Re WS (No 2)

1. [1]

   HIS HONOUR: By Summons (which was numbered A19/2016) filed on 7 March 2016, the first and second Plaintiffs, SS and PGH, a married couple, seek an order under the Adoption Act 2000 (NSW) (“the Act”), for the adoption of a child to whom the Court will refer to as “WS”. They filed an amended Summons on 24 January 2017, which, they say, was required as a result of orders made by White J (as his Honour then was) on 21 December 2016.

2. [2]

   The application to the Court has not been made by the Plaintiffs under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“the Regulations”). I shall refer to these proceedings as “the 2016 proceedings”.

3. [3]

   Somewhat impersonally, I shall continue to use initials for each of the Plaintiffs, the child, and for the mother and father of the child, as each is “a person affected by an adoption application”, in order to preserve her, and his, anonymity, as is required by s 180 of the Act and/or under Regulation 15.

4. [4]

   Because of the date on which the Summons was filed, Supreme Court Practice Note SC Eq 13, which “applies to proceedings under the Adoption Act 2000 … and proceedings under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (“the Hague Convention Regulations”) (“adoption proceedings”)” does not apply to this case. The Practice Note, which was issued on 24 May 2016, commenced on 1 July 2016.

5. [5]

   On 1 June 2016, White J ordered the determination of the following separate question pursuant to Uniform Civil Procedure Rules 2005 (UCPR) rule 28.2:

6. [6]

   Described in a way that disguises the complexity of the issues, the parties, initially, seemed to agree that the hearing related solely to the issue of establishing, as a finding of fact, where WS was habitually resident, and, as a matter of law, at what date the question of her habitual residence fell to be decided.

7. [7]

   It should be understood that the Court, in this part of the proceedings, will not determine whether the adoption of WS in favour of the Plaintiffs should be made.

8. [8]

   In addition, SS and PGH filed a Summons (which was numbered A004/2017) on 29 December 2016 (although the date of filing may be in dispute) and an amended Summons on 24 January 2017, seeking the same limited relief. I shall refer to these proceedings as “the 2017 proceedings”. The parties agreed that the questions raised in the 2017 proceedings should not be determined as part of the hearing of the 2016 proceedings, which was before this Court for determination. Therefore, the 2017 proceedings will be adjourned until the date, to be advised, on which the reasons for judgment in the 2016 proceedings will be delivered. I shall then allow the parties to consider what should be done in relation to the 2017 proceedings.

9. [9]

   In April 2016, no doubt mindful of the unusual nature of the 2016 proceedings, and the potential issues raised by them, White J directed the Registrar of the Court to give notice to the Attorney General for the Commonwealth, and for New South Wales, inviting each to consider being joined as a party intervening in the proceedings, or seeking to appear as a friend of the Court. Subsequently, notices under s 78B of the Judiciary Act 1903 (Cth) were served.

10. [10]

    In the 2016 proceedings, the Secretary, Department of Family and Community Services, is the first Defendant, having been joined to the proceedings on 4 May 2016; the Attorney General for New South Wales is the second Defendant, also having been joined on 4 May 2016; and the Attorney General of the Commonwealth is described in the proceedings as the “Intervener”.

11. [11]

    WS is separately represented. Pursuant to s 122(2)(b) of the Act, the Court ordered the appointment of an Australian legal practitioner for her as it appeared that she needed to be represented in the proceedings. Her legal representatives, in accordance with s 122(3) of the Act, have ensured that the views of WS have been placed before the Court and that all relevant evidence is adduced, and, where necessary, tested.

12. [12]

    (Section 122(4) of the Act provides a rebuttable presumption that a child who is not less than 10 years of age is capable of giving proper instructions to her legal representative. There is no suggestion that the presumption, in the present case, has been rebutted. WS, however, was not present during the hearing.)

13. [13]

    SS and PGH did not appear with legal representation at the hearing. (They had the assistance of senior and junior counsel in the Court of Appeal proceedings, to which I shall refer, and Counsels’ written submissions, made to the Court of Appeal, were referred to, and relied upon, at the hearing by them.)

