Re WS (No 2) [2017] NSWSC 475

Supreme Court of NSW|2017-02-23|Before: Hallen J, Re J, Re P

Background Facts

The following facts appear to be uncontroversial. I have taken some of them from a document headed "Further Revised Agreed Statement of Facts in Relation to the Separate Question", signed by the parties, or by his, or her legal representative, and by the legal representative of the Intervener, and of WS, the original of which was dated 21 February 2017, and tendered as Ex. A.
I have also taken some of the facts from the affidavit evidence read (which formed part of the Amended Court Books (Ex. B1 and Ex. B2), and the documents tendered at the hearing, where it is clear that the facts stated are not in dispute.
To the extent that any of the facts set out below are contentious, those facts should be regarded as the findings of the Court based upon the acceptance of the evidence that I have read and heard. (In this regard, each of the Plaintiffs was cross-examined by counsel for the first and second Defendants. Neither WS, nor her parents, were cross-examined, even though each had affirmed an affidavit that was read at the hearing.)
WS was born in Thailand, in the north eastern province of Kalasin, in September 1999, and so is, now, almost 17 years and 8 months of age. She is, therefore, a person who was less than 18 years of age on the date on which the Plaintiffs made the application for the order for adoption. She is a citizen of Thailand.
CS (her father) and BS (her mother) are the parents of WS. Both are alive. CS is the brother of SS. WS has one brother, N, who is 21 years of age. She has two living grandparents. All of these persons are citizens of Thailand and each has resided, and continues to reside, there. WS has another aunt, NN, who lives in Australia.

Additional Findings of Fact

I am also satisfied that the following facts have been established.
At all relevant times, SS and PGH were spouses habitually resident in Australia.
On each of the occasions that WS has returned to Australia from Thailand, she has resided with SS and PGH in New South Wales.
On each occasion that WS has left Thailand, her entry into Australia has been lawful, by virtue of the relevant visa granted by the Australian Department of Immigration and Border Protection.
On each occasion that WS has left Thailand, she knew that she was going to remain, temporarily, in Australia. On the first occasion, SS, PGH, CS and BS, arranged for her to reconnoitre possible arrangements for a life in Australia as she had previously only lived in Thailand throughout her young life and had never left Thailand.
Prior to her visit in 2014, WS relinquished her place at the selective school she had been attending and she also terminated the lease on her residential accommodation.
Following her arrival in Australia in June 2014, WS studied an intensive English course for 10 weeks at TAFE. After that, she attended High School for about three weeks. WS wrote that during this three week period, she "made lots of friends who were about my age". When she left, her friends bought her a farewell gift.
WS returned to Thailand in November 2014 where she remained until March 2016. Whilst there, she lived with her grandparents. She did not go back to school until about 5 months after her return, because she wished to return to Australia. WS stated, as her reason for not returning to school, "I did not want to start at a new school if I was going to leave for Australia after a few months". But when she did not get a visa, she started attending school in her local village.
SS returned with WS to Thailand and remained there for 3 months, staying with WS and her grandparents, and she and WS spent much time together. It is during this time that SS and PGH applied for the Orphan visa and sponsored family visitor visa. She said that she liked seeing her friends from her village "but I did not spend much time with them after school". During her time in Thailand, SS also made arrangements for WS to continue attending English classes.
WS returned to Australia on 7 March 2016 and remained in Australia until 23 July 2016. During this period, once again, she resided with SS and PG. They attempted to enrol her again in the same High School that she had attended during her stay in 2014, but as the intake of students was full, she was enrolled in another local High School. She attended that High School, on a full-time basis, throughout the time of this 4 month stay. Again, she formed friendships with other students of her age. They engaged in activities together at school and otherwise.
In compliance with the visa requirements, WS returned to Thailand on 23 July 2016. In her affidavit, she stated that it was her intention, at this time, to return to Australia when she was able to, and that she saw her future to be in Australia. As she put it: "It was my plan to try and get another visa to come back to Australia while I was in Thailand, because I wanted to continue my life in Australia. I wanted to continue to go to [the local] High School and I wanted to live with my Aunty and Uncle".
Upon her return to Thailand, WS lived with her grandparents. She states that whilst she did return to school, it was only for a few days per week and not full-time.
WS next returned to Australia, on 28 August 2016. She recommenced schooling at the same High School that she had attended during her stay earlier in the year and resumed the friendships with the same group of students. She also began working part-time on the weekend at a local Thai restaurant as a waitress. WS stated: "I am so happy to be back in Australia. I think of Australia as my home. I feel that Australia is more like my home than Thailand….I plan to apply for another visa to allow me to stay in Australia for as long as possible."
On each occasion that she has come to Australia, WS did so in the genuine belief that she would, or might, have a better life here, and with the intention that she might, in the future, be able to settle in Australia permanently.
On each occasion that she left Thailand, WS left her parents, her brother and her grandparents in Thailand. None of them have objected to WS leaving Thailand. To the contrary, they supported her return to Australia.
On each occasion that an application was lodged by SS and PGH to enable WS to come to Australia, they did so in the genuine belief that WS would, or might, have a better life here, and with the intention that she might, in the future, be able to settle in Australia permanently.
In March 2016, the intention of SS and PGH was to lodge the application for the adoption of WS by them when she was present in Australia.

Adoption in New South Wales

It is useful to note that, relevantly, in New South Wales, the routes to adoption include: 1. The adoption of a child pursuant to s 23 of the Act. 2. The adoption of a child from another country in accordance with the provisions of the Act that comply with intercountry adoptions; that is, adults resident in one country adopt a child resident in another country pursuant to Chapter 4 of the Act. 3. The adoption of a child, recognised by the law of New South Wales, and effected under the law of any other country; 4. The adoption under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption signed at the Hague on 29 May 1993 ("the Convention") in circumstances where there is a child habitually resident in one Contracting State ("the State of origin") who has been, is being, or is to be, moved to another Contracting State ('"the receiving State"'), either after her or his adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin. The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) ("the Regulations") give effect to Australia's obligations under the Convention.
The matter, if the adoption is one to which the Convention applies, is complicated because, whilst generally, it will be reasonably clear where both the child and the prospective adoptive parents "habitually reside", WS is no longer present in the State of origin, having entered Australia on a temporary visa. When she arrived here, SS and PGH, as proposed adoptive parents, applied to adopt the child in New South Wales.
The question whether jurisdiction falls appropriately under the Act, or under the Convention (and, therefore, the question whether the provisions of the Act that apply to intercountry adoptions are applicable), is what has occupied a number of Courts, including, albeit briefly, the Court of Appeal.
SS and PGH contend that the application falls to be considered as an adoption of a child habitually resident in Australia by persons habitually resident in Australia. If the Court accepts that contention then it has jurisdiction to hear and determine the Summons. In the alternative, they submit that the habitual residence of WS in Thailand was lost when she left Thailand on 6 March 2016 and when she arrived in Australia on 7 March 2016.
SS and PGH seek an order for the adoption of WS under s 23 of the Act absent satisfaction of the requirements in s 107 of the Act. In this way, they submit that the matter would proceed in the ordinary way as an intra-family adoption.
The first and second Defendants and the Intervener contend that the time for consideration of the place of habitual residence is the time WS moved from Thailand to Australia for the purpose of adoption. If the Court accepts that contention, and finds her to have been habitually resident in Thailand, it does not have jurisdiction to hear and determine the Summons, other than in accordance with the provisions that relate to intercountry adoption. They submit that because the requirements of s 107 of the Act have not been satisfied, the Court does not have jurisdiction to grant the order sought in Paragraph 1 of the Plaintiffs' Summons.

