J and the Adoption Act, Re

[2006] NSWSC 1276

Reported Decision: (2006) 24 ACLC 856

New South Wales

Supreme Court

CITATION:	J and the Adoption Act, Re [2006] NSWSC 1276
HEARING DATE(S):	Ex parte judgment in Chambers
JUDGMENT DATE :	27 November 2006
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
DECISION:	Application for adoption dismissed.
CATCHWORDS:	ADOPTION – Step-parent adoption of adult child – child not living with step-parent continuously prior to adoption application – adoption prevented by s.30(b) – proposal for law reform.
LEGISLATION CITED:	Adoption Act 2000 (NSW) – Pt 9, s.23, s.52(1), s.67(1)
CASES CITED:	DG and the Adoption Act, Re [2006] NSWSC 968
PARTIES:	A – Applicant J – Child
FILE NUMBER(S):	SC 124/06
COUNSEL:	N/A - Ex parte in Chambers
SOLICITORS:	TressCox Lawyers – Applicant

124/06 Re J and the Adoption Act


JUDGMENT
27 November, 2006

1    This is an application for the adoption of an adult by his stepfather. To preserve the anonymity of the parties as required by the Adoption Act 2000 (NSW), I will refer to the stepfather as A and to the person to be adopted as J. A is now 94 years of age and J is 57 years of age. A married J’s mother when J was about two years old and J lived in the family home with his mother and A until he was about twenty years old. J has been married for about twenty-five years and has two children. J has lived continuously with his own family since his marriage. 2 The relationship between J and A has always been warm and loving. It is the earnest desire of both A and J, supported by their families, that their bond be formally recognised by the law. The affidavits filed by A in support of the application show that in every respect the adoption would be in the best interests of J and of the whole family. I would have no hesitation in making the adoption order. 3 Unfortunately, however, there is a legal problem and it is insuperable. Section 30(b) of the Adoption Act relevantly provides that the Court “must not make an adoption order in favour of a step-parent of a child unless … the step-parent has lived with the child and the child’s birth or adoptive parent for a continuous period of not less than three years immediately before the application for the adoption order” . “Child” in this context includes an adult person. 4    In DG and the Adoption Act [2006] NSWSC 968, Austin J carefully reviewed this section and, at paragraph 32, held that:
“… the requirement of s 30(b) that the step parent must have lived with the child means that they must have shared the same facilities of day-to-day living on a regular and recurrent basis, in circumstances where there is a close relationship of a parental kind between the step parent and parent and the child.”

I respectfully agree with his Honour’s conclusion.

5    The evidence filed in the present case shows that J has lived in his own home with his own family at all times since his marriage, although he visits A very frequently. As Austin J held in DG , frequent visits to a stepparent’s home do not qualify as living with the step-parent for the purposes of s.30(b). Accordingly, and very regrettably, s.30(b) prevents the Court in the present case from making and adoption order, which would certainly have been made otherwise. 6 I entirely agree with the observations of Austin J in paragraphs 45 and 46 of the judgment in DG that s.30(b) should be amended as his Honour suggests. I join with his Honour in recommending to the Attorney General reform of the law in this regard. 7 In the result, however, I have no choice but to dismiss the Applicant’s Summons.
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