The Adoption of Sophie (a pseudonym)

1. [1]

   In 2021, the plaintiff, Ms Jane Smith (not her real name) adopted a child, Sophie (not her real name), in Rwanda under Rwandan law, implementing the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the “Convention”).

2. [2]

   That adoption is recognised under Australian law. [1]

3. [3]

   Sophie, who is almost eight, now resides with Ms Smith in New South Wales and has a permanent visa to enter and remain in Australia.

4. [4]

   Sophie wishes, in due course, to apply for Australian citizenship. It is a legal precondition of Sophie’s eligibility for Australian citizenship that the legal relationship between Sophie and her pre-adoption parents be terminated. [2]

5. [5]

   Rwandan law does not provide that, in the circumstances of this case, the adoption terminated the legal relationship between Sophie and her biological, pre-adoption parents.

6. [6]

   For that reason, by Summons filed on 5 September 2023, Ms Smith seeks an order under Australian law to terminate the legal relationship between Sophie and her pre-adoption parents.

7. [7]

   Ms Smith seeks this order under reg 20 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) (the “Regulations”).

8. [8]

   On 15 November 2023, I made the following orders:

   1. (1)

      in accordance with reg 20, on application by Ms Smith, that the adoption of the child Sophie by the applicant terminates the legal relationship between the pre-adoption parents of that child and the child;

   2. (2)

      approving the following forenames as the forenames of the child:

   3. (3)

      approving the following surname as the surname of the child:

9. [9]

   These are my reasons for making those orders.

Does reg 20 apply?

1. [10]

   Regulation 20 provides:

2. [11]

   Regulation 34 provides:

3. [12]

   Section 111 of the Adoption Act 2000 (NSW) (the “Act”) also empowers this Court to make an order that an adoption terminates the legal relationship between a child and the child’s pre-adoption parents.

4. [13]

   Section 111 provides:

5. [14]

   Under s 111 of the Act, only the Secretary of the Department of Communities and Justice is able to make an application for an order that the adoption of the child terminates the legal relationship between the child and the child’s pre-adoptive parents.

6. [15]

   This may be contrasted with reg 20 of the Regulations which states that the adoptive parent of the child in question may make the application.

7. [16]

   By reason of reg 34 of the Regulations, those regulations do not apply to this case if there is in force a law in New South Wales having “the same” or “comparable” effect as reg 20.

8. [17]

   The question is whether s 111 of the Act has the “same” or “comparable” effect as reg 20. If it does, only the Secretary can make the application in relation to Sophie.

9. [18]

   In comprehensive and careful submissions, Mr Lim, counsel for Ms Smith, submitted that s 111 of the Act did not have the “same” or “comparable” effect as reg 20 of the Regulations and that accordingly, it would not be necessary for the Secretary to make the application.

10. [19]

    I invited the Secretary to intervene to make submissions on that question. I was very grateful to receive submissions from the Crown Solicitor’s Office. The Secretary agrees with the submissions made on behalf of Ms Smith and, without expressing any view as to the substance of Ms Smith’s application, submitted that “it is not appropriate for orders to be made under s 111 of the Adoption Act” and that “the order sought by the Applicant in respect of reg 20 of the Hague regulations is appropriate”.

11. [20]

    One provision has the “comparable effect” to another if it has a “similar effect”. [4]

12. [21]

    Earlier decisions have considered whether provisions in the Act have “comparable effect” to those in the Regulations. [5]

13. [22]

    It appears that no previous case has considered whether s 111 of the Act is to the same or comparable effect as reg 20 of the Regulations.

14. [23]

    In my opinion, it is not.

15. [24]

    As Mr Lim submitted, reg 20 is substantively different from s 111 of the Act.

16. [25]

    Under reg 20, an adoptive parent can apply for an order, whereas under s 111 of the Act only the Secretary can do so. The identity of an applicant for an order terminating the legal relationship between a child and his or her pre-adoption parents is central to the “effect” of reg 20. By limiting the power in s 111 of the Act to be exercisable only on the application of the Secretary, the Act does not provide one of the main effects of reg 20, which is that a parent can move for an order whether or not the Secretary agrees, or has the inclination to make an application.