The Law

It is necessary, first, to identify the sections of the Act, the Convention and Regulations to the Convention (not necessarily in that order) that apply, or that may apply, to the case being brought by the Plaintiffs. Under this heading, where appropriate, the submissions of the parties will be included to the extent that those submissions have not already been mentioned. I shall refer to the submissions, although, ultimately, for reasons to which I shall come, it is not necessary to deal with all of them.
Chapter 4 of the Act describes the adoption process which may lead to the making of an adoption order.
Section 23 of the Act provides: "(1) Subject to this Act, the Court may make an order for the adoption of a child (an "adoption order" ) solely in favour of one person or jointly in favour of a couple. (2) The Court must not make an adoption order unless, when the application for the order is filed: (a) the child is present in the State, and (b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State. … (5) Subject to Part 2 of Chapter 5, the Court has jurisdiction, under and in accordance with this Part, to make an adoption order with respect to the intercountry adoption of a child referred to in Part 2."
"Child" is defined in the Dictionary of the Act, relevantly, as meaning "a person who is less than 18 years of age".
An "intercountry adoption" means "the adoption by a person resident or domiciled in New South Wales of a non-citizen child from a country outside Australia".
It is to be noted that s 23 does not identify the person, or persons, by whom an application for adoption may be made. The only precondition in regard to the applicants appears to be that if the application is a joint application, each of the applicants, must reside, or be domiciled, in New South Wales when the application for the order is filed.
Section 31 of the Act 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 Secretary or an accredited adoption service provider that may provide intercountry adoption services or the Secretary 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."
A "non-citizen child" has the same meaning as in the Immigration (Guardianship of Children) Act 1946 (Cth). Section 4 of that Act defines "non-citizen" as "a person who is not an Australian citizen". The definition of "non-citizen child", in that Act is "a person who is a non-citizen child under subsection 4AAA(1) or (4)". Section 4AAA (1) states that a "non-citizen child" is a child who "(a) has not turned 18; and (b) enters Australia as a non-citizen; and (c) intends, or is intended, to become a permanent resident of Australia". However, s 4AAA(1) does not apply if, relevantly, the child enters Australia for the purposes of living in Australia under the care of a relative of the child who has turned 21 or an intending adoptive parent of the child.
Section 4 of the Immigration (Guardianship of Children) Act also defines "intending adoptive parent", in relation to a child, as "a person who intends to adopt the child under the laws in force in a declared state or territory, or secure the recognition of an adoption of the child by the person under the laws of a foreign country". "Declared State or Territory" means a State or Territory in respect of which a declaration under section 4AAB is in force. If New South Wales was a declared state, then WS, having entered Australia for the purposes of living in Australia under the care of, the Plaintiffs, as intending adoptive parents, would not be a "non-citizen child".
(Subsection (3) is concerned with a child in respect of whom a "prescribed adoption class visa" is in force. It is not relevant to this case.)
Part 2 of Chapter 5 of the Act is headed "Intercountry and Overseas Adoptions". Section 103 (in Division 1 of Part 2) of the Act provides: "103 Object of Part The object of Divisions 1-3 is to provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth law. Note. For the effect of doing this, see regulation 34 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 and regulation 8 of the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998, of the Commonwealth."
Section 107 of the Act provides: "107 Adoption in NSW of child from Convention country by parents from NSW (1) The Court may, on application by the Director-General or the principal officer of an accredited adoption service provider that may provide intercountry adoption services, make an order for the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who are habitually resident in the State. Note. Part 3 of Chapter 4 provides for assessment of the suitability, and selection, of persons to adopt by the Director-General or principal officer. (2) The Court may make the order only if satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child, and (b) the child is allowed to reside permanently in Australia. (3) The Court must not make the order if the child is not in Australia. (4) For the purposes of subsection (2) (b), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth or the State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child so residing. Note. If a child enters Australia before the order is made, the child may be subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth. See section 77 of this Act."
The Convention is incorporated into the Act in Schedule 1 of the Act. Section 210 of the Act specifically provides "Schedule 1 has effect" with the result that the Convention had been adopted by s 210 (Re Susan [2009] NSWSC 592, per Palmer J, at [82]) and has become part of the law of New South Wales: Application of ARD and RGD; re FGG and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) [2014] NSWSC 1963, per Robb J, at [75] - [79].
It should be noted that s 107 applies to an application by the Director-General of the Department of Family and Community Services or the principal officer of an accredited adoption service provider that may provide intercountry adoption services.
The Plaintiffs submit on its proper construction, that s 107 applies only to the adoption of a "non-citizen child" and that having regard to the circumstances in which she entered Australia, WS is not caught by the definition of "non-citizen child", with the result that s 107 has not been engaged.

