Re WS [2016] NSWSC 919

Re WS [2016] NSWSC 919

The separate jurisdictional question raised important issues with implications beyond New South Wales for adoption of children habitually resident in Convention countries, there was no appellate consideration of the relevant first instance conclusion in Re S and The Adoption Act 2000 (NSW) (No. 2), and appellate authority was desirable; accordingly the proceedings should be removed to the Court of Appeal.

Jurisdiction
Australia
Judgment Date
04 July 2016
Procedural Posture
Adoption Proceeding / Procedural Ruling on Removal of Proceedings to the Court of Appeal After an Order for Separate Determination of a Jurisdictional Question
Outcome
Proceedings removed to the Court of Appeal.
Legal Topics
['removal to Court of Appeal' 'separate Determination of Question of Law' 'intercountry Adoption' 'hague Convention on Intercountry Adoption' 'inconsistency Between Commonwealth Regulations and New South Wales Adoption Legislation']
['practice and Procedure' 'adoption Law' 'constitutional Law'] ['removal to Court of Appeal' 'separate Determination of Question of Law' 'intercountry Adoption' 'hague Convention on Intercountry Adoption' 'inconsistency Between Commonwealth Regulations and New South Wales Adoption Legislation']

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Procedural Posture

Adoption Proceeding / Procedural Ruling on Removal of Proceedings to the Court of Appeal After an Order for Separate Determination of a Jurisdictional Question

Legal Issues

  1. 1 ['Whether the proceedings should be removed to the Court of Appeal under r 1.21 of the Uniform Civil Procedure Rules.' 'Whether the Court has jurisdiction to make the adoption order sought in paragraph 1 of the summons.' 'Whether the Family Law (Hague Convention on Intercountry Adoption) Regulations apply to the proposed adoption of WS.' 'Whether Chapter 4 and s 107 of the Adoption Act 2000 (NSW) are inconsistent with reg 15 of the Hague Regulations in their application to adoption of a child habitually resident in a Convention country.']

Ratio Decidendi

The separate jurisdictional question raised important issues with implications beyond New South Wales for adoption of children habitually resident in Convention countries, there was no appellate consideration of the relevant first instance conclusion in Re S and The Adoption Act 2000 (NSW) (No. 2), and appellate authority was desirable; accordingly the proceedings should be removed to the Court of Appeal.

Court Disposition

Proceedings removed to the Court of Appeal.

Orders

  • ['Vacate order 4 made on 1 June 2016 fixing the separate question for hearing before me on 3 August 2016.' "Order that forthwith after the service of the plaintiffs' submissions in reply as provided for by order 3 made on 1 June 2016 the parties confer and prepare a statement of the facts relevant to the...