under the Convention, the competent authority of the State of origin must ensure that the persons, institutions and authorities whose consent is necessary for adoption have been counselled as may be necessary and duly informed of the effects of their consents. It is a matter for the law of the State of origin to determine whose consent is necessary to the adoption. There is no equivalent provision that the consent of the child's parents can only be dispensed with in circumstances corresponding to s 67(1)(a)-(d).
34 In the present case, a Filippino court found that the children had been deliberately abandoned and neglected by their parents. An order was made committing the children to the care and custody of the Filippino Department of Social Welfare and Development as the legal guardian of the children, entitled to their legal custody and control, responsible for their support as provided by law, and, when proper, with authority to give consent to their placement, guardianship and/or adoption. The Court ordered that the rights of the biological parents were terminated.
35 Accordingly, I infer that the consents of the biological parents to the adoption of the children were not obtained, but that that was in accordance with Filippino law, having regard to the orders to which I have referred. However, if Chapter 4 of the Adoption Act applied, it would not be possible to make an adoption order in respect of the children, unless a consent dispense order were made.
36 In the present case, such a consent dispense order could be made on the ground that the parents could not, after reasonable inquiry, be found or identified. The reasons for judgment of the Filippino Court to which I have referred recorded that the relevant social worker had been only able to find the paternal grandmother of the children, and that neither the mother nor father could be located. However, the position in other cases might be different. It could not be in accordance with Convention procedures for an adoption order to have to be refused in New South Wales because the criteria for making a consent dispense order were not satisfied, and an effective consent complying with the requirements of Division 2 of Part 5 of Chapter 4 had not been given, notwithstanding that the necessary consents under the law of the State of origin had been obtained from the persons, institutions or authorities whose consent was necessary, in the required legal form of the State of origin. That would be the consequence of a finding that Chapter 4 was a law to the same effect, or comparable effect, of Regulation 15.
37 I do not think there is anything in Parts 6, 7 and 8 of Chapter 4 relevant to the present proceedings.
38 Part 9 of Chapter 4 deals with the matters to be satisfied before an adoption order can be made. Section 90, which is in Part 9 of Chapter 4, requires the Court to be satisfied as to certain matters. It provides:
" 90 Court to be satisfied as to certain matters
(cf AC Act s 21)
(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied:
(a) that the best interests of the child will be promoted by the adoption, and
(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
Note. Sections 127-129 contain provisions about ascertainment of the wishes of a child by the Court.
(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child - that the prospective adoptive parent or parents have been selected in accordance with this Act, and
Note. See Part 3 of this Chapter.
(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and
(e) if the child is an Aboriginal child - that the Aboriginal child placement principles have been properly applied, and
(f) if the child is a Torres Strait Islander child - that the Torres Strait Islander child placement principles have been properly applied, and
(g) if the child is a non-citizen child from a Convention country or other country outside Australia - that the applicable requirements of this Act and any other relevant law have been satisfied, and
Note. See for example, section 31.
(h) in the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.
(2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances.
(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.
Note. Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998 . Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt. "
39 The first requirement is for the Court to be satisfied that the order would be in the best interests of the child (s 90(1)(a)). As I have said, there is nothing in Regulation 15 which requires that the Court be satisfied that the best interests of the child will be promoted by the adoption, unless that is the effect of Regulation 15(1)(b). The same is true of the matters in s 90(1)(b). Section 90(1)(c) requires the Court to be satisfied that the prospective adoptive parents have been selected in accordance with the Adoption Act. In my view, the selection of the adoptive parents is part of the arrangements for the adoption to be made by the Central Authority of the receiving State under Article 15 of the Convention. Accordingly, it is a substantive requirement to be satisfied under both Regulation 15(1) and s 90(1)(c).
40 I have already commented upon s 90(1)(d) which deals with consents to adoption. There is no equivalent provision in the Regulations or the Convention authorising the Court to dispense with the requirement of the consent of every person whose consent under the Convention is required. There is no provision in the Regulations requiring the consent of the child's parents to the application, or providing for the dispensation of such a requirement.
