Blackwell v Pennant [2006] NSWSC 968 | Case summary

69/2006 RE DB AND THE ADOPTION ACT 2000 JUDGMENT 1 HIS HONOUR: This judgment concerns an application by a step-father and a birth mother to adopt her daughter, his step-daughter, who is an adult with children of her own, residing at a different address. The question is whether the court is prevented by s 30(b) of the Adoption Act 2000 (NSW) from making an adoption order. Facts 2 DG was born in Greece in 1970. Mrs G is her birth mother. Mrs G married DG's birth father in 1969 when she was 16 years of age, and she separated from him less than two years later. DG's birth father did not see the child at birth and has not seen her since that time. Mrs G obtained a divorce in 1973 and has had no subsequent contact with DG's birth father. 3 In 1974 Mrs G went on a trip to visit relatives in Melbourne, leaving her daughter DG with her parents in Athens. While in Melbourne she met Mr G. They were married in September 1974. Mrs G's parents and her daughter DG came to join them in Australia shortly afterwards. Mr and Mrs G had a daughter in 1977, a half-sister for DG. DG's surname was changed to G by deed poll when she was about 5 years old, and she always attended school with that name. 4 From 1975 until 1985 Mr and Mrs G, their daughter and DG lived as a family in a property owned by Mr and Mrs G in Suburb A. In 1985 they moved to a new home purchased by Mr and Mrs G in Suburb B, where they continued to live together as a family. Mr and Mrs G retained the Suburb A property, which is 4 km (5 minutes by car) away from their Suburb B property. 5 DG grew up believing that Mr G was her birth father, and always called him "Dad". It was only when she turned 18 that her mother explained the true position to her. Her sister was told the true position at about the time she reached 18 years of age. No-one outside the immediate family is aware that Mr G is not the birth father. 6 DG married in 1990, and she and her first husband lived in the Suburb A property until 1994, when DG moved interstate for tertiary study. She separated from her first husband in 1995 and was divorced in 1996. She married her present husband in 1997. They lived with Mr and Mrs G in the Suburb B property until 2000. They then moved into a property acquired by DG in Suburb B, about 100 metres away from the home of Mr and Mrs G. In 2002 they moved to Mr and Mrs G's Suburb A property, where they have lived with their two children, now aged 6 and 3, until the present time. DG says that during these years she has spent 4 or 5 hours in the company of her mother and step-father at their home in Suburb B, with her children, on almost a daily basis during weekdays, and on many occasions when her first child was small, her husband would join them for the evening meal. 7 In 2005 DG and her step-father embarked on a project of rebuilding DG's Suburb B house. DG became a licensed owner-builder and her step-father, who had ceased his work as a hotel proprietor in 2000, volunteered to be the project manager, working on the site from 6 a.m. to 4 p.m. each working day. Her evidence is that she sees her step-father on the site every time she visits it, and they make decisions together. The new house is expected to be finished in September 2006 and then DG and her family will move into it. 8 DG says that her life has been one of very close association and connection with her mother and step-father, and that their lives have been entwined since her childhood. She says that "living with" her parents has been an evolving relationship, the characteristics of which have changed depending on their respective ages and responsibilities. Application for adult adoption 9 The application for an adoption order is by Mr and Mrs G as co-plaintiffs. Although she is now 35 years of age and has an independent life, DG wants to be adopted by her stepfather. The application has been rendered possible by the introduction of the Adoption Act 2000 (NSW), which removed the previous prohibition on the making of an adoption order in respect of a married person. 10 Adult adoptions are relatively uncommon and are frequently not considered appropriate. In Re K and the Adoption of Children Act 1965 (1988) 12 Fam LR 263 at 264, Young J said: "The Court is always very careful to see that adoption is used for the purposes contemplated by the Act and not for any collateral purposes. As Selby J said in Re Lee Yen Chum (1963) 4 FLR 296 at 299: 'The Court looks with disfavour upon what are sometimes called 'accommodation' adoptions, that is to say, adoptions which are sought for a motive other than an intention to establish a parental relationship between the applicants and the person sought to be adopted. In such cases, the Court, in the exercise of its discretion, has refused to make the order asked.'" 11 In the present case Mr and Mrs G have told the Department's social worker that they always wanted to adopt DG, but it was never a pressing matter, but now that they have retired they have the time to pursue the application. They feel it will make DG part of Mr G's family tree and then DG will feel more fulfilled and completely part of the family unit. Mr G says there is nothing for him and his wife or DG to gain or lose financially or emotionally through the adoption. Mr and Mrs G and DG view adoption as formalising and making legal confirmation of the emotional and practical state of the family situation as it is now and has been for the past 30 years. 