Application of JGP& ASP, Re AJP [2011] NSWSC 151 (21 February 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	Application of JGP & ASP, Re AJP
Medium Neutral Citation:	[2011] NSWSC 151
Hearing Date(s):
Decision Date:	21 February 2011
Jurisdiction:
Before:	Brereton J
Decision:	Application for consent dispense order declined. Adoption application adjourned.
Catchwords:	FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Ethiopia - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Ethiopia - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Ethiopian court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - birth mother not shown to be unable to be identified or found - no grounds apparent to dispense with consent - held: application for consent dispense order declined.
Legislation Cited:	(NSW) Adoption Act 2000, Pt 5, s 67, s 72, s 87(2)(b), s 90, s 108, s 113, s 116, s 117. (NSW) Children and Young Persons (Care and Protection) Act 1998 (CTH) Family Law Act 1975 (CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998 Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption (CTH) Immigration (Guardianship of Children) Act 1946 s 4AAA, s 11
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:
Representation
- Counsel:
- Solicitors:
File number(s):	2010/183
Publication Restriction:

Judgment

1. HIS HONOUR: This adoption application is made by JGP and his wife ASP in respect of a child AJP, who was born in Ethiopia on 8 February 2008.
   
2. The child was born to a single mother aged 33 in Ethopia. Her own parents were deceased, and her only relatives were her half brothers. The birth mother lost her employment after she became pregnant and was unable to maintain her son. When he was aged about nine months, she surrendered him to the District Labour and Social Affairs Office, who placed him in an orphanage.
   
3. On 19 February 2009, the Ministry of Women's Affairs in the Federal Democratic Republic of Ethiopia approved the applicants - who on 27 July 2004 had applied to the then Department of Community Services to adopt a child from Ethiopia - to adopt the child. On 2 June 2009, Birhan Family Welfare Foundation (which was raising the child) and the applicants entered into a contract of adoption in accordance with Ethiopian law in respect of the child. The contract was expressed to have no effect unless approved by the court (being a reference to the Ethiopian court).
   
4. On 6 July 2009, the Federal First Instance Court of the Federal Democratic Republic of Ethiopia at Addis Ababa, on the application of Birhan Family Welfare Foundation, approved the adoption agreement. It required the birth mother to appear before the court to give her views; and she explained that, due to her economic circumstances, she had given her consent to the adoption agreement.
   
5. A post-adoptive Ethiopian birth certificate issued showing the applicants as the child's parents. It appears from the contract of adoption and judgment of the Ethiopian court that an adoption under Ethiopian law has the same substantive effect as an adoption under our law.
   
6. The applicants travelled to Ethiopia, where they arrived on 5 August 2009. On 7 August 2009, the child was placed in their care. On 20 August 2009 they left Ethiopia, returning to Australia with the child on 22 August 2009.
   
7. Ethiopia is not a party to the Hague Convention on Protection of Children and Co-Operation in respect of Inter-Country Adoption . Accordingly, it is not open to proceed by way of recognising the Ethiopian adoption under (NSW) Adoption Act 2000, s 108. Nor is Ethiopia a prescribed overseas jurisdiction under the (CTH) Family Law (Bilateral Arrangements - Inter-Country Adoption) Regulations 1998, so it is not open to recognise the Ethiopian adoption under Adoption Act , s 113.
   
8. The Adoption Act , s 116, gives recognition to overseas adoptions in countries other than Convention countries or prescribed overseas jurisdictions, where the adoption is in accordance with and has not been rescinded under the law of that country, and the adoption has the same substantive effect as an adoption in this country, unless a court refuses to recognise it, if at the time at which the relevant legal steps resulting in the adoption were commenced, the adoptive parents had been resident in that country for twelve months or more, or were domiciled in that country. In this case that is not available, as the applicants had not been resident in Ethiopia for twelve months, nor were domiciled there, when the adoption application in that country was instituted. Accordingly, this court cannot make a declaration of validity under Adoption Act, s 117. It is for that reason that, notwithstanding that they have obtained, apparently regularly, an adoption order in Ethiopia, the applicants must also seek an order for adoption in this State.
   
