Editors --- "Double orphan pension: adopted child; adoption not recognised in Australia" [2006] SocSecRpr 9; (2006) 8(1) Social Security Reporter, Article 9

• SECRETARY TO THE DFaCS and WALDRON
• Background
• The issue
• The submissions
• The decision of the AAT
• Formal decision

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Double orphan pension: adopted child; adoption not recognised in Australia

SECRETARY TO THE DFaCS and WALDRON

(2005/1111)

Decided: 9th November 2005 by L. Hastwell

Background

The Waldrons were in the process of adopting a child from Ethiopia. They were recognised as the child’s adoptive parents by Ethiopian law as the Ethiopian government required that this formality be completed before the child was removed from Ethiopia for inter-country adoption. The child arrived in Australia in December 2003 and had been living in the care of Waldron and her husband since that time. They had not formally adopted the child under Australian law and the Ethiopian adoption was not recognized under Australian law. In the meantime the child remained under the guardianship of the Minister for Immigration, and by delegation, the Chief Executive Officer of the Department of Human Services during this transitional period. The child was in Australia under an adoption visa (Sub-Class 2).

Waldron lodged a claim for double orphan pension, which was rejected by Centrelink on the basis that Waldron was considered to be a parent for the purposes of the Act and therefore double orphan pension was not payable. She appealed to the SSAT, which set aside the decision under review and determined that the respondent was entitled to double orphan pension for Isabelle. DFaCS appealed that decision.

It was common ground that the child was a young person within the meaning of the relevant legislation and that both her natural parents were dead. There was also no dispute that the respondent and her husband had, according to Ethiopian law legally adopted the child, and that this adoption was not recognised under Australian law. It was also common ground that adoption under Australian law would be completed at some time in the foreseeable future.

The issue

The issue in this case was whether the adopted child was a double orphan as defined by the s.933 Social Security Act 1991(the Act) and whether Waldron and her partner could be classified as parents of the child.

Section 933 of the Act defines a ‘double orphan’ as follows:

933(1) A young person is a double orphan if:

(a)the young person is not a refugee child; and

(b)each parent of the young person is dead.

‘Parent’ is defined ins.5(1) of the Act as either a ‘natural parent’ or, in relation to an ‘adopted child’, an ‘adoptive parent’. An ‘adopted child’ is defined to be a child adopted under the law of any place, not just under Australian law. The expression ‘adoptive parent’ is not defined in the Act.

The AAT also considered the provisions of the Immigration (Guardianship of Children) Act 1946, under which Waldron and her husband were defined as ‘intending adoptive parents’.

The submissions

DFaCS argued that Waldron had no entitlement to a double orphan pension as the definition of ‘adopted child’ in the Act refers to ‘a young person adopted under the law of any place, whether in Australia or not’. The child was acknowledged to have been adopted under Ethiopian law. DFaCS further argued that the necessary corollary is therefore that the child had adoptive parents, namely Waldron and her husband, and that s.5(1)(a)(ii) of the definition of ‘parent’ in the Act included Waldron and her husband. If the child was adopted, then in DFaCS’s submission she must have parents and could not come within the ‘double orphan’ definition as set out in s.933 of the Act.

Waldron argued that she was not yet an ‘adoptive parent’ within the meaning of the Act because the adoption process was not yet completed in Australia.

The decision of the AAT

The Tribunal considered s.933(1) of the Act by looking at the purpose and object underlying the section and construing it in the way the Tribunal thought promoted that purpose and object, rather than using a literal approach. According to the Tribunal:

The purpose of the Double Orphan Pension is to ensure that a person caring for a young person who has no parent, who would otherwise be entitled to receive a benefit for that child, should have the same rights as if they were a parent. In other words, a child should be entitled to the same support from the Social Security system that it would be entitled to if it had a parent or parents alive. A Double Orphan Pension is designed to ensure that there is not a gap in the law such that an orphan child has no one eligible to claim a payment on their behalf.(Reasons, para 29).

The Tribunal considered that DFaCS’s interpretation created an anomaly and an injustice because it categorised persons such as Waldron as ‘parents’ for the purpose of denying them double orphan pension and yet, it did not categorise them as ‘parents’ for other purposes under the Act.

The critical word for the Tribunal to consider in the context of s933 of the Act is not the term ‘adopted child’, but rather the word ‘parent’. The Tribunal does not accept the Department’s argument that ‘parent’ in s933(1)(b) of the Act should be cross-referenced to the definition of ‘adopted child’ in s5(1) of the Act. The fact that a child is adopted does not necessarily mean it has legally recognised parents. (Reasons, para. 31)

The Tribunal was satisfied that for the purposes of Australian law, Waldron and her husband did not fall within the meaning of the definition of ‘parent’ in the Act.

Formal decision

The Tribunal affirmed the decision of the SSAT.

[S.P.]