12 The view of the Department of Community Services is that the adoption order will promote DG's future welfare and best interests. The social worker says in her report that she sees adoption, rather than any other order, to be in DG's best interests because it will give her a birth certificate with Mr G named as her father, confirming their emotional relationship and providing her with equal status to her half sister within the family. According to the social worker, DG, who is a lawyer, is independent and mature and is capable of making her own decision to accept or explore further contact with her birth father in future. 13 I have no difficulty in accepting, on its face, the evidence tendered in support of the application. I do not regard the present application as inappropriate or one to be treated with disfavour. On the contrary, my view is that there is a good case for the court to assist DG and the applicants to achieve their purpose. 14 The social worker has made contact with DG's birth father, who responded through a Greek attorney. The attorney asked the social worker to relay a message to DG that he had wanted make contact with her but had been unable to find her. The social worker asked the attorney to have her client sign a statutory declaration indicating his attitude to adoption. Nothing has been supplied. DG's attitude, according to the social worker, is that she has no particular interest in finding out more about her birth father, and that she is very happy with the father who has raised her. The consent of DG's birth father is not required as she is more than 18 years old (s 54(1)(d)). DG has been in the care of her proposed adoptive parents for at least 5 years (though not immediately prior to the application), as required by s 54(2), and has given her consent to the adoption under that section. 15 The application for adoption satisfies the requirements of the Adoption Act 2000 (NSW) in every respect except one, and were it not for that one difficulty I would have no hesitation in making the order. The difficulty arises out of s 30 of the Act. Statutory provisions 16 Before considering s 30, it is important to examine the context in which the section appears. The Adoption Act speaks about the adoption of a "child" and directs attention, for example, to the object of emphasising that the best interests of the child, "both in childhood and later life" must be the paramount consideration in adoption law and practice (s 7(a)). Some of the language of the Act seems to contemplate, at least principally, a child under the age of 18 years. But the word "child" is defined in the Dictionary of the Act to include "a person who is 18 or more years of age and in relation to whom an adoption order is sought or has been made". 17 Section 24, headed "Who can be adopted?", states that an adoption order may be made in relation to a child who was 18 or more years of age on the date on which the application for an order was made "and was cared for by the applicant or applicants for the order" (s 24(1)(b)). Subsection 24(2) says: "(2) For the purposes of subsection (1)(b) a child was cared for if the child: "(a) has been brought up, maintained and educated by the applicant or applicants, or by the applicant and the deceased spouse of the applicant, as his or her or their child for a continuous period of at least 5 years before the application was made [subparagraph (b), which deals with the special position of a ward and a person under the parental responsibility of the Minister, is inapplicable]." 18 In Re Director-General, Department of Community Services (NSW); Adoption of DR by DCB and HMB (2000) 26 Fam LR 107, a case under the Adoption of Children Act 1965 (NSW), s 18(1), an Australian couple treated a child in India as their son and they provided all the care and support they could in the circumstances, and the wife visited him regularly, until they were able to bring him to Australia when he was 17 years of age. Hodgson CJ in Eq held the child had been "brought up, maintained and educated" by them while he was in India, for the purpose of satisfying the statutory requirement. Literally, neither the 1965 Act nor the present s 24(2) requires that the bringing up, maintaining and educating be continuing at the date of the adoption application. 19 In the present case the evidence shows the Mr and Mrs G brought up, maintained and educated DG as their child in the Suburb A property from 1975 to 1985, and in the Suburb B property from 1985 to 1990, when she married. On these facts, the requirement of s 24(2) is clearly satisfied. The requirement of s 24(2) is notably different from the requirement of s 30(b). 20 Section 30 says: "The Court must not make an adoption order in favour of a step parent of a child unless: (a) the child is at least 5 years old, and (b) the step parent has lived with the child and the child's birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and (c) specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and (d) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child." A note to s 30 gives examples of other actions that may be taken by law in relation to the child, the examples being the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 (NSW) or a parenting order under the Family Law Act 1975 (Cth). 21 In my opinion s 30 applies when the child who is the subject of the adoption application is more than 18 years old - that is, in my view there is no scope for construing s 30 so that it applies only where the child is under 18. I say this because of the definition of "child" in the Dictionary and because of s 24, which makes it plain that a child of 18 or more years of age may be the subject of an adoption order if the requirements of s 24(2) have been satisfied. 