Re W & the Adoption of Children Act [1999] NSWSC 662

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1 HIS HONOUR : This is an application by an aunt to adopt her niece. It was made, in the first instance, to me in private chambers on 10 December 1998. I was not happy with the application for a number of reasons. The application was made by a single woman which, although permissible, is something that one has to look at carefully. It was made by an aunt in respect of her niece, which can raise complicated issues regarding family relationships. It appeared to be made with the prime object of getting an advantage under the immigration laws and there were certain matters affecting the applicant which needed deeper consideration.

2 I deferred the matter for further evidence to be placed before me, and whilst that was happening the Court of Appeal in England decided Re B [1998] TLR 173, noted in 73 ALJ 109, which seemed to suggest that the immigration factor was of overriding importance. However, that decision was reversed by the House of Lords in Re B [1999] 2 WLR 714, and, when that report became available to me on 9 April, I notified the applicant's solicitor of the fact that the Court of Appeal decision had been reversed.

3 Further material was then placed before the court, but I considered, and I believe wisely, as things have turned out, that it would be more appropriate to have the matter dealt with in court, though in closed court, so that all the implications could be debated.

4 The matter was thus set down for hearing before me today and has occupied the last two hours, and I have been assisted by seeing the applicant in person, hearing the evidence of Mr H G Milson, the Manager of Adoption Services of the New South Wales Department of Community Services, and been assisted also by the submissions of Mr Smith, the solicitor for the Department.

5 In retrospect hearing the matter in court was wise because having seen the applicant some of the reservations that I had when reading the papers disappeared and it is quite clear that there is a close bond of affection between the applicant and the person whom she seeks to adopt. It is also now clear that none of the personal matters, nor any other fact, other than (a) the immigration issue; and (b) the problems with confusion of relationships if an aunt adopts a child are a problem in the case.

6 The applicant was born in Fiji but has lived permanently in Australia since 1993 and had visited this country many times since her marriage in 1987. She has at least two sisters "S", the mother of the child, and "D".

7 Shortly after the child was born on 30 August 1984 the family group in Fiji made it clear that the applicant and "D" should be the primary carers. The applicant married in 1987 and moved to Australia and "D" virtually became the child's mother and was referred to by the child as "Mum".

8 The child arrived in Australia in late 1993. In early 1994, she complained that she had been sexually abused by "D"'s de facto partner. The child was medically examined and the Department of Community Services was also notified and the evidence suggests that the child's complaints were justified.

9 Accordingly, the child who had "D" as her primary carer and the person to whom she looked on as Mum ceased associating with "D" and has been in the care of the applicant in Australia ever since.

10 The applicant said to Ms Grey, a social worker, that she did not initially consider herself as a mother to the child, but her motivation was to be able to care for her and protect her. She saw herself more as an aunt. She applied to and was granted custody of the child by the Family Court of Australia and although the other parties to the application were the natural father and "S", no objection was made to the applicant having custody.

11 The applicant applied to the Department of Immigration to allow the child to remain permanently in Australia. This application took a considerable time to process, but was finally refused on 10 March 1999. The relevant part of the departmental file has been tendered in evidence and, without disclosing any confidential material, it would seem that the reason why the application was refused was that the child does not fit within any of the relevant criteria. She would have fitted within the criteria had she been an orphan. She is not an orphan because her parents are still alive, but she is in many respects like an orphan because she has left the relationship with "S" and her biological father, and she has also been removed, over the last five and a half years, from her relationship with "D".

12 The rejection of the application appears to be on the technical ground that she does not fit within a category, rather than on the ground that she is an undesirable person, or that the application is a sham.

13 In England the practice, as seen from the Court of Appeal's decision in Re B is that adoption orders can be made and then the English equivalent of the Minister for Immigration can appeal to the Court of Appeal. If the Court of Appeal considers that the application is made in circumstances where there are no substantial welfare considerations, but the adoption order is only being sought to give the child an abode in Britain for the rest of his or her life, then the court is being asked to use adoption to confer citizenship upon a person and the application might be refused.

14 In New South Wales the practice is that the Department of Immigration has its criteria, but so long as it is informed about an adoption application it leaves it to the Department of Community Services to make sure that the court is fully informed about all the facts and circumstances. This is because, as appears from Re B and the House of Lords decision, one cannot leave out of consideration the immigration factor, but the duty of the court under section 17 of the Adoption of Children Act 1965 is to see that the welfare and interests of the child are the paramount consideration. Even if an adoption order is made, it is still a matter for the Immigration Department to decide on residency, but it seems clear, as a matter of practice, to everyone concerned with this case that if an adoption order was made the child's chances of making a successful application would be greatly increased. One reason for this is that she would then actually fulfil one of the Department's criteria.

15 Ordinarily, if an aunt has custody of a child, so that she has complete control over the child, then it is better to leave the child in her natural parental relationship, so that she has both the benefit of her natural relationship and also the care and support of the aunt. This avoids the confusion that occurs with many children, according to the evidence that this Court receives in many of these applications, when a person that the child thinks is her aunt is really her mother and vice versa.

16 Again, ordinarily if the reason for the application is to get Australian residency, and there are no questions of guardianship or relationships being changed, and a person intends to be adopted for immigration purposes only, the application should be refused.

17 However, life is never simple and one must look at each case on its merits.

18 In the instant case, the answer to the point that custody is adequate is that because of the immigration laws it is not. The answer to the point that the immigration rules are being circumvented by the adoption is that on the facts of this case there is a close emotional relationship between the applicant and the child; a relationship that has been now existing for some five and a half years; the previous relationships have either broken down or been considerably weakened by the five and a half year residence in Australia; the child has emotional fears of going back to Fiji if "D"'s de facto partner is still in a relationship with "D", as it appears he is.

19 A complicating factor is that the applicant's mother, who is now aged 71 and is currently in Australia, provides some care of the child when she comes home from school. This bond between the child's grandmother and the child must be precarious for a number of reasons, first that the grandmother's immigration status is very questionable. Secondly, at 71 she may not be expected to provide that support for a long period of time and, thirdly, in any event, the child is now close to her 15th birthday and will probably require less support from her grandmother as each month goes by.

20 It has been put that it is more likely than not that the grandmother will have to return to Fiji. If the child returns to Fiji and is reunited with "D", the relationship between "D" and the child will take up where it left off and the grandmother will make sure that there is no further sexual abuse.

21 Although there is some material to suggest that the child has reconciled herself to "D", I am not at all sure that the presence of the grandmother in Fiji would be a sufficient protection of the child against further problems with "D"'s de facto partner.

22 As Mr Anderson for the applicant justifiably kept reminding me, the paramount consideration is the welfare of the child.

23 It seems to me that in the special circumstances of this case, despite the fact that this is an aunt adoption, and despite the fact that one of the purposes is to achieve an advantage under the immigration laws, that there is a close emotional bond between the applicant and the child; the child has had an emotionally disturbed past; she has now settled down and it is clear, and indeed conceded by Mr Milson, that there is no problem with the quality of the care that the applicant is providing and that it would be counter-productive for the relationship to be terminated.

24 In those circumstances I feel that I was justified in exploring this matter thoroughly before making an order and it is a case where I should make the usual order for adoption.

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