9. The evidence establishes that the applicants are in all relevant respects suitable adopting parents. The assessor recommends that the adoption proceed. The Director, Adoption and Permanent Care Services, Community Services, supports that recommendation and, as delegate of the Commonwealth Minister for Immigration, who is presently the guardian of the child as a non-citizen child within the meaning of (CTH) Immigration (Guardianship of Children) Act 1946, s 4AAA, consents to the adoption and has executed an order under s 11 of the Commonwealth Act, which upon an adoption order being made, will exempt the child from the provisions of the Commonwealth Act. Because this is an inter-country adoption, the consent of the Director-General is not required [ Adoption Act , s 87(2)(b)].
   
10. For the purposes of s 90, I am satisfied that the best interests of the child will be promoted by the adoption; that as far as practicable and having regard to his age and understanding, the child's wishes and feelings have been ascertained and due consideration given to them; that the prospective adoptive parents have been selected in accordance with Act; that the applicable requirements of the Act and other relevant laws in respect of inter-country adoptions have been satisfied; and that the culture and language of the child and his given names, identity, and religious ties have been taken into account.
    
11. The child's natural father is unknown, and appears to be unknown in the Ethiopian records. The natural mother, however, is not unknown. As has been observed, she was called before the Ethiopian court, where she gave consent to the adoption. However, she has not given consent in accordance with Adoption Act , Pt 5. The applicants seek an order dispensing with her consent and with notice to her.
    
12. Under Adoption Act , s 67(1), the court may make a consent dispense order if it is satisfied that:
    

(a) the person cannot, after reasonable enquiry, be found or identified. I am not satisfied that the natural mother cannot be found or identified. She is known, and was found and appeared in the Ethiopian court.

(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. There is not at this stage any evidence to suggest that this is the case.

(c) if the person is a parent of, or person who has parental responsibility for, the child - there is serious cause for concern for the welfare of the child and it is in the best interest of the child to override the wishes of the parent or person who has parental responsibly. There is not at this stage any evidence to suggest any serious cause for concern for the welfare of the child.

(d) if an application has been made to the court for the adoption of the child by one or more persons who are authorised carers for the child, the child has established a stable relationship with those carers, and the adoption of the child by both carers will promote the child's welfare. An "authorised parent" is defined as any person who has care and responsibility for a child under out-of-home care arrangements made under the (NSW) Children and Young Persons (Care and Protection) Act 1998, or has responsibility for the day-to-day care, welfare and development of the child under (CTH) Family Law Act 1975. The applicants do not fall within that definition, so s67(1)(d) is not available.

13. Section s 67(2) mandates that in any case, the court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child. Nor (by s 72) can the court make a consent dispense order unless notice of the application has been given to the person whose consent is sought to be dispensed with at least fourteen days before the order is made, unless:
    

(a) the person cannot, after reasonable enquiry, be found or identified. For reasons already explained, this is not established; 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 and his or her physical or mental welfare would, in the opinion of the Court, be detrimentally affected if he or she were to receive notice of the application. Again, this is not established; or

(c) the Court considers that in the particular circumstances of the case it is desirable to make an order without notice of the application having been given. If some proper basis for a consent dispense order were identified, I would not hesitate to dispense with notice of the application for that order to the birth mother, under s 72(1)(c), given the particular circumstances of the case including that she had already expressed consent, in the Ethiopian court.

14. Given the evidence that the birth mother gave consent under Ethiopian law, I would strive mightily to find some way of dispensing with the requirement for a further consent. But given that this adoption application must proceed as one under the New South Wales Act, and not by way of recognition of a foreign adoption, I can on the present evidence find no way of doing so.
    
15. Accordingly, as I cannot at this stage make a consent dispense order, I am unable to make an adoption order. I will adjourn the proceedings to a date to be fixed by arrangement with the applicants, to permit them to make submissions and adduce further evidence, either in support of a consent dispense order, or of the giving of consent in accordance with the Act.
    

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