Secretary, Department of Family & Community Services v Waldron [2007] FCAFC 131

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Waldron [2007] FCAFC 131

FAMILY LAW – adoption – double orphan pension – where Australian citizens resident in Australia and caring for child – where both natural parents of child deceased – where child not adopted under Australian law – meaning of "double orphan" in s 999 of the Social Security Act 1991 (Cth) – whether definition in s 5 includes a child adopted under the law of a foreign jurisdiction not recognised as a valid adoption under the law of Australia – whether inclusion of the words "under the law of any place" supports conclusion that an adoption not recognised under Australian law is included in the definition – whether respondent and her husband who had custody of child entitled to double orphan pension on the basis that they were not "parents" within the meaning of the Social Security Act 1991 (Cth) – effect of remarks in Second Reading Speech on the introduction of amendments to the relevant provisions – whether appellant's construction of "parent" would lead to anomalies under the Act – effect of similar definitions of "parents" in other Commonwealth Acts. Held: Second Reading Speech of no assistance in determining proper construction of the relevant provisions in this case – no relevant anomalies arise in Act from appellant's construction of "parent" – definition of "parents" in other legislation not determinative of construction of words of Act – respondent and her husband were "parents" of child within the meaning of the Act notwithstanding that the child was not legally adopted under Australian law – respondent not entitled to double orphan pension – appeal allowed. A New Tax System (Family Assistance) Act 1999 (Cth) s 22 Acts Interpretation Act 1901 (Cth) s 15 Administrative Appeals Tribunal Act 1975 (Cth) s 44 Adoption Act 1988 (SA) s 4, s 21 Adoption of Children Act 1966-1967 (NSW) s 39 Commonwealth Powers (Family Law) Act 1986 (SA) Domicile Act 1982 s 4 Family Law Act 1975 (Cth) s 4 Hague Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption Immigration (Guardianship of Children) Act 1946 (Cth) s 6 Immigration (Guardianship of Children) Regulations 2001 (Cth) reg 9, reg 10 Marriage Act 1961 (Cth) s 23 Marriage Amendment Act 1976 (Cth) Migration Regulations 1994 (Cth) Social Security Act 1991 (Cth) ss 5, 993, 999, Social Security and Repatriation Legislation Amendment Act 1984 (Cth) s 33 Social Services Act 1947 (Cth) 105 Social Services Act (No 3) 1975 (Cth) s 105 Social Services Act (No 4) (Cth) 1973 s 19 Social Services Amendment Act 1981 (Cth) s 14 Social Services Amendment Act 1979 (Cth) s 26 Social Services Legislation Amendment Act 1982 (Cth) s 5 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 387 referred to SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES v HEATHER WALDRON SAD 281 OF 2007