WACB v Minister for Immigration and Multicultural and Indigenous Affairs

Re S and the Adoption Act 2000 [2005] NSWSC 393 WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; 79 ALJR 94 CASES CITED : Luther v Sagor [1921] 3 KB 533 Birtwhistle v Vardil (1840) West 500; 9 ER 578 Adoption Act 2000, Dictionary, definition of "State" and Interpretation Act 1987 (NSW) s 21

PARTIES : Re K and the Adoption Act 2000

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS

80064/05 Re K and the Adoption Act 2000 JUDGMENT 1 HIS HONOUR: The plaintiffs, with the consent of the Director-General of the Department of Community Services ("DOCS"), seek an order for the adoption of a child born in Korea. Ancillary to this, an order is sought for approval of the child's name. The following two further orders are also sought: "3. An order dispensing with the consent of the child's natural parents and the child's guardian, Kim, Do Young and of Eastern Social Welfare Society.

4. An order dispensing with the giving of notice of the application to the natural parents of the child and to the child's guardian, Kim, Do Young and Eastern Social Welfare Society." 2 Subject to the question whether necessary consents for adoption have been obtained or can be dispensed with, all of the requirements for the making of an adoption order, and approval of the child's name, have been satisfied. The remaining issues are whether the consent of the child's parents in Korea, or of the guardian appointed in Korea, Dr Kim, are required or can be dispensed with. 3 The child was born on 13 August 2003 in Korea. Both parents were aged 17 at the time. The mother referred the child for adoption. The father's identity was known to the mother, but she was not in contact with him and his whereabouts were unknown when the child was referred for adoption. 4 The Eastern Social Welfare Society Inc, ("ESWS") is an agency approved by the Korean government to conduct intercountry adoptions. I infer from the material before me that it is under the supervisory jurisdiction of the Supreme Court of Korea. The president and chief executive officer of the ESWS, Dr Kim, was appointed guardian of the child. I infer that this is a procedural step which occurs when any child is placed in the control of ESWS. I infer that it takes place in order to give ESWS full control of the child, in a way that will not involve further contact with the child's parents. It appears from the Family Census Register that his appointment takes place with the approval, and is subject to the control of the Seoul Family Affairs Court. 5 Upon Dr Kim being appointed the child's guardian, the child's record with the Korean Family Census Register was either created or amended in a way that recorded not only Dr Kim as guardian, but that the child had no father or mother. 6 Dr Kim, in his capacity as president and chief executive officer of ESWS was given sole custody of the child, although I infer that this was a procedural step and that as a matter of practice Dr Kim did not live with the child or otherwise engage in activities arising out of such guardianship, apart from administrative matters. 7 On 15 October 2003, Dr Kim, formally invoking his role as guardian and sole custodian of the child, consented to the child's immigration to Australia and his adoption by suitable parents. He authorised DOCS to make any and all further decisions in this regard, including taking all legal steps necessary for the child to immigrate to Australia and be adopted. He authorised DOCS to "transfer the right to consent to the adoption of this child to any agency authorised to place children for adoption." Applying the presumption of regularity, I infer that under Korean Law Dr Kim was authorised to consent to the adoption of the child. 8 Section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) provides: " 6. Guardianship of non-citizen children

The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens. " 9 The child, being now in Australia, is presently under the guardianship of the Minister pursuant to that section. Pursuant to s 5 of the Immigration (Guardianship of Children) Act 1946, the Minister has delegated her functions under the Act to, amongst others, the Director, Adoption and Permanent Care Services, of DOCS. On 26 May 2005, the Director consented to the making of an adoption order. Pursuant to s 11 of the Immigration (Guardianship of Children) Act 1946, she directed that the provisions of that Act should cease to apply to the child from the date an order for adoption is made. Statutory Requirements 10 Section 52 of the Adoption Act 2000 (NSW) provides: " 52 Consent of Parents and Guardians Generally Required The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given: a. in the case of a child who has not been previously adopted by: i. each parent of the child, and ii. any guardian of the child, …. " 11 Section 54(1)(a) provides that consent is not required under s 52 if the requirement for consent has been dispensed with by the Court. Sections 66 and 67 provide that a requirement for the consent of a child or any other person to the child's adoption under the Act can be dispensed with if the Court makes an order under Division 3 of Chapter 4 of Part 5 dispensing with the requirement, (a "consent dispense order" (sic)). The circumstances in which a Court may make a consent dispense order are prescribed by s 67. It provides: " 67 When can the Court dispense with consent of person other than the child? (1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified, or (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent or guardian of the child - there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or guardian. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child." 12 Section 72 deals with notice to be given of an application for a consent dispense order. 13 Section 58 deals with the requirements for consent to a child's adoption to be effective. Subsection 58(5) provides: "5. Consent to a child's adoption given in another State under the law of the other State is an effective consent for the purposes of this Act. " 14 Chapter 5 deals with intercountry and overseas adoptions with countries which are parties to Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Korea is not a Convention country. Nor is it a prescribed overseas jurisdiction for the purposes of Division 3 of Part 2 of Chapter 5. The adoption is not governed by Chapter 5. Whose consent is required under s 52? 15 In Re S and the Adoption Act 2000 [2005] NSWSC 393 Gzell J dealt with an application for the adoption by an Australian couple of a child born in Korea. His Honour made an order dispensing with the consent of the child's natural parents and the giving of notice of the application to those persons under ss 67(1)(a) and 72(2)(a) of the Adoption Act. His Honour also held that no order was necessary dispensing with the consent of Dr Kim, the Executive Director of the Eastern Social Welfare Society Inc, having regard to the terms of s 6 of the Immigration (Guardianship of Children) Act 1946. That section provides that the Minister is to be the guardian of the person and of the estate in Australia of every non-citizen child who arrives in Australia, to the exclusion of the father and mother and every other guardian of the child. I agree with his Honour that the effect of that section is that Dr Kim's consent as guardian of the child is not required under s 52 of the Adoption Act as he is no longer the guardian of the child. 16 It was suggested by one deponent that having regard to s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth), it may not be necessary that the Court dispense with the consent of the child's parents. I do not consider that s 6 operates in that way. Although, under s 6, the Minister is the guardian of the person and estate of the non-citizen child to the exclusion of the father and mother, she is not deemed to be the child's parent (assuming that were possible). Nor do the child's parents lose their status as such. Ultimately, the Director-General of DOCS did not contend that the consent of the Minister's delegate was a sufficient consent for the purposes of s 52, if the consent of the child's parents was not obtained, nor a consent dispense order made. 17 In WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; 79 ALJR 94, Kirby J observed (at [71]) that the delegation of powers made under s 5 of the Immigration (Guardianship of Children) Act 1946 had apparently been made without accompanying State laws authorising the exercise of such powers delegated under Federal law. Section 77(2) of the Adoption Act purportedly makes the Director-General the guardian of a child resident in NSW to which s 6 of the Immigration (Guardianship of Children) Act 1946 applies. A note to the section states that the functions of the Minister are presently delegated to the Director-General under s 5 of that Act. It seems that the NSW Parliament has accepted that guardianship functions under s 6 of the Immigration (Guardianship of Children) Act 1946 can be delegated to the Director-General. Neither the plaintiffs nor the Director-General of DOCS raised any issue concerning the validity of the delegate's consent. In the absence of any argument on the question, I can assume, as did Gzell J, the validity of the delegation. The requirements for the guardian's consent were satisfied. 18 If it were the case under Korean law that the biological father and mother of the child ceased to be the child's parents on the appointment of Dr Kim as guardian, it may well be that for the purposes of s 52, the child has no parents, and no question arises of dispensing with their consent. (Luther v Sagor [1921] 3 KB 533 at 548; and cf Birtwhistle v Vardill (1840) West 500; 9 ER 578). However, there was no evidence that this was the effect of Korean law. I do not infer from the Family Census Register which records that the child had no father or mother, that this is the effect of Korean law. That record may be merely an administrative act to preserve the privacy of the parents and may not reflect their status under Korean law. 19 Nor can Dr Kim's consent in Korea be treated as an effective consent for the purposes of the Act pursuant to s 58(5). That provision relates only to consent to a child's adoption given in a State or Territory of the Commonwealth. (Adoption Act 2000, Dictionary, definition of "State" and Interpretation Act 1987 (NSW) s 21). 20 Hence the consent of the child's parents is required, unless it can be dispensed with under s 67. Consent Dispense Order 21 Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied. 22 Whether s 67(1)(a) is satisfied, depends upon whether I am satisfied that the child's parents cannot, after reasonable inquiry, be found or identified. That question turns on what is meant by the expression "reasonable inquiry". Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made. Section 68 stipulates which parties are entitled to apply for a consent dispense order. In the present case, the application is made by the prospective adoptive parents with the consent of DOCS. They have no capacity to make any inquiry in Korea to identify the child's mother or father. It is possible that DOCS might be prepared to make an inquiry on their behalf by contacting ESWS and asking it to reveal the contact details of the mother, and possibly, through her, of the father. In my view, it is not reasonable to require the plaintiffs to embark upon such an inquiry. Nor would such an inquiry be reasonable from the perspective of the child's parents. It would involve the violation of the privacy of the mother in circumstances where the Korean public records confer anonymity on her. An inquiry which attempts to circumvent privacy measures of the foreign state and which, in effect, would amount to a trespass on issues which the Korean agency could properly consider to be within its exclusive province, is not "reasonable" for the purposes of s 67(1)(a). The child's parents cannot presently be found or identified. No additional inquiry is required to satisfy s 67(1)(a). 23 On the same reasoning, pursuant to s 72(2)(a), no notice of the application for a consent dispense order is required to be given to the child's parents. 24 It is in the best interests of the child that an order be made dispensing with the requirement for obtaining the parents' consent. 25 For these reasons, I make an order for the adoption of the child in accordance with paragraph 1 of the summons and an order approving the child's names in accordance with paragraph 2 of the summons. There is no need to make the order sought in para 4 of the summons. Section 72 operates in accordance with its own terms. Pursuant to s 67(1)(a) and (2), I order that the consent of the child's natural parents be dispensed with. 26 The Director-General of DOCS seeks an order, purportedly pursuant to s 131 of the Adoption Act, releasing two certified copies of the orders to the Department for transmission to ESWS. Subsection 131(2) imposes an obligation upon the nominated officer to provide a certified record of an adoption order made by the Court under Chapter 5 in relation to a child from a country outside Australia to the appropriate authority of the country. The adoption order is not made under Chapter 5, as Korea is not a Convention country. There is no power under s 131 to make the order sought. The provision of adoption information is governed by Chapter 8 of the Act. It will be a matter for the Director-General to consider whether any provision under that Chapter authorises the release by the Director-General to ESWS of copies of the Court's orders. If an application is made to the Court by or on behalf of ESWS pursuant to s 143 of the Act for a copy of the orders, that application will be dealt with administratively in accordance with Pt 73 r 17.

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