Adoption of J
[2015] NSWSC 1760
•24 November 2015
Supreme Court
New South Wales
Medium Neutral Citation: Adoption of J [2015] NSWSC 1760 Hearing dates: 24 November 2015 Date of orders: 24 November 2015 Decision date: 24 November 2015 Jurisdiction: Equity - Adoptions List Before: Kunc J Decision: Summons dismissed
Catchwords: FAMILY LAW AND CHILD WELFARE – Adoption – Adoption of an adult – No jurisdiction where applicant had only known putative son as adult – Adoption Act 2000 (NSW), s 24 Legislation Cited: Adoption Act 2000 (NSW) Category: Principal judgment Parties: Restricted Representation: Mr G (in person)
File Number(s): A108/2015 Publication restriction: No
EX TEMPORE Judgment
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By a summons filed on 6 October 2015 the first plaintiff, Mr G, seeks an order for the adoption of the second plaintiff, Mr J.
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When the summons was filed it was apparent in the Registry that there were a number of deficiencies in the application. The matter was referred to me in chambers. At my direction the Registry wrote to Mr G on 14 October 2015:
The Court has received your application for the adoption of Mr J filed 6 October 2015.
There are a number of deficiencies in the application. However, before they need to be addressed it appears that an adoption order cannot be made in this case in any event because Mr J is over 18 years of age and does not meet the requirements of s24 of the Adoption Act 2000 (“Act”).
Section 24 of the Act prescribes that an order for the adoption of an adult can only be made if that person was cared for by the proposed adoptive parent prior to reaching the age of 18 years, was a ward of the State or under the parental responsibility of the Minister as prescribed in subsection 2(b). The relevant section of the Act is set out below:
24 Who can be adopted?
(1) An adoption order may be made in relation to a child who:
(a) was less than 18 years of age on the date on which the application for the order was made, or
(b) was 18 or more years of age on that date and was cared for by the applicant or applicants for the order.
(2) For the purposes of subsection (1) (b), a child was cared for if the child:
(a) has been cared for by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or her or their child prior to reaching the age of 18 years, or
(b) has, as a ward within the meaning of the Children (Care and Protection) Act 1987 or a person under the parental responsibility of the Minister administering the Children and Young persons (Care and Protection) Act 1998, been in the care responsibility of the applicant or applicants or of the applicant and a deceased spouse of the applicant.
If Mr J does satisfy the requirements of s24 of the Act, please provide the Court with affidavit evidence demonstrating how that is the case.
Any affidavit should be filed on or before 6 November 2015. If no affidavit is received by that date the judge with the conduct of the application has indicated that the summons will be dismissed without further notice to you.
Please confirm receipt of this notification by return email.
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That letter resulted in a further letter and short affidavit from Mr G seeking to explain why he wanted to adopt Mr J. None of the material which Mr G then provided appeared to overcome the fundamental difficulty that Mr J is 23 years old and, as I shall shortly explain, has only known Mr G for a few months.
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Notwithstanding the fact that the additional material provided by Mr G did not appear to overcome that fundamental difficulty, at my direction the Registry wrote to Mr G again on 9 November 2015:
The Judge allocated to your adoption application has looked at your Affidavit sworn on 6 November 2015. The evidence in that Affidavit does not satisfy the requirements under section 24 of the Adoption Act 200. Nevertheless if you wish to do so, the Court will give you the opportunity to be heard on this application. …
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If you do not wish to be heard in this matter please advise the Court and your application will be dismissed in Chambers.
If you do wish to attend you will need to bring all evidentiary material that you intend to rely upon on that date and be prepared to address the Judge in Court. If you are not represented, you can find a copy of the Court’s guide for self represented litigants on the Supreme Court of NSW website. Additionally, a copy is enclosed with this letter.
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Today Mr G addressed the Court as to why an adoption order should be made. Mr J attended with Mr G and has also addressed the Court.
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These are the background facts.
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Mr G is in his late 80's. He appears to be both in good health and to be in full possession of his mental faculties. He had no difficulty preparing the application and addressing the Court in a most persuasive and considered way. Mr G was married for many years but is now a widower. He is estranged from his family.
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Mr G explained that at the start of this year, in order to keep himself busy, he enrolled in a TAFE course. It was at TAFE that Mr G met Mr J. Mr J is a foreign student who arrived in Australia on 29 April 2015. He is here on a student visa for two years. Mr J has explained to me that his own family circumstances in his country of origin are very unfortunate. He would like to make his home here in Australia and undertake further study.
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Mr G struck up a friendship with Mr J. Mr J describes Mr G as having become his adoptive grandfather. Mr G provides Mr J with free room and board and has told the Court that he wishes to do everything that he can to advance Mr J's life in Australia. As Mr G put it to the Court, he wishes to do everything to "assist and support" Mr J. Mr G frankly informed the Court that one of the reasons why he thought adoption was an appropriate course was that it could make it faster and easier for Mr J to apply to become an Australian citizen.
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For his part, Mr J informed the Court that he was very happy living with Mr G and treating him as his adoptive grandfather. It was his wish to stay with Mr G and provide him with any support and care that Mr G may require in the years to come. Mr J told me that if I were to make the adoption order "a good family can be created by this way".
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Mr G appealed to what he described as the compassion and discretion of the Court. However, the issue of adoption in this State is not left to the unfettered discretion of anyone. Adoption in the State of New South Wales is governed by the Adoption Act 2000 (the “Act"). Jurisdiction is conferred on this Court by s 23(1) of the Act. Although already referred to above, I will set out again, for convenience, the terms of s 24 of the Act:
24 Who can be adopted?
(1) An adoption order may be made in relation to a child who:
(a) was less than 18 years of age on the date on which the application for the order was made, or
(b) was 18 or more years of age on that date and was cared for by the applicant or applicants for the order.
(2) For the purposes of subsection (1) (b), a child was cared for if the child:
(a) has been cared for by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or her or their child prior to reaching the age of 18 years, or
(b) has, as a ward within the meaning of the Children (Care and Protection) Act 1987 or a person under the parental responsibility of the Minister administering the Children and Young persons (Care and Protection) Act 1998, been in the care responsibility of the applicant or applicants or of the applicant and a deceased spouse of the applicant.
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Both Mr G and Mr J have explained to the Court that they have only known each other for a few months. Because Mr J is 23 years of age (and was 23 years of age as at the date the summons was filed), s 24(1)(a) of the Act is inapplicable.
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Assuming all other statutory prerequisites were satisfied, the only basis on which the Court could make an adoption order was if s 24(1)(b) was satisfied. It will only be satisfied if Mr J was cared for by Mr G within the meaning of s 24(2) of the Act. Neither of the limbs of that subsection are satisfied by the facts in this case.
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The Court has no alternative but to dismiss the summons. The dismissal of the summons is not in any way a reflection on the character or intentions of either Mr G or Mr J. It is no more than the legal consequence of the fact that the Court does not have jurisdiction under the Act to make an adoption order in favour of Mr G in respect of Mr J.
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The order of the Court is:
Summons dismissed.
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Decision last updated: 24 November 2015
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