In the recent case of Suttikul and Anor & Suttikul and Ors  FamCA 70 (3 February 2017), an Australian married couple were applicants in pending proceedings before the Supreme Court of NSW for the adoption of the wife’s niece, aged 17 years. The niece is a national of ‘Category B’ and had lived with the applicants for some months on a temporary student visa, and applied for declaration as to jurisdictional issues two months before the Supreme Court. Additionally, the applicants also had parenting orders in respect to the niece’s care.
The Commonwealth Attorney General and the NSW Department of Family and Community Services intervened and argued that the Adoption Act does not apply and that the jurisdiction of the Supreme Court over adoption of children who are residents of Hague Convention countries arises under the Hague Convention Regulations and not otherwise. The applicants argued that the Hague Convention Regulations did not apply to their application and there is no inconsistency between the Hague Convention and the Adoption Act.
The following were the declarations sought by the applicants to assist the parties and child in the NSW Supreme Court adoption matter:
- a) The niece is no longer ‘habitually resident’ in Country B.
- b) The principle of ‘loco parentis’ from the case of Donell & Dovey  FamCAFC do not apply to the application of the niece because in October 2014 the Court granted parenting orders to the applicants for the niece;
- c) Pursuant to Commonwealth Statutory provisions, the Hague Convention Regulations are prevented ‘from interfering in any way’ with the Supreme Court’s jurisdiction to deal with an interlocutory adoption under the Adoption Act.
Austin J stated that the Court does not have any jurisdiction to grant child adoptions under State law. This is, according to Austin J, a matter for the Supreme Courts of the States and Territories under the legislation pertaining to their State or Territory.
The Family Law Act 1975 (Cth), empowers the courts to grant leave to an applicant to commence adoption proceedings in a proper forum. This was not the relief sought by the applicant as their application was already pending the Supreme Court.
The purpose of the Hague Convention Regulations is to legally implement Australia’s obligations under the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. Reg 24A(2) of the Hague Convention Regulations divests the Family Court of Jurisdiction in intercountry adoptions if jurisdiction is invested in a State court.
It was held that the declarations sought by the applicants in Family Court were designed to render unnecessary the need for the hearing scheduled before the Supreme Court.
Austin J stated that the applicants had invoked legal proceedings in a number of different ways to achieve their goal of the permanent residence of their niece with them in Australia. It was clear, according to Austin J, that their application in the Family Court was misguided, amounting to an abuse of court process. According to Austin J, f relief of this type was granted, it would undermine the current litigation in both the Supreme Court of NSW and the Administrative Appeal Tribunal.
The application was dismissed.