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Case Reports - Family Law Battle for adoption There were some unusual aspects to our client's adoption application. She was a gay, single woman and the child's aunt. Our client came to Australia from Fiji in 1987. She came from a family of 10 children and, following arrangements within the family, became responsible for the financial support of her sister's child (her sister was unmarried at the time of the child's birth). A third sister was responsible for the care of the child. Our client arranged for the child to stay with her in Australia during the school holidays at the end of 1993 when the child was nine. Shortly after she came to Australia the child disclosed sexual abuse within the family in Fiji. The abuse was confirmed following medical examination. Our client sought to keep the child with her, fearing it was not safe for her to return to Fiji, especially as the family rejected the findings of sexual abuse. She obtained an order for custody of the child in the Family Court. However the custody order did not bring the child within the category of dependent child who could seek permanent residence in Australia. For the child to be considered in this category, she needed to be the adopted child of her aunt.. We filed an adoption application in the Supreme Court. Section 17 of the Adoption of Children Act provides that the welfare and interests of the child concerned shall be regarded as a paramount consideration. The social worker's report was firmly in favour of the adoption. However it was opposed by the Department of Community Services and the Department of Immigration wrote a letter to the child, by now aged 14, saying her application to remain permanently in Australia had been refused. An English Court of Appeal decision In Re B 1998 TLR 173 also created difficulties for our client's case. It said the Court should ignore benefits which would result solely from a change in immigration status when considering best interests under adoption legislation. His Honour Justice Young indicated that he would not make the adoption orders when it first came before him in private chambers so the matter went to hearing. Just before the hearing, the House of Lords in England, In re B(Adoption Order: Nationality) (H.L.(E)) 2 W.L.R., 1999 reversed the Court of Appeal decision, saying the child's welfare is the first consideration in an adoption application. The Court should not ignore the benefits which would flow from a change in immigration status in deciding whether an adoption would confer real benefits in a child. On 21 June 1999, Justice Young then considered further material put before the Supreme Court relating to the best interests of the child, especially her fears of returning to Fiji. He said that while the Court could not put aside the immigration factor, the paramount consideration was the child's welfare. He found there was a close bond between our client and the child of five and a half years and that the child's previous relationships had either broken down or weakened. He noted that the quality of care provided by the aunt was unquestioned and made the order for adoption. |
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