In the Matter Of the Adoptions Of A And B
[2012] ACTSC 53
•21 March 2012
HUMAN RIGHTS ACT
IN THE MATTER OF THE ADOPTIONS OF A AND B
[2012] ACTSC 53 (21 March 2012)
FAMILY AND CHILD WELFARE – Child Welfare other than under Family Law Act 1975 (Cth) and related acts – adoption – whether ordinarily resident – adjournment of proceedings.
Adoption Act 1993 (ACT), ss 13, 17, 18, 103A, 201
Human Rights Act 2004 (ACT), ss 11, 30
ACT Civil and Administrative Tribunal Act 2008 (ACT), s 83
Adoption Regulations 2005 (ACT), s 30, sch 2
Re Norris (1888) 4 TLR 452
EX TEMPORE JUDGMENT
AD No. 18 of 2009
AD No. 19 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 21 March 2012
IN THE SUPREME COURT OF THE )
) AD No. 18 of 2009
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF THE ADOPTION OF A
ORDER
Judge: Refshauge J
Date: 21 March 2012
Place: Canberra
THE COURT ORDERS THAT:
The proceedings be adjourned until further order of the Court
Liberty is reserved to the parties to apply on two days notice.
IN THE SUPREME COURT OF THE )
) AD No. 19 of 2009
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF THE ADOPTION OF B
ORDER
Judge: Refshauge J
Date: 21 March 2012
Place: Canberra
THE COURT ORDERS THAT:
The proceedings be adjourned until further order of the Court
Liberty is reserved to the parties to apply on two days notice.
These adoptions, which on their face seem straight forward, have become complicated for reasons that could raise all types of policy questions and interesting debates about the regulation and management of adoption in this increasingly mobile world.
The mother of two children subject to the adoption applications died suddenly in early 2005. Their father had been separated from their mother since about 1999 and had not been in contact since 2000. The children went to live with the younger sister of their mother and they have been residing with her and her husband since then. They are the applicants for the adoption order of the two children.
The applicants lived in Canberra when the children came to live with them. On 12 December 2005, the Federal Magistrates Court of Australia ordered that the applicants have sole responsibility for the children’s day to day and long-term care, welfare, development and education. At that time, the female applicant had been assigned as part of her duties to take up the position of Consul-General of the Australian Consulate at Shanghai in China. The Federal Magistrates Court of Australia also gave leave for the applicants to relocate with the children to China, and then relocate out of the Commonwealth of Australia from time to time in the future.
In support of that application to the Federal Magistrates Court of Australia, a comprehensive family report had been prepared. It concluded that the applicants were “well suited to the responsibility of raising [the children]”, had “a good understanding of the children’s emotional and general developmental needs” and could “provide the children with a secure home environment.” It noted that the children’s father appeared to have “excluded himself from the children’s lives at this point in time.”
In May 2008, the female applicant resigned from the Australian Public Service and gained employment as a macroeconomic analyst with a group of companies based in the Unites States of America. Initially, the applicants and the children relocated to Los Angeles in the United States of America. They remained there until returning to Australia in June 2009. About a month later they returned to China where the female applicant represented her employer in Beijing.
The applicants arranged for a comprehensive report on the situation between the applicants and the children to be prepared by a social worker at the Kinship Centre in the United States of America before they left Los Angeles. Again a comprehensive report, it recommended that the applicants be considered as prospective adoptive parents.
Applications for an adoption order were made on 9 December 2009; they have not progressed very far. An affidavit from the applicant’s solicitor sets out the history. I do not need to repeat it, save to say that there were delays in having the application issued as the initial applications filed on 17 July 2009 were, apparently, misplaced. Fresh applications, which are referred to above, were made. Shortly after that, I made orders dispensing with the requirement for the consent of the birth father to the adoptions. The ACT Adoptions and Permanent Care Unit advised that they were unable to conduct an adoption assessment because, it said, the assessment “involves a number of in depth face to face interviews with the applicants and the children. As this family currently resides in China it is not possible for the Unit to conduct the interviews and prepare a provisional report”.