41 Section 90(1)(e) and (f) are not relevant to the present issue. It is clear from s 90(1)(g) that the New South Wales Parliament intended that applications for adoption of a child from a Convention country could be made under Chapter 4. The expression "other relevant law" in s 90(1)(g) is not defined. The note refers to s 31. Section 31 provides:
"31 Adoption of non-citizen child
(1) The Court must not make an adoption order in relation to a non-citizen child as referred to in Part 2 of Chapter 5 unless:
(a) arrangements for adoption of the child have been made by the Director-General or an accredited adoption service provider that may provide intercountry adoption services or the Director-General applies for the order on the basis that the proposed adoptive parent has intercountry parental responsibility for the child, and
(b) the provisions of this Act and the regulations relating to intercountry adoptions have been complied with.
(2) For the purposes of this section, a person has intercountry parental responsibility for a child if the child is from a country other than a Convention country or a prescribed overseas jurisdiction and the person, after being resident in that country for 12 months or more or being domiciled in that country, was given parental responsibility for the child under the law of that country. "
42 Neither s 90(1)(g), nor s 31, requires the Court to be satisfied that the arrangements for adoption were made in accordance with the Convention. Section 31(1)(b) refers to the Regulations relating to intercountry adoptions. The Adoption Regulation 2003 (NSW) contains no provisions requiring that the arrangements for adoption be made in accordance with the Convention. It may be arguable that the expression "relevant law" extends to the law of the country from which the child comes, so that the Court must be satisfied that the laws of the State of origin in relation to the adoption were satisfied. However, the expression does not cover the requirements of the Convention itself. The Convention is not a law. Neither the Adoption Act, nor the Family Law (Hague Convention on Intercountry Adoptions) Regulations provides that the Convention is to apply as a law of New South Wales or Australia. Accordingly, there is no requirement in s 90 that, before making an adoption order, the Court be satisfied that the arrangements for the adoption were made in accordance with the Convention.
43 I do not consider that s 90(1)(h) is relevant to the present proceedings as there is no requirement under the Convention for the making of an adoption plan, and an adoption plan is only mandatory under the Adoption Act in certain cases (see ss 35(5), 39(4), and 47(1)).
44 Section 90(3) provides:
"(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child."
45 Again, there is no requirement under Regulation 15 (unless it is conveyed by Regulation 15(1)(b)) that the Court be satisfied that the making of an adoption order is clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. That is a matter which it can be expected the Central Authority of the State of origin of the child would consider, pursuant to Article 16 of the Convention, in determining whether the envisaged placement was in the best interests of the child.
46 For these reasons, I consider that the effect of Chapter 4 of the Adoption Act, so far as it applies to the adoption of a child from a Convention country, is substantially different from the effect of the Regulations.
47 Part of the above reasoning has assumed that Regulation 15(1)(b) does not require that Chapter 4 of the Adoption Act be complied with if an application is made by residents of New South Wales to adopt a child from a Convention country. The relevant words are that:
" This regulation applies … if arrangements for the adoption are made in accordance with … the laws of the State of habitual residence of the person or persons proposing to adopt the child … "
48 The question is, what is meant by the expression "arrangements for the adoption"? It might be said that all of the adoption process described in Chapter 4 describes the arrangements to be made for the adoption of a child under New South Wales law. In my view, that would not be the correct construction. The expression "arrangements for the adoption" is to be understood in the light of the Convention. The purpose of the Regulations was to enable the Convention to be implemented in Australia. The Convention provides the context for the construction of the Regulations.
49 The meaning of the expression "arrangements for the adoption" is not to be gleaned from the different State and Territory legislation relating to adoption. Such a process would not reveal any consistent use of that expression between the States and Territories. Some States, such as Victoria and Tasmania, deal with certain matters under the heading "Arrangement of Adoptions" Adoption Act 1984 (Vic), ss 20-32; Adoption Act 1988 (Tas), ss 9-17. Those States deal with matters such as consents to adoption, and the making of adoption orders, under different headings. Some States, such as New South Wales, do not use the expression to describe particular parts of their legislation.
50 In my view, the proper construction of Regulation 15(1)(b) is that it requires the Court to consider what are the requirements of the State of habitual residence of the prospective adopting parents, so far as they are applicable under the Convention to the arrangements to be made for the adoption of the child. In particular, the determination of the receiving State under Article 5 of the Convention that the prospective adoptive parents are eligible and suited to adopt, that they have been given counselling as may be necessary, and that the child is, or will be authorised, to enter and reside permanently in the State, must be effected in accordance with the laws of the receiving State. Likewise, any law regulating the preparation of the report by the Central Authority of the receiving State under Article 15 of the Convention must be complied with if Regulation 15(1)(b) is to be satisfied.
