Editors --- "Double orphan pension: qualification; meaning of 'adopted child' and 'adoptive parent'" [2007] SocSecRpr 12; (2007) 9(1) Social Security Reporter, Article 12

• SECRETARY TO THE DFaCSIA and WALDRON
• Background
• The legislation
• Isabelle’s current status under Australian law
• Application of the Social Security Act
• Formal decision

---

Double orphan pension: qualification; meaning of 'adopted child' and 'adoptive parent'

SECRETARY TO THE DFaCSIA and WALDRON

Decided: 30th November 2006 by Mansfield J.

Background

Waldron lodged a claim for double orphan pension in respect of an Ethiopian child, Isabelle. Isabelle had come to Australia on 14 December 2003, aged 4, after Waldron and her husband had formally adopted Isabelle in accordance with Ethiopian law. Although Waldron and her husband were described as her adoptive parents on her birth certificate issued on 13November 2003, Isabelle came into Australia under an adoption visa because the Ethiopian adoption was not recognized under Australian law. Upon her arrival Isabelle was placed in the custody of the Waldrons and she had been living in their care ever since. It was common ground between the parties that Isabelle was a young person within the meaning of the relevant legislation. It was also agreed that Isabelle was not a refugee child and that both her natural parents were deceased. Whilst the process of adoption in Australia was underway it had not been completed.

Centrelink rejected the claim on the basis that Waldron was a parent of Isabelle as defined in s.5(1) of the Social Security Act 1991 (Cth) (the Act). On appeal, both the SSAT and later the AAT found in Waldron’s favour. The AAT concluded that Waldron was entitled to a double orphan pension for Isabelle on the basis that Isabelle’s parents were deceased and as far as Australian law was concerned she currently had no other parents. In so finding, the AAT declined to construe ‘parent’ in s.993 and as defined in s.5(1) of the Act as extending to a person who is not recognized as an adoptive parent under Australian law.

The Secretary to the DFaCSIA appealed to the Federal Court. The Court identified the issue as being whether Waldron was entitled to a double orphan pension, under the Act until Isabelle was adopted under Australian law. This in turn depended on whether the Waldron were, for the purposes of the Act, her adoptive parents.

The legislation

Section 993 of the Act defines a ‘double orphan’ as follows:

‘(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.

Note 1: for young person and parent see section 5.

Note 2: for refugee child see section 995

Note 3: if the young person does not qualify as a double orphan under this subsection, and the young person is a refugee child, the young person may qualify as a double orphan under section 994.’

‘Parent’ is relevantly defined in s5(1)of the Act as follows:

‘parent means:

(a) (except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G):

(i) in relation to a young person, other than an adopted child – a natural parent of the young person; or

(ii) in relation to an adopted child – an adoptive parent of the young person; or ....’

Section 5(1) defines ‘adopted child’ as follows:

‘adopted child means a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children.’

The term ‘adoptive parent’ is not defined by the Act.

Isabelle’s current status under Australian law

After undertaking a detailed legal analysis of Isabelle’s status in Australia, the Court concluded that it had three tiers. Under Australian law, the Commonwealth Minister for Immigration and Multicultural Affairs was her guardian. At a practical level though, the South Australian (SA) Manager for Adoptions was her guardian and the Waldrons by virtue of the exercise of the SA Manager of Adoption’s powers under the relevant provisions of the Immigration (Guardianship of Children)Act 1946(Cth) (the Immigration Act) were legally and practically responsible for her day to day welfare and care. For the purposes of the Immigration Act, the Court concluded that the Waldrons were Isabelle’s prospective adoptive parents but could not be regarded as her ‘intending adoptive parents’ as that term was defined in the Immigration Act. Moreover, the Court noted that whilst there was no reason to think that the Waldron’s could not remain as Isabelle’s custodians, their status was dependent upon the SA Manager for Adoptions continuing to place her in custody pursuant to the relevant provisions of the Immigration Act. The Court also observed that due to the current arrangement the Waldrons did not have full ‘parental responsibility’ for Isabelle in accordance with the Family Law Act 1975 (Cth).

Application of the Social Security Act

The Court explained that the purpose of double orphan pension was to provide assistance to persons who have taken on the care of a child where the carer is not the natural or adoptive parent and where there is no natural or adoptive parent alive to fulfil that role. The Court held that the characteristic for eligibility, that there be no living natural or adoptive parent, indicated that the absence of a parent in a parental role in relation to a particular child was important, presumably because the parent otherwise is available to, and obliged to, provide that support and assistance to the child.

The Court, whilst noting that section 5(1) defines an ‘adopted child’ as including a child adopted under the law of a place outside Australia, stated that the issue to be determined was whether that refers to an adoption overseas not recognized in Australia. The Court decided that it did not, finding that there was nothing in the Act which pointed to an opposite conclusion. The Court further stated that if the legislative intention were to the contrary, one would expect a clear indication that people in Waldron’s position were to be regarded as adoptive parents, even though not recognised as such under the general Australian law. In respect of the term ‘adoptive parent’ the Court found that because it was not defined it should be accorded its ordinary meaning. However, even if it was given the meaning to be derived correspondingly to the definition of ‘adopted child’ there was no reason to extend that term’s scope to a child whose legal guardian was the Commonwealth Minister and whose present status under Australian law is not yet that of an adoptive child.

The Court concluded that Waldron qualified for double orphan pension because she did not yet fall within the definition of parent in 5(1) both generally and because the particular legislative context indicated an intention that she should not do so.

Formal decision

The appeal was dismissed. No order was made as to costs.

[G.B.]