In the matter of the adoption of AM
[2019] ACTSC 321
•19 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of AM |
Citation: | [2019] ACTSC 321 |
Hearing Date: | 15 November 2019 |
DecisionDate: | 19 November 2019 |
Before: | Crowe AJ |
Decision: | See [12] |
Catchwords:. | ADOPTION – Application for an adult adoption order – jurisdictional issue – applicant does not reside in the ACT as required by s 13 of the Adoption Act 1993 (ACT) – equivalent NSW legislation possesses similar jurisdictional issues because the prospective adoptee resides in the ACT – application adjourned |
Legislation Cited: | Adoption Act 1993 (ACT) ss 10, 13, 39I Adoption Act 2000 (NSW) s 23 Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) |
Cases Cited: | In the Adoption of LGL [2016] ACTSC 360 |
Parties: | HQ (Applicant) |
Representation: | Counsel C Curran (Applicant) |
| Solicitors Hijazi Curran Cameron Lawyers (Applicant) | |
File Number: | AD 5 of 2019 |
Crowe AJ
The applicant (HQ) is the stepfather of AM. The latter is 24 years of age. She was raised by HQ and JQ (her birth mother) from when she was just under two years old. HQ and JQ have been married for 20 years. AM regards HQ as her father and has had virtually nothing to do with her birth father.
AM intends to marry and would very much like to be formally adopted by HQ before the ceremony. I will not set out the evidence in detail. Suffice to say that it discloses that HQ and JQ have brought AM up in a close and loving family environment. I have little hesitation in finding that HQ has “reared, maintained and educated” AM “under a de facto adoption”. I also find, on the evidence before me, that AM is present in the ACT.
Those findings are required by s 10 of the Adoption Act 1993 (ACT) (the Act), which is set out in the following terms (notes omitted):
10Adoption of person 18 years old or older
An adoption order may be made for a person who was 18 years old or older on the day the application as filed in the court if the person –
(a)Has been reared, maintained and educated by the applicant or applicants under a de facto adoption; and
(b)Is present in the ACT
Section 39I of the Act requires the Court to be satisfied that AM consents to the adoption and that HQ is of good reputation. I am satisfied of both matters.
If s 10 of the Act was the only territorial basis for this Court’s jurisdiction, I would have concluded that it was entirely appropriate to make the adoption order desired by the family. However, s 13 of the Act relevantly provides:
13Residency requirement
(1) An adoption order may only be made in favour of a person, or 2 people, who are ordinarily resident in the ACT.
(2) This section does not apply to an adoption order under section 57 (Adoption in ACT of ACT child or young person by parents from Convention country).
Assuming that the word “are” is intended to be read in the singular in the case of one applicant, it is clear that the Court does not have the power to make an adoption order in favour of an applicant who is not “ordinarily resident” in the ACT. Unfortunately, HQ is ordinarily resident just on the NSW side of the ACT/NSW border. I am thus unable to make the order sought.
The situation is further complicated by the fact that the legislation in NSW has equivalent jurisdictional provisions. Section 23 of the Adoption Act 2000 (NSW) (the NSW Adoption Act) relevantly provides:
(2) The Court must not make an adoption order unless, when the application for the order is filed:
(a) the child is present in the State, and
(b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State.
(3) For the purposes of this section, if the Court is satisfied that the child was present in the State, or that the applicant or each applicant was resident or domiciled in the State, for a period of 3 months immediately before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that:
(a) the child was present in, or
(b) that the applicant or each applicant was resident or domiciled in,
the State when the application was filed.
Having regard to the current status of HQ, JQ and AM, it appears that they fall between the cracks of the adoption legislation in both NSW and the ACT. They cannot obtain an adoption order in this Territory because HQ is ordinarily resident in NSW. They also cannot obtain an order in NSW because AM is relevantly not “present” in that jurisdiction.
It may be that if AM was to move to NSW for more than three months the application could be renewed in this Court by an Amended Originating Application, using the NSW jurisdiction vested by the combined effects of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). I note that any Amended Originating Application would need to comply with r 3306 of the Court Procedure Rules 2006 (ACT) in that regard, and, having regard to sub-ss 23(2) and (3) of the NSW Adoption Act it would be necessary for the date of effect of the amendment to be the date the Amendment Order was made. Alternatively, the applicant would have to apply to the Supreme Court of NSW for an order.
It is entirely unsatisfactory that a relatively straightforward adult adoption should be complicated by jurisdictional technicalities which owe their existence to the provisions being drafted in an era when family members were far less mobile than they are today. We now live in an Australia where it is commonplace for families to reside across state boundaries, and the legislative scheme should be equipped to deal with this reality. While there may be policy considerations which require a reasonably close connection between the parties to the adoption of a person under the age of eighteen and a particular jurisdiction, it is difficult o understand why the same degree of connection should be required for the adoption of an adult.
I have adjourned the Application generally. It may be that as occurred in the matter of In the Adoption of LGL [2016] ACTSC 360 a legislative remedy can be found for the unfortunate conundrum which I have summarised above. Failing that, it may be that another solution can be found based on the residence of the family members in the coming months.
Orders of the Court
The orders of the Court are as follows:
(1)The Application is adjourned generally.
(2)The Applicant is at liberty to have the matter re-listed by making a request to my Associate by email.
(3)The Registrar is directed to send a copy of these reasons to the Attorney-General.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 19 November 2019 |
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