Bernati & Anor and Vaulks & Anor

[2020] FamCA 522

FAMILY COURT OF AUSTRALIA

BERNATI AND ANOR & VAULKS AND ANOR 2020 FamCA 522

FAMILY LAW – ADOPTION – dispensing with consent of birth Father – effect of dispensing with consent – separate consideration to substantive application for adoption – relevance of best interests of the children to dispensing with consent – consent dispensed with.

Family Law Act 1975 (Cth)
Human Rights Act 2004 (ACT) s 11
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT)
Adoption Act 1993 (ACT) ss 5, 26, 35, 39F, 43

Mace v Murray (1955) 92 CLR 370

Re An adoption of D (2008) 39 Fam LR 345

Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533

The Director of Social Welfare v Black and Halse (unreported 19 November 1973)

APPLICANTS: Mr Bernati and Ms Brucedale

1^st RESPONDENT: Mr Vaulks

2^nd RESPONDENT: Director-General Community Services Directorate

FILE NUMBER: CAC 2216 of 2019

DATE DELIVERED: 30 June 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Capon & Hubert

SOLICITOR FOR THE 1^ST RESPONDENT: ACT Government Solicitor

SOLICITOR FOR THE 2^ND RESPONDENT: No appearance

Orders

1. Pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of Mr Vaulks to the adoption of Y, born … 2007, by Mr Bernati is dispensed with.

2. Pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of Mr Vaulks to the adoption of X, born … 2009, by Mr Bernati is dispensed with.

3. The applications for the adoption of Y, born … 2007, and X, born … 2009, are adjourned for directions as to the hearing of the applications for adoption to 12 noon on 17 July 2020.

4. The Applicants are to cause to be sent to Mr Vaulks, by registered post to the address at which I had previously deemed service to be effected, a copy of these orders and reasons for judgment and are to file evidence demonstrating that such step has taken place.

5. The Applicants are to cause to be sent to Mr Vaulks, at the email address at which they have been corresponding with him, a copy of these orders and reasons for judgment and are to file evidence demonstrating that such step has taken place.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brucedale & Bernati & Vaulks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2216 of 2019

Mr Bernati and Ms Brucedale

Applicants

And

Mr Vaulks

1^st Respondent

And

Director-General, Community Services Directorate

2^nd Respondent

REASONS FOR JUDGMENT

1. Mr Bernati and Ms Brucedale (the Applicants) filed an Initiating Application on 31 October 2019 seeking the adoption of the children, X, born in 2009, and Y, born in 2007 (the children).  Ms Brucedale is the Mother of the two children.  The application seeks that Mr Bernati, the children’s stepfather, adopt the children.  The Father of the children is Mr Vaulks.

2. The Applicants sought to change the surname of the children, that the matter be heard under the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) and the consent of the children’s biological father, Mr Vaulks, be dispensed with. Alternative to the adoption being granted, they sought that final orders, made by consent in the Federal Circuit Court on 22 June 2017, be discharged and that the Applicants have sole parental responsibility for the children, and that the children live with them and spend no time with Mr Vaulks.

3. An Affidavit of Attempted Service on Mr Vaulks of the Initiating Application filed 31 October 2019, along with supporting affidavits, was filed on 16 January 2020.

4. An Affidavit of Service on Mr Vaulks of the Initiating Application filed 31 October 2019, along with supporting affidavits, was filed on 16 January 2020, showing the documents were emailed to ...

5. An Affidavit of Service on Mr Vaulks of the Initiating Application filed 31 October 2019, along with supporting affidavits, was filed on 12 February 2020 showing the documents were served upon Mr Vaulks in Suburb F, Victoria.

6. On 4 March 2020, orders were made that Mr Vaulks was taken to be served on 23 January 2020. 

7. Leave was granted to Mr Bernati to commence proceedings for the adoption of the children and the Community Services Directorate were invited to intervene and to prepare a report in relation to the proposed adoption of the children. 

