This language is awkward, but must, to have effect, operate in relation to the application for the order, so as to affect the circumstances in which an order might otherwise be made.
10 Because of the requirement in relation to an adult sought to be adopted, that the applicant and proposed adoptee have been in a parenting relationship for at least five years, the applicant, as one of a couple, is likely to be a "step parent" because married to the prospective adoptee's birth parent or because they have lived in a de facto relationship of three or more years duration: see Adoption Act 2000, Dictionary, step parent.
11 The Act makes separate provision for "adoption by one person" in s 27 and "adoption by couple" in s 28. Where one of the couple is a birth parent, it is clear from the terms of s 27(3) (consent of spouse) that an application may be made by the other member of the couple alone.
12 In the present case, it might have been open to the adoptee's stepfather to apply as a sole applicant. Because he continues to live with the birth parent it seems likely, pursuant to s 95(3), that the relationship between birth parent and adoptee would not cease where the birth parent and step parent are living together. (This conclusion is expressed with some hesitation, because sub-s (3) is expressed to be "[d]espite subsection (1)", whereas the effect it is reversing appears to be that achieved by sub-s (2)(d).)
13 Because the present application was made by the adoptee's birth mother and stepfather as a couple, s 28 of the Act applied. Pursuant to s 28(2), the Court could not make an order in favour of the couple, one of them being a step parent, "unless s 30 is complied with". That provision as explained by Handley AJA, requires in apparently intractable language that the step parent must have lived with the child and the child's birth parent for not less than three years "immediately before the application for the adoption order". The effect of this provision, if applicable, is to preclude an adoption order in relation to an adult adoptee who is no longer living in his or her parent's home immediately before the application for the order is made.
14 That conclusion can be avoided only on one of two approaches. The first is that pursuant to s 28(2), the operation of s 30 only applies in relation to adoption by a couple where one of the couple is a step parent. That, of course, would not apply in the present case, but might allow an application by a step parent alone. However, if that had been intended, the terms of s 30 could have been incorporated directly into s 28(2), rather than by reference. Rather, s 30 must have been intended to apply both to adoptions by one person and adoptions by couples, it being assumed that there was no need to make express reference to it in s 27 because it clearly operated where the order was sought by the step parent alone.
15 The other approach, considered at some length in argument, was that the requirements in s 30(b) could be treated disjunctively, with respect to the child and the other parent. That would in effect require reading-in between the words "for a continuous period of not less than three years" and the words "immediately before the application" words to the effect "and in the latter case". However, for reasons explained by Handley AJA, that course would exceed the proper limits of the powers of the Court in construing legislation.
16 Two additional points might be noted. First, the courts not infrequently complain about difficulties of construing language used in legislation. It ill behoves a court to impose, by a form of linguistic contortion, a meaning which is inconsistent with that which has been expressed with reasonable clarity in the legislation. Secondly, the language of paragraph (b) in s 30 was not that recommended by the Law Reform Commission. Accordingly, one can be reasonably satisfied that there was a deliberate intention to impose a constraint on adult adoptions by step parents, beyond those which the Commission intended.
17 HANDLEY AJA: This is an appeal, or alternatively, an application for leave to appeal from the decision of Austin J on 19 September 2006, who refused to make an adoption order in respect of an adult on the application of her step-father and birth mother. The intended adoptee is married and lives with her husband and children at a different address. The only question before the Court, apart from the competency of the appeal, is whether s.30(b) of the Adoption Act 2000 prevents the Court making the order. All other statutory pre-conditions were satisfied, and Austin J said that "were it not for that one difficulty I would have no hesitation in making the order". He held that s.30(b) prevented the Court making the order.
18 On 9 January 2007 the Applicants appealed as of right. The competency of the appeal must have been questioned because on 27 February they filed a notice of motion seeking a declaration of competency or leave to appeal. Section 101(1) of the Supreme Court Act provides:
"Subject to this and any other Act and subject to the Rules, an appeal shall lie to the Court of Appeal from -
(a) any judgment or order of the Court in a Division;"
19 Section 101(2)(r) provides:
"An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from - …
(r) a final judgment or order in proceedings of the Court, other than an appeal:
(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more."
20 Mr Anderson for the Appellants argued that an appeal which could never satisfy para (r), because it was not about money or property, was not affected by the monetary limit and lay as of right.
21 The suggested construction is contrary to the scheme of s.101(2)(r) which bars all appeals as of right unless the monetary threshold is satisfied. It is also inconsistent with Clyne v NSW Bar Association (1960) 104 CLR 186, 205. Mr Clyne's right to remain on the roll of barristers was not property, and was incapable of being valued. The High Court held that he therefore needed special leave because the monetary threshold for appeals as of right was not satisfied. The Court's reasoning is equally applicable to s.101(2)(r) of the Supreme Court Act. The fact that para (r) and other paragraphs of sub-section (2) overlap does not assist the Appellants.
22 The appeal was therefore incompetent, but the construction issues warrant the grant of leave and the Court indicated during oral argument that this would be granted.
23 The common law does not recognise adoption: Halsbury's Laws of England 4th Edition Volume 24 para 624, and therefore it is entirely the creature of statute. The Appellants' application is unusual because it relates to a married woman aged thirty-five, and the applicants are her step-father and birth mother. Because of this the application had to satisfy requirements which do not apply to other adoptions.