Adoption - step-parent adoption of step-daughter aged 54 years - applicable principles

[2010] FCWA 120

[2010] FCWA 120

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	ADOPTION ACT 1994
LOCATION	:	PERTH
CITATION	:	PARSONS and MANCINI [2010] FCWA 120
CORAM	:	CRISFORD J
HEARD	:	6 OCTOBER 2010
DELIVERED	:	26 NOVEMBER 2010
FILE NO/S	:	ADR 18 of 2010
BETWEEN	:	PARSONS First Applicant
AND
MANCINI Second Applicant
Catchwords:

Adoption - step-parent adoption of step-daughter aged 54 years - applicable principles

Legislation:

Adoption Act 1994

Category: Not Reportable

Representation:

Counsel:

First Applicant	:	Self Represented Litigant
Second Applicant	:	Self Represented Litigant

[2010] FCWA 120

Solicitors:

First Applicant	:	Self Represented Litigant
Second Applicant	:	Self Represented Litigant

Case(s) referred to in judgment(s):

Nil

[2010] FCWA 120

1 [Mr Parsons} has applied for an order for the adoption of his stepdaughter, [Mrs

Mancini]. Mr Parsons, almost 80 years of age, describes himself as a retired business proprietor. He is a British citizen. His stepdaughter, Mrs Mancini, was born [in] January 1956 and is now aged 54 years.

2 Section 69 of the Adoptions Act 1994 (“the Act”) sets out the circumstances in which a court may make adoption orders in relation to adults. Relevantly, it states as follows:

“(1)	The Court may make an adoption order in relation to a person who is 18 or more years of age if it is satisfied that –
(a) The prospective adoptee and each prospective adoptive parent –

(i) have received the information and, if requested, the counselling mentioned in clause 1 of Schedule 1 on the matters relevant to those parties; and

(ii) consent to the proposed adoption;

(b)	the welfare and interest of the prospective adoptee will be promoted by the proposed adoption; and
(c)	notices required by subsection (4) have been given or the application is in accordance with an order under subsection (6).

(2)…”

Background

3 Mr Parsons filed an Application for an Adoption Order in the Court on 26 July 2010. An affidavit was filed in support of his application.

4 Mr Parsons deposes to moving in with [Leonie Branson] in 1970. Mrs Branson and Mr Parsons were married [in] November 1975.

5 Mrs Mancini (nee Branson) was 14 years of age at the time Mr Parsons and her

mother met. She had been living at home with her mother. Mr Parsons further deposes that his new wife had two sons who had moved out of home. A perusal of the death certificate of Mrs Parsons indicates that she had sons, [Paul Branson], born [in] September 1950 and [Peter Branson], born [in] October 1953. In 1970 Paul was 20 and Peter was 17.

6 Mr Parsons deposes to having formed a close relationship with his stepdaughter, Mrs Mancini, which endures today.

7 Mrs Parsons died [in] 5 June 2005, aged 76 years.

8 Mr Parsons deposes that Mrs Barwick’s two sons were not part of an otherwise

close family unit. He deposes that he and his wife made Mrs Mancini the primary

[2010] FCWA 120

beneficiary under their will, although Mr Parsons’s two stepsons, Peter and Paul will
get a “small part”.

9 In his brief affidavit sworn 13 July 2010 in support of the Application for Adoption he deposes:

“4. Knowing how the law can be fickle, and in the event of my step-sons or their families ever decided to contest my will, I decided to adopt [my step daughter] as I believe that as my legal daughter her share of my estate will thus be better protected”

10 On 14 July 2010 Mr Parsons filed an application for the Court to dispense with

the requirement that notice be given to the natural parents of Mrs Mancini. Both had passed away at the time of the making of the application. Mrs Mancini’s father, [Cedric Branson], passed away [in] October 2000.

11 Mr Parsons and Mrs Mancini had otherwise complied with the requirements of

the Adoption Act in that they had been interviewed by an officer of the Department for Child Protection in regard to adoption and the alternatives in relation to it. Mrs Mancini had signed a form consenting to the Application to Adopt.

