A v B

[2016] QChC 3

CHILDRENS COURT OF QUEENSLAND

CITATION:

A & Anor v B & Anor [2016] QChC 3

PARTIES:

A

and

D

(appellants)

v

B

(first respondent)

and

JULIA BASSOM DELEGATE OF THE DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES

(second respondent)

FILE NO/S:

2261/2015

DIVISION:

Childrens Court

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2016

JUDGE:

Dick SC DCJ

ORDER:

1.    Appeal dismissed

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CUSTODY – WELFARE OF THE CHILD AND RIGHTS OF THE PARENTS – whether magistrate properly considered s229 of the Adoption Act 2009 that the wellbeing and best interests of the child are paramount – whether magistrate gave adequate reasons for not finding that the father unreasonably withheld consent – whether magistrate considered the meaning of special circumstances pursuant to s39 Adoption Act 2009

James v Surf Road Nominees Pty Ltd [2004] NSWCA 478

Stoker v Adecco Gemvale Constructions [2004] NSWCA 449

Sexton v Sexton [2012] FAM CAFC 218

COUNSEL:

J Bunning for the applicant;

No appearance for the first respondent;

M Green for the second respondent

SOLICITORS:

Dean Kath & Kohler Solicitors for the applicant

Office of the Director of Child Protection Litigation for the second respondent

1. On 2 June 2015 the appellants filed an appeal against orders made by magistrate O’Shea on 5 May 2015 dismissing their application for dispensation of the consent of the biological father, B, to the adoption of a child.  B did not appear at the hearing of the appeal.

1. The power to appeal is set out in s 243 of the Adoption Act 2009 (“the Act”). Section 246 of the Act provides:

“246      Hearing procedures

(1) An appeal must be decided on the evidence and proceedings before the Childrens Court.

(2) However, the appellate court may order that the appeal be heard afresh, in whole or part.”

1. At the hearing of the appeal it was accepted that I should proceed under subsection (1) and that in order for the appellants to be successful the appellants needed to show that the magistrate erred in law in dismissing their application. 

1. The grounds of this appeal are as follows:

1. The Court did not properly consider s 229 of the Adoption Act that the wellbeing and best interests of the child are paramount when coming to the decision to dismiss the application and therefore erred in law;

2.          The Court did not give adequate reasons for dismissing the application and therefore erred in law;

3. The Court did not properly consider and give adequate reasons pursuant to s 39(1)(e) of the Adoption Act and therefore erred in law;

4. The Court did not consider what was meant by “special circumstances” pursuant to s 39(1)(f) of the Adoption Act and therefore erred in law;

5.          Ground 5 was abandoned; and

6.          That the reasons are otherwise insufficient to support the orders made by the Court.

The legislation

1. Section 39(1) of the Act provides that:

“39        Court may dispense with need for consent

(1) The court may make an order dispensing with the need for the relevant parent’s consent to the adoption if—

…

(e)       the court is satisfied the relevant parent—

(i) is not, and will not be within a time frame appropriate to the child’s age and circumstances, willing and able to protect the child from harm and meet the child’s need for long-term stable care; and

(ii)       is unreasonably—

(A) withholding his or her consent to the adoption; or

(B) refusing to engage with the chief executive in relation to the issue of whether to give consent to the adoption; or

(f) the court is satisfied there are other special circumstances for giving the dispensation.”

Background

1. The child in question, C, was born on [redacted] to A and B.  The relationship between the parents was short lived and the first respondent left the family home when C was a baby.  D moved in with A in about [redacted] and has lived at that home with C and A continuously since that time.  He says he first met C when he was about two days old and initially he was C’s godfather.  Mr D says he has been actively involved in C’s life consistently through to this time.

1. In 2011 the first respondent left messages for A asking that D adopt C and in [redacted] the appellants’ solicitors received correspondence from the first respondent providing consent to D adopting C.    After the messages and correspondence in which the first respondent suggested and consented to Mr D adopting C the appellants began proceedings to pursue that aim. 

1. The appellants have two other children, [redacted] born [redacted] and [redacted] born [redacted]. The first respondent has another child who is a half brother to C. After beginning the proceedings pursuant to s 39 of the Act, the appellants were advised by a departmental officer in 2013 that the first respondent refused to engage with the department about the process.