The Convention and Regulations

On 29 May 1993, during the 17th Session of the Hague Conference on Private International Law, 63 States signed the Convention. The Convention came into force on 1 May 1995. Australia ratified the Convention on 25 August 1998 and it entered into force, for Australia, on 1 December 1998.
As was noted by Robb J in Application of ARD and RGD; re FGG and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), at [42]: "The mere fact that the Convention was ratified by Australia, and came into force as a treaty to which Australia became bound, did not, however, make the terms of the Convention part of the municipal law of Australia: Minister for Foreign Affairs and Trade v Mango [1992] FCA 566; (1992) 37 FCR 298 at 303 per Gummow J; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1998) 183 CLR 273 at 286-7 per Mason CJ and Deane J. Section 111C(1) of the Family Law Act 1975 (Cth), which was included in the Family Law Act in 1995, authorised the making of regulations by the Australian Government to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention. The Regulations were promulgated in 1998 for that purpose."
The Commonwealth Government implemented the Convention via the Regulations which were gazetted on 6 August 1998 and the Commonwealth-State agreement for the implementation of the Convention, which commenced operation on 9 April 1998.
The purpose of the Regulations is to give effect to the Convention by making provision for the appointment of Central Authorities to carry out Australia's obligations under the Convention, to provide for recognition in Australian law of adoption orders made in other Convention countries and to confer jurisdiction on courts to make adoption orders under the Convention. In Australia, each state and territory has established a Central Authority and the Commonwealth Attorney General's Department has established a principal Central Authority.
The Convention applies between those countries that have ratified it and countries that have acceded to it and whose accession has been accepted by other ratifying, or acceding, countries. There is no dispute that Australia and Thailand is each a signatory to the Convention.
Article 1 of the Convention provides: "The objects of the present Convention are- a. to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law, b. to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children, c. to secure the recognition in Contracting States of adoptions made in accordance with the Convention."
Article 2 of the Convention provides: "1 The Convention shall apply where a child habitually resident in one Contracting State ('"the State of origin"') has been, is being, or is to be, moved to another Contracting State ('"the receiving State"') either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin. 2 The Convention covers only adoptions which create a permanent parent-child relationship."
(It is Article 2 that provided the central plank of the Defendants', and the Intervener's, case. Relevantly, the Article was read by those parties in this way: "The Convention shall apply where a child (WS), habitually resident in the State of origin ("Thailand"), has been, is being, or is to be, moved, to the receiving State ("Australia"), by spouses … habitually resident in Australia (SS and PGH), for the purposes of an adoption in Australia.")
Article 4 of the Convention provides: "An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin - (a) have established that the child is adoptable; (b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests; (c) have ensured that (1) 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 consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his, or her, family of origin, (2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing, (3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and (4) the consent of the mother, where required, has been given only after the birth of the child; and (d) have ensured, having regard to the age and degree of maturity of the child, that (1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required, (2) consideration has been given to the child's wishes and opinions, (3) the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and (4) such consent has not been induced by payment or compensation of any kind."
Article 5 of the Convention provides: "An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State (a) have determined that the prospective adoptive parents are eligible and suited to adopt; (b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and (c) have determined that the child is or will be authorised to enter and reside permanently in that State."
Chapter III of the Convention provides for the designation by each Contracting State of a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. States may appoint more than one Central Authority. The Regulations provide for the establishment of a Commonwealth Central Authority (Regulations 5 and 6), and State Central Authorities (Regulations 8 - 11). The Department of Family and Community Services is the relevant State Central Authority.
Chapter IV of the Convention specifies procedural requirements for intercountry adoptions. Article 14 provides that "Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence."
There is no suggestion that either Chapters III or IV applies apply to the facts of this case. It follows that it is unnecessary to refer to Articles 15 to 21 of the Convention.
Regulation 25 of the Regulations invests the Supreme Court with federal jurisdiction in matters arising in New South Wales to which a provision of Part 4 of the Regulation applies.
Regulation 15, which is included in Part 4, relevantly, provides: "(1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with: (a) the Convention; and (b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and (c) the laws of the Convention country. (2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons. (2A) The application must: (a) be in accordance with Form 3; and (b) include an affidavit in accordance with Form 2. (2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State: (a) if the application is made by 1 applicant - where the applicant habitually resides; or (b) if the application is made by more than 1 applicant - where the applicants habitually reside. (2C) The State Central Authority: (a) no later than 5 working days before the court hearing, may file with the court a statement in accordance with Form 5 that sets out briefly the matters on which the Authority wishes to rely in support of the court making an order other than the order sought in the application; and (b) must include with that statement an affidavit in accordance with Form 2. (2D) As soon as practicable before the court hearing, the applicant, or applicants, may file with the court a reply to a statement filed under subregulation (2C), being a reply that: (a) is in accordance with Form 6; and (b) includes an affidavit in accordance with Form 2. (2E) An order made by the court must be in accordance with Form 8. (3) The court may make the order only if it is satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child; and (b) the State Central Authority of the State in which the applicant or applicants habitually reside has agreed to the adoption of the child; and (c) the child is allowed to reside permanently in Australia. (4) However, the court must not make the order if the child is not in Australia. (5) For paragraph (3)(c), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so residing."
It should be noted that Regulation 15 applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, and that it is the person, or persons, proposing to adopt the child who must apply to a court for an order that the child be adopted by the person or persons (emphasis added).
In this case, the reason for referring to Regulation 15 is because if the Court has jurisdiction to determine the Plaintiffs' application under s 23 of the Act, it may be necessary to consider whether the Act, in its application to the proposed adoption of WS, is inconsistent with Regulation 15. As will be read, for reasons set out hereunder, it is unnecessary to further consider this question.
The Plaintiffs submit that on the facts as agreed between the parties, WS is habitually resident in Australia, such that Regulation 15 does not apply to this case. They submit also that the Convention would only apply where a child habitually resident in a Convention country has been, is being, or is to be moved to Australia either after his, or her, adoption in the Convention country by spouses or a person habitually resident in Australia, or for the purposes of such an adoption in Australia or in the Convention country. They submit that given WS has entered Australia, not for the purpose of being adopted, but in order to continue her education, the plaintiffs' application does not engage the Convention and should simply proceed under s 23 of the Act.
I have some doubt about the correctness of the submission by the Plaintiffs that WS was not moved to Australia for the purposes of adoption, considering, amongst other things, that in their application for a Visitor Short Stay Visa (subclass 600) lodged on the 27 May 2015 (pursuant to which WS entered Australia on 7 March 2017), the purpose of stay is described as including "Parties will be applying to adopt the child following which an adoption visa application will be made" (Ex B1/153) and PGH's references, during the hearing, to this being at least one of the purposes for which WS sought to come to Australia.
They also submitted that that Regulation 15 does not cover the field and that contrary to Re S and the Adoption Act 2000 (NSW) (No 2), there is no inconsistency between the Regulations and the Act because the provisions of the Act make comparable provision to the Regulations or because Regulation 34(2) applies in any event. They also submitted that s 107 of the Act is facilitative and not exhaustive. Furthermore, they argue that Re S and the Adoption Act 2000 (NSW) (No 2) was wrongly decided.
Regulation 34 of the Regulations makes provision for the relationship between the Regulations and State law. It provides: "34 Application (1) A provision of these Regulations, except Regulations 5, 6, 7, 8, 9, 12 and 13, does not apply to a State in which there is in force a law (an intercountry adoption law) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State. (2) Nothing in these Regulations affects: (a) the jurisdiction of a court of the Commonwealth or a State, or the power of an authority, under an intercountry adoption law to entertain proceedings, make an order or take any other action in relation to an intercountry adoption; or (b) any such order or action; or (c) the operation, within a State, of an intercountry adoption law of the State."
The reason for mentioning Regulation 34 is that the Plaintiffs' argue that the effect of Regulation 34(1) is that Regulation 15 would not apply to New South Wales if there was in force in New South Wales a law "having the same effect as, or comparable effect to" Regulation 15.
As was noted, very recently, by Brereton J in Adoption of BW [2017] NSWSC 174, White J had considered Regulation 34 in Re S and the Adoption Act 2000 (NSW) (No 2), and had observed, at [58], that the expression "comparable effect" was used in the sense of "similar effect". Brereton J, also noted, at [17], that White J had observed that: "(1) if Adoption Act s 107 were a "stand-alone" avenue for the making of an adoption order, it did not contain the substantive requirements of Regulation 15(1) - that is, that arrangements for the adoption were made in accordance with the Convention, the laws of the Commonwealth and the relevant State, and the laws of the Convention country; and (2) if (as his Honour thought) it were not a stand-alone provision, then it picked up the requirements of Chapter 4 of the Act, the effect of which was substantially different from the effect of the Regulations, under which the Court's function was only to determine whether the requirements of the Convention had been complied with (and not to make its own judgment as to the best interests of the child). (3) His Honour concluded that s 107 did not have the same or comparable effect as Regulation 15."
White J also concluded that the appropriate course was for the Court to assess the adoption application under Regulation 15, rather than under the Act, essentially on the ground that where the adoption is governed by the Convention, and the applicants for the adoption order are in New South Wales, the Commonwealth legislation covers the field and prevails over relevant provisions of the Act because of s 109 of the Constitution. His Honour, at [53], accepted that the Parliament of New South Wales had intended that the provisions of the Act should have the same effect as, or comparable effect to, Regulation 15, with the result that, under the Regulations, the Act would apply. His Honour held, at [55], however, that this objective had not been achieved by the drafting of the New South Wales legislation, particularly s 107.
Assuming Re S and the Adoption Act 2000 (NSW) (No 2) has not been wrongly decided, it would be necessary for the Court to be satisfied that the arrangements for the adoption of the child have been made in accordance with (a) the Convention; (b) the laws of the Commonwealth and New South Wales; and (c) the laws of Thailand. (As to the matters to be established, see Application of MGO and AAO; re LDC [2011] NSWSC 951.)
The Plaintiffs did not attempt to establish the matters identified by White J in Re S and the Adoption Act 2000 (NSW) (No 2). They conceded that they have not attempted to make arrangements in accordance with the Convention for the purpose of adopting WS.
In SFH and MEM [2008] NZFC 170, the Family Court of New Zealand considered the application to adopt a Thai/Cambodian child, where the adoption had been approved by both the Thai and New Zealand authorities. However, the application was brought under the domestic adoption legislation, rather than under the Adoption (Intercountry) Act 1997 which incorporates the provisions of the Convention. The Court decided that the adoption should not be allowed to proceed under the domestic adoption legislation and refused to make the order.
Brown J noted at [37] - [38] that: "It would not just be an impoliteness but a breach of the Convention's carefully configured process of inter-country adoption for this Court to now cut across it and make a domestic order. It is a duty of a Court to support treaty obligations…in my view there are compelling reasons for the Court not to passively now allow intercountry adoption to take place by domestic Order under the Adoption Act unless in the individual case such is the only option."
Because of the Court's conclusion regarding the habitual residence of WS, it is unnecessary to delve into the complex questions raised.