8. Orders were made to grant leave to Mr Bernati to make an oral application to amend his Initiating Application filed 31 October 2019.  The effect of the oral application was that the Initiating Application did not involve an application in respect of the adoption of the children by Mr Bernati.

9. Orders were then made to grant leave to Mr Bernati to make an oral application to amend the Amended Initiating Application to insert the following order sought: The two children, X, born in 2009, and Y, born in 2007, become the adopted sons of Mr Bernati, born in 1974.

10. An Affidavit of Service of the orders of 4 March 2020 on Mr Vaulks was filed on 30 March 2020 showing the documents were served upon Mr Vaulks in Suburb F, Victoria.

11. Orders made on 15 April 2020 released the report of the Community Services Directorate. 

12. The Applicants filed an Application in a Case on 4 May 2020 seeking to dispense with Mr Vaulks’s consent for adoption, and if orders are not made, to dispense with the consent seeking an undefended hearing for sole parental responsibility of the children.

13. An Affidavit of Service of orders of the Application in a Case filed 1 May 2020 on Mr Vaulks was filed on 4 May 2020 showing that the documents were served upon Mr Vaulks by Registered Post.

14. The application comes in the litigation context of Mr Vaulks being on notice of the proceedings, but failing to participate in the proceedings.  When contacted by the Director-General of the Community Services Directorate, he indicated that he did not consent to the adoption taking place.

Dispensing with consent

1. The current issue before the Court is whether an order should be made dispensing with the necessity of consent by Mr Vaulks in relation to the adoption. 

2. The effect of adoption is set out at s 43 of the Adoption Act 1993 (ACT).  The effects in this case of the making of an adoption order include the cessation of the parent-child status between the children and Mr Vaulks, and Mr Bernati becoming the parent of the children alongside the Mother.

3. Division 3.3 of the Adoption Act deals with consents in relation to adoption. Section 26 imposes a general requirement for consent by the relevant parent, here Mr Vaulks, as a prerequisite to the making of an adoption order. Section 35 allows a court to dispense with this requirement, in the following terms:

   35 Dispensing with consent

   (1)On application, the court may, by order, dispense with the requirement for consent of a person to the adoption of a child or young person if the court is satisfied that—

   (a)the person cannot, after reasonable inquiry, be identified or located; or

   (b)the physical or mental condition of the person is such that he or she is not capable of considering properly the question whether consent should be given; or

   (c)the person has abandoned or deserted, or has neglected or ill-treated, the child or young person; or

   (d)the person has, for a period of not less than 1 year, failed, without reasonable excuse, to discharge the obligations of a parent or guardian, as the case may be, of the child or young person; or

   (e) there are any other circumstances that justify the requirement for the consent being dispensed with.

   NoteIf a form is approved under the Court Procedures Act 2004, s 8 for an application, the form must be used.

   (2)On an application for an order under subsection (1), the court may require the director-general to investigate the matter and to provide a written report to the court.

   (3)To facilitate the making of arrangements for the adoption of a child or young person, on the application of the director-general or the principal officer of a private adoption agency, the court may make an order under subsection (1) before an application for an adoption order has been made, and the first order has effect for the purpose of any subsequent application for an adoption order.

   (4)On the application of the director-general or of the person the requirement for whose consent was dispensed with, the court may revoke an order made because of subsection (3) at any time before making an adoption order.

4. It may be seen that s 35(1) sets out a number of grounds to found an order dispensing with consent. It may also be seen that, if the grounds are established, the making of an order dispensing with consent remains a matter of the exercise of a discretion. The exercise of such discretion is conditioned upon the terms of s 5 of the Adoption Act, which renders the best interests of the children the paramount consideration, and which identifies the relevant considerations for determining best interests.

5. Mr Bernati relied upon s 35(1) (c), (d) and (e) as the basis for dispensing with consent.

6. In a typically carefully reasoned and comprehensive judgment, Refshauge J, in Re An adoption of D[1] analysed the effects of s 35. He did so in the context of the recognition of the “grave responsibility”[2] identified as placed upon a court in determining adoption applications, the importance placed upon the family by s 11 of the Human Rights Act 2004 (ACT)[3] and given the place of consent within the legislative structure of the Adoption Act.