1. The first respondent gave evidence at the hearing on [redacted].  In effect, he said that when he originally made the suggestions about the male appellant adopting C he was not in a very good mental state, he always loved C and he knew C loved him, C now had a half-brother and he, the first respondent, wished to re-establish a relationship between C, his other son and his family.  He believed it would be detrimental to C if the adoption process was to proceed.  He said that at around the time of the earlier messages he was suffering from chronic depression, and diagnosed with schizophrenia.  He said that at about that time he had suffered an injury and had a lot of time off work and was in chronic pain.  He said that he was then medicated.  At the time of his evidence he had a stable job and a stable home. 

1. At the hearing of the initial application both the appellants and the second respondent filed written outlines of submissions. 

1. The second respondent submitted that in relation to s 39(1)(e) the Court must be satisfied that both conditions must be met, that is, the relevant parent will not be able and willing to protect the child from harm and meet the child’s need for long term stable care, and the relevant parent is unreasonably withholding his or her consent to the adoption or refusing to engage with the chief executive. It was further submitted that the onus of establishing those things rested upon the applicant because, it was argued, that while the Act was silent on the issue the submission is consistent with the maxim “he who asserts must prove”. At paragraph 18 the second respondent argued:

Aside from the allegations that the father has not engaged with the child over a period of time there is no evidence currently before the Court, which would support an allegation that he would not be, within an appropriate timeframe, able or willing to protect the child from harm.  There is no evidence of child protection concerns being presented to the Court in relation to Mr B’s capacity and willingness to care for the child.  Either with this child or any other child there is no evidence that Mr B has harmed his children.

It was submitted that it was not open to find that Mr B had failed to satisfy the criteria in s 39(1)(e)(i) of the Act. The second respondent argued that there was no evidence upon which it would be open to find that Mr B had been unreasonable in his refusal to consent. At paragraph 25 it was submitted:

When considering the Act as a whole, and in particular the requirements in relation to consent, it is submitted that consent is an important part of the legislative scheme and should not be dispensed with lightly.

In relation to the argument about special circumstances, the second respondent argued that the term is not defined in the Act and submitted that, based on the authorities, any determination of what may constitute “special circumstances” may only be made in the context of all relevant circumstances.

1. The appellants argued that the first respondent had made no step to offer any protection or care for the child, either on a short term or long term basis since 2011 and only sporadically before then.  The appellants argued that the first respondent was not able to offer stability to C. 

1. In relation to s 39(1)(e)(ii)(B) the appellants argued that the first respondent had encouraged the mother to institute the adoption proceedings and consented to the adoption through his correspondence to the applicants’ solicitors and had not been in contact or an active member of the child’s life for three and a half years. The appellants submit that, in the circumstances, the first respondent was unlikely to undertake any action to commence a relationship with C and therefore his refusal to give consent was unreasonable.

1. In relation to the argument under s 39(1)(f) of the Act the appellants argue that the fact that the father has, both in writing and orally, given consent to the adoption, and his lack of involvement with the child and lack of taking any steps in court proceedings to indicate his commitment to the process, there is a special circumstance which takes this case away from the usual.

1. The thrust of the appellants’ argument on appeal was that the magistrate did not make any findings whatever in relation to the second limb of the test, namely that the Court had to determine whether the first defendant was unreasonably withholding his consent. 

1. It was conceded that the magistrate found that C’s best interests was served by the orders proposed by the appellants and that the first respondent was not willing and able to protect C from harm and meet his long term needs. 

1. When considering whether consent was unreasonable, the magistrate said (my emphasis):

That is what I think is the great tragedy of this particular case – that a father who has indicated by his lack of total interest in the child is now able to put up an objection by virtue of just saying no and making the parents adopt a series of steps which I think are very difficult and which – it’s outlined by the Crown that they are very difficult to go across.  Virtually, that – I can’t see the father in any reasonable time ever able to willing – to be willing and able to protect the child from harm and to meet the child’s need for long term stable care, but then I have to be satisfied that he has unreasonably withheld his consent to the adoption.  Unreasonable is a hard word to overcome when C himself has indicated he wants a relationship with his father. 
For those reasons, I accept the submissions of the second respondent Department that it’s a matter that I have to consider. The Act provides various obstacles that would allow me to just put C’s interests at the top of the matter, and for – it’s over eight years now – not that I think he is – and he makes statements that he’s being used as a pawn in a game. I think that indicates the lack of understanding the father has in respect of this child or, in fact any child who he would be the parent of. Children aren’t pawns. Children are real little people who have to be raised.[1]

[1]Page 5, lines 7-25.