12 On 6 October 2010 the Court convened a special hearing as it had some

concerns about this particular adoption given it had little information about how the proposed adoption would be in the welfare and interest of Mrs Mancini. Mr Parsons, Mrs Mancini and her husband attended the hearing. Mrs Mancini is visually impaired and her husband provided some assistance. It was common ground that Mr Parsons resides with his stepdaughter and her husband. It was obvious to the Court they were a close family unit. They were not legally represented and the Court was informed that this was due to lack of finances.

13 Whilst no sworn evidence was taken on that day, the Court’s concerns were

relayed to the parties and an order was made that Mr Parsons and Mrs Mancini have 21 days within which to file any additional affidavit material to address how the welfare and interest of Mrs Mancini would be promoted by the proposed adoption.

14 On 26 October 2010 Mr Parsons swore a further brief affidavit. It was filed on

27 October 2010.

15 In this affidavit Mr Parsons sets out a joint long held desire of his late wife, his

stepdaughter and himself to apply for an Adoption Order. He deposes that he promised his wife when she passed away in June 2005 that he would take steps to adopt Mrs Mancini. He says he always felt she was his natural daughter.

16 He further deposes:

“4. I have British citizenship and I am almost eighty years of age. I have plans to go to England to spend a few years with my brothers and their families. I want my daughter and her husband with me as we are a very close unit.

[2010] FCWA 120

As the legal daughter of a British citizen Mrs Mancini would stand a much better chance of getting a British passport which would enable her to stay with me the length of time we require.

5. Evidently my reasons for wanting to adopt Mrs Mancini are at the same time practical, useful and to fulfil my late wife’s, my step- daughter’s and my heartfelt wishes.”

Discussion

17 The Act sets out who may be adopted. S 66 reads as follows:

“66. Who may be adopted

(1) Subject to subsection (2), a person may be adopted if he or she –

(a)	is a child; and
(b)	is not, and has not been, married or in a de facto relationship,

but not otherwise.

(2)	A person who is 18 or more years of age may be adopted by a person who was a carer or step-parent of the first-mentioned person immediately before the first-mentioned person attained 18 years of age.
(3)	A person cannot be adopted by a relative of the person, other than a step-parent.”

18 Mrs Mancini is a person who may be adopted and Mr Parsons is a person who may adopt Mrs Mancini.

19 The Court will now return to the provisions of s 69 of the Act and consider

whether the “welfare and interest” of Mrs Mancini will be promoted by the proposed adoption. Even if it is satisfied her welfare and interest will be promoted, the Court needs to then consider whether, in the exercise of its discretion such an order, in fact, should be made.

20 Mr Parsons and Mrs Mancini were involved in a step-parent relationship from

about 1970. Five years later Mr Parsons married Mrs Mancini’s mother and that role continued. He has stood in place of her father for some 40 years. Mrs Mancini’s natural father died in 2000. Mr Parsons deposes to a long held hope of adopting her. In 2005 on the death of his wife, again he was reminded by her of that long held hope.

21 It was only in the middle of 2010 that this application to adopt was made. The

evidence now before this Court is two fold.

22 Firstly, in his affidavit sworn 13 July 2010 Mr Parsons identifies a wish to adopt

Mrs Mancini to ensure her greater entitlement under his and his late wife’s Will is secure against possible inheritance claims by Mrs Mancini’s brothers.

[2010] FCWA 120

23 Secondly, in his affidavit sworn 26 October 2010 Mr Parsons identifies the

likely ease of Mrs Mancini obtaining a British passport if she is his legal daughter. He wishes to return to England to spend a few years with his brother and their families. He would like Mrs Mancini and her husband with him.

24 It is useful to consider the background to the legislation which allows a step-parent to adopt a step-child over the age of 18 years.