Habitual Residence

To come within the scope of the Convention, a child must be habitually resident in a Contracting State. Given that central importance, it might be thought surprising that the term "habitual residence" is undefined in the Convention. Ideally, it ought to be an easy concept. Proving the gaining, or the loss, of habitual residence, may be harder.
Whilst accepting the limitations of dictionary definitions, they may be helpful in indicating the range of possible meanings that a phrase conveys. The Oxford English Dictionary relevantly defines "habitual" as
"2. Of the nature of a habit; fixed by habit; existing as settled practice or condition; constantly repeated or continued; customary…3. Commonly or constantly used; usual; accustomed."
The Macquarie Dictionary defines "habitual" derivatively, by reference to the word "habit", which is in turn defined as: "1. a disposition or tendency, constantly shown to act in a certain way".
It has also been said that the phrase "habitually resident" has "no particular legal magic. Nor is the concept an artificial legal construct. It is to be construed in the ordinary meaning of the words. The essence of 'habitual' is customary, constant, continual. The opposite of that is casual, temporary, or transient": H v H (1995) 13 FRNZ 498 (HC), at 501.
The Intervener submitted that these definitions suggest that the word "habitual" connotes a state of affairs that is settled to the point of being customary, or usual, and/or likely to be ongoing for an extended period of time (subject perhaps to some unforeseen event altering that course).
However, as the plurality of the High Court explained in LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9, at [21] (albeit a case decided in a context very different from the present): "…as one author has put it, the expression [habitual residence] has 'repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts'".
The High Court went on to write, at [44], with regards to the enquiry to be made into habitual residence that: "the search is for the connection between the child and the particular state….the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled."
The decision of the High Court followed an appeal from the Full Court of the Family Court in a case involving the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The High Court allowed the appeal, setting aside orders that the children should return to Israel upon the ground that they were not habitually resident in Israel at the relevant time.
(It should be mentioned that the key words of the Child Abduction Regulation (Regulation 16(1A)(b)) are "the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia".)
The plurality went on to state, at [22] - [25]: "To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual. Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence. Use of the term "habitual residence" to identify the required connection between a person and a particular municipal system of law amounts to a rejection of other possible connecting factors such as domicile or nationality. In particular, it may be accepted that "habitual residence" has been used in the Abduction Convention (as it has been used in other instruments) "[t]o avoid the distasteful problems of the English concept [of domicile] and the uncertainties of meaning and proof of subjective intent". It was said in the nineteenth century that the notion that lies at the root of the English concept of domicile is that of permanent home. But it was soon recognised that domicile, in English law, is "an idea of law". Thus, in considering acquisition of a domicile of choice, questions of intention loomed large, and the relevant intention had to have a particular temporal quality (an intention to reside permanently or at least indefinitely). Use of "habitual residence" in the Abduction Convention rather than domicile as the relevant connecting factor entails discarding notions like the revival of domicile of origin and the dependent domicile of a married woman which marked the English law of domicile. More importantly for present purposes, use of "habitual residence" in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired. Yet it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence."
The last paragraph quoted is of some importance in the present case.
In discussing some of the factors that may be relevant, the plurality of the High Court included: 1. The search must be for where a person resided, and whether residence at that place, can be described as habitual (at [22]); 2. The centre of the child's personal and family life, as disclosed by the facts of her, or his, activities (at [25]); 3. Where the person, or persons, who are caring for the child live - where those persons have their habitual residence (at [27]); 4. Whilst it is not to be given controlling weight, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides (at [28]); that includes the intentions of a number of different, but relevant, persons, including the child's intentions; 5. A person may cease to reside habitually in one place without acquiring a new place of habitual residence. Absence of a final decision positively rejecting the possibility of returning to the previous place of habitual residence in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually (at [25], [32] - [33]); 6. The question of habitual residence will fall for decision in a very wide range of circumstances. An examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them: at [35]; 7. Referred, with approval, to Punter v Secretary for Justice [2007] 1 NZLR 40 (a decision of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O'Regan JJ) which held that the inquiry into habitual residence is "a broad factual inquiry": "Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state..." Stating, at [45]: "Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective", the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed."
(The Intervener submitted that the habitual residence of the child determines whether she or he is afforded the Convention's protections and that as one of the objects of the Convention is to "establish safeguards to ensure that intercountry adoptions take place in the best interests of the child, and with respect for his or her fundamental rights as recognised in international law": Article 1(a). Therefore, counsel submitted that the Court should be slow to accept that a child's habitual residence in her or his State of origin has been lost, particularly where what is said to have caused that change is the actions of the proposed adoptive parents themselves in moving the child from the State of origin to the receiving state and arranging a temporary visa.)
In Adoption of BW, Brereton J, after referring to LK v Director-General, Department of Community Services and to Punter v Secretary for Justice, went on to write, at [25] - [29]: "It is the notion of "settled purpose" that distinguishes a person who is in a country as a casual visitor or traveller (who is not a resident), from one staying for a settled though temporary purpose - such as business people or service personnel on a tour of duty for a specified period, students studying at a foreign university, or even a husband going to a foreign country where his wife is resident, to seek a reconciliation (who is a resident). To acquire habitual residence in a country requires physical presence for "an appreciable period of time". In Cruse v Chittum, Lane J referred to a regular physical presence "which must endure for some time". In Re J (A Minor) (Abduction), Lord Brandon said that to acquire an habitual residence required "an appreciable period of time and a settled intention". In Zotkiewicz v Commissioner of Police (No 2), the Full Court of the Family Court said: We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an "appreciable period". However, the period of time that a person has spent in a country is not determinative of whether the person has become habitually resident there. Because 'settled purpose' is fundamental to determining 'habitual residence', residence for even a short period may suffice if coupled with the requisite 'settled purpose'. What amounts to an 'appreciable period' will differ from case to case, and there may even be cases in which it could be said that habitual residence has been acquired immediately. In Re F (A Minor) (Child Abduction), Butler-Sloss LJ said: The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time. Most recently, in Re R (Children) (Reunite International Child Abduction Centre and others intervening), the father was a French citizen living and working in France, and the mother was a British and Canadian citizen who had been born in Canada to a Scottish mother. Their two children were born in France (in 2010 and June 2013) and lived there with their parents until July 2013 when they and the mother, with the father's agreement, went to live with the mother's parents in Scotland for the duration of her maternity leave. The older child began to attend a local nursery in Scotland. The relationship broke down in November 2013. The father contended that the children were habitually resident in France. The Supreme Court held that there was no requirement that the child should have been resident in a country for a particular period of time, or that there should be an intention to reside there permanently or indefinitely; and that what was important was the stability of the residence and not whether it was of a permanent character. Lord Reed JSC, with whom Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson and Lord Hughes JJSC agreed, said that, in determining the country of habitual residence: It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely." Omitting citations
In Re P-J (Children) (Abduction: Consent) (2010) 1 WLR 1237, at [26(4)], Ward LJ held that there was a distinction "to be drawn between settled in a new place or country and being resident there for a settled purpose which may be fulfilled by meeting a purpose of short duration or one conditional upon future events".
The authorities, reference to which has been made, principally relate to when habitual residence is acquired. There is a difference between a child ceasing to be habitually resident in country A, and her, or him, subsequently becoming habitually resident in country B.
Where habitual residence is lost, it can, in some circumstances, occur relatively quickly. In Re LC [2014] UKSC1, Lady Hale, at [63] noted: "The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another."
Similarly, in Punter v Secretary for Justice as the New Zealand Central Authority [2004] NZLR 28; [2003] NZCA 306, it was found that where there is a settled purpose, habitual residence can even be lost immediately, at [66]: "If a person has a settled purpose to leave the place of his or her habitual residence and does so in accordance with that purpose, then the former residence is lost immediately. The new place will only become habitual residence, however, if there is a settled purpose to take up that place as a habitual residence and reside there for an appreciable period of time."
In Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC 562; [1990] 2 All ER 961, the mother removed the child, J, aged two years, from Australia, where he had been habitually resident, to England with the intention of permanently residing there. She did so without the knowledge of the father, who also resided in Australia, but who, because he was not married to the mother, then, had no rights of custody in relation to the child. Thus, the mother's removal of the child was not wrongful within the meaning of the 1980 Convention. In April 1990, however, a judge had conferred rights of custody on the father. The question then became whether the mother's retention of the child in England after that date was wrongful within the meaning of the 1980 Convention. It was wrongful only if the child had continued to be habitually resident in Australia on that date. It was held that, while the child had not, by then, acquired habitual residence in England, he had lost his habitual residence in Australia upon his removal three weeks earlier.
In the Court of Appeal, C v S (minor: abduction: illegitimate child) [1990] 2 All ER 449, Lord Donaldson of Lymington MR (with whom Staughton, LJ and Sir Roger Ormrod agreed), had written, at 454: "I think it is a very interesting question whether James and his mother could establish habitual residence in this country as at the moment when they arrived in this country in circumstances in which they had every intention of staying here indefinitely and of settling here. But I do not think, with respect to the argument, that that is the point. The question is: did James's habitual residence in Australia, which certainly existed up to 21 March, continue thereafter? It may take time (I do not say it does) to establish habitual residence, but I cannot see that it takes anytime to terminate it."
Lord Brandon of Oakbrook, who gave the only substantive speech, highlighted the significant differences between losing habitual residence and acquiring a new habitual residence, leaving open the possibility that a person may have no country of habitual residence. At 578, his Lordship wrote: "The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B."
Lord Brandon concluded as follows: "The mother had left Western Australia with a settled intention that neither she nor J should continue to be habitually resident there. It follows that immediately before 22 March 1990, when the retention of J in England by the mother began, both she and J had ceased to be habitually resident in Western Australia."
Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606; [2016] UKSC 4, was also a case concerned with the circumstances in which habitual residence might be lost, Lord Wilson (with whom Baroness Hale of Richmond DPSC and Lord Toulson JSC agreed) wrote, at [27]: "A child's habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her)."
At [47], his Lordship stated that the passage quoted as "the third point" above in Lord Brandon's speech could not be regarded as correct. His Lordship wrote: "Lord Brandon's third preliminary point in the J case, set out in para 34 above, should no longer be regarded as correct; and Hogg J fell into error in being guided by it. As exemplified by the terms in which Lord Brandon applied it to the facts of that case, also set out in para 34, his analysis of a child's habitual residence afforded to parental intention a dispositive effect inconsistent with the child-focussed European concept now adopted in England and Wales; and the result of his analysis was to consign a large number of children to the limbo of lacking any habitual residence in circumstances in which the modern law expects such a result to be exceptional, albeit conceivable. It is nevertheless fruitless to inquire whether the conclusion of the appellate committee about the child's loss of habitual residence in Australia within three weeks of his move would remain valid today."
His Lordship added: "The ground for allowing this appeal is that the modern concept of habitual residence identifies the point of its loss as being the stage when the person achieves the requisite degree of disengagement from the old environment…that intention, in this case parental intention, is no longer dispositive in this respect…; that highly relevant to the person's achievement of that requisite degree of disengagement is his achievement of the requisite degree of integration in the new environment…"
In their joint judgment, Lady Hale and Lord Toulson supported Lord Wilson's decision and added a pragmatic perspective, writing, at [57]: "We agree fully with Lord Wilson's reasoning and conclusion on the issue of habitual residence. He has described the identification of a child's habitual residence as overarchingly a question of fact (para 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law, because the concept is a matter of law but its application is a matter of fact. We do not, however, understand Lord Wilson to be laying down a rule of law that a child must always have an habitual residence: rather that, as a matter of fact, the loss of an established habitual residence in a single day before having gained a new one would be unusual. In this particular case, although the respondent said that her intentions were permanent, looked at from the child's point of view, on the relevant date they had been in Pakistan for only nine days, they had no home there, and she had not yet been entered into a school. Had the respondent then changed her mind and decided that the move was a bad idea, it is unlikely that a court would have held that the habitual residence of either of them had changed during those few days."
It is worthwhile referring to part of the dissenting speech of Lord Sumption at [70] - [71]: "A person may be resident in a country without being habitually resident there. It is inherent in the concept of a "habitual" residence that in many, probably most, cases, a new residence may not become habitual until some time has elapsed. The same is true of the integration test for habitual residence which has been adopted by EU and English law. Integration into the social and family environment of a new place of residence cannot always be achieved at once. However, it is self-evidently easier to lose a habitual residence at once. This is because the severance of old links is a unilateral act. It can be achieved faster than the acquisition of new ones which involve the engagement of other people and institutions. It makes no sense to regard a person as habitually resident in the United Kingdom if she is not resident there at all because she has left it to live permanently elsewhere. The fact that there is a house in the United Kingdom which could be reoccupied or that there are friends or relations in the United Kingdom to which the child could return are irrelevant if (as the judge accepted) the child had been lawfully and permanently removed from the country. Of course this does mean that there may be a period during which the child, although resident in a particular country is not "habitually resident" anywhere. Other jurisdictional tests, such as presence within the jurisdiction, nationality or domicile would have had the advantage of allowing a seamless transition from one status to another. But the law has not adopted these tests. Instead it has adopted a test which by its nature is liable to produce a hiatus. This is simply an inescapable consequence of the concept of a "habitual" residence in a case where a child migrates from a familiar to an unfamiliar place."
It appears that Lord Sumption's view echoes what was written by the High Court in LK v Director-General, Department of Community Services in the passage I have emphasised above.
Lord Clarke, at [92], agreed with Lord Sumption that: "…there is nothing wrong in principle with a finding that a former habitual residence has been lost before a new one has been obtained. All depends upon the facts of the particular case. On the facts here, I agree with him … that it is self-evidently easier to lose a habitual residence at once than acquire a new one and that it makes no sense to regard a person as habitually resident in the United Kingdom if she is not resident at all because she has left to live permanently elsewhere".
The age of the child who is the subject of the adoption, and her, or his, state of mind, has also been found to be a relevant factor in assessing the degree of their integration into the receiving state, and hence habitual residence.
In Re LC [2014] at [37], Lord Wilson (with whom Lord Toulson and Lord Hodge agreed) noted that: "Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too…. But, where the child is older, in particular one who is an adolescent….and perhaps also where (to take the facts of this case) the older child's residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may - possibly - have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. ……What can occasionally be relevant to whether an older child shares her parent's habitual residence is her state of mind during the period of her residence with that parent."
In this case, the facts to be considered involve WS, CS, BS, being the child and her parents, and also of SS and PGH, with whom WS was going to live upon her move to Australia. However, intention alone is not sufficient, as Lord Wilson went on to say, at [59]: "The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability…to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so…..an illegal immigrant may desperately want to become habitually resident in this country, but that does not mean that he does so".
Yet, examination of a person's intentions will usually be relevant to a consideration of whether that person has lost, or abandoned, her, or his, habitual residence. A person who leaves the State of origin intending not to return provides an example of intention being a relevant consideration: (Re KL (A Child) (Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2014] AC 1017; [2013] UKSC 75, at [23]).
But, as the High Court of Australia noted in LK v Director-General, Department of Community Services, there are three factors in assessing intention and purpose in order to determine "habitual residence" at paragraphs [29], [33]-[35]: "First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous. The facts of this case provide one example of such circumstances. The mother left Israel on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return. In those circumstances, it is not possible to say that the mother then had a settled intention which was sufficiently described either as being an intention to reside permanently in Israel or an intention to reside permanently in Australia. Neither description would acknowledge the significance attached to the possibility of reconciliation. ... [33] Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged. It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them."
Where a child's initial move from an established habitual residence was clearly intended to be for a specific limited duration, a finding of no change in habitual residence may occur. Thus, where a child moves to another country, with the consent of the persons with parental authority, for a temporary purpose, the child does not, necessarily, lose her, or his, habitual residence in her, or his, country of origin: Re A (Wardship: Jurisdiction) [1995] 1 FLR 767). The case was approved in B v D [2008] EWHC 1246, at [46]. However, the child will lose habitual residence even if moving to a place where she, or he, intended to live only for a limited time, if the child's original habitual residence has been abandoned at the time of the move.
The Court must survey facts of all kinds, namely events, feelings, relationships and intentions that bear upon where a person is said to reside whether that residence is to be described as habitual, and whether there has been an abandonment of a place as the place of habitual residence. Accordingly, emotional and psychological elements, so far as they relate to the child, may also be considered. The overall assessment does not give precedence to one kind of fact over another.
In BA (A Minor) (Hague Convention: habitual residence: consent: acquiescence) [2016] NIFam 8, Keegan J referred to the examples provided by Lord Wilson in Re B (A Child)(Reunite International Child Abduction Centre Intervening) [2016] UKSC 4, in relation to how habitual residence may be won or lost. One was that "the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day to day life in the new state, probably the faster his achievement of that requisite degree".
(Of course, this Court is bound by what the High Court wrote in LK v Director-General, Department of Community Services. For the avoidance of doubt, I do not, in these proceedings, apply the reasoning of the majority of the UK Supreme Court in Re B (A Child) (Reunite International Child Abduction Centre and others intervening). Also, I do not treat what Lord Brandon wrote as propositions of law, but rather as helpful generalisations of fact, which usually, but not invariably, will be true: In the matter of A (Children) [2014] AC 1; [2013] UKSC 60 per Lord Hughes, at [73] - [74].)

