Application by the Director-General, NSW Department of Community Services:... [2000] NSWSC 22 | Case summary

3 It also appeared to me that the application could raise questions bearing on the immigration status of D. It appeared that if an order was not made, it was unlikely D would be able to remain in Australia, whereas if an order was made, he would have reasonable prospects of doing so. In those circumstances, the applicant was notified that I had substantial doubt as to whether D could properly be said to have been brought up, maintained and educated by the applicants as their child within s.18(l)(b)(i), and that, unless I could be referred to some other relevant provision or some precedent which satisfied me on that question, I considered I should not make an order without a hearing in Court, at which the immigration authorities had an opportunity to make submissions. 4 The application has been heard by me in Court today. I have evidence that the Department of Immigration and Multicultural Affairs was notified of the hearing, and that the Department has advised it did not wish to appear or make submissions. In those circumstances, the matter has proceeded without opposition. 5 I have been assisted by the submissions of Mr Smith, solicitor for the Director General. I have read affidavits by Mr and Mrs B and various other persons in support of the application, and I have heard oral evidence from Mr and Mrs B and also from D. I have to say that I found them to be impressive witnesses, and I accept their evidence; and I also accept the other affidavit evidence in the case. 6 On the basis of that evidence, I will very briefly outline the history of the matter. 7 D was given up at the age of three months to a home run by Mother Theresa and the Missionaries of Charity in Calcutta. When he was five, he was sent to St Mary's Orphanage and Day School in Calcutta, and he continued there until he was seventeen. He is of Anglo-Indian descent, and has never had any known relatives in India. 8 In 1990, Mr and Mrs B, commenced sponsoring D, and indeed they were at the time and have since been sponsoring other children in India. Financially, this support has involved payments of about $38 a month and $10 a month for pocket money and incidentals, and also the provision of such things as clothes, books and other educational essentials. This financial assistance continued until D came to Australia in February 1996. 9 However, in the case of D, the relationship quickly developed beyond mere sponsorship and financial support, and became quite different from that between Mr and Mrs B and the other children they supported. D and Mrs B corresponded frequently and extensively. D, who unlike most other children at the school had no family, asked if he could call Mrs B "mummy". She agreed and he commenced doing so. 10 By May 1992, the relationship was so close that when Mr and Mrs B were advised that D was very ill, Mrs B decided to go to India to see him, leaving her other children, including one with a terminal illness, in the care of Mr B. This was to be Mrs B's first journey out of Australia. Mr and Mrs B did not have the money available to pay for the trip. Mr B is in receipt of a Veterans Affairs pension. Mrs B receives a Veterans Affairs pensioner's wife's allowance, plus family and disability child allowance and an adoption subsidy. The money to finance the trip was provided by Mrs B working long hours over twelve weeks making and selling bread, and thereby raising $3,500.00. Mrs B said in her evidence that her approach was that D was the member of her family who most needed her at that time. 11 The visit, which occurred in October 1992, caused Mrs B to regard D more than ever as her son, and upon her return Mr and Mrs B began to contemplate adoption and continued to do so from then until the present time. However, at that time the financial and administrative obstacles seemed too great, and they were not for some time able to take any positive steps. 12 After the first visit, Mrs B visited D about once each year. In a visit in 1995, Mrs B took a two-year old disabled son, who has since died, to meet D, and D took the responsibility of caring for that child for about two days during which Mrs B had other commitments. 13 From the first visit in 1992 there continued to be frequent and extensive correspondence and phone calls. Mrs B during this period counselled D in relation to such matters as possible careers and his sexual development. 14 Mrs B went again to Calcutta in February 1996 to bring D to Australia, D having been enrolled in a hotel management college in Australia. There were considerable difficulties encountered in that visit, which I need not relate. Since being brought to Australia in February 1996 when he was 17 years and 4 months old, D has plainly been cared for by Mr and Mrs B as their own child. They have assisted him in many ways with problems concerning his assimilation and education, and done so at considerable financial sacrifice to themselves. 