14. [14]

    At the commencement of the hearing, in answer to a question from the Bench, SS indicated that she wished PGH to speak on her behalf, and he did so throughout the hearing. He was highly articulate and presented their case in writing, and orally, with some ability. (On the third day of the hearing, SS was not present but, as a matter of courtesy, she had informed the Court that she would be unable to appear.) The first and second Defendants appeared by Ms S Christie of counsel; the Attorney General for the Commonwealth appeared by Ms Z Heger of counsel; and WS appeared by Ms D Ward of counsel.

15. [15]

    I have had the benefit of detailed written and oral submissions, the former of which were provided to me promptly and as directed. The written submissions will, of course, remain in the Court papers.

16. [16]

    The Plaintiffs, and all of the legal representatives involved in these proceedings, have played a part in providing the submissions, and other assistance, to the Court in the preparation for, and at, the hearing. It would be remiss of me not to express my gratitude for the assistance provided by PGH, who conducted the hearing on behalf of the Plaintiffs, to the best of his ability, and to all of the legal representatives of the other parties who appeared.

Preamble to the Hearing

1. [17]

   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.

2. [18]

   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:

3. [19]

   On 21 November 2016, the Court of Appeal, constituted by Bathurst CJ, Beazley P, and White J, determined that, whilst the proceedings concerned matters of general importance, it was inappropriate for the Court of Appeal to embark on the consideration of the separate question, since it appeared to be common ground between the parties that the resolution of the issues would depend on the resolution of a contested factual issue relating to the habitual residence of WS, and the date on which habitual residence is to be determined. The Court of Appeal declined to answer the separate question and remitted the matter to the Equity Division for further hearing.

4. [20]

   Following the referral back, the matter was listed before Bergin CJ in Eq, but following her Honour’s retirement, it was referred to this Court for hearing.

The Issues

1. [21]

   On the third day of the hearing, the Court was provided with an agreed document, in relation to the separate question, that set out the following issues which the Court was requested to answer:

2. [22]

   Some of these issues arise because there are several decisions of the Court in which consideration has been given to the interplay between the provisions of the Act and the Regulations, in that both appear to provide competing sources of jurisdiction in the Court to make an adoption order, in respect of a child formerly habitually resident in a Convention country.

3. [23]

   At the hearing, PGH, and also counsel for WS, submitted that, in the Court’s consideration of the second issue, it was not necessary to determine whether, at the relevant time that habitual residence falls to be determined, (which was also submitted to be 6 March 2017), WS had gained habitual residence in Australia, only that her habitual residence, in Thailand, had been lost (T77.15 - T77.28; T85.20 - T85.21; T87.16 - T87.18), a distinction which was later agreed to by counsel for the Intervener (T111.2 - T111.6).

Background Facts

1. [24]

   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.

2. [25]

   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.

3. [26]

   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.)

4. [27]

   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.

5. [28]

   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.

6. [29]

   PGH is the husband of SS. They were married to each other in December 2010. The order for adoption is sought by them jointly as the adoptive parents. (They are “a couple” within the meaning of that term in the Dictionary to the Act.)

7. [30]

   SS, who was born in Thailand in April 1976, has been an Australian citizen since 26 January 2016. PGH has been an Australian citizen since his birth in January 1961.

8. [31]

   SS and PGH currently reside, and have resided, together, in New South Wales since about September 2010. Each had been married previously. They met, on social media, sometime in 2009; they met in person, about 6 months later, in Thailand; SS came to Australia and stayed for 4 months and they were subsequently married, in New South Wales, in December 2010.

9. [32]

   SS returned to Thailand shortly after the marriage but was able return to Australia in June 2011. SS and PGH had a traditional Buddhist wedding, in Thailand, in December 2012.

10. [33]

    SS has no children by her marriage to PGH, or from her prior marriage. PGH has two children from his prior marriage, each of whom is now an adult. He has one grandchild. WS has met, and has socialized with, all of them.

11. [34]

    WS lived in Thailand since her birth until she came to Australia at the different times to which reference will be made. She was, primarily, raised by her paternal grandparents, as CS and BS travelled around the country to secure work. She described a particularly close relationship with her grandfather. She wrote that her contact with her parents was “Once a year for a week”.

12. [35]

    WS also described the role played by SS in her life. SS had lived with WS in the home of WS’s grandparents until WS was aged 8 or 9 years old. She ranked her aunt’s role as nearly as significant as the role played by her grandparents. WS stated in her affidavit:

13. [36]

    In relation to the statement quoted, I infer that the period to which WS is referring is when they both lived in Thailand. This is not to say, however, that their close relationship did not continue after SS came to Australia. Reference will be made to the relationship, following SS coming to Australia later in these reasons.

14. [37]

    When she was 12 years of age, WS gained a scholarship to a selective school that was some distance away (said to be 80 km, or a 2 hour’s drive) from her grandparents’ home. She then left that home and moved to a bedsitter, alone, close to that school, where she stayed during the school week. (Her cousin and, for a short time, a family friend, would keep an eye on her and her grandparents were available if the need arose.) However, from the end of 2013, WS was living alone and, for the most part, unsupervised fully.

15. [38]

    SS continued to be involved in WS’s life whilst WS was living in Thailand and SS was living in Australia. She and PGH financially assisted the family. They paid WS’s school fees, accommodation and living expenses, and also paid for the family friend to supervise, and regularly check on, WS whilst she was living away from her grandparents.

16. [39]

    In her affidavit, WS added that SS “would call me most days while I was living in the boarding house to check to see how I was”.

17. [40]

    In January 2014, CS and BS, in writing, appointed SS and PGH to be the “authorised guardians” of WS “in all matters relating to her travelling to, and staying in, Australia” with “the same authority as our own actions”.

18. [41]

    WS was issued with a Thai passport in March 2014. It will expire in March 2019.

19. [42]

    On 23 April 2014, WS, with the assistance of PGH and SS, made an application dated 16 April 2014, to the Australian Department of Immigration and Border Protection for a Sponsored Family Visitor Visa (part of Ex. C). The “authorising sponsor” was SS. Each of her parents, CS and BS, consented to the grant of the visa to WS, in writing, on 1 May 2014 (part of Ex. C).

20. [43]

    The Department granted the visa on 19 May 2014. WS was required to arrive in Australia before 19 August 2014 and the “stay period” was 5 months from the date of arrival. The visa conditions included “No Work”, “Maximum 3 months study”, “No further stay” and “Must leave before visa expiry”.

21. [44]

    Following the grant of this visa, WS came to Australia on 4 June 2014 and stayed with SS and PGH, in their home, until 4 November 2014. She then returned to Thailand. She complied with the conditions stated in the visa.

22. [45]

    On 29 August 2014, whilst WS was still in Australia, SS and PGH filed, in the Family Court of Australia, an application for parenting orders under the Family Law Act 1975 (Cth) in relation to WS. (By s 64C of the Family Law Act, a parenting order may be made in favour of a parent of the child "or some other person". A “parenting order” is defined in s 64B(2) of the Family Law Act and may deal with, amongst other things, “(a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; and … (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. Under sub-s (3), without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.)

23. [46]

    On 15 October 2014, following a hearing of the application, in which CS and BS gave evidence by telephone, Benjamin J made the following orders (inter alia):

24. [47]

    The orders in the Family Court were made with the consent of CS and BS.

25. [48]

    There is a reference, in the reasons for decision of Benjamin J, at [18] – [19], to “copies of documents in relation to this application were forwarded to the New South Wales Department of Family and Community Services, together with copies of the evidence and details asking them if they wished to intervene in the proceedings…. A reply was received on 26 September 2014 and the Department of Family Community Services has decided not to intervene in these proceedings, at this time, given that they hold no records in relation to the child and have no concerns in relation to this parenting application”.

26. [49]

    Benjamin J also noted, at [20]- [21] of the reasons, that:

27. [50]

    WS gave evidence that following the orders of the Family Court, SS and PGH became her “guardians”. Statements made by her to Mr B L Bembrick, a Client Assessment and Referral Consultant employed by Legal Aid to prepare a report on behalf of WS for the purpose of these proceedings, and whose affidavit was also read in the proceedings, were not objected to. Mr Bembrick was not cross-examined.

