Re WS (No 2) [2017] NSWSC 475

Re WS (No 2) [2017] NSWSC 475

As at the date of her move from Thailand to Australia (6 March 2016), WS had lost her habitual residence in Thailand. She was therefore not a child habitually resident in another Contracting State moved to Australia for adoption under the Hague Convention. Consequently, the Convention and reg 15 did not apply, and the Supreme Court had jurisdiction to hear and determine the Plaintiffs' Summons for adoption under s 23 of the Adoption Act 2000 (NSW).

Parties
First Plaintiff: Ms SS; Second Plaintiff: Mr PGH; Representative: Separate Representative for the Child; First Defendant: Secretary, Department of Family & Community Services; Second Defendant: Attorney General for New South Wales; Intervener: Attorney General for the Commonwealth
Jurisdiction
Australia
Judgment Date
27 April 2017
Procedural Posture
Principal Judgment / Determination of Separate Question Regarding Jurisdiction to Hear Adoption Application
Outcome
Court has jurisdiction to hear and determine the Plaintiffs' Summons for adoption.
Legal Topics
Jurisdiction of Supreme Court for Adoption, Habitual Residence in Intercountry Adoption, Application of Hague Convention in Adoptions, Relationship of Adoption Act 2000 (nsw) and Family Law (hague Convention on Intercountry Adoption) Regulations 1998 (cth)
Family Law Child Welfare Adoption Private International Law Jurisdiction of Supreme Court for Adoption Habitual Residence in Intercountry Adoption Application of Hague Convention in Adoptions Relationship of Adoption Act 2000 (nsw) and Family Law (hague Convention on Intercountry Adoption) Regulations 1998 (cth)

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Parties

Ms SS

First Plaintiff

Mr PGH

Second Plaintiff

Separate Representative for the Child

Representative

Secretary, Department of Family & Community Services

First Defendant

Attorney General for New South Wales

Second Defendant

Attorney General for the Commonwealth

Intervener

Procedural Posture

Principal Judgment / Determination of Separate Question Regarding Jurisdiction to Hear Adoption Application

Legal Issues

  1. 1 At what point in time does WS's habitual residence fall to be determined for s 107 of the Adoption Act 2000 (NSW) and reg 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)?
  2. 2 Was WS habitually resident in Thailand at that time?
  3. 3 If not, does the Convention and reg 15 apply to this adoption?

Ratio Decidendi

As at the date of her move from Thailand to Australia (6 March 2016), WS had lost her habitual residence in Thailand. She was therefore not a child habitually resident in another Contracting State moved to Australia for adoption under the Hague Convention. Consequently, the Convention and reg 15 did not apply, and the Supreme Court had jurisdiction to hear and determine the Plaintiffs' Summons for adoption under s 23 of the Adoption Act 2000 (NSW).

Court Disposition

Court has jurisdiction to hear and determine the Plaintiffs' Summons for adoption.

Orders

  • In answer to the separate question, the Court does have jurisdiction to hear and determine the Plaintiffs' Summons for adoption.