22 Therefore the Act imposes on the court a mandatory requirement not to make an adoption order unless, inter alia, subparagraph (b) of s 30 has been satisfied. The wording of s 30(b) makes it clear that the step parent must have "lived with" the child and the birth parent for a continuous period of at least 3 years "immediately before the application"; that is, in contrast with s 24(2), it is insufficient for the purposes of s 30(b) that the step parent and parent lived with the child for period of more than 3 years ending some time before the application was made. In the present case the application was made on 8 June 2006 and so the question is whether Mr G has lived with DG and Mrs G continuously during the three-year period from June 2003 to June 2006. "Has lived with" 23 Some key parts of the evidence are as follows: · from early 2002 until the present time, DG has resided with her second husband and children Mr and Mrs G's house in Suburb A, 5 minutes away by car from Mr and Mrs G's house in Suburb B; · DG owns and drives her own car; · DG testifies to a close and loving personal relationship with Mr and Mrs G, in which they care for her and assist her financially; · DG says that during the last 4 years she has visited Mr and Mrs G at their home almost daily for 4 or 5 hours each visit; · DG is the owner-builder of a new house in Suburb B, just 100 metres away from Mr and Mrs G's home, and her stepfather has worked daily on the construction of the house for the last 12 months. 24 I have accepted this evidence. I infer, however, that during the period from 2002 to 2006 DG has usually slept in the house in Suburb A rather than in the house in Suburb B where her parent and step parent live, and that she has had her own establishment in the Suburb A house, in terms of cooking, washing and living facilities, which she and her husband and children have used for the purposes of day-to-day living, even though they frequently had meals with Mr and Mrs G. In my opinion the inevitable conclusion on these facts is that Mr G has not lived with DG for a continuous period of not less than 3 years immediately before 8 June 2006. 25 There does not appear to be any reported judicial decision as to the meaning of the words "has lived with" in s 30(b). The applicants submitted that the words "has lived with" do not mean the same as "has lived together"; and specifically that the words "has lived with" do not imply a residential connection and may be satisfied where the evidence shows an association that involves leading one's life in close relationship with the life of others. I do not accept this submission, as a matter of the ordinary meaning of language. It seems to me that the concepts of "living with" and "living together" are indistinguishable, except in special contexts such as to describe the relationship between husband and wife. If A lives with B then, as a matter of ordinary language, A and B live together; and if X and Y live together, then each of them lives with the other. In the special case of husband and wife, in some contexts a reference to "living together" can be satisfied where the husband and wife live in different places provided that consortium has not been terminated (R v Creamer [1919] 1 KB 564, at 569). This is because to speak of "living together as husband and wife" is often meant and understood as a reference to consortium, not necessarily including any physical proximity of residential arrangements. But that is not the sense of the words "has lived with" in s 30(b). 26 I accept that the words "has lived with" are not words of mathematical precision. One can readily envisage cases where the application of the words would be open to doubt - for example, arrangements involving a "granny flat", where the answer to the question whether a step parent lives with a birth parent and child may depend both on the degree of intimacy of the relationship, and matters such as the physical location of the granny flat in relation to the main residence and the arrangements for dining, washing and general living. But the words "has lived with" have a clear application over a substantial range of circumstances, including the circumstances of this case. Although the family is very close, and DG has spent a great deal of time with her mother, and her stepfather is helping her build her house, she has maintained a separate establishment since at least 2002. In such circumstances it would be an affront to common sense to hold that she lives with her stepfather and mother or that they live with her. Analogous case law 27 The applicants referred to the definition of "living with" in Stroud's Judicial Dictionary of Words and Phrases (sixth edition by D Greenberg and A Millbrook, 2000) and the definition of "live with" in Words and Phrases Legally Defined (third edition by JB Saunders, 1989). In my view the definitions are in accordance with the view that I have expressed. The dictionaries make particular reference to two cases, neither of which, on close examination, supports the applicants. 28 In Re Paskins' Will Trusts; Paskins v Underwood [1948] 2 All ER 156 Mr Paskins, who was elderly, made an arrangement with Mrs Underwood according to which she had the use of two rooms in his house for herself and her child, and she acted as his housekeeper and companion. Subsequently, Mr Paskins' sister also came to live in the house. By his last will, Mr Paskins devised his house to a trustee in trust for his sister for life and thereafter for Mrs Underwood absolutely, "provided she is living with my sister at the date of my sister's death". After Mr Paskins died, the relationship between his sister and Mrs Underwood changed for the worse. They ceased to have meals together. Mrs Underwood kept the rooms occupied by her in good order and Miss Paskins, who was old and feeble, "retreated to the front of the house" where she prepared her own food and lived in squalor. Mrs Underwood ceased to do anything for her. When Miss Paskins had a fall, which prevented her from moving, Mrs Underwood gave her no help. Vaisey J found that by the time Miss Paskins died there had been a complete separation between her and Mrs Underwood and they were not living together, because there was no personal association between them, although there was physical proximity. He held that the words "living with my sister" meant living with the sister in the sense of being personally associated with her, not merely in physical proximity (at 158). 29 The case is authority for the proposition that physical proximity in the same house is not a sufficient condition for living together; but the decision does deny that physical proximity is a necessary condition for living together. The evidence before me establishes the presence of the element of personal association that Vaisey J found to be lacking. But in my view there is an insufficient element of physical proximity. 30 In Blackwell v Pennant (1852) 9 Hare 551; 68 ER 631, a testator bequeathed a year's wages to each of the servants living with him at the time of his death who had lived for three years in his service. Some of the servants lived in the testator's house, while others lived in cottages and lodges about the grounds. Turner V-C held that a servant who lived in a cottage on the grounds adjoining the testator's mansion qualified for the bequest, since it could not "reasonably be held that he was not living with the testator in the sense in which servants live with their masters because he was not actually living in the same house with his master" (at 553). 31 The case confirms that the words "living with" contain a requirement of physical proximity. In a case where the testator's will referred to servants and the domestic arrangements were that some servants lived in cottages on the grounds, the court considered it appropriate to interpret the language of the will as extending to such a servant. But that does not make the concept of "living with" so elastic as to extend to a case where one party resides in a separate house 4 km away from the other, even though there are regular visits. 32 In my opinion, the requirement of s 30(b) that the step parent must have lived with the child means that they must have shared the same facilities of day-to-day living on a regular and recurrent basis, in circumstances where there is a close relationship of a parental kind between the step parent and parent and the child. The "close relationship" part of that requirement is satisfied here, but the "sharing the same facilities" requirement is not. Legislative policy 33 In his thoughtful and helpful submissions, the applicants' solicitor referred to s 33 of the Interpretation Act 1987 (NSW), which requires the court, in interpreting a provision of an Act, to adopt a construction that would promote the purpose or object underlying the Act, and s 34(b), which refers to the desirability of avoiding a construction that leads to a result that is manifestly absurd or unreasonable. The objects of the Adoption Act are set out in s 7. They include emphasising that the best interests of the child, both in childhood and later life, are the paramount consideration (s 7(a)) and making it clear that adoption is to be regarded as a service for the child (s 7(b)). I am satisfied that it is in the interests of the child in this case for an adoption order to be made. But it is not open to the court to adopt a construction of a statutory provision promoting a general declared object of the statute, when to do so is to disregard plain language directly applicable to the instant case. 34 The applicants referred to extrinsic materials, in order to support their contention that a purposive construction should be adopted. Under the previous adoption legislation, the Adoption of Children Act 1965, adult adoptions were permitted provided that the adoptee had been brought up, maintained and educated by the applicants as their child (s 18(1)(b)(i)), but the court was prevented from making an order for the adoption of a person who was or had been married (s 18(4)). A step parent adoption was allowed without the consent of the Director-General (s 18(2)) but the birth parent was required to be a co-applicant. 35 The Second Reading Speech for the Adoption Bill 2000 was given by the Minister for Community Services, Mrs Lo Po', on 21 June 2000 (NSW Hansard, Legislative Assembly, 21/06/2000, Article 11 of 55). She identified some social changes during the intervening 34 years and referred to the report of the Law Reform Commission of New South Wales (Review of the Adoption of Children Act 1965 (NSW), Report 81, 1997 ("LRC Report")), saying that the Bill addressed the recommendations in the LRC Report. Her speech made only a few references to adult adoptions and step parent adoptions. As to the latter, she said that a step parent would under the new law be able to make a sole application without affecting the custodial parent's relationship with the child, and she added: "However, step-parents and foster parents are required to have an established relationship with the child". If that is the explanation for S 30(b), it is obvious that the drafting goes much further than is necessary to give effect to the Minister's purpose. 