25 The Adoption of Children Act 1896, the first adoption legislation in Australia, allowed for the adoption of children under the age of 15 years in Western Australia. In the Act a “child” was defined to mean any boy or girl under the age of 15 years. There was no provision for the adoption of persons over the age of 15 years.

26 The Supreme Court of Western Australia was then the Court in which adoption

orders were made. In 1975 the Act was amended such that the jurisdiction to make
adoption orders was reposed in the Family Court of Western Australia.

27 The Act was subject to various amendments over the years and on 11 October

1984, almost 90 years after its inception; the Select Committee of the Legislative Assembly Appointed to Enquire into the Adoption of Children Amendment Bill 1983 released its report.

28 By this time the definition of “child” in the Act had been expanded to mean a

person who had not attained the age of 18 years or a person who had attained that age and in respect of whom an order for adoption was sought or had been made. (emphasis added)

29 At that time, Section 5 of the Act relevantly stated:

“5.(1) Before making such order of adoption, the Judge –

…

(3)

shall be satisfied that the child is under the age of fifteen years or if over that age has been under the care and custody of some person for a period of three years, during which time such person has acted as an adopting parent or otherwise has acted in loco parentis; subject to sub-section (1a) of this section, that, in the opinion of the Director, the applicant is a proper person to be an adopting parent or that, notwithstanding the opinion of the Director to the contrary, the applicant is such a proper person; that the welfare and interest of the child will be promoted by the adoption and that the consents required by this Act have been duly signed and filed;

…”

30 The Select Committee believed that special provision should be made for the

adoption of children over the age of 18 years. They recommended a separate category
of eligible persons:

[2010] FCWA 120

“(d) In the case of a child who is over the age of eighteen years a person
nominated by the child.”

31 Submissions had been made to the Committee that those seeking adult adoptions

desired a legal recognition of their relationship. The changing of name by licence did not provide the recognition hoped for. It did not acknowledge the relationship sufficiently.

32 The Committee also recommended that the requirements for adult adoption be

lesser than those for children, in terms of reports and consents, particularly where
natural parents were deceased or could not be contacted after a reasonable enquiry.

33 In 1991 a further review of the adoption laws in Western Australia was

undertaken by a Legislative Review Committee, administered by the Western Australian Department of Community Services. In its final report entitled “A New Approach to Adoption” the Committee set out:

Recommendation 64

That there shall be no provision for the adoption of a person aged 18 and over.

34 It went on:

Recommendation 101

That the only circumstances in which adoption by a relative is permissible under new legislation is when a child is adopted by his/her step-parent. All other stable care relationships between a child and other relatives should be given legal status through Custody and/or Guardian orders.

(emphasis included in original)

35 Thereafter, an Adoption Bill was introduced in the Lower House on 22 June 1993, with the Second Reading by Mr Ripper occurring on 19 August 1993.

“The laws regulating adoptions in Western Australia were originally formulated nearly 100 years, in 1896, in a social setting very different from that of today. They were intended to regulate the placement of the children of destitute mothers, to militate against the exploitation of those children and to guarantee minimum standards of care. Placement of a child in an alternative family in those days was usually quite open and without the secrecy and severing of family ties which has been synonymous with adoption today. Within a generation the shroud of secrecy had well and truly begun to descend over the placement of children in alternative families.

…

The history of the Adoption Bill began in 1983 with the introduction of an amendment to the Adoption of Children Act 1896. A select committee of

[2010] FCWA 120

this house was established to enquire into that Bill. The select committee reported on 11 October 1984 and made 38 recommendations for changes to the original Bill. The committee’s work led to the amendments of 1985 which gave adopted persons over the age of 18 years access to their original birth certificates, subject to certain provisions…”

36 He clarified the position in relation to adult adoptions:

“In keeping with the principle that adoption is a service for children, adoption of adults will no longer be possible, except in the special circumstances where the adult is adopted by a person who was their step-parent or carer immediately before they turned 18 years of age.”