Later she says:

I have a child who still wants a relationship with his father, and that has never been able to be set up as a relationship, and accepting the second respondent’s submissions, I’m of the opinion that I cannot grant the – I cannot be satisfied with – that the applicant has met the criteria in section 39E and F of special circumstances merely because – and I don’t want the child to wear any blame for this – because I don’t find it unusual at all that a child would want to know his birth parent, and that, in this court, is so important---”[2]

And also:

Although I can feel the disappointment of the child’s mother and her husband, I cannot be satisfied that those two sections have been met in this case…[3]

[2]Page 5, line 29.

[3]Page 5, line 41.

1. It is well established law that it is not incumbent upon a trial judge to make an explicit finding on each disputed piece of evidence, it will be sufficient if the inference as to what is found is appropriately clear.

1. The magistrate stated quite clearly that she had considered what was in the best interest of the child as a paramount consideration.[4] The magistrate identified that under s 39(1)(e) of the Act there were two tests. She discussed the father’s conduct and came to the view contrary to the second appellant’s submission that the first limb of s 39(1)(e)(i) was satisfied. She then identified the second test which was whether the withholding of consent was unreasonable. She indicated that on this issue she accepted the second respondent’s submission. It is permissible to adopt the reasoning set out in submissions by one party by recording in the reasons that those submissions are accepted.[5] The second respondent gave evidence as to this issue, which was clearly addressed in the second respondent’s outline of argument at the hearing in the Magistrates Court. In the circumstances where the matter was so clearly argued by both sides in their written reasons and the magistrate’s acceptance of those submission, there appears to me to be no substance in the contention that she failed to supply sufficient reasons to address that issue. 

   [4]Page 3, lines 20-23.

   [5]James v Surf Road Nominees Pty Ltd [2004] NSWCA 478 [168]; Stoker v Adecco Gemvale Constructions [2004] NSWCA 449 [42]; Sexton v Sexton [2012] FAM CAFC 218 [52]-[70].

1. In relation to the special circumstances argument, the magistrate was somewhat less transparent in her findings in respect of this, however she did say that “…accepting the second respondent’s submissions, I am of the opinion that I cannot grant the – that I cannot be satisfied with - that the applicant has met the criteria in section 39E and F of special circumstances”. I discerned her to mean that C’s wish to know his birth father went some way to explain the first respondent’s change of position. The submission from the second respondent at the hearing was that the giving and withdrawal of consent was not unusual or special circumstances. At paragraphs 32 and 33 the second respondent argued that:

It is submitted that the context of consenting to an adoption of one’s child is inherently emotionally fraught, stressful and outside what might be considered the normal rough and tumble of life.  It is in that set context that the Court is called upon to determine whether special circumstances exist.

Those circumstances must of necessity include the nature and finality of the orders sought.  Once an adoption order is made the adopted child becomes the child of the adoptive parent.  Mr B will cease to be a parent of C.  He will have no recourse to set contact with C and would be subject to the whim of Mr and Mrs A.

And it was also submitted by the second respondent at paragraphs 35-37:

There can be no doubt that Mr B loves C and wants to maintain a relationship with him.

There can also be no doubt that Mr B in reaching his decision has considered what he believes to be C’s best interests.

It is accepted that Mr B has wavered in his views overtime however, once again, on any view this would fall within the normal parameters of considering so grave a decision.

1. While the magistrate did not specifically and clearly say that her finding was that the father’s wavering did not meet the special circumstances test, it is my view that that can be read into her reasons when she refers to the second respondent’s argument and C’s wishes.  In my view, the magistrate clearly was of the view that the child should stay with the appellants but she also understood that powerful reasons should be shown before the Court could properly sever the relationship between the father and the child in the way sought. Further, that she was aware that this required more than a moral judgement as to the first respondent’s behaviour and required a close examination of whether or not his refusal was unreasonable and/or his prevarication a special circumstance.  I am satisfied she was appraised of both those issues and correctly interpreted the legislation. 

1. I am satisfied the appellants have not established any error on the part of the learned magistrate and therefore the appeal should be dismissed.