Determination

I shall now turn to the determination of the agreed issues to the extent that they continue to be relevant.

For the purposes of s 107 of the Adoption Act 2000 (NSW) and reg 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), at what point in time does WS's habitual residence fall to be determined?

The Plaintiffs' principal submission was that habitual residence fell to be determined at the date on which the order for adoption is to be made or in the alternative, the date of the hearing. They contended that by the date of the hearing of these proceedings, WS was habitually resident in Australia and, therefore, the Convention did not apply.
Whilst the Plaintiffs also submitted that WS was no longer habitually resident in Thailand, and that she had gained habitual residence in Australia, during her first visit to Australia, commencing on 4 June 2014, I am satisfied that WS remained habitually resident in Thailand after her visit to Australia in June 2014 for some period of time. It is clear that when she was in Australia between 4 June 2014 and 4 November 2014, it was a principally a reconnaissance visit, aiming to see how she would like living, and studying, in Australia. No doubt, the visit also enabled SS and PGH to ascertain how they could cope with having an adolescent girl living with them. Her presence in Australia was, then, clearly temporary. She returned to Thailand, where she had resided for the whole of her life, principally with her grandparents. The temporary absence for reconnaissance, and educational, purposes, and for a limited period defined by the first visa that was granted, did not result in WS losing her habitual residence in Thailand or gaining habitual residence in Australia.
All of the counsel in the case advanced a different time for the determination of habitual residence.
The first and second Defendants submitted that the Court needed to determine the habitual residence of WS at the date of her movement from Thailand to Australia, and that, in the alternative, the date the Summons was filed, namely 6, or, alternatively, 7, March 2016. They submitted that, then, WS continued to be habitually resident in Thailand with the result that the Convention would apply. This date was consistent with the obligation of a treaty party to ensure that, as between parties to the Convention, adoptions of children from one contacting state by persons in another contracting state, are dealt with through the terms of the Convention.
At the hearing, counsel for first and second Defendants also submitted, in response to question from the Bench, that wherever WS may have been habitually resident at any other point after 6 March 2016, had no bearing on the decision as regards to the jurisdiction of the Court (T80.31 - T80.34).
Counsel for the Intervener submitted that the relevant date at which habitual residence fell to be determined was at the date of the move by WS from Thailand to Australia, for the purposes of adoption, which was on 6 March 2016. It was submitted that at that time, WS continued to be habitually resident in Thailand, with the result the Convention would apply.
Counsel for the Intervener also argued that the only relevant facts to be considered in a determination of habitual residence, were those immediately prior to WS's movement on the 6 March 2016, ignoring any events that occurred following this (T96.36 - T96.40). That habitual residence is to be determined at the date of movement was said to be consistent with the findings in Application MGO and AAO [2011] NSWSC 951 and Application of ARD and RGD [2014].
Counsel for WS, at the hearing, submitted that the construction of Article 2 of the Convention (and similarly Regulation 15(1)) may require habitual residence to be determined at three different time points - that is, when WS has been, is being, or is to be, moved to another contracting state (T82.37 - T82.46). However, counsel seemed to concede that, in the circumstances of this case, as the Defendants and the Intervener only needed to establish one of the matters set out in Article 2, Clause 1, it was unnecessary to consider other arguments that might be made about when WS "is being or is to be moved", if it was established that WS "has been moved" on a particular date from the State of origin, to the receiving state, for the purposes of adoption, because the Article of the Convention was then enlivened (T83.30 - T83.35).
Otherwise, counsel for WS did not seek to be heard on the question when habitual residence fell to be determined, but submitted that whichever date it was, the Convention did not apply because by that date, on the facts, WS was not, then, habitually resident in Thailand (as the State of origin). It did not matter, then, whether she was habitually resident in Australia.
If the relevant date was found to be the date of her move from Thailand to Australia in March 2016, the Plaintiffs submitted that, at that date, WS had lost, or had abandoned, her habitual residence in Thailand (T157.1 - T157.8). They also submitted that subsequent events were relevant to the determination of that issue.
Counsel for WS submitted, at the hearing, that any determination of the habitual residence of WS as at 6 March 2016 must be considered in the context of her previous 5 month stay in 2014 (T89.24 - T90.21). In support of this, it was put that during her stay in 2014, there had been a significant focus upon WS's education; that WS had lived as a family unit with the Plaintiffs, assuming the habits and routine of study and family life in their home; and that the parental responsibility orders were sought, and had been obtained, from the Family Court (and remained on foot despite the return of WS to Thailand). Therefore, it was argued that the combined effect was that by the end of the 2014 visit, the adults responsible for the significant decisions relating to the long-term care, welfare and development of WS, were based in Australia, and thus, the centre of her personal, and family life, was in Australia.
No one submitted that the one day between 6 and 7 March, 2016, if relevant, made any difference to the assessment of the habitual residence of WS. However, the Intervener was at pains to stress that in circumstances where the date of movement and the date of the filing of the Summons for adoption were not so closely aligned, it is the date of movement that should be the time at which habitual residence falls to be determined. Otherwise, an applicant could delay filing the application for adoption until such time that the subject has resided in the receiving state long enough to enable a finding of habitual residence, thereby undermining the intent of the protections offered by the Convention (T103.2 - T103.31).
There is force in the submissions made on behalf of the Defendants and the Intervener, and I respectfully agree, that making a date other than the date of the move, for example, the date of the filing of the amended Summons, the date of the hearing of the proceedings, or the date of the making of any order for adoption, the date at which the habitual residence of the child is to be determined, would permit the vagaries of when the Summons was filed, or when the hearing of the application was to take place, to affect the decision. By any of those dates, which may be days, weeks, or months, after the application for adoption was lodged, the habitual residence of the child may have changed (as is asserted by the Plaintiffs and by WS regarding the events that have occurred after 7 March 2016).
In support of this conclusion, I refer to Re Adoption Application by KGC and TGC [2007] NZFLR 851, in which a maternal aunt had brought children from the Philippines on a visitor's permit to New Zealand. It was found the applicants' purpose in bringing them to New Zealand was for adoption. At [69] of the reasons for judgment, the trial Judge wrote: "Those who legitimately remove children from their state of origin to spend time in another country, and have that time extended either by the receiving State exercising a special indulgence or without the receiving State's knowledge, then later seek to rely on the length of time they have managed to remain in the receiving State under special conditions or undetected, in my view would acting inconsistently with and in breach of the objects of the Convention."
Despite the time spent in argument, in regard to the question, I am well satisfied, in relation to s 107 and Regulation 15, that the time at which the habitual residence of WS is to be considered is when the court is first seised with the application and the movement of the child is able to be established.
The focus of the application of the Convention, and the emphasis in the Convention, is on the movement of a child habitually resident in the State of origin to the receiving State where the proposed adoptive parents are habitually resident.
At the date of movement, it should be clear, whether or not the Court has jurisdiction, and if it does, upon what basis the jurisdiction is to be exercised. In my view, the time of the child's movement is not a continuing state of affairs, but rather an event occurring on a specific occasion. At the time identified, the only possibilities are that the child was habitually resident (i) in the State of origin; or (ii) in the receiving State; or (iii) in neither, she, or he, at that time, having no habitual residence. Obviously, if either (ii) or (iii) is established, the Convention does not apply.
At that time, the Court must consider whether the child "has been, is being, or is to be, moved …for the purposes of … adoption", and, at whichever one of those times applies, whether she, or he, had, or has, habitual residence in the State of origin. If the child has been moved, then the date of the child's move is the relevant date for determining whether or not she is habitually resident there.
Thus, in the circumstances of this case, the relevant date for determining the question of habitual residence is when WS "has been … moved …for the purposes of … adoption", from Thailand to Australia, being 6 March 2016, the day before the date of the application for the order for adoption had been filed.

Was WS habitually resident in Thailand at that time?

As I have earlier stated, there is a distinction between losing habitual residence in the State of origin and acquiring habitual residence in the receiving State. All that the Plaintiffs have to establish is that when WS moved, her habitual residence was not Thailand. They do not have to establish that, at that date, WS had acquired habitual residence in Australia. Based upon High Court authority earlier mentioned, a child may leave behind a place of habitual residence without acquiring another one.
Therefore, I now turn to the question whether WS was habitually resident in Thailand or whether she lost her habitual residence when she left Thailand on 6 March 2016. If WS's habitual residence was lost upon leaving Thailand, then, she could no longer be regarded as being habitually resident in Thailand, with the result that the Convention would immediately cease to apply since she would not be a child habitually resident in the State of origin.
There are, or may be, a number of possible reasons for the presence of a child in a country that is not her, or his, country of habitual residence: a holiday, a reconnaissance visit, a trial visit for the purpose of determining whether to stay, a move for a definite, or even an indefinite, period, or a permanent move. It is even possible that the move of the child is conditional on other events, over which events the child may not have any control, such as being granted a visa that permits a stay for a greater length of time.
The following facts support the contention that on the date of WS's move to Australia, being 6 March 2016, WS had not lost habitual residence in Thailand, or that she had not gained habitual residence in Australia: 1. WS was born in Thailand and remained a Thai national. She had a lifelong national, and cultural, connection with that country. 2. Members of WS's immediate family, namely her parents, her brother, and her grandparents, remained living in Thailand. Those family members continue to live in Thailand. 3. WS acknowledged the closeness of her relationship, particularly with her grandparents. 4. Prior to leaving Thailand on 6 March 2016, WS had been living in Thailand for almost the whole of her life, apart from a few weeks, in 2014, when she had visited Australia for a temporary and limited purpose. There was no degree of regularity to her presence in Australia as at 6 March 2016. 5. WS had received some years of education in Thailand. Even when she went back in 2014, she attended school, albeit recommencing her attendance at school some months after her return. As at 6 March 2016, she had received only about 10 weeks of Accelerated English Classes and 3 weeks attending High School, in Australia. There is no evidence that she maintained any continuing Australian curriculum studies when she had returned to Thailand in November 2014, although she did continue to study English. 6. The period of time that WS had spent in Australia in 2014 did not amount to, and could not provide, a genuine integration with any sufficient degree of stability to satisfy the requirements of habitual residence. At that time, her stay in Australia was temporary and, at that time, could only be temporary. 7. On each of the occasions she came to Australia, in 2014, and then, in March 2016, WS had a return air-ticket. There were specific restrictions on her right to remain in Australia on each occasion. When she left in 2014, any assimilation into Australia was halted. Thereafter, it was not possible for WS to acquire residence, let alone habitual residence, in Australia, whilst remaining physically present in Thailand. 8. Whilst residence does not have to be permanent, it is clear that each visa granted to her and pursuant to which she came to Australia, was a temporary one, granted under the Migration Regulations, with specific restrictions on her ability to fully integrate into Australian life. Whilst on each occasion WS came to Australia, she did so lawfully, pursuant to a valid visa, the very fact of the visa being a temporary one, and one that imposed restrictions, including the purposes for, and the length of, the permitted stay, the terms of the visa interfered with WS's integration in Australia. 9. There had been a disruption to any routine, or stability, that WS had acquired on her visit to Australia in 2014. Whilst she was going back to the home of SS and PGH, she was going to attend a new school, for a specific period of time, where she would have to develop new friendships and interests. Once again, her period of stay in Australia was to be a relatively short one. There is a difference between habitual residence and the occasional, or casual, presence, by virtue of "visiting". Her mere presence did not establish habitual residence in Australia or the loss of habitual residence in Thailand. 10. Even if WS, SS and PGH had planted the roots to establish the requisite degree of integration into a social and family environment in Australia, on WS's first visit to Australia, what had been done was insufficient to disengage her roots in Thailand to the point at which she achieved the requisite degree of de-integration from Thailand. 11. Whilst WS hoped to come back to Australia, upon her return to Thailand, she re-integrated into her social and family environment in Thailand. 12. When she moved on 6 March 2016, her stay in Australia, again, could only have been temporary. Accordingly, WS did not have either the necessary degree of stability, or permanence, in Australia, in March 2016, since she knew that she must return to Thailand at the expiration of her visa and that she could only return if she was granted another visa. 13. On arrival into Australia on 7 March 2016, WS was not actually resident, at all, or certainly not for any "appreciable period" in Australia. She returned to Australia after a period of about 16 months in Thailand. At best, she might have been in Australia for a few hours before the Summons for adoption in the 2016 proceedings was filed. She could not be regarded as having, in that short period, settled into the environment to which she was returning. 14. Her principal reason for coming to Australia, on each occasion, was to gain access to services and resources unavailable to her in Thailand.
The following facts support the contention that WS, at the date of the move from Thailand to Australia, on 6 March 2016, had lost her habitual residence in Thailand: 1. At the time of her arrival in Australia, WS was over 16 years of age, with the result that her silhouette had become increasingly distinct and distant, from CS and BS, her parents. For a number of years previously, she had exhibited a degree of independence from them, even though, at times, she was dependent upon other adults, including her grandparents and SS. 2. The role of CS and BS in the life of WS, for some time, had been limited, and in terms of her day to day life and relationships, very much secondary to that of her grandparents and the Plaintiffs. The role of SS and PGH seems to have increased after November 2014. 3. Whilst the orders made by Benjamin J could not confer habitual residence upon WS, and did not determine her place of habitual residence at some later point in time, in circumstances where she returned to Thailand a matter of a few weeks after the orders were made, and when she did not return until 7 March 2016, there were orders in operation granting SS and PGH parental responsibility for WS at the time of her move from Thailand in March 2016. The orders made by Benjamin J included that CS and BS, her parents "shall communicate with the child as agreed between the child and the parents, which communication shall comprise of weekly telephone/Skype calls" and that she was "required to spend time with her parents at least one month per year in either Australia or Thailand". (I should state that I reject the Plaintiffs' contention that s 111CS(2) of the Family Law Act required Benjamin J to find that all matters pertaining to the parenting of WS were to be determined according to her country of habitual residence and since he found jurisdiction, he was satisfied that Australia was her country of habitual residence in October 2014. There is nothing in the judgment to suggest that Benjamin J considered the question of WS's country of habitual residence.) 1. WS, SS and PGH, following the earlier visit to Australia, each held the belief that WS, if permitted to return and remain, would have a better life, in Australia. Even her own parents accepted, in their affidavit made on 6 January 2017, that they "…therefore had from the outset held the view that [WS] should go and live permanently in Australia". 2. All of the events that occurred between November 2014 and March 2016 occurred as a result of the strong desire by WS, SS, PGH, CS and BS to create a real and active connection with Australia and to lessen the real and active connection with Thailand. Thus, there was agreement, acquiescence, and a court order, that WS would live with SS and PGH in Australia. Every effort was being made by SS and PGH to ensure that she obtained a visa to enable her to do so permanently, or at least for an appreciable period of time. 3. From her earlier visit to Australia, WS, SS and PGH, all had been planning the move back to Australia. There was a unanimous joint intention for WS to return to Australia, to make her life in this country. There was a sufficient degree of continuity about those intentions to be properly described as "settled", even though it was conditional upon future events. In this regard, there was no lack of clarity in what was hoped to be achieved. 4. In the course of the brief period of time that she had visited Australia in 2014, and the date of her return to Australia in March 2016, WS, SS and PGH had planted the roots which would represent a requisite degree of integration into a social and family environment in Australia, such as providing stable accommodation for her and organising her to attend school. Those first roots would enable WS to establish the requisite degree of integration quite quickly following her arrival in Australia. 5. Even after WS returned to Thailand in November 2014, SS and PGH continued to seek to fulfil the parental responsibilities that were conferred upon them by the Family Court. The efforts by them, following the visit to Australia in March 2014, seeking one, or other visa, were made with the intention that WS permanently return to Australia. Indeed, evidence given to the Administrative Appeals Tribunal, on 13 October 2015, included an acknowledgement by PGH "that it was his intention in the long term to have the visa applicant remain in Australia permanently, but that they had no intention that she would breach her visa conditions on her visitor's visa as they do not wish to jeopardise either her permanent application in the future…" and that "as part of [his] and his wife's plans to have their niece reside permanently in Australia they intend to file an application with the Supreme Court for her adoption as soon as the visa applicant arrives in Australia…". 6. It was not until 5 months after her return to Thailand, that SS made arrangements for WS to undertake additional English classes, and other schooling in the nearest school, being in Nong Kung Sri, in Thailand. The delay in re-enrolling in a school was because WS was hoping to return to Australia. 7. The reason for such a long delay between the two moves had to do with the length of time it had taken to obtain a visa, rather than any desire on the part of any of the persons referred to, that WS would return, permanently, to her life in Thailand. 8. In the lead up to her move on 6 March 2016, WS knew that she had a visa to remain in Australia for only a limited period of time, but she maintained the sincere hope that her future was to be in Australia. She described it as being less lonely than living in Thailand and she loved living with SS. She also maintained her desire to stay in Australia (subject to visa requirements), and her understanding that she would resume the habits of day to day life previously established during the 5 month stay in 2014 continued. This desire demonstrated that upon the move from Thailand, the centre of her personal and family life again settled around her relationship with the Plaintiffs, and with SS in particular. (The submission made on behalf of WS regarding her being "a mature and intelligent 17 year old, who participates in important decision making about her life, in consultation with the plaintiffs" is helpful as it goes to the weight to be given to her evidence of her hope, her desire, and her intention, concerning living permanently in Australia.) 1. At the time of her move to Australia in March 2016, WS was to remain in Australia as long as she was permitted to do so. At that time, it was only a temporary period of 5 months, but clearly an application for a visa, which permitted a longer stay in Australia, was going to be, and was, subsequently, made. 2. For a lengthy period of time prior to the move from Thailand, WS had continuously expressed a strongly held wish to return and to live in Australia. She had made some advances in relation to her command of the English language because of her studies. 3. The move of WS from Thailand to Australia in March 2016 was a lawful move. She had a visa permitting her to enter, and stay in, Australia, albeit temporarily. The efforts being made to obtain a visa enabling her to stay in Australia permanently had not waned, and did not, thereafter, wane. 4. This is not a case of any wrongful removal of a child from Thailand. WS voluntarily, indeed, happily, chose to move to Australia in March 2016. 5. Following the grant of the visa which enabled WS to move to Australia in March 2016, SS and PGH continued with their efforts to ensure that WS would have a settled life in Australia, even though the visa only permitted her to remain for a short time. At the time of her move, in March 2016, Australia was to be the most significant part of the regular order of her life for the time being, albeit, then, for a short duration, but with the desire that she would be permitted to make it of longer, and if possible, of permanent, duration.
By the time that WS moved from Thailand on 6 March 2016 and arrived in Australia on 7 March 2016, she, her parents and the Plaintiffs, all considered that her long term future was to live in Australia. Even though her visit commencing on 7 March 2016 was temporary, since the visa made it such, the intention of each of the relevant persons was to take such steps, as were possible, to ensure that she could reside in Australia permanently. For a lengthy period of time, commencing from the first visit in 2014, all had set upon a course from which each did not thereafter deviate: to have WS live permanently, or at least for an appreciable period of time, in Australia. Each did not seem to contemplate WS returning to live, or living, permanently, in Thailand.
Between November 2014 and March 2016, there had been a gradual, yet continuous, weakening of her connections with Thailand (even though she remained there) through a process of developing her orientation in Australia.
On 6 March 2016, when WS moved, it was with a settled purpose to leave the place of her habitual residence. She did so in accordance with that purpose, with the consequence that her former habitual residence was lost immediately.
Of course, at the time of the move in March 2016, WS, her parents and the Plaintiffs, all knew that she must return to Thailand to continue to make an application for another visa, which, if granted, would enable her to return for a longer, and more permanent, period. And that is what she did, successfully.
In view of my conclusion concerning the date of the determination of the habitual residence of WS, the Plaintiffs reliance upon, first, the fact that WS was granted a student visa on 26 August 2016 and, thereafter, entered Australia on 28 August 2016, is not particularly relevant to whether WS had lost her habitual residence in Thailand in March 2016. However, what happened subsequently may, and in this case, does, depict, whether the steps taken previously, before the move to Australia, were genuine, and whether they demonstrated the settled purpose to which reference has been made. The subsequent conduct may also demonstrate whether an intention to adopt an habitual residence different from the State of origin has been reached, and acted upon in a decisive way, so as to provide a degree of certainty and continuity. Then, it may be open to the Court to find that habitual residence has been changed from the State of origin.
Following her move to Australia, in March 2016, WS returned to school, albeit not the school at which she had previously attended. She was, then, able to be integrated into Australian life, by, for example, resurrecting the friendships earlier forged, as well as recommencing her social life, even though she was required to attend a different school. She was also re-integrated into the family life of SS and PGH. This confirmed the plan continuously held after November 2014 to shift her centre of gravity to Australia.
Even if it is accepted that it is "not in the interests of a child routinely to be left without a habitual residence": In Re B, at [30], the High Court of Australia has noted it is possible for that to occur. Habitual residence can be lost in a single day, upon departure from the State of origin. In such a case, one would expect that the child would have to depart the State of origin with a reasonably clear intention of not returning there for an appreciable period, and also with an intention that she would take up residence elsewhere (in the receiving State), for an appreciable period, and with a settled purpose in mind.
Taking into account all of the facts, and reminding myself that for someone to abandon, or lose, habitual residence the facts should be clearly demonstrated, and that there has to be a settled intention to not return to the State of origin, as well as a settled intention to take up residence, even for a limited period, in the receiving State instead, I am satisfied that, as at the date of the move from Thailand, being 6 March 2016, WS abandoned, and lost, her habitual residence in Thailand.
Accordingly, the Plaintiffs have satisfied me that the Convention does not apply because WS was not a child habitually resident in one Contracting State ("Thailand, the State of origin") who has been moved to another Contracting State (Australia, "the receiving State").
It follows that the answer to the second question is no.
Since the parties agreed that if the answer to the last question is no, then no further questions need to be answered, the Court has jurisdiction to entertain the Plaintiffs' Summons under s 23 of the Adoption Act.
For completeness, I should repeat that, at the hearing, counsel for WS submitted that the reference within Article 2 of the Convention, to a child being moved "for the purposes of such an adoption", should be construed as not requiring that such an adoption be the sole purpose of the child's move (T85.50 - T86.2). Therefore, although the Plaintiff's contend that one of the purposes of the movement of WS on the 6 March 2016 was for educational purposes, as her movement to Australia concluded on the 7 March 2016 (given the travel time), and as this is the date upon which the adoption Summons was filed, a further purpose for WS's movement was for the purpose of adoption (T86.6 - T86.15).
Counsel for the first and second Defendants and the Intervener concurred with this construction, that although WS may have been moved for a variety of reasons, such as study and seeing family, it was clear that WS was also moved for the purpose of an adoption Summons being filed (T95.46 - T95.49, T110.20 - T110.32, T123.15 - T123.21), and that therefore the time for the determination of habitual residence fell on that date.
As stated, the Plaintiffs dissented from that view, arguing that because there were several purposes for WS' move, one of which was the purpose of adoption, the Convention, therefore, does not apply (T153.19 - T154.11).
Even though it is unnecessary to reach a concluded view about this issue, in view of the conclusion to which the Court has come regarding the loss of habitual residence in Thailand, by WS, I do not accept the Plaintiffs' submissions. The submissions of the Defendants, the Intervener and WS are much more persuasive.
I make clear that the decision made relates simply to the separate question posed by White J, and does not go to whether the Plaintiffs are entitled to the relief sought in the Summons. That will involve the determination of very different questions and other facts.
Nor have I been asked to deal with the question of costs of the determination of the separate question. I shall reserve the question of the costs for further argument if necessary.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2017

Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Family Law (Child Abduction Convention) Regulations 1986(Cth)

by KGC and TGC [2007] NZFLR 851 Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606; [2016] UKSC 4 Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC 562 Re KL (A Child) (Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2014] AC 1017; [2013] UKSC 75 Re LC [2014] UKSC 1 Re P-J (Children) (Abduction: Consent) (2010) 1 WLR 1237 Re S and the Adoption Act 2000 (NSW) (No 2) [2006] NSWSC 1438 Re Susan [2009] NSWSC 592 Re WS [2016] NSWSC 919 SFH and MEM [2008] NZFC 170 Texts Cited: Macquarie Dictionary Online, 2016, Macquarie Dictionary Publishers OED Online. Oxford University Press, March 2017 Category: Principal judgment Parties: Ms SS (first Plaintiff) Mr PGH (second Plaintiff) Separate Representative for the Child Secretary, Department of Family & Community Services (first Defendant) Attorney General for New South Wales (second Defendant) Attorney General for the Commonwealth (Intervener) Representation: Counsel: In Person (Plaintiffs) Ms S Christie (first and second Defendants) Ms Z Heger (Intervener) Ms D Ward (child WS)

Preamble to the Hearing

At the hearing before White J on 1 June 2016, PGH made an application that the separate question be referred to the Court of Appeal. The hearing of that issue was fixed before his Honour on 3 August 2016, subject to any order that might be made referring the question to the Court of Appeal. In addition, his Honour made directions regarding the service of submissions.
In the reasons for judgment, which his Honour delivered on 4 July 2016, bearing the medium neutral citation Re WS [2016] NSWSC 919, White J ordered that the proceedings be removed to the Court of Appeal, noting, at [4] - [6] and [12], that: "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] NSWSC 1438; (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. ... …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."

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