28. [51]

    When interviewed in December 2016, WS is reported to have said to Mr Bembrick:

29. [52]

    Between November 2014 and March 2016, as set out below, a number of applications made for different visa classes were made on behalf of WS. This suggests that an intention by the Plaintiffs, and WS, to have WS return to Australia, had crystallised.

30. [53]

    On about 6 November 2014, WS lodged, or there was lodged on her behalf, with the Australian Embassy in Bangkok, an application dated 18 October 2014, for a permanent visa under the Migration Regulations 1994 (Cth), namely a Child (Migrant) (Class AH) visa, subclass 117 (Orphan relative) on the basis that WS “is an orphan relative of an Australian citizen” (Ex. 1D6).

31. [54]

    In the application made, under the heading “Child’s country of current residence” (Question 13), SS inserted “Thailand (Family Court Order to live in Aust Aunt/Uncle). In responding to Question 32 (relating to whether WS had “previously been to Australia, held, or currently holds, a visa for travel to or stay in Australia”, the answer was “Yes” and the “purpose of the stay in Australia” was given by WS as “To visit my Aunts and Uncle & sample life in Australi(a)”. (It appears that the “a” was cut off and does not appear in the available space.)

32. [55]

    It was accepted that PGH and SS had prepared the application together and that WS had signed it before she returned to Thailand.

33. [56]

    Although there was some dispute, by PGH, about whether the response to Question 32 was complete, I am satisfied that it accurately answered the question posed. I am fortified in reaching this view by reference to evidence of a statement made by WS to Mr Bembrick, namely that SS had asked her, in about 2014, and prior to her coming to Australia, whether she would like to see Australia:

34. [57]

    Mr Bembrick also stated that WS had informed him that after her first visit, SS had contacted her family to discuss the future. In her words:

35. [58]

    SS completed the primary document, dated 18 October 2014, with the heading “Sponsorship for a child to migrate to Australia” (Ex. 1D4). However, it appears that PGH also provided an additional sponsorship form.

36. [59]

    As stated, WS left Australia, and returned to Thailand on 4 November 2014. She did not return to Australia until 7 March 2016.

37. [60]

    On about 2 January 2015, the application for the Child (Migrant) (Class AH) visa, subclass 117 (Orphan relative) was refused.

38. [61]

    In the reasons for decision, the decision maker wrote (inter alia) (Ex. A):

39. [62]

    Following the decision, and in light of the decision, it appears that SS and PGH determined to adopt WS (Ex. A).

40. [63]

    By application generated on 25 November 2014 (part of Ex. C), WS (through PGH) also made an application for a Visitor Short Stay Visa. The application stated that the proposed period of the stay in Australia was sought to be between 1 January 2015 and 31 December 2015. It was submitted that WS would undertake a course of study in Australia for the year and the High School she was to attend was identified. Other reasons for travel were for tourism and a family visit.

41. [64]

    By letter dated 11 December 2014 sent to the Plaintiffs, the Department of Immigration and Border Protection informed WS, that the application for a Visitor Short Stay Visa had been refused. The Decision Record set out the reasons for the refusal (part of Ex. C). Notably, these reasons included that:

42. [65]

    On 23 December 2014, WS, through PGH, made another application, dated 19 December 2014, for a Visitor (class FA) Visa (subclass 600) Sponsored Family Stream. The request made was for a visa for 12 months, the reasons stated being to live with her Australian family and study in Australia whilst her application for a Child (Class AH) Orphan Relative visa was being processed.

43. [66]

    The answer to Question 24 on this application, regarding the reason/s why WS wished to visit Australia, was as follows:

44. [67]

    By letter dated 18 February 2015, sent to the Plaintiffs, the Department of Immigration and Border Protection, informed WS, that the application for a Visitor Visa (subclass 600) Sponsored Family Stream had been refused.

45. [68]

    The Decision Record set out the reasons for the refusal (part of Ex. C), noting that the decision maker was not satisfied that “her true intention is only for a genuine visit to Australia.” It was noted that the application for the Orphan Relative visa had been refused on 2 January 2015.

46. [69]

    On 27 May 2015, WS made an application for a Visitor (Class FA) Visitor (Sponsored Family) visa. The visa application stated that the reasons for visiting Australia are:

47. [70]

    WS, who was identified as the applicant in the application, stated that she intended to undertake a course of study for some of Year 9, Term 3, and all of Term 4, for a total period of 13 weeks and that she would be fully supported by SS and PGH.

