Re An Application of the Recognition of An Overseas Order of the Adoption of M and Re the Adoption of Children Act 1965 [1994] ACTSC 8 (1 February 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION FOR THE RECOGNITION OF AN OVERSEAS ORDER FOR
THE ADOPTION OF M
AND IN THE MATTER OF THE ADOPTION OF CHILDREN ACT 1965
No. AD28 of 1992
Number of pages - 5
Adoption

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Adoption - Adoption Act 1993 (ACT) - declaration of validity of overseas adoption under s.57 - whether adoption was one to which s.55 applies - Australian adoption order previously made pursuant to Adoption of Children Act 1965 (ACT) - whether declaration can be made consistently with existing order.

Adoption of Children Act 1965 (ACT), s.43

Adoption Act 1993, ss.55, 57

Immigration (Guardianship of Children) Act 1946 (Cth)

HEARING

CANBERRA, 15 December 1993
1:2:1994

The Applicant appeared in person.

ORDER

The Court by Order declares that:
1. The adoption of M by the applicants was, on 7 June 1991, effected under the laws of Sri Lanka.
2. That adoption is one to which section 55 of the Adoption Act 1993 applies.

DECISION

HIGGINS J On 9 December 1992, I made an adoption order in favour of the applicants in respect of the child M.

2. It had been the applicants' preferred position that the adoption order made by a judge of the District and Family Court of Colombo, Sri Lanka, be recognised.

3. In making an adoption order pursuant to the Adoption of Children Act 1965 (ACT) (the "old Act"), I concluded that it was not then open to me to recognise the Sri Lankan order. That was by reason of the terms of s.43 of the old Act. It would have been necessary under that section for me to conclude that the applicants were ordinarily resident in Sri Lanka when the adoption order was made pursuant to the laws of that country. That was clearly not the case on the facts.

4. On 2 April 1993 the making of a new Adoption Act was notified in the Gazette. The substantive provisions of that Act came into effect on 31 July 1993. That Act is cited as the Adoption Act 1993. I will refer to it as the "new Act".

5. Section 55 of the new Act makes a different provision as to the effect of adoption orders made pursuant to the laws of another country.

6. Section 55(1) provides,
"For the purposes of the law of the Territory, the adoption of

a person (whether before or after the commencement of this Act)
in another country, being an adoption to which this section
applies, has, so long as it has not been rescinded under the
law of that country, the same effect as an adoption order made
under this Act."

7. Subsection (2) of the section applies to adoption orders if,

"(a) the adoption was effective according to the law of that
country;
(b) either -
(i) that country was the usual place of residence of the
adoptive parents for a continuous period of not less than 12
months, or such lesser period as a court considers reasonable
in the circumstances of the case, immediately before the
commencement of the proceedings for the adoption; or
(ii) the Director or the principal officer of a private
adoption agency had, before the adoption in that other country,
agreed to the placement of the adopted child with the adoptive
parents and the child is placed in accordance with the
conditions of approval of the adoptive parents;
(c) in consequence of the adoption, the adoptive parents had,
or would have had if the adopted child had been under the age
of 18 years, under the law of that country, a right superior to
that of any birth parent in respect of the custody of the
adopted child; and
(d) under the law of that country the adoptive parents were, by
virtue of the adoption, placed generally in the position of
parents in relation to the adopted child."

8. I am satisfied that (a), (c) and (d) are satisfied. So far as (b) is concerned, there is no evidence that a "private adoption agency", as defined by the new Act, was involved. However, it is clear that, before the Sri Lankan adoption order was made, the Director of Family Services ("the Director), had agreed to the placement of M with the applicants. M was placed with them in accordance with the terms of that agreement. Section 55(2)(b)(ii) is, therefore, satisfied.

9. It is open to this Court to decline recognition of an "overseas" adoption order if the adoption proceedings in Sri Lanka were tainted by a denial of natural justice or some other injustice (s.55(3)).

10. I am satisfied in this case that the consent of M's natural mother was freely and responsibly given. The Sri Lankan Court allowed the natural mother to be heard. It took reasonable steps to satisfy itself that her desire to consent to adoption was genuine, responsible and in the best interests of M. The proceedings were, I accept, no mere rubber stamp. They were comparable in all relevant respects to similar proceedings in this country. I can perceive no ground for any suggestion that s.55(3) is applicable to the circumstances in which the order in question was made.

11. Section 55(4) requires me to presume that s.55(2) is satisfied and that the Sri Lankan order remains in force.

12. Having regard to the Director's advice to the Court that she has no objection to the making of the order sought, I consider that it is reasonable to regard that presumption as unrebutted.

13. I turn now to the question as to whether it is open to me to make an order in favour of applicants who are already the adoptive parents of M according to the laws of this Territory.

14. Section 57 permits declarations of validity to be made. The persons who may apply are (s.57(2)),

"... the adopted child, an adoptive parent or a person tracing
a relationship, by virtue of the adoption, through or to the
adoptive child."

15. The applicants are, whether by reference to the Sri Lankan order or my order of 9 December 1992, each an "adoptive parent".

16. Section 57(5) provides that the making of a recognition order does not affect any earlier order made "by a court of competent jurisdiction". I am satisfied, therefore, that to make a recognition order in no way diminishes the force of the adoption order I made on 9 December 1992.

17. I conclude that the Act contemplates that a person who is already an adoptive parent under an order within Australia, may nevertheless apply for the recognition of an order made outside Australia.

18. The Court has a discretion whether or not to make a recognition order.

19. In this case the applicants have submitted that there are good reasons why such an order should be made, even though the order of 9 December 1992 will remain in force. The recognition order will neither detract from, nor diminish, their parental rights.

20. However, the applicants submit that recognition of the Sri Lankan order will enhance the appreciation of other persons, especially the child when he is old enough, that the Sri Lankan order was not only valid, but properly obtained and deserving of the same respect as an order made by a competent Australian Court.

21. I make no finding as to whether recognition avoids the application of the Immigration (Guardianship of Children) Act 1946 (Cth). It would certainly render it otiose once a recognition order was made.

22. It would be unfair, I think, to characterise the welfare authorities' previous insistence on the obtaining of local adoption orders as reflecting adversely on overseas adoption orders. As I pointed out in my earlier reasons for decision in the matter of M's adoption, the welfare authorities had no other choice. Indeed, now that recognition is more readily open, it may well be a prudent course for an applicant to obtain both an adoption order and recognition of an overseas adoption order.

23. It was also submitted that recognition will enhance the mutual respect between Australia and other countries which participate in adoption programs. It will encourage those countries to continue to see Australia as an appropriate country with which to have a mutual relationship in relation to adoptions. If recognition has such an effect then it is, in my view, desirable. I do not have any evidence, however, to enable me to conclude whether that result is likely.

24. The recognition order would also have the effect, of course, of recognising and accepting the reality of the natural mother's consent to the adoption. The need to dispense with her consent under the old Act was, of course, only because of the form of the consent document she signed. It was substantively the same as a consent under the old Act. Indeed, had I not been satisfied that her consent was both real and well-considered, I might not have dispensed with that consent.

25. If there is any perception that the laws of Sri Lanka or the quality of the adoption process under the laws of Sri Lanka are in any way less deserving of respect than those of this Territory, I trust my reasons will dispel that misconception.

26. It is, I believe, in M's interests, particularly given the perceptions expressed by the applicants as to the adoption process to date, that a recognition order be made.

27. The Court, therefore, by order declares that,
1. An adoption of M by the applicants was, on 7 June 1991, effected under the laws of Sri Lanka.

2. That adoption is one to which section 55 of the Adoption Act 1993 applies.