   [1]Re An adoption of D (2008) 39 Fam LR 345.

   [2]Mace v Murray (1955) 92 CLR 370.

   [3] His honour noted that the Human Rights Act did not necessarily point either toward or away from the propriety of making an adoption order, such being dependent upon the circumstances.

7. Ground (c) was described by Refshauge J as involving morally reprehensible conduct.  Specifically, in relation to ill-treating a child, he adopted the phrase “knowingly and without moral justification causing physical pain or mental suffering.”[4] 

   [4] See The Director of Social Welfare v Black and Halse (unreported 19 November 1973) (Jenkinson J).

8. Ground (d) contains two elements, being both the failure for a period of not less than one year to discharge the obligation of a parent, and that there is an absence of reasonable excuse for such.  The relevant obligations were identified by Refshauge J as duties to show affection, care and interest towards the child, along with the duty to maintain in an economic sense.

9. Ground (e), was described by Refshauge J as “perhaps, the most important” of the various grounds.  He observed at [31] that, as was identified by the Federal Court in Re X and the Adoption of Children Ordinance 1965 (‘Re X’),[5] the “other circumstances” referred to at (e) does not mean that they “must be exclusive of, or unrelated to the subject matters of the other grounds.”[6]

   [5]Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533.

   [6] Ibid.

10. In considering Re X, it should be recognised that the Ordinance required “other special circumstances” for properly dispensing with consent, rather than merely “other circumstances” as required by the Adoption Act.

11. Justice Refshauge noted at [30] that (e) is cast in broad terms, being “a ground that is of wide import and cannot properly be circumscribed, though it has to be considered judicially.”

12. Further, Refshauge J observed that although the paramountcy of the best interests of the children, as set out at s 5 of the Adoption Act has application to a consideration of (e),[7] the consideration of (e) and the question of dispensing with consent is a distinct step from the consideration of whether an adoption order should be made, and that the two cannot be conflated.[8]

    [7]Re An adoption of D (2008) 39 Fam LR 345, [35].

    [8] Ibid [57].

13. Although the consideration of dispensing with consent is separate from the consideration of the adoption order itself, the broad scope of (e), combined with the paramountcy of the best interests of the children, mean that consideration of the matters that point to an order for adoption as being in the children’s best interests may also form an appropriate consideration in determining whether there are circumstances that justify dispensing with consent.  That is, the substance of the case put for an adoption order to be made may also inform the determination of the dispensation with consent, despite the distinct nature of the two steps.  This was a matter specifically recognised by the Court in Re X at page 538.

14. It should also be noted that, should dispensation be given, the substantive application will still fall to be determined on its merits, on the basis of the matters set out at s 39F of the Adoption Act. Those matters will include a consideration of whether, in the absence of consent, the making of the order for adoption is in the best interests of the children.  The effect of the dispensation is that the bar on the making of an adoption order without consent is removed.

The circumstances of this case

1. As noted above, in this case, Mr Bernati relied upon s 35(1)(c), (d) and (e).

2. He identified the following factual matters in relation to paragraph (c) as supporting an order dispensing with consent:

   a)An allegation that X was hit on the head by the Father on 3 March 2016;

   b)The Applicant’s allegation that he saw the Father “kick X violently off his leg” when X attempted to cuddle the Father’s leg;

   c)An allegation that on one occasion the Father did not change X’s sheets after he had wet them;

   d)An allegation by Y that the Father had force fed him until he vomited, and that the Father’s girlfriend’s mother had hit Y in the head with an apple.

3. In order to rely upon these matters, it is necessary that the incidents are established on the balance of probabilities and that, either individually or cumulatively, the incident(s) meet the description of ill treatment.  It should also be observed that while the mere conclusion that the incident(s) meet such a description provides a foundation for the exercise of the discretion to dispense with consent, it does not necessitate the exercise of the discretion.

4. The sparse nature of the evidence of each of the above incidents does not enable a conclusion to be drawn on the balance of probabilities as to what occurred on each occasion, nor that it constituted ill treatment.  For example, there is no clarity as to whether Y being hit in the head with an apple was an accident, or a deliberate act.  It is also unclear as to the circumstances of the wet bed, and to what extent the Father may have been aware of such.  The matter which is closest to ill treatment is at b) above.  However, the lack of clarity as to what was meant by “violently” again means that a conclusion as to what precisely took place, or that it constituted ill-treatment should not be made.

5. While Mr Bernati identified a number of factual matters in relation to paragraph (d), only some of those arguably fell within that provision as follows:

   a)That the Father did not take up school holiday time with the children;

   b)That the Father did not attend to collect the children for father’s day on either 2 September 2018 nor 1 September 2019;

   c)That the Father has not attempted to contact the children since the end of 2018;

   d)That the Father did not seek to restrain the Mother’s move with the children away from the H Region to the ACT;

   e)That the Father has had “small amounts by way of child support” extracted from him by the Child Support Agency.

6. The Mother’s affidavit of 25 October 2019 gives the clearest picture of this aspect.  Her evidence is that the children refused to go with the Father, locking themselves in the car at handover, and telling the Father that they would not go with him in July through to September 2018.  The Mother describes that the Father has not sought time since.

7. The failure to pursue time since September 2018 meets the description of a failure to discharge the obligations of a parent, for a period of not less than a year.  It is a failure to provide, as described by Refshauge J, affection, care and interest.

8. However, it is necessary to demonstrate that this occurred without reasonable excuse.  While this is, perhaps, an easier threshold to cross where, as here, the Father is on notice but not participating in the proceedings, the matters described by the Mother as surrounding the cessation of time undermine the conclusion that it is without reasonable excuse.  On the Mother’s evidence, the Father was confronted with strident refusal by the children.  Such a description, in this case, means that the conclusion should not be drawn that the failure was without reasonable excuse.

9. As to the issue of failure to economically provide for the children, no evidence is adduced to suggest that, while what is paid by the Father is small, that it falls short of his proper obligations under the child support legislation.

10. This ground is not made out.

11. In relation to paragraph (e), Mr Bernati relied upon the following:

    a)The positive nature of the children’s relationship to him, and the desirability of formalising that arrangement;

    b)That Mr Bernati and the Mother may move with the children in the future and that it is in the children’s interests that the Mother and Mr Bernati be able to exercise parental responsibility in a manner unhindered by the Father;

    c)The children’s views;

    d)The desirability of the children having a common surname with the rest of their family that they live with.

12. These are matters that go to the desirability of making the adoption orders as in the best interests of the children.

13. They are matters that go to the likely effect of an adoption order on the life course of the children, their personal characteristics and needs, their views, their relationships with the Father, Mr Bernati, their Mother and siblings. These are matters strongly relevant to the mandatory considerations in determining the best interest of the children as identified by s 5 of the Adoption Act.

14. In considering whether these are sufficient to dispense with consent, it should be borne in mind that in the event that consent is dispensed with, there remains the consideration of whether the adoption order should be made, in the absence of consent, on the basis of the matters raised as being in the children’s best interests. That is, what would remain is a merits consideration, in accordance with s 39F of the Adoption Act, of whether an adoption order should be made in all the circumstances of the case.

15. The matters identified above point strongly toward a consideration of the application on its merits despite the absence of consent from the Father.  They point to the consideration of the adoption application despite the absence of consent as being in the children’s best interests.

16. On this basis, it may be concluded that there are circumstances that justify the requirement for the consent to be dispensed with.  However, it should be recognised that this does not render the substantive application for adoption a fait accompli.  There remains a real question as to whether, in the whole context of the case, including the absence of consent, an order should be made on consideration of the matters contained at s 39F to terminate the parental relationship with the Father and create a parental relationship with Mr Bernati.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 June 2020.

Associate: 

Date:  30 June 2020