17. [26]

    Further, under reg 20, but not under the Act, the Secretary must give notice to the Commonwealth Minister for Immigration and Multicultural Affairs who then may be heard on the application. [6] On the other hand, s 111(3) of the Act requires the Secretary to give written notice of the application to the Central Authority of the Convention country involved. These differences point to different interests being heard under the respective provisions and result in a difference in the substantive effect of the laws.

18. [27]

    These matters make it clear, in my opinion, that s 111 of the Act is not to the same or comparable effect as reg 20 and that, accordingly, it is appropriate, as both Ms Smith and the Secretary have submitted, that I hear this application under reg 20.

19. [28]

    In passing, I note that s 103 of the Act provides that the object of, amongst other provisions, s 111 is:

20. [29]

    As has earlier been observed in relation to the relationship between reg 15 and s 107 of the Act, that object has evidently not been achieved. [7]

The requirements of reg 20

1. [30]

   Regulation 20 only applies if an adoption is granted in a Convention country of a child “habitually resident” in the Convention country by a person who is “habitually resident in Australia”.

2. [31]

   There is no doubt that when the adoption order was made, Sophie was “habitually resident” in Rwanda. She had lived nowhere else.

3. [32]

   At the time the adoption order was made, Ms Smith was also living in Rwanda.

4. [33]

   Ms Smith was born in Sydney and is an Australian citizen.

5. [34]

   In her affidavit in support of this application, Ms Smith deposed:

6. [35]

   This evidence persuades me that, although Ms Smith was in Rwanda when the adoption order was made, she was nonetheless “habitually resident in Australia” at that time. The question of whether a person is “habitually resident” is a question of fact requiring attention to the context and an examination of a person’s intentions. In that regard it has been said that a person’s intentions “will usually be relevant to a consideration of where that person habitually resides”. [8]

7. [36]

   Very properly, Mr Lim drew my attention to the fact that, notwithstanding these matters, the Certificate of Conformity of Intercountry Adoption issued by the Rwandan National Child Development Agency on 5 April 2021 stated that Ms Smith’s habitual residence was Rwanda. Ms Smith’s affidavit evidence did not explain how it was that the certificate made this statement. The statement appears to be inconsistent with the evidence of Ms Smith that I have set out at [34]. I think it likely that, as Mr Lim submitted, the statement in the certificate was a mistake.

8. [37]

   As I have set out above, Ms Smith was required to provide a copy of this application to the “State Central Authority” for New South Wales, that is, to the Department of Communities and Justice. The Department was then obliged to notify the relevant Commonwealth Minister who was entitled to intervene.

9. [38]

   On 20 October 2023, I was informed that these steps had been taken and that the Department of Home Affairs has advised that it does not wish to be heard in relation to this application.

10. [39]

    I may not make an order under reg 20 unless there is in force an adoption compliance certificate issued in Rwanda. Such certificate has been issued.

11. [40]

    I also may not make an order under reg 20 unless satisfied that the laws of Rwanda do not provide that the adoption of a child terminates the legal relationship between the child and the pre-adoptive parents.

12. [41]

    In that regard, Mr Lim submitted:

13. [42]

    I accept those submissions. I am satisfied that Rwandan law does not provide that adoption terminates the pre-existing parental relationship. It does so only in limited circumstances, that do not apply in this case.

14. [43]

    Finally, in order to make an order under reg 20 I must be satisfied that Sophie is allowed to enter Australia and to reside permanently in Australia.

15. [44]

    Sophie holds a subclass 102 adoption visa which entitles her to enter Australia and reside in Australia as a permanent resident. She has done so since June 2022.

Should the order be made?

1. [45]

   I am satisfied that there are good reasons to make the order sought.

2. [46]

   Sophie’s mother has died. It appears likely that her father has also died.

3. [47]

   Sophie’s life is now in Australia. Ms Smith is now the only maternal figure in Sophie’s life.

4. [48]

   As I have said, termination of the pre-existing parental relationship is a legal precondition to Sophie applying for Australian citizenship. I am satisfied that it is in Sophie’s best interests that she be able to do this.

Approval of names

1. [49]

   Sophie’s current name is constituted as two given names. Surnames are not generally used in Rwanda. I am satisfied that it is in Sophie’s best interests that she adopt the same surname as her adoptive mother. She proposes to retain her given names.

Conclusion

1. [50]

   For those reasons, I made the orders to which I have referred.