48. [71]

    PGH wrote a letter dated 27 May 2015 to the Department (Ex. 1D3) requesting that the visa be approved without a “No further stay” or similar conditions, as he and [SS] were:

49. [72]

    This application was refused on 16 June 2015. As had been identified in previous decisions, the reasons (Ex B1) included that:

50. [73]

    SS and PGH then made an application for a review of the decision made by the delegate of the Minister to refuse to grant the visa. The hearing of the application for review which was heard in the Migration & Refugee Division of the Administrative Appeals Tribunal, took place before Member B Mericourt, on 13 October 2015. The Tribunal concluded that the matter should be remitted for reconsideration.

51. [74]

    In the Statement of Decision and Reasons, the learned Member noted:

52. [75]

    In coming to the conclusion, the learned Member also noted:

53. [76]

    By letter dated 18 January 2016, the Department of Immigration and Border Protection advised PGH that the application for the Visitor Sponsored Family visa had been granted. WS was required to arrive in Australia before 18 April 2016 and the “stay period” was 6 months from the date of arrival. The Visa conditions included “No Work”, “Maximum 3 months study”, “No further stay” and “Must leave before Visa Expiry”.

54. [77]

    On 7 and 20 February 2016, counselling of CS and BS was said to have taken place in Thailand. CS and BS signed a written consent to the adoption of WS by SS and PGH on the 1 March 2016 (Ex B1).

55. [78]

    CS and BS appear to have consented to the application made by SS and PGH to the Family Court and they have also consented to SS and PGH adopting WS. They state that they have “a full understanding of the meaning and implications of the adoption, which have been explained to us by an Adoption Lawyer we engaged and visited in Bangkok”.

56. [79]

    On 3 March 2016, WS signed what was said to be her consent to adoption, also attesting to having undergone counselling on 7 and 20 February 2016 (Ex B1).

57. [80]

    On 7 March 2016, WS returned to Australia pursuant to a temporary visa granted under the Migration Regulations 1994 (Cth). She remained living with SS and PGH until 23 July 2016. In compliance with the conditions of her visa, she then returned to Thailand.

58. [81]

    As previously stated, the Plaintiffs on 7 March 2016 filed the Summons in the 2016 proceedings seeking an order for the adoption of WS on the same day as WS arrived in Australia. WS was present in Australia at the time of the commencement of the 2016 proceedings.

59. [82]

    On 20 April 2016, PGH made a request to the Department of Family and Community Services to undertake a suitability assessment of him and SS, as adoptive applicants, for the purpose of the 2016 proceedings. In the submissions made, it was stated that the request was being made to assist in their Commonwealth Adoption visa application.

60. [83]

    On 24 July 2016, an application was lodged on behalf of WS for a Student (Temporary) (class TU) Student (subclass 500) Visa (Ex. A). SS signed the Sponsorship for a child to migrate to Australia on 23 July 2016 (Ex. 1D5).

61. [84]

    On 27 July 2016, an application dated 23 July 2016, for migration to Australia by a child, was lodged at the Australian Embassy at Bangkok, on behalf of WS, for a Child (Class AH) Adoption (subclass 102) Visa: Ex. 1D1. The sponsor for WS was SS.

62. [85]

    On 26 August 2016, WS was granted the (temporary) (class TU) Student (subclass 500) Visa. The stay period will expire on 15 March 2019.

63. [86]

    The Student (Temporary) (Class TU)(sub class 500) visa has the following conditions, namely, “NFS EXCEPT PTW” (which means that the visa holder cannot apply for another visa except, a further student visa with permission to work), “WORK LIMITATION” (which means that the visa holder must not engage in any work in Australia before the holder's course of study commences), “MEET COURSE REQUIREMENTS” (which means that the visa holder must remain enrolled in a registered course), “MAINTAIN HEALTH INSURANCE” (which means that the visa holder must maintain adequate arrangements for health insurance during the stay in Australia), “MAINTAIN ELIGIBILITY” (which means that the visa holder must continue to satisfy the requirements for grant of the student visa), “MAINTAIN EDUCATION FOR DEPENDENTS” (which means the visa holder must maintain adequate schooling arrangements for any school-age dependents who joined her in Australia for more than 3 months as part of your student visa application), as she is younger than 18 years she must have accommodation and support, and her general welfare must be maintained for the duration of your stay in Australia, and “INFORM PRVDR OF ADRS”, which means that the visa holder must provide certain information to the education provider.