15 It is plain that Mr and Mrs B and D wish to have the adoption order made so as to give legal effect to what they regard as a real family relationship. 16 I have to make a decision on two central issues. Firstly, whether there is jurisdiction to make an adoption order having regard to s.18 of the Adoption of Children Act, to which I have already referred; and secondly, if there is jurisdiction, should an order be made. 17 Mr Smith has provide written submissions, which I will leave with the papers. 18 In those submissions, he has drawn my attention to a decision by Waddell J in this Court given on 21 August 1978 in proceedings A77/2302. In that case, the application was for the adoption of a young woman born on 1 April 1947, who was accordingly at the time around 30 years old. The applicants had been married on 27 February 1965, one of the applicants being the mother of the young woman. It was clear that from the time of the marriage, that is when the young woman was seventeen years and ten months, she had been cared for by both applicants as if she were their daughter. Previously there had been a period of some twelve months' courtship before the marriage, in which time the close relationship between the husband and the young woman commenced, and during which the husband helped the young woman in a number of ways in which a father would help a daughter. 19 In considering the application of s.18 to that situation, Waddell J said this: Broadly speaking the policy of the Act is, I think, to enable an order to be made in respect of an infant child so as to place that child in a legal sense in a family situation or, alternatively, in the case of a person who has been in a family situation but who is an adult, to give legal recognition to the prior existence of that family situation. The first purpose is dealt with by s.18(1)(a), the second by s.18(1)(b). Under the latter provisions for the application to succeed, it must be established that the person whose adoption is sought has been brought up, maintained and educated by the applicants. Each of those words is used cumulatively. That is, in order for the application to succeed, it must be shown the person has been brought up and maintained and educated by the applicants. 20 Waddell J went on to say that, with regret, he could not reach that conclusion in that case, because, although the period of twelve months before the marriage could be taken into account, he did not think that the young woman could be said to have been brought up, maintained and educated by both applicants. 21 I accept the statement of principle in that case but, for reasons I will give, I believe this present case can be distinguished. 22 Mr Smith also referred me to a South Australian decision Re Adoption Application by Clark (1987) 11 FamLR 962. In that case, Mr and Mrs Clark sought an adoption order in respect of a male aged nineteen. Neither of the applicants was the child's biological parent. However, Mrs Clark had assumed a parental role over many years prior to the child attaining eighteen, and Mr Clark had assumed such a role from about the time when the child was sixteen. 23 In the course of considering the application, the Children's Court expressed a view on the meaning of the expression "brought up, maintained and educated", which appears in the South Australian Adoption of Children Act as well as in the New South Wales Act. They said at pages 963-4: In a general sense of course it is clear enough what the subsection means. It really means that one or both of the applicants must have in truth reared the child the subject to the application and exercised the rights and duties of a parent towards that child. In the case of Re P (infants) (1962) 3 AllER 789 at 794, Penncuick J, in considering the concept of maintenance of an infant, said that a provision such as that: "refers in general terms to the obligations of a parent, with no qualification; and it seems to me that in this subsection the expression 'obligation of a parent' must include first the natural and moral duty of a parent to show affection, care and interest towards his child; and secondly, as well, the common law or statutory duty of the parent to maintain his child in the financial or economic sense". 24 The Court approved an adoption in that case. However, it has to be noted that there are differences between the South Australian legislation and the New South Wales legislation. 25 The relevant provisions of the South Australian legislation make it clear that it will be sufficient if the child has been brought up, maintained and educated by either one of two applicants, whereas the New South Wales Act requires that the child must have been brought up, maintained and educated by both applicants. It is not clear in the judgment of the Children's Court in that case whether or not in their opinion the child had been brought up, maintained and educated by Mr Clark. 26 Secondly, the South Australian legislation provides, notwithstanding non-compliance with that provision, that an adoption order can be made in special circumstances. 