Re WCT and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998

The applicants in this case (the proposed parents) apply to adopt WCT, a Thai citizen currently aged 4 and now living with them in Australia. Thailand is a party to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the Convention). The present application is brought pursuant to reg 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (the Regulations).

The proposed parents, who are representing themselves, have asked that their application be dealt with in chambers. That is not unusual in cases of this kind. It is clear that all the formal requirements for the Court to make the order for the adoption of WCT by the proposed parents have been satisfied. But for the issue which is the subject of these reasons, the application would have been approved in chambers without reasons.

However, the proposed parents’ application also seeks orders that the Court dispense with both the consent of WCT’s birth parents and the giving of notice of this application to WCT’s birth parents. The material before the Court is to the effect that WCT’s birth father is unknown, and that his birth mother gave him up to the care of the relevant Thai authorities at birth and consented shortly thereafter to his future adoption. Furthermore, the mother did not have an identity card to prove her own identity.

A “dispense consent” application is not an unusual application in proceedings under the Adoption Act 2000 (NSW) (the Act) (see Part 5 of Chapter 4 of the Act). However, the Court will not make such an order in this case, or an order dispensing with notice of the application to WCT’s birth parents, because it has no power to do so in relation to applications which rely on the Convention. While there has been no contradictor to the present application, the reasons for that conclusion are clear by reference to earlier decisions of experienced judges of this Court with which I respectfully agree.

These short reasons are necessary so that the proposed parents understand why the orders to dispense with consent and notice that they have asked for are not being made, and lest anyone at some time in the future might think that this aspect of the application was overlooked. Because the authorities to which I refer below deal with the issue in its full legal complexity (analyses which I gratefully acknowledge and respectfully adopt), in these reasons I am able to confine myself to explaining the situation relatively briefly.

The short explanation is simply this: unlike the dispense consent power conferred on the Court by the Act, neither the Convention nor reg 15 of the Regulations makes any provision for the Court to dispense with the consent of any person whose consent is required by the Convention: Re S and the Adoption Act 2000 (NSW) (No 2) (2006) 68 NSWLR 467; [2006] NSWSC 1438 at [31]-[33], [40], [55], [57] and [60] (White J, as his Honour then was) (Re S). Where there is a substantive difference between the provisions of the Act and the Regulations, it is only the latter that the Court can apply.

This is for two reasons.

First, reg 34 of the Regulations stipulates that state laws are only applicable where they are of “the same … or comparable effect” as reg 15. The relevant sections of the Regulations and the Act are not of the same or comparable effect: Re S at [31]-[33], [57] and [60].

Second, wherever there is inconsistency between the laws of a state (such as the Act) and federal laws (such as the Regulations), the latter prevail pursuant to s 109 of the Commonwealth Constitution. There is such an inconsistency between Chapter 4 of the Act (which includes the dispense consent provisions) and the Regulation 15 (which contains no provision permitting the Court to dispense with consent), so only the Regulations apply: Re S at [68].

The result is that this Court has no power in the present application - which is brought under the Convention and the Regulations – to dispense with any person’s consent to the adoption. The same conclusion applies for the same reasons in relation to the application to dispense with the giving of notice to WCT’s birth parents of this application.

The question of consent by the birth parents, and who must be notified of the adoption application, is one that rests with Thailand’s Department of Children and Youth as the central authority of the child’s state of origin under the Convention. As the cases to which I refer make clear, this Court’s duty is to be satisfied that the laws of Thailand have been complied with, including as to consent and notice.

In Re S, White J considered an application to adopt two children from the Philippines under reg 15. His Honour concluded:

In Re J and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 [2009] NSWSC 471, Austin J (albeit “without the benefit of a contested hearing” (at [3])) agreed with White J’s conclusion that reg 15 takes primacy over the requirements of the Act.

Austin J further adopted the reasoning of White J in Re S that “[u]nder the Convention the question of consent is a matter for the State of origin rather than the receiving State” and so long as “the court is satisfied that the requirements of the Convention have been complied with in the State of origin, it is unnecessary and inappropriate for the court in the receiving State, when making an adoption order, to make ancillary orders dispensing with notice to and consent by the parents” (at [26]).

This approach has been reiterated in other cases, including Re E and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 [2010] NSWSC 1313 at [11] (White J); Application of MGO and AAO; re LDC [2011] NSWSC 951 at [2] (Brereton J); and Application of ARD and RGD; re FGG and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) [2014] NSWSC 1963 at [4]-[5] (Robb J) (Application of ARD and RGD).

In Application of ARD and RGD, Robb J considered that reg 15 imposed these requirements on Australian courts with respect to the issue of consent of birth parents:

I am satisfied that the consent and any notice requirements have been complied with in relation to WCT, being what was required under the law of Thailand. This includes that WCT was made available for intercountry adoption by Thailand’s Department of Children and Youth in circumstances where his birth mother provided written consent after his birth and the identity of his birth father is unknown. I reach this conclusion relying upon the presumption of regularity, which applies to this case, as Robb J explained Application of ARD and RGD:

For these reasons, while the Court will make orders pursuant to the Convention and the Regulations authorising the adoption of WCT by the proposed parents, to the extent the application also seeks orders dispensing with the consent of, and notice to, WCT’s birth parents, the application is refused.