Case: Re Application of K (1995) 36 NSWLR 477
Outcome: discussed
The extensive research of counsel for the Secretary identified other legislation in which the term "adopted" might be taken in its context and for the purposes of particular legislation to include an adoption overseas which is not recognised in Australia, even though the definition does not explicitly say so. Examples include s 60D of the Family Law Act 1975 (Cth), ss 5 and 7 of the Child Support (Assessment) Act 1989 (Cth), and ss 23 and 23B of the Marriage Act 1961 (Cth). I agree with Brownie J in Re Application of K (1995) 36 NSWLR 477 at 479-480, for the reasons his Honour there gives, that the Family Law Act provisions should not inform the meaning of the definition of "parent" in the Immigration Act. Similar reasons apply in the case of the other two enactments mentioned. In Re Application of K , Brownie J at 484 decided that the word "parent" in s 4 of the Immigration Act (as in force at 1991) did not include a person who had adopted a child in another country where that adoption order was not recognised in Australia. The Immigration Act was amended in significant respects by the Immigration (Guardianship of Children) Amendment Act 1994 (Cth) so his Honour's conclusion in that regard is not of present significance. Counsel's research also identified that s 10A of the Australian Citizenship Act 1948 (Cth) suggests that an adoption overseas not recognised by Australian law does not itself result in the adopted child becoming an Australian citizen, and that s 9 of the Domicile Act 1982 (Cth) expressly is limited to adoptions recognised under Australian law. Again, those provisions in my view do not relevantly inform the proper construction of ss 5, 993 and 999 of the Act. 41 Accordingly, given the legislative and regulatory regime under which Isabelle's status is presently defined, the Waldrons are not for the purposes of the Act her adoptive parents. They are not yet so recognised under Australian law. The term adoptive parent is not defined and so should be given its ordinary meaning. But even if it is given the meaning to be derived correspondingly to the definition of "adopted child", there is no reason to extend that term's scope to a child whose legal guardian is the Commonwealth Minister and whose present status under Australian law generally is not yet that of an adoptive child. There is not, in the definition of "adopted child", any firm indication that it is intended to extend to a child who, under Australian law, is not recognised as having been adopted, and whose "adoption" is under a law of a country other than Australia and which is not, and is not capable of being, recognised under Australian law. 42 There is an issue as to whether persons in the positions of lawful custodians who have adopted a child overseas, where the adoption is not recognised in Australia, might be eligible for other benefits under the Act. Their circumstance is addressed to some degree by the Family Assistance Act, where generally the relevant eligibility criterion is the existence of responsibilities towards the child by reason of lawful custody of the child. Under the Act, any eligibility for the benefits under its other provisions is no doubt expressed in different terms and would depend upon the particular terms of the relevant provisions. In the case of the double orphan pension, for the reasons I have given, that eligibility exists because Mrs Waldron does not yet fall within the definition of "parent" in s 5(1) both generally and because the particular legislative context indicates an intention that she should not do so.