36 The Explanatory Note to the Bill is unhelpful. It paraphrases the clause that became s 24(2) and makes no reference to step parent adoptions. It is more helpful to refer to the LRC Report, bearing in mind that the Minister stated that the Bill addressed the Commission's recommendations. 37 The LRC Report considered adult adoptions and step parent adoptions separately. Reasoning in that way, the Commission omitted to put the two policy areas together, so as to consider step parent adoptions of adults. 38 As to adult adoptions, the Commission concluded (at 4.17-4.18) that the Adoption Act is primarily and fundamentally concerned with the permanent placement of children in a family so that they can be brought up, maintained and educated within a secure and loving family environment; but adult adoption, though anomalous, should be permitted. The Commission recommended the preservation of the requirement that the adult adoptee must have been brought up, maintained and educated by the applicants (Recommendation 25). But it recommended against retention of the prohibition on the adoption of a married person (Recommendation 26), observing (at 4.21) that "the fact that the adoptee has already made a home elsewhere and is not in need of rearing, maintenance, and education is not relevant in this context." This implies that the Commission saw no policy reason for insisting on a continuing parenting arrangement in the period immediately before the making of the adoption application. 39 Recommendation 25 led to s 24, expressed in rather more specific terms than the Commission had recommended. Recommendation 26 led to s 25(b), according to which an adoption order may be made irrespective of the marital status of the child. 40 As to step parent adoptions, the Commission referred to a submission from the Department of Community Services which argued that no application should be made until the step-child had been in a parent/child relationship with the applicant for at least 5 years, thereby demonstrating the stability of the relationship and enabling participation of the child in the decision (at 4.42). The Commission was concerned that step parent adoption would often not be in the best interests of the child because it would exclude the non-adopting birth parent from participating in the child's life. Commission conceded, however, that a step parent adoption would be appropriate on certain conditions, one of which was that "the child has an established relationship of at least 5 years duration with a step parent or other relative" (at 4.88). Those words were carried over into the Commission's Recommendation 30. 41 Clearly enough, the Commission's attention was focused on the adoption by a step parent of a child under the age of 18. However, the Commission's requirement for an established relationship could be met, consistently with its concerns, if the established relationship occurred before the child turned 18, even if there was no longer a close domestic relationship at the time of the adoption application, because the child had turned 18 and had moved away from home. If the Commission had insisted that the established relationship be a continuing one until the time of the adoption application, its reasoning would have been inconsistent with its recommendation to abolish the prohibition on the adoption of a married person. 42 Section 30(b) transformed the Commission's recommendation 30 by: · reducing the recommended period from 5 to 3 years; · converting the "established relationship" recommendation to a "living with" requirement; and · insisting that the relationship be continuing up to the time of the application for adoption. 43 As far as I can see, the rationale for this revision of the recommendations was not given in any of the explanatory materials. It is inconsistent with the reasoning supporting the Commission's recommendation to remove the prohibition on adoption of a married person, a recommendation that the legislature accepted. 44 Section 30(b) is understandable for the adoption of a child under the age of 18 years, as it reflects the policy that the applicants should establish an enduring and continuing parental relationship between themselves and the child. It reflects the Commission's policy view that an adoption order in favour of a step parent, that will curtail the rights of the non-custodial birth parent, must be made on the foundation of an established relationship. However, in my opinion the requirement in s 30(b) has no rational foundation where the application is for the adoption of an adult person. Conclusions 45 My examination of the extrinsic materials has led me to conclude that s 30(b) is unsupportable in terms of principle and policy, when applied to adult adoptions. That does not provide me with a mandate to disregard the clear wording of the provision. Although I have endeavoured to consider the applicants' case carefully and sympathetically, I am reluctantly drawn to the conclusion that the legislation prevents the court from making the adoption order that the applicants seek. 46 In my opinion s 30(b) should be amended so that, where the step parent's application is for the adoption of a person who is above the age of 18 years at the date of the application, the step parent need not be continuing to live with the adoptee at that date. I shall take the appropriate steps to refer this judgment to the Attorney General so that my view can be considered as a law reform proposal.

Blackwell v Pennant

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