Judgment - EX TEMPORE
Revised and reissued 22 March 2019
This is an application for the adoption of K. The application is made by S and N. S is K's aunt and N is her husband.
K was born in September 2002 in Otahuhu in New Zealand. His birth mother, C, is S's sister. K's father is T, although he is not recorded on K's birth certificate. At the time K was born, N and S moved in with C to support her. Soon after K's birth, N and S took over his day-to-day care due to difficulties that C was experiencing in caring for him. When K was about three months old in December 2002 the relationship between S and C broke down. S and N left C's house and it was agreed between them that they would take K with them and look after him. He has lived with them ever since. In March 2005 the Family Court at Manukau in New Zealand made an order granting custody of K to S and appointing her as an additional guardian.
For the last eight years, S and N have lived in Sydney with K and their other two children. The evidence shows that K has been treated by S and N as their own child and regards himself as a member of their family. Sadly, as a result of difficulties they have experienced, neither C nor T has played any significant role in his upbringing.
K is now sixteen years old. He has just started Year 11. He has on several occasions asked for his last name to be changed so as to accord with his view that he is part of S and N's family, but no steps have been taken towards adoption, no doubt because until recently there was no particular impetus for doing so. That changed at the end of last year when N was offered employment by the corporate group for whom he works in New Jersey in the United States. The work involves a promotion. N, along with the other members of his family, including K, are keen for him to take up the position and will benefit from him doing so.
The difficulty that has arisen is with obtaining a visa which would allow K to accompany the rest of his family to the United States for the next couple of years (at least) in accordance with the promotion that N has received. The US Immigration and Nationality Act confers what are known as derivative immigration benefits on people who are permitted entry to the United States for work purposes; including on, among others, their children. This includes adopted children but only if they are unmarried, under the age of twenty-one and were adopted while under the age of sixteen.
Even if an adoption order were now made, this would not apply to K. But US legal advice which has been obtained by N through his employer suggests that if this Court were to make an order for K's adoption it would assist in the application for what is known as a B2 visitor visa. The advice before the Court suggests that in exercising their powers to issue such a visa US immigration officials will look to whether a child is a member of a household of the person who is being permitted access to the United States to work. Accordingly, and in accordance with US legal advice, this application was made in the hope that an adoption order would demonstrate that K, albeit that he is more than sixteen years old, is a member of the household of N and S and is for all practical purposes a member of their family.
Initially it was hoped that N could take up the new job in New Jersey and the family could relocate there at the beginning of this year. The present application was filed in January and has been treated by the Court as an urgent one. When the application initially came before the Court the Court required reassurance and further evidence on some of the matters to which I have referred, but these have been addressed in the evidence which has been read before the Court today. In particular, consent has now been obtained from K's birth mother and birth father to the adoption.
The evidence before the Court establishes quite clearly in my mind that this is an appropriate case for adoption so as to reflect the relationship which actually exists, and has almost since K was born existed, between himself and S and N. But there is a difficulty, which was very properly drawn to my attention by counsel for S and N. Section 91 of the Adoption Act 2000 (NSW) relevantly provides:
(1) The Court may not make an order for the adoption of a child under 18 years of age unless a report in writing concerning the proposed adoption has been provided to the Court by the applicant.
(2) The report is to be accepted by the Court only if it has been prepared by the Secretary or an authorised person.
(2A) In this section, an authorised person means any of the following:
(a) an approved assessor,
(b) the principal officer of an accredited adoption service provider (or delegate),
(c) the principal officer of a designated agency (or delegate),
(d) a suitably qualified person employed or nominated by an approved organisation to prepare reports in accordance with this section.
(3) This section does not prevent the Secretary from making a report to the Court in relation to the adoption of a child before the Court if the Secretary considers it appropriate to do so.
(4) The Court may require the Secretary to make a report in relation to an application for an adoption order made by a person other than the Secretary, but only if the child is under 18 years of age.
(5) However, the Court is not to require the Secretary to make a report unless the Court considers that the Secretary should report on the case because of:
(a) particular concerns about the safety, welfare or well-being of the child concerned, or
(b) serious concerns about the reliability or independence of a report made by an authorised person concerning the case, or
(c) other exceptional circumstances.
No report has been obtained for the purposes of s 91(1). The evidence does not explain why that is so, but no doubt it is connected with the urgency with which the application has been brought forward.
Counsel invited me to dispense with the requirement of such a report. Counsel observed that the facts behind the application have been fully ventilated before the Court and the Court is in a position to make an informed judgment for itself on whether adoption is in K's best interests. Counsel also observed that there is evidence before the Court of counselling which has explained to K the pros and cons of the adoption process and that he wishes to proceed. Even if such evidence was not before the Court, it is the sort of thing which could have been established to the Court's satisfaction by K giving evidence himself today.
I have no doubt that the application is in K's interests, but the wording of subsection (1) is in imperative terms. Counsel submitted that subsection (5) in some way qualified subsection (1) and indicated the Court had some form of dispensing power. Unfortunately, I do not think that reading of the legislation is open. To my mind subsection (5) simply qualifies subsection (4) and leaves the requirement of subsection (1) untouched. Counsel did not point to any other provision of the Act or any other statutory provision which would entitle the Court to dispense with the requirement of subsection (1). Accordingly, though I would very much like to make an adoption order immediately, I have no power to do so.
The Court has no alternative but to adjourn the proceedings to allow a report to be provided in compliance with subsection (1). Accordingly the proceedings will stand over, but I have delivered a formal judgment in this matter in the hope that the circumstances recorded in this judgment can be put before the relevant US immigration authorities. It may be that they have discretion which they can exercise which would enable a visa to be issued to K to allow him and the rest of the family to travel to the United States as soon as possible. That would obviously be in everyone's' interests.
Accordingly, I will order that a copy of this judgment in the form in which I have delivered it, identifying the parties by their full names, be made available to the plaintiffs' legal representatives for transmission to the US immigration authorities. The judgment itself will also be published on the internet, although in accordance with the practice of the Court the internet published version will be made anonymous.
The orders of the court are:
I grant leave to counsel for the plaintiffs to approach Chambers for the making of an adoption order when further evidence has been obtained.
I order that a copy of this judgment in the form in which I have delivered it (identifying the parties by their full names) be made available to the plaintiffs' legal representatives for transmission to the US immigration authorities.
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Decision last updated: 22 March 2019