51 However, the expression does not mean that all of the requirements of New South Wales law for the making of an adoption order under Chapter 4 must be satisfied.
52 Even if this is not the correct construction of Regulation 15(1)(b), it would not follow that Chapter 4 of the Adoption Act had a comparable effect to that of Regulation 15. Even if Regulation 15(1)(b) required satisfaction of all of the requirements of Chapter 4, nonetheless, there is nothing in the Adoption Act which requires an applicant for an adoption order for a child from a Convention country to show that the arrangements for the adoption were made in accordance with the Convention. It would follow that, on any view, the effect of the Adoption Act is not the same or comparable to the effect of Regulation 15.
53 It is clear from s 103 of the Adoption Act, from the explanatory note to Chapter 5 of the Bill which became the Adoption Act, and from the Minister's Second Reading Speech, that Parliament intended that the provisions of the Adoption Act should have the same effect, or comparable effect, to Regulation 15. I have set out the terms of s 103 earlier in these reasons. The explanatory note to Chapter 5 of the Bill which became the Adoption Act stated:
" The Commonwealth Regulations preserved the application of provisions of State law that have effect, or comparable effect, to the Commonwealth. Part 2 (other than Division 4) enacts such State provisions. Provision … is made for … adoptive parents in New South Wales to adopt a child from overseas (clause 107). "
54 In her second reading speech, the Minister stated:
" This bill replicates provisions of the Commonwealth's Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 relating to administration of intercountry adoption services and will bring all adoption arrangements in New South Wales under State legislation. " (Hansard, LC, 5 September 2000, p 8641.)
55 However, I have concluded that that objective was not achieved. It could have been achieved if s 107 had incorporated both the substantive and the procedural requirements of Regulation 15 as a separate avenue for obtaining adoption orders for children from Convention countries. However, as I have explained above, while s 107 substantially reflected the procedural requirements of Regulation 15(3), it did not incorporate the substantive requirements in Regulation 15(1). The substantive requirements in Chapter 4 are quite different from the substantive requirements of Regulation 15(1).
56 It was submitted for the Director-General that the substantive requirements of the two provisions were comparable. It was submitted that:
" 20 The NSW Act, like the Commonwealth Regulation, contains procedural and substantive elements:
…
(b) The substantive requirements are:
i. the arrangements accord with usual NSW practices (which in turn accord with the Convention), the adoption laws of NSW (in particular the issues to be addressed in s 90), the laws of the Convention country (via evidence as to the availability of the child for adoption in Australia as well as the approval of the relevant adoption agency in the Convention country, plus the meeting by the applicants of any criteria relating to their suitability to adopt a child from that country);
ii. The Central Authority of the Convention Country agrees to the adoption: s 107(2)(a);
iii. DoCS agrees with the adoption (DoCS being the State Central Authority for NSW): s 31(1)(a) - for either the Director-General must support the application (in that either the Director-General must make the application under s 107), or he or she must agree to arrangements under s 31(1)(a);
iv. the child is allowed to reside permanently in Australia: s 107(2)(b).
…
The effect of the two schemes is the same, or comparable
22. At the level of substance, it is submitted that the State regime is of the same, or comparable effect. Indeed, the most essential elements:
(a) agreement of Central Authority of Convention country;
(b) agreement of State Central Authority;
(c) permanent residence of child;
(d) compliance with the State laws which emphasise the welfare of the child,
are identical . "
57 However, for the reasons I have given, I do not consider that the requirements are comparable. Even if the "usual NSW practices" referred to by the Director-General accord with the Convention, this would not mean that the provisions of the Adoption Act are the same as, or comparable to, the Regulations. In fact, the "usual NSW practices" in many respects differ from the Convention, as is to be expected. The requirements in relation to the obtaining or (in NSW) dispensing with consents to adoption constitute a notable difference. For the reasons I have given, I do not accept that the requirements of the Adoption Act are identical or similar to the requirements of the Regulations.