Solicitors:
n/a (Plaintiffs)
Crown Solicitor (1st and 2nd Defendants)
Legal Aid NSW (3rd Defendant)
File Number(s): A019/2016
[2]
JUDGMENT
HIS HONOUR: On 1 June 2016 I ordered that the following question be determined separately and before the further trial in the proceedings, namely:
"Whether the Court has jurisdiction to make the order sought in paragraph 1 of the summons."
At the hearing on 1 June 2016 the second plaintiff asked me to refer that question to the Court of Appeal. No prior notice of the application had been given and I directed that within seven days the defendants were to serve and were to provide my associate with written submissions, if they wished to do so, on the question of whether I should remove the question referred to to the Court of Appeal pursuant to r 1.21 of the Uniform Civil Procedure Rules. I made orders for the service of written submissions in relation to the question and fixed the question for hearing before me on 3 August 2016, subject to any order that might be made referring the question to the Court of Appeal. I directed that the parties' submissions identify what evidence would be relied upon relevant to the determination of the separate question.
The circumstances giving rise to the formulation of the separate question appear from my reasons of 1 April 2016 in which I directed the Registrar to give notice to the Attorneys General for the Commonwealth and New South Wales inviting them to consider intervening in the proceedings or seeking to appear as friends of the Court. Subsequently notices under s 78B of the Judiciary Act 1903 (Cth) were given and the Attorneys General for New South Wales and the Commonwealth have appeared, as has the Secretary of the Department of Family and Community Services. They neither consent to nor oppose the referral of the separate question to the Court of Appeal.
The Attorney General of the Commonwealth has foreshadowed that he will submit that regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations applies to the proposed adoption of WS and that the operation of the Regulation is not avoided because the plaintiffs have not satisfied the requirements of the Convention. The Attorney General for the Commonwealth has also foreshadowed that he will submit that Chapter 4 and s 107 of the Adoption Act 2000 (NSW), in their application to the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who is or are habitually resident within the State (within the meaning of those words in s 107), are inconsistent with reg 15 of the Hague Regulations, as I found in Re S and The Adoption Act 2000 (NSW) (No. 2) (2006) 68 NSWLR 467 at 480. That case has been followed in subsequent first instance decisions. The Attorney General will submit that even if there is no inconsistency, it is a necessary precondition to the making of the orders set out in para 1 of the summons that the requirements of s 107 of the Adoption Act 2000 (NSW) be satisfied.
The Secretary of the Department of Family and Community Services and the Attorney General of New South Wales have provided written submissions on the preliminary question. They submit that a purposive construction should be given to regulation 15(1) consistent with Australia's obligations pursuant to the Convention. They submit that the Court's jurisdiction to hear and determine applications for adoption of children habitually resident in Convention countries arises under regulation 15 and not otherwise.
I understand that the plaintiffs are likely to submit that by its terms, regulation 15 does not apply in the circumstances of the present case, that regulation 15 does not cover the field, and that contrary to my decision in Re S and The Adoption Act 2000 (NSW) (No. 2) there is no inconsistency between the Family Law (Hague Convention on Intercountry Adoption) Regulations and the Adoption Act because the provisions of the Adoption Act make comparable provision to the Regulations or because regulation 34(2) applies in any event. As noted in my reasons of 1 April 2016 I also apprehend that the plaintiffs will submit that s 107 of the Adoption Act is facilitative and not exhaustive.
As presently advised it seems to me that the issues raised in the present proceeding are different from those addressed in Re S and The Adoption Act 2000 (NSW) (No. 2) and subsequent cases. But it appears from the submissions received and foreshadowed that at least some of the questions considered in that case may arise in the present case. The plaintiffs have foreshadowed that they will argue that Re S and The Adoption Act 2000 (NSW) (No. 2) was wrongly decided.
That is not itself a sufficient reason to refer the proceedings to the Court of Appeal. But it is a relevant consideration.
Rule 1.21 of the Uniform Civil Procedure Rules provides that a proceeding may be removed into the Court of Appeal if the Supreme Court in a Division makes an order under r 28.2 for the decision of a question of law or if, having stated the question to be decided or determined, is satisfied that special circumstances exist that render it desirable to make an order for its removal into the Court of Appeal.