27 One other matter submitted by Mr Smith was that it was relevant to have regard to the provisions of s.17 of the Adoption of Children Act, which is in the following terms: 17. For all purposes of this Part, the welfare and interests of the child concerned shall be regarded as the paramount consideration. 28 Mr Smith submitted that regard should be had to that provision in construing s.18. 29 Turning to the facts of this case, I would first note that the evidence does not suggest any direct involvement by Mr B in the bringing up or education of D prior to his arrival in Australia in February 1996. However, it is apparent that throughout the whole period from 1990 on, Mr and Mrs B were married and in a very close and supportive relationship, and supporting other children. It is clear also that Mr B took a very close interest in the communications between Mrs B and D, and supported Mrs B in everything she did for D. In those circumstances, in my opinion, what was done by Mrs B can properly be considered as having been done by her on behalf of both applicants. 30 Next, I would note that, although sponsorship of a child in a foreign country could not of itself possibly satisfy the requirements of a child being brought up, maintained and educated, and although it would be very rare that sponsorship combined with some personal relationship would satisfy this requirement, nevertheless there are very unusual circumstances in this case that satisfy me that what happened in this case does satisfy the test. I will very briefly note what seemed to me to be the most significant circumstances supporting this view. 31 From about the middle of 1992, when D was thirteen years of age, both Mr and Mrs B regarded D as a son and as part of their family and, as far as was possible having regard to their respective circumstances, treated him as such, and provided all the care, affection, interest, counselling and support which they could provide in the circumstances. 32 Financial support was provided; and I think it is fair to say, having regard to the cost of living in India, that the financial support was of an extent which would meet at least a substantial part of the costs of D's support. 33 In relation to bringing up and education, in my opinion Mrs B did provide that as much as was possible consistently with the respective circumstances of the parties and no one else was making that provision. Indeed, although D had been provided with care and support by the institutions I have mentioned, no other person had ever had a parental relationship with him. 34 Having regard particularly to those considerations, but also to the general history that I have outlined and the more detailed facts given in evidence, I am satisfied in this particular case that D was brought up, maintained and educated by the applicants from about the middle of 1992, when he was about 13 years of age; and that, interpreting s.18 in the light of s.17, that is sufficient to satisfy the requirements of s.18. 35 Accordingly, in my opinion there is jurisdiction to make an order. 36 The next question is whether an order should be made. No opposition has been advanced to the order, and it is clear in my opinion that it is wished for by all parties concerned, and that it is very much in the interests of D that an order be made. The only possible question about this relates to the principle applied in a line of cases in the United Kingdom, culminating in the decision of In Re B (1999) 2 AC 136, a case which was considered in this Court by Young J in Re W (1999) NSWSC 662. 37 Two factors emerge from that line of cases. Firstly, that in the United Kingdom little weight is given to benefits of adoption occurring after the child in question has attained majority, particularly benefits associated with the immigration status of the child. Secondly, substantial weight is given, against such benefits, to a perceived public policy that immigration policy not be overridden through the adoption procedure. 38 In my opinion, those factors do not loom large in an application such as this. 39 Unlike the situation in the United Kingdom, in New South Wales the Adoption of Children Act expressly contemplates the adoption of children who have attained the age of eighteen, so in my opinion it is plain that the interests of a child who has already attained eighteen, including future interests, are to be given weight, if not as much weight as the interests of a child prior the time of attaining eighteen. 40 Secondly, in New South Wales and in Australia adoption does not in these circumstances give an automatic right of residence; whereas it appears to be the position that in the United Kingdom, that is the effect of an adoption order. 41 Thirdly, there is the circumstance that in this case, unlike the United Kingdom cases, there has been no opposition to an adoption order mounted by immigration authorities.

Application by the Director-General, NSW Department of Community Services: Adoption of DR by DCB and HMB [2000] NSWSC 22

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Judgment (13 paragraphs)

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