64. [87]

    On 28 August 2016, WS entered Australia pursuant to the Student (Temporary) (class TU) Student (Subclass 500) visa in the charge of SS. From that date, WS has been living in Australia (with the exception of a trip back to Thailand on 29 December 2016 and returning on 1 February 2017), with SS and PGH, pursuant to that student visa.

65. [88]

    On 7 September 2016, the Acting Director, Adoption Services of the Department of Family and Community Services, determined to decline the request made by SS and PGH, as they had filed an application in the Supreme Court. They were informed that the Department does not undertake suitability assessments in intra-family adoption matters.

66. [89]

    On 7 October 2016, a delegate of the Minister for Immigration and Border Protection, refused the application for a Child (Migrant) (Class AH) Adoption (subclass 102) visa upon the basis that the applicant did not meet the relevant legislative criteria for any of the three sub-classes of visa that were considered (namely, dependent child visa, adoption visa, orphan relative visa).

67. [90]

    SS and PGH sought internal review of the decision, which review, on 14 October 2016, determined to affirm the previous decision. SS and PGH then sought a review of the decision in the Civil and Administrative Tribunal, which review was heard on 2 November 2016. In CSK v Secretary, Department of Family and Community Services [2016] NSWCATAD 292, for the reasons given, the application for review was dismissed.

68. [91]

    On 8 November 2016, an application, on behalf of WS, for review of the decision to refuse a Child (Migrant) (Class AH) Adoption (subclass 102) visa was lodged with the Administrative Appeals Tribunal. The review, at the date of the hearing, was not yet complete.

69. [92]

    On 20 December 2016, the applicants filed a Notice of Appeal from the decision of the Civil and Administrative Tribunal with the NSW Civil & Administrative Tribunal Internal Appeal Panel. The appeal, at the date of the hearing, had not been heard or determined.

70. [93]

    On 29 December 2016, at, or after, 10:00 a.m., WS left Australia and returned to visit Thailand (Ex. A).

71. [94]

    On 1 February 2017, WS returned to Australia pursuant to the Student Temporary Class visa that had been granted on 26 August 2016. She has remained in Australia since that time.

72. [95]

    I should mention, to the extent that it is relevant, there is no dispute that:

Additional Findings of Fact

1. [96]

   I am also satisfied that the following facts have been established.

2. [97]

   At all relevant times, SS and PGH were spouses habitually resident in Australia.

3. [98]

   On each of the occasions that WS has returned to Australia from Thailand, she has resided with SS and PGH in New South Wales.

4. [99]

   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.

5. [100]

   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.

6. [101]

   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.

7. [102]

   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.

8. [103]

   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.

9. [104]

   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.

10. [105]

    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.

11. [106]

    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:

12. [107]

    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.

13. [108]

    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:

14. [109]

    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.

15. [110]

    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.

16. [111]

    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.

17. [112]

    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

1. [113]

   It is useful to note that, relevantly, in New South Wales, the routes to adoption include:

2. [114]

   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.

3. [115]

   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.

4. [116]

   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.

5. [117]

   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.

6. [118]

   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

1. [119]

   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.

2. [120]

   Chapter 4 of the Act describes the adoption process which may lead to the making of an adoption order.

3. [121]

   Section 23 of the Act provides:

4. [122]

   “Child” is defined in the Dictionary of the Act, relevantly, as meaning “a person who is less than 18 years of age”.

5. [123]

   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”.

6. [124]

   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.

7. [125]

   Section 31 of the Act provides:

8. [126]

   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.

9. [127]

   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”.

10. [128]

    (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.)

11. [129]

    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:

12. [130]

    Section 107 of the Act provides:

13. [131]

    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].

14. [132]

    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.

15. [133]

    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

1. [134]

   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.