It became clear that the Unit was later concerned that the applicants were not resident in the Territory, a requirement under s 13 of the Adoption Act 1993 (ACT) (‘the Act’). This was inserted by an amendment to the Act, amending the eligibility criteria from “domicile and residence” to “ordinarily resident”. That amendment was made to commence on 22 April 2010 but which, by s 201 of the Act, applied to adoption applications already commenced but not completed, thus encompassing these applications.
The Unit has now indicated that it considers that the applicants are not ordinarily resident in the ACT and so are not eligible for an adoption order on that ground.
Ultimately, the applicants applied to the court for orders and declarations as follows:
1. A declaration that [the applicants] ordinarily reside in the Australian Capital Territory.
2. The Director General prepare a report in relation to the application for the adoption of [the children] for the purposes of section 39D of the Adoption Act 1993 (ACT).
3. Ms Sue Connor, Psychologist, be appointed as the expert to prepare a report at the expense of the Director General.
4. The Director General register the applicants on the register of suitable people for the purposes of section 18 of the Adoption Act 1993 (ACT).
The matters came before me and I made directions about the filing of further evidence and submissions. I have now received that material.
There is clearly a live issue as to whether the applicants are ordinarily resident in the ACT for the purpose of the Act. While the matter is not clear, even if I were to so find, the situation would be at the outer reaches of what has to date been regarded as constituting “ordinary residence”. This remains the case even though there may be, as authority has made clear, the possibility that a person can be “ordinarily resident” in two places: see Re Norris (1888) 4 TLR 452.
The decision is not an easy one. It also brings starkly into operation s 11 of the Human Rights Act 2004 (ACT) and the need to construe the legislation, especially the Adoption Act, in a way that, under s 30 of the Human RightsAct, is compatible with such rights.
When considering this material, I was apprised of the fact that the applicants had only recently applied for registration on the register of suitable people under s 18 of the Adoption Act. Under s 17 of the Act, an application for adoption by a relative – which the female applicant clearly is, and the male applicant probably also is by marriage – can only be made if the person is on the register of suitable people. The decision of the Director General under s 18 of the Act involves the Director General deciding whether the applicant “is suitable for the placement of a child ... for adoption having regard to the criteria set out in [the Act]”. The Director General “must not approve an application if the applicant is not ordinarily resident in the ACT.”
At the present, the applicants have not been assessed for the purposes of s 18 of the Act. Clearly the issue of residence will be the same as that which I have to decide.
That issue, however, is one which could also prevent the applicants being placed on the register and that would prevent the adoption order being made. In light of this, it seems to me that the application for registration should proceed first and immediately. I assume that the Director General will process that application speedily but comprehensively so that both suitability and residence are addressed. If, as seems likely, the application is rejected on the ground that the applicants are said not to be “ordinarily resident” in the ACT, the position the Director General has taken in the application before me, then the decision can be appealed to the ACT Civil and Administrative Tribunal.
Under s 30 and sch 2 of the Adoption Regulations 2005 (ACT), a refusal to approve an applicant for placement on the register under s 18 of the Act is a reviewable decision, and under s 103A of the Act the applicants may apply for review of the decision to the ACT Civil and Administrative Tribunal. Under s 83 of the ACT Civil and Administrative Tribunal Act 2008 (ACT), the parties may both jointly apply, or the tribunal may decide to have the application for review removed to the Supreme Court. I cannot and would not wish to bind the Tribunal in making such a decision, but were this process to be followed then the two issues of the bars to the applicants’ application for the adoption could be heard together in this court, that is, the application to review the Director General’s decision and the present pending application before me for certain directions and orders. This would be efficient and reduce costs for all concerned.
As a result, it seemed to me appropriate to defer proceedings in this matter until the application for registration had been resolved, at least to the extent possible. Neither party has submitted to me that I should not do so, and, accordingly, I adjourn the further hearing of the application in proceedings made by the applicants until further order. I reserve liberty to apply on two days notice.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2012
Counsel for the Applicants: Ms A Tonkin
Solicitor for the Applicants: Elringtons Solicitors
Counsel for the Respondent: Ms S Gasser
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 18 January 2012, 21 March 2012
Date of judgment: 21 March 2012
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