The order made for the determination of the separate question as to the Court's jurisdiction to grant the orders sought in the summons for the adoption of WS calls for a decision on a question of law. Strictly it is not necessary for the Court to be also satisfied that special circumstances exist that render it desirable to make an order for removal of the proceedings into the Court of Appeal, but there must be still a good reason to make the order rather than to allow matters to take their usual course whereby the question of law would be determined by a single judge and the parties, if dissatisfied with answer to the question, would be entitled to appeal or seek leave to appeal to the Court of Appeal from the first instance decision. A reason for not removing the proceeding to the Court of Appeal is that the Court of Appeal would not have the benefit of the development of legal argument at first instance and the benefit, such as it might be, of my decision on the question.
A further potential difficulty is the need for the parties to agree upon or for the Court to find the facts relevant to the separate question. However, the facts relevant to the determination of the separate question should not be controversial. The orders made on 1 June 2016 require the parties to identify what evidence will be relied upon in relation to the determination of that question. For the purposes of proceedings in the Court of Appeal they can be directed to agree upon the facts relevant to that question.
Appeals in this area are rare except where an adoption application is opposed by a birth parent. Thus there has been no appellate consideration, of which I am aware, of my conclusion in Re S and The Adoption Act 2000 (NSW) (No. 2) (a case where Convention procedures had been followed) that it was the Commonwealth Regulation and not the NSW Act that applied. The plaintiffs' application raises an important question that has implications, not only in New South Wales, but throughout Australia, in relation to the adoption of children habitually resident in Convention countries. It is a question upon which it would be desirable to have appellate authority.
For these reasons I consider it appropriate that the separate question be determined by the Court of Appeal.
Rule 1.21 does not provide for the removal to the Court of Appeal only of the question that has been the subject of an order for separate determination under r 28.2. It provides for the proceedings to be removed into the Court of Appeal. Once so removed the Court of Appeal may order that the whole or any part of the proceedings be remitted to the Division. I think the appropriate order is for the proceedings to be removed. It can be anticipated that if it is found that the Court does have jurisdiction to make the orders sought in the summons the proceedings would be remitted to the Division in due course.
Since the hearing on 1 June 2016 my associate has received numerous emails from the second plaintiff, including additional submissions. They were not provided pursuant to leave granted and subject to one qualification I have ignored them. It bears repeating, as I advised the second plaintiff on 1 June 2016, that it is not appropriate for a party to make submissions directly to a judge through his or her associate, except pursuant to leave granted.
The qualification is this. It appears that the second plaintiff has attempted to file and may have filed a summons in the Court of Appeal seeking, amongst other relief, leave to appeal from my orders of 1 April 2016, 4 May 2016 and 1 June 2016. On 1 April 2016 I ordered that the Registrar serve notice of the proceedings on the Attorneys General of the Commonwealth and New South Wales inviting them to consider intervening in the proceedings or seeking to appear as friends of the Court and I ordered notice of the proceedings also to be given to the Secretary of the Department of Family and Community Services. On 4 May 2016 I made orders for the service of notices under s 78B of the Judiciary Act 1903 (Cth). On 1 June 2016 I made the order for the separate determination of the question of the Court's jurisdiction.
I have considered whether the pendency of the summons seeking leave to appeal from those orders is a reason not to remove the proceeding to the Court of Appeal on the basis that if leave were granted and the orders were set aside the basis for removing the proceeding to the Court of Appeal might have disappeared. It would still be necessary for the Court to be satisfied of its jurisdiction, unless that question were resolved by the Court of Appeal in dealing with the summons.
I have concluded that the better course is for the proceeding to be removed. It will be for the Court of Appeal to determine whether to deal with all issues at once or separately, and the Court of Appeal can always remit the matter.
For these reasons I make the following orders:
Vacate order 4 made on 1 June 2016 fixing the separate question for hearing before me on 3 August 2016.
Order that forthwith after the service of the plaintiffs' submissions in reply as provided for by order 3 made on 1 June 2016 the parties confer and prepare a statement of the facts relevant to the determination of the separate question the subject of order 1 made on 1 June 2016.
Order that the proceedings be removed to the Court of Appeal.
[3]
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Decision last updated: 04 July 2016