2. [135]

   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]:

3. [136]

   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.

4. [137]

   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.

5. [138]

   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.

6. [139]

   Article 1 of the Convention provides:

7. [140]

   Article 2 of the Convention provides:

8. [141]

   (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:

9. [142]

   Article 4 of the Convention provides:

10. [143]

    Article 5 of the Convention provides:

11. [144]

    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.

12. [145]

    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.”

13. [146]

    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.

14. [147]

    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.

15. [148]

    Regulation 15, which is included in Part 4, relevantly, provides:

16. [149]

    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).

17. [150]

    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.

18. [151]

    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.

19. [152]

    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.

20. [153]

    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.

21. [154]

    Regulation 34 of the Regulations makes provision for the relationship between the Regulations and State law. It provides:

22. [155]

    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.

23. [156]

    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:

24. [157]

    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.

25. [158]

    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.)

26. [159]

    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.

27. [160]

    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.

28. [161]

    Brown J noted at [37] – [38] that:

29. [162]

    Because of the Court’s conclusion regarding the habitual residence of WS, it is unnecessary to delve into the complex questions raised.

Habitual Residence

1. [163]

   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.

2. [164]

   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

3. [165]

   "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."

4. [166]

   The Macquarie Dictionary defines "habitual" derivatively, by reference to the word "habit", which is in turn defined as:

5. [167]

   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.

6. [168]

   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).

7. [169]

   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):

8. [170]

   The High Court went on to write, at [44], with regards to the enquiry to be made into habitual residence that:

9. [171]

   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.

10. [172]

    (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”.)

11. [173]

    The plurality went on to state, at [22] – [25]:

12. [174]

    The last paragraph quoted is of some importance in the present case.

13. [175]

    In discussing some of the factors that may be relevant, the plurality of the High Court included:

14. [176]

    (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.)

15. [177]

    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]:

16. [178]

    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".

17. [179]

    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.

18. [180]

    Where habitual residence is lost, it can, in some circumstances, occur relatively quickly. In Re LC [2014] UKSC1, Lady Hale, at [63] noted:

19. [181]

    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]:

20. [182]

    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.

21. [183]

    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:

22. [184]

    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:

23. [185]

    Lord Brandon concluded as follows:

24. [186]

    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]:

25. [187]

    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:

26. [188]

    His Lordship added:

27. [189]

    In their joint judgment, Lady Hale and Lord Toulson supported Lord Wilson’s decision and added a pragmatic perspective, writing, at [57]:

28. [190]

    It is worthwhile referring to part of the dissenting speech of Lord Sumption at [70] – [71]:

29. [191]

    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.

30. [192]

    Lord Clarke, at [92], agreed with Lord Sumption that:

31. [193]

    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.

32. [194]

    In Re LC [2014] at [37], Lord Wilson (with whom Lord Toulson and Lord Hodge agreed) noted that:

33. [195]

    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]:

34. [196]

    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]).

35. [197]

    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]:

36. [198]

    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.

37. [199]

    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.

38. [200]

    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”.

39. [201]

    (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].)

40. [202]

    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?

1. [203]

   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.

2. [204]

   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.

3. [205]

   All of the counsel in the case advanced a different time for the determination of habitual residence.

4. [206]

   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.

5. [207]

   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).

6. [208]

   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.

7. [209]

   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].

8. [210]

   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).

9. [211]

   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.

10. [212]

    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.

11. [213]

    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.

12. [214]

    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).

13. [215]

    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).

14. [216]

    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:

15. [217]

    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.

16. [218]

    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.

17. [219]

    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.

18. [220]

    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.

19. [221]

    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?

1. [222]

   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.

2. [223]

   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.

3. [224]

   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.

4. [225]

   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:

5. [226]

   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:

6. [227]

   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.

7. [228]

   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.

8. [229]

   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.

9. [230]

   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.

10. [231]

    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.

11. [232]

    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.

12. [233]

    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.

13. [234]

    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.

14. [235]

    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").

15. [236]

    It follows that the answer to the second question is no.

16. [237]

    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.

17. [238]

    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).

18. [239]

    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.

19. [240]

    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).

20. [241]

    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.

21. [242]

    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.

22. [243]

    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.