37 Although there was a change in government later in 1993 and the introduction of

a new Adoption Bill on 25 November 1993 the Adoption Act 1994 (WA) now does deal with adult adoptions as a separate category. The definition of “child” under the Act no longer includes adults.

38 Since at least 1921 step-parents have been recognised in one form or another as

appropriate persons to adopt their step-children, adult or otherwise. At times distinctions have been drawn between step-parents and other relatives of children. In the latter it has been considered there may be more appropriate alternatives to that of adoption, such as Family Court orders about care arrangements.

39 The present Act, in adult adoptions, requires that the order for adoption must

promote the welfare and interest of the person to be adopted. It gives no guidance as
to what this may include or how a court is to gauge interest and welfare in an adult.

40 In the introduction of the Adoption Bill on 25 November 1993 the Minister for Community Development at the time, Mr Nicholls stated:

“The concept of adoption is almost as old as that of the family itself. The practice of adoption is known to have occurred in ancient societies with the motive often being in relation to inheritance and religion. For example, in Roman times adoption was regarded as an honour and often meant entrance into a family of privilege and influence. In China and India, families without sons would adopt a male relative as their heir. A common characteristic of early adoptions was that they were open transactions. The formal process of legal adoption is a relatively new occurrence in modern Western society. The first modern adoption laws were passed in Massachusetts in 1851 and in New Zealand in 1881. Western Australia was the first Australian State to introduce adoption legislation. In 1896 the Adoption of Children Act was passed by our Western Australian legislators… In the last 90 years, there have been many changes in social attitudes and conditions.”

41 In November 1997 a review of the Adoption Act 1994 was released by the Adoption Legislative Review Committee.

42 The review notes:

[2010] FCWA 120

“While it is not necessary for a birth parent’s consent to be given for an adult adoption, there should be a responsibility for the birth parent to be advised of the adoption application, as the adoption will severe their parental relationship and affect the inheritance rights of their child.”

43 It recommended:

Recommendation 77 adult, the birth parent must be notified of the intention to make the application.

44 In the experience of this Court the provisions for adult adoptions have been used

in a relatively small number of cases usually where an adult has wanted to formalise a parent/child relationship in circumstances where there has been a pre-existing step- parent arrangement. In the main it is related to questions of identity and familial security.

45 In the uncommon circumstances of this case, step-father and step-daughter have

sought to formalise their relationship 40 years after it commenced. Mr Parsons is about 80 years of age and Mrs Mancini, married, and 54 years of age. Ostensibly the reasons for the seeking of an adoption order relate to the shoring up of an inheritance entitlement and the ease in obtaining a British passport.

46 The provisions of the Act have been complied with. Both Mrs Mancini’s birth

parents are deceased. Her mother was strongly in favour of adoption. Of note, the Death Certificate of her natural father does not identify Mrs Mancini or her brothers as his children. It does identify subsequent issue.

47 The history of the legislation provides little assistance in how a Court is to

exercise its discretion in the making of adult adoption orders. However, there is
nothing in the case before the Court to suggest such an order is inappropriate.

48 This is a tried and true relationship. The parties continue their family

connection. It is easy to accept that given the strength of feeling between them there may have been little impetus to formalise their relationship at an earlier stage. However, there is nothing before the Court to believe that emotionally and, perhaps, practically it is other than in the interest and benefit of Mrs Mancini to make an adoption order.

49 The order sought by Mr Parsons will therefore be made.

Orders

1 The requirement to give notice to the birth parents of an impending adoption application in relation to the above named adult be and is hereby dispensed with pursuant to section 69(4) of the Adoption Act 1994.

2 The said [MRS MANCINI] be adopted by [MR PARSONS] (retired business proprietor) of [the address] in the State of Western Australia who was married

[2010] FCWA 120

to [LEONIE PARSONS] (formerly Leonie Branson)] a birth parent of the said female person with the effect that the relationship between her and both the said [MR PARSONS] and [LEONIE PARSONS] (formerly Leonie Branson)] is to be treated as being that of child and parent.

I certify that the preceding [49] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate