Adoption of J

By a summons filed on 6 October 2015 the first plaintiff, Mr G, seeks an order for the adoption of the second plaintiff, Mr J.

When the summons was filed it was apparent in the Registry that there were a number of deficiencies in the application. The matter was referred to me in chambers. At my direction the Registry wrote to Mr G on 14 October 2015:

That letter resulted in a further letter and short affidavit from Mr G seeking to explain why he wanted to adopt Mr J. None of the material which Mr G then provided appeared to overcome the fundamental difficulty that Mr J is 23 years old and, as I shall shortly explain, has only known Mr G for a few months.

Notwithstanding the fact that the additional material provided by Mr G did not appear to overcome that fundamental difficulty, at my direction the Registry wrote to Mr G again on 9 November 2015:

Today Mr G addressed the Court as to why an adoption order should be made. Mr J attended with Mr G and has also addressed the Court.

These are the background facts.

Mr G is in his late 80's. He appears to be both in good health and to be in full possession of his mental faculties. He had no difficulty preparing the application and addressing the Court in a most persuasive and considered way. Mr G was married for many years but is now a widower. He is estranged from his family.

Mr G explained that at the start of this year, in order to keep himself busy, he enrolled in a TAFE course. It was at TAFE that Mr G met Mr J. Mr J is a foreign student who arrived in Australia on 29 April 2015. He is here on a student visa for two years. Mr J has explained to me that his own family circumstances in his country of origin are very unfortunate. He would like to make his home here in Australia and undertake further study.

Mr G struck up a friendship with Mr J. Mr J describes Mr G as having become his adoptive grandfather. Mr G provides Mr J with free room and board and has told the Court that he wishes to do everything that he can to advance Mr J's life in Australia. As Mr G put it to the Court, he wishes to do everything to "assist and support" Mr J. Mr G frankly informed the Court that one of the reasons why he thought adoption was an appropriate course was that it could make it faster and easier for Mr J to apply to become an Australian citizen.

For his part, Mr J informed the Court that he was very happy living with Mr G and treating him as his adoptive grandfather. It was his wish to stay with Mr G and provide him with any support and care that Mr G may require in the years to come. Mr J told me that if I were to make the adoption order "a good family can be created by this way".

Mr G appealed to what he described as the compassion and discretion of the Court. However, the issue of adoption in this State is not left to the unfettered discretion of anyone. Adoption in the State of New South Wales is governed by the Adoption Act 2000 (the “Act"). Jurisdiction is conferred on this Court by s 23(1) of the Act. Although already referred to above, I will set out again, for convenience, the terms of s 24 of the Act:

Both Mr G and Mr J have explained to the Court that they have only known each other for a few months. Because Mr J is 23 years of age (and was 23 years of age as at the date the summons was filed), s 24(1)(a) of the Act is inapplicable.

Assuming all other statutory prerequisites were satisfied, the only basis on which the Court could make an adoption order was if s 24(1)(b) was satisfied. It will only be satisfied if Mr J was cared for by Mr G within the meaning of s 24(2) of the Act. Neither of the limbs of that subsection are satisfied by the facts in this case.

The Court has no alternative but to dismiss the summons. The dismissal of the summons is not in any way a reflection on the character or intentions of either Mr G or Mr J. It is no more than the legal consequence of the fact that the Court does not have jurisdiction under the Act to make an adoption order in favour of Mr G in respect of Mr J.

The order of the Court is: