In the adoption of LGL
[2016] ACTSC 360
•6 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the adoption of LGL |
Citation: | [2016] ACTSC 360 |
Hearing Date: | 8 September 2016 |
Date of last submissions: | 18 November 2016 |
DecisionDate: | 6 December 2016 |
Before: | Mossop AsJ |
Decision: | See [43] |
Catchwords: | ADOPTION – Application for discharge of an adoption order – Order made under the Adoption of Children Ordinance 1965 (ACT) – At self-government ordinance becomes Adoption of Children Act 1965 (ACT) – Act now repealed – Whether current Adoption Act 1993 (ACT) empowers the Court to discharge an adoption order made under repealed law – Technical amendments made to Act in 2008 have unintended consequence of removing power to discharge order – Need for legislative action |
Legislation Cited: | Administration and Probate Act 1929 (ACT) Adoption Act 1993 (ACT), ss 4, 26, 39L, 43, 44, 60 Statute Law Amendment Act 2008 (ACT) |
Parties: | LGL (Plaintiff) |
Representation: | Counsel Self-represented (Plaintiff) P Garrisson SG (as amicus curiae on behalf of the Attorney-General of the Australian Capital Territory) |
| Solicitors Self-represented (Plaintiff) Australian Capital Territory Government Solicitor (amicus curiae) | |
File Number: | AD 3 of 2016 |
MOSSOP AsJ:
Introduction
Sometimes when cleaning up you throw out something useful. This case provides an example of such a situation which has arisen in relation to the laws of the Australian Capital Territory relating to adoption. Amendments to clean up and improve the ACT statute book have involved the amendment of provisions in a manner which has disabled the Court from being able to properly deal with adoption orders made under a repealed Act. That has adverse consequences for the plaintiff who is presently unable to obtain an order of the Court discharging an adoption order. It is a matter deserving of prompt legislative attention.
The application and its procedural history
By application in proceeding filed 12 May 2016 the plaintiff, LGL, has sought to the discharge the adoption order made by this Court in relation to him on 4 November 1981. The application was supported by an affidavit of LGL dated 26 April 2016.
The proceedings were first before the Court on 7 September 2016. On that date LGL, who is now a resident of the Northern Territory, appeared in person. I identified that there may be a difficulty with making the order that he sought because of the amendments to the Adoption Act 1993 (ACT) (1993 Act), which I will describe in more detail below. As LGL was unrepresented and not legally trained, the proceedings were adjourned so as to permit the Registrar to notify the Attorney-General of the proceedings and the issue which has arisen. On 28 September 2016 the Solicitor-General appeared on behalf of the Attorney-General as amicus curiae. The Attorney-General subsequently filed submissions in order to assist the Court. I will refer to those submissions further below.
Facts
An adoption order was made by this Court on 4 November 1981 in relation to LGL. That order was made under the provisions of the Adoption of Children Ordinance 1965 (ACT). Upon self-government that ordinance became the Adoption of Children Act 1965 (ACT). I will refer to the Act and the Ordinance as the 1965 Act.
The affidavit in support of the application and the file relating to the making of the original adoption order disclose the following chronology:
18 September 1965 SG marries AIR, becoming SR. 12 May 1971 The marriage is annulled by the first Civil Chamber of the Traunstein Provincial Court. [Date] 1972 The plaintiff was born in Bad Reichenhall, West Germany. He was given the name GLDR. 10 February 1972 A Certificate of Parentage issued by the Registry Office in Bad Reichenhall identifies the parents of the plaintiff as AIR and SR. November 1972 The plaintiff and his mother moved to Australia. 8 February 1973 The Bad Reichenhall District Court determines that the plaintiff is not the legitimate child of AIR. 7 July 1975 Upon application dated 1 July 1975 full parental authority is transferred to the plaintiff’s mother, SR, as a result of a determination of the District Court of Laufen. 10 February 1979 The plaintiff’s mother marries LA. His mother changes her name from SR to SA. 19 June 1981 LA and SA have a child, RA, the plaintiff’s half brother. 12 October 1981 LA and SA apply for an adoption order under the 1965 Act. The proceedings are numbered AD 54 of 1981. The application is supported by an affidavit of Mr and Mrs A dated 8 October 1981. 2 November 1981 James de Berigny Wall, Director of Welfare Department of the Australian Capital Territory, a person authorised in writing by the Director of Child Welfare, reports to the Court pursuant to s 19(1) of the 1965 Act. That is a comprehensive report relating to the circumstances surrounding the proposed adoption. The report includes: “The couple stated that they wish to adopt the subject child to ensure that he will have equal status with the son of their marriage and to provide security for him. They stated that they wish to adopt [L] at this time in particular as the family is intending to move interstate in the near future and they want [L]’s legal position within the family unit settled as part of their new life.” 4 November 1981 Connor J makes an order: “That this child is hereby become the adopted child of the applicants and shall henceforth bear the name of [GLDA].” April 1990 The plaintiff changes his name from GLDA to LGA. 1994 LA and SA divorce. 1998-99 When visiting relatives in Germany the plaintiff meets with the person that his mother identifies as his father, AL. November 2003 The plaintiff marries CG who upon marriage becomes CA. August 2004 The plaintiff’s wife gives birth to their child K. June 2006 The plaintiff’s wife gives birth to their twins, J and Z. July 2012 The plaintiff seeks from the Registrar of the Supreme Court copies of all available documents relating to his adoption in 1981. Because of the prohibition in s 60 of the Adoption Act 1993 (ACT) he was only able to be provided with a copy of the order that was made. 13 August 2013 A report of DNA testing carried out upon the plaintiff and AL demonstrates that the plaintiff is the biological child of AL. 3 November 2014 The plaintiff and each member of his family change their last name from A to L.
Section 39L
Section 39L of the 1993 Act gives the Court a power to discharge an adoption order. It provides:
39L Discharge of adoption order
(1)On application by a prescribed person, the court may make an order (a discharging order) discharging an adoption order if the court considers that—
(a)the adoption order, or any consent to the adoption, was obtained by fraud, duress or other improper means; or
(b) there are other circumstances that justify the discharging order.
(2)For subsection (1) (b), a breakdown in the relationship between the adopted person and the adoptive parents must not be taken to constitute a circumstance justifying a discharging order.
(3)A discharging order must not be made if it appears to the court that the making of the order would be prejudicial to the best interests of the adopted person.
(4)On an application under subsection (1), the court may require the director‑general to investigate the matter and to provide a written report to the court.
(5)A discharging order must not be made unless the applicant has, not later than 28 days before the return date for the application, served written notice of the application and its return date on—
(a) if the adopted person is 12 years old or older—the adopted person; and
(b) each adoptive parent; and
(c) each person whose consent to the adoption was required.
Note If a form is approved under the Court Procedures Act 2004, s 8 for an application, the form must be used.
(6)On application, the court may dispense with the requirement to serve notice under subsection (5).
(7)If the court makes a discharging order, the court may, at the same time or subsequently, make any consequential or ancillary orders it thinks fit to promote the best interests of the adopted person, or otherwise in the interests of justice, including orders relating to—
(a) the person’s name; or
(b) the ownership of property; or
(c) if the person is a child or young person—
(i) guardianship or custody of the person; or
(ii) the place of residence of the person.
(8)Subject to any order made under subsection (7) and to section 43 (3), the rights, privileges, obligations, liabilities and relationships under the law of the Territory of the person and of all other people are, on the making of a discharging order, the same as if the adoption order had not been made, but without prejudice to—
(a) anything lawfully done while the adoption order was in force; or
(b)the consequences of anything unlawfully done while the adoption order was in force; or
(c)any right or interest that became vested in any person while the adoption order was in force.
(9)If an adoption order that has been discharged was made under a general consent, then, unless the court otherwise orders, that consent remains effective for the purpose of a further application for an adoption order about the same person.
(10) In this section:
prescribed person, in relation to an application for a discharging order for a person, means the Minister, the director‑general, the public advocate, the adopted person, an adoptive parent or a person whose consent to the adoption was required.
The Dictionary to the Act provides:
adoption order means an order for the adoption of a person made under this Act.
The issue that arises in relation to the operation of s 39L is whether it permits the discharge of an adoption order made under the 1965 Act.
Merits
Before addressing the issue of power I will address the merits of the application on the assumption that s 39L does permit the discharge of an adoption order made under the 1965 Act.
In his affidavit in support, the plaintiff said:
13. My mother separated and divorced from [LA] in 1994.
14. [LA] and I do not keep in contact.
…
16.Since reconnecting with my father … I have been in regular contact and built a good relationship.
…
19.In 2012 my father and I began the process of trying to get official recognition in Germany that he ([AL]) was my father. This process was required due to his name not being on my birth certificate.
20.In 2013 my Father and I both got a DNA test as part of proving our relationship to the German courts, which tested positive to us being father and son …
21.In 2013 I received a reply from the German courts stating they would not proceed with the application to have [AL] recognised as my father until my adoption in Australia was cancelled.
…
23.I am the only son of my father, [AL], and my son [K] is, and will be, the only blood line, male heir for the [L] name as none of [A]’s siblings have had a male child.
24.I wish to have my adoption to [LA] discharged so I can be officially recognised as the son of my birth father [AL], in a German court of law.
25.I wish to have my adoption to [LA] discharged so my son [K] can be officially recognised as the grandson of [AL] and legally carry the name of [L].
I accept that formal recognition of the plaintiff’s parentage is a matter of significance to him. It has been significant enough for him and his wife to change their family name to match that of the plaintiff’s father. The importance of that issue to the plaintiff is understandable in circumstances where he has an ongoing relationship with his biological father, but little if any ongoing relationship with his adoptive father.
Mr A, the plaintiff’s adoptive father, was given notice of the application. He did not formally enter appearance, but was called to give evidence by the plaintiff and gave evidence that he did not oppose the discharge of the adoption order. The plaintiff’s mother was also given notice of the proceedings. Although she did not enter an appearance or give evidence, I infer from the evidence of her cooperation with the plaintiff in filing the application and using her home address as his address for service that she did not oppose the discharge of the adoption order.
Section 39L requires notice of the application to discharge an adoption order to be given to the adoptive parents and “each person whose consent to the adoption was required”. Under s 24 of the 1965 Act consent to the adoption was not required from the plaintiff’s mother because she was one of the applicants for adoption. Having regard to the evidence of notice given to both Mr A and the plaintiff’s mother I am satisfied that the notice requirements of s 39L(5) have been met.
Section 39L(1)(b) permits the discharge of an adoption order where “there are other circumstances that justify the discharging order”. Section 39(2) prevents the discharge of an adoption order on the basis of a “breakdown in the relationship between the adopted person and the adoptive parents”.
The present case involves an adult who:
(a)is seeking a discharge of an adoption order many years after the cessation of his minority and many years after his mother divorced his adoptive father;
(b)has a relationship with his biological father and does not have a relationship of significance with his adoptive father; and
(c)clearly wishes, for the purpose of his own identity and the identity of his family, to have the legal system recognise the biological reality of his parentage.
It is also a case where the discharge of the adoption order is not opposed by anyone.
In those circumstances, I:
(a)do not consider that the making of a discharging order is precluded by s 39L(2);
(b)do not consider that the making of the order would be prejudicial to the best interests of LGL within the meaning of s 39L(3); and
(c)consider that there are “other circumstances that justify the discharging order” within the meaning of s 39L(1)(b).
Subject to there being power to do so, I am satisfied that an order under s 39L would be appropriate.
Can s 39L operate in relation to an adoption order made under the 1965 Act?
Section 39L(1), which is set out above, refers to the discharge of an “adoption order”. The definition of “adoption order” is confined to an order “made under this Act”. In those circumstances it is not obvious that s 39L empowers the discharging of an adoption order made under the 1965 Act.
When first enacted, the 1993 Act repealed the 1965 Act and various amending Acts. The equivalent provision to what is now s 39L was s 26 and it was in largely the same form as s 39L, except in relation to some presently irrelevant differences relating to the requirement for notice of an application for a discharging order. It therefore operated on “an adoption order”. Subsection 4(1) of the 1993 Act (Republication 1) provided:
“adoption order” means an order for the adoption of a child made under section 9 or under the corresponding provisions of the repealed laws.
The term “repealed laws” was defined so as to include the 1965 Act. As a consequence, it was clear that an order discharging an adoption order made under the 1965 Act could be made under s 26 of the 1993 Act.
The transitional provisions in s 120 of the 1993 Act provided:
120.(1) Notwithstanding the repeal effected by section 3—
(a)an adoption order or interim order made under the repealed laws and in force immediately before the commencement of this Act continues in force; and
(b) proceedings on an application to the Court for an order under the repealed laws that were pending immediately before the commencement of this Act may be continued and dealt with, and incidental proceedings may be instituted, continued and dealt with, under the provisions of this Act as if this Act had been in operation when the application was made and an adoption order may be made under this Act accordingly.
(2) An instrument of consent to the adoption of a child given by a person before the commencement of this Act in accordance with the repealed laws and duly attested and verified shall, for the purpose of proceedings under this Act for the adoption of the child, be deemed to be a sufficient consent of the person giving the consent.
(3) Subject to subsection (4), the provisions of sections 43 and 44 (other than subsection 44 (4)) apply in relation to an adoption order made under the repealed laws as if this Act had been in force when the order was made and the order had been made under this Act.
(4) In relation to a disposition of property by will or otherwise by a person who, or by persons any of whom, died before the commencement of this Act, an adoption order referred to in subsection (3) has the same effect as if the repealed laws had continued in operation.
It is notable that this provision did not deem adoption orders under the 1965 Act to be adoption orders under the 1993 Act or contain any other provision which would have either preserved the operation of the 1965 Act in relation to adoptions under it or allowed them to be discharged under the 1993 Act. In relation to discharge of adoptions, that was clearly not necessary because, by reason of the definition of adoption order, s 26 extended to the discharge of adoption orders made under the 1965 Act: see [20] above.
The operation of s 26 of the 1993 Act was altered significantly by the Statute Law Amendment Act 2008 (ACT), which contained a suite of amendments removing references to the “repealed laws” term. That term included the 1965 Act. The Act was intended to contain uncontroversial technical amendments to legislation. The explanatory statement for the bill provided:
The object of this bill is to further enhance the ACT’s statute book to ensure that it is of the highest standard. The bill does so by amending Acts and regulations for statute law revision purposes only. This bill forms part of the technical amendments program for ACT legislation. Under guidelines for the technical amendments program approved by the government, the essential criteria for the inclusion of amendments in the bill are that the amendments are minor or technical and non-controversial.
In relation to the amendments to the 1993 Act, this fell into the category of “technical amendments” in sch 3 of the bill which was described as follows:
Schedule 3 contains minor or technical amendments of legislation initiated by the Parliamentary Counsel’s Office. Each amendment is explained in an explanatory note in the schedule. The amendments include the correction of minor errors, updating language, improving syntax and other minor changes to update or improve the form of legislation.
It is necessary to look at the actual amendments made and their explanatory notes in order to understand what was intended to be achieved by the amendments. Relevantly, the amendments made by the Act included:
Part 3.1 Adoption Act 1993
[3.1] Section 4 (1), definition of adoption order
substitute
adoption order means an order for the adoption of a child under section 9.
Explanatory note
This amendment remakes the definition as a consequence of other amendments omitting redundant references to provisions of repealed laws.
...
[3.3] Section 4 (1), definition of interim order
substitute
interim order means an order under section 50.
Explanatory note
This amendment remakes the definition as a consequence of other amendments omitting redundant references to provisions of repealed laws.
...
[3.6] Section 4 (1), definition of repealed laws
omit
Explanatory note
This amendment is consequential on the omission, by other amendments, of redundant references to repealed laws.
...
[3.12] New section 44 (6)
insert
(6) In this section:
repealed laws means the following Acts or the Ordinances repealed by any of the following Acts:
(a) Adoption of Children Act 1965;
(b) Adoption of Children Act 1974;
(c) Adoption of Children (Amendment) Act 1979;
(d) Adoption of Children (Amendment) Act 1983;
(e) Adoption of Children (Amendment) Act 1988;
(f) Adoption of Children (Amendment) Act 1991.
Explanatory note
This amendment is consequential on the omission, by another amendment, of the definition of repealed laws in the general interpretation provision. As a consequence of the omission of redundant references to repealed laws in other amendments, section 44 (4) is the only provision that refers to repealed laws.
[3.13] Section 120
omit
Explanatory note
This amendment omits a transitional provision which is redundant because of the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc).
Existing section 120 (1) deals with orders and proceedings made or begun before the commencement of the Act.
Existing section 120 (2) deals with consents for adoption given before the commencement of the Act.
Existing section 120 (3) and (4) deals with the application of the Act, section 43 and section 44 to an adoption order made under the repealed laws and the effect of disposition of property in relation to an adoption order made under the repealed laws.
...
Notwithstanding the repeal of s 120, it is clear that it is a transitional provision the operation of which is continued, despite its repeal, by s 88 of the Legislation Act 2001 (ACT).
It is clear that the drafter took the view that the references to the repealed laws were redundant except for the purposes of ss 43 and 44. Those sections deal with the consequences of the making of an adoption order, particularly in relation to the disposition of property. For reasons which are not expressly stated, the references to the repealed laws were considered to be redundant in the definition of adoption order.
Plainly, the other provisions of the 1993 Act did not do what the references to the repealed laws did in the Act as originally enacted because, if so, then the references to the repealed laws would have been redundant from day one.
It is not clear how the effluxion of time might have rendered the references to the repealed laws redundant, because it was only 15 years since the repeal of the 1965 Act and adoption orders continue to have consequences beyond the period of minority of a child the subject of an order. One example of such ongoing effect is for the purposes of the intestacy provision of the Administration and Probate Act 1929 (ACT).
The provisions of s 84 of the Legislation Act 2001 are not referred to in the amending Act and are not sufficient to continue the operation of the 1965 Act.
Therefore it appears that as a result of purportedly technical amendments a substantive entitlement, namely, the entitlement to apply under the 1993 Act for a discharge of an order made under the 1965 Act, has been removed.
The Attorney-General’s submissions
The Attorney-General provided useful and detailed submissions as to the interpretation of the Act. Those submissions contended that an available reading of s 120 (set out at [22] above) was that it permitted “incidental proceedings” under the 1993 Act in relation to orders made under the 1965 Act, including proceedings to discharge an adoption order.
The submission included the following elements:
(a)“incidental proceedings” is not defined and should be interpreted as including a proceeding in the course of a proceeding or in connection with a substantive legal proceeding;
(b)the word “incidental” should bear its natural meaning: “happening or likely to happen in fortuitous or subordinate conjunction with something else” or “to happen in connection with” or “naturally appertaining to” or “liable to happen” or “naturally attaching”; and
(c)in any of those senses a proceeding to set aside or vary an adoption order could be regarded as a proceeding “incidental” to, and in connection with, the substantive adoption proceeding.
Notwithstanding that it would be convenient to do so, and hence the submission is an attractive one, I do not accept the Attorney-General’s submission. There are two reasons.
First, the submission fails to give sufficient weight to the context in which the words relied upon appear and the text of s 120(1)(b) as a whole. Paragraph (b) appears after paragraph (a) which deals with orders made under the repealed Acts. They continue in force. Paragraph (b) then moves on to a different topic. That is not orders that have already been made but instead, proceedings on an application to the Court which were pending at the commencement of the 1993 Act.
Paragraph (b) can be divided into two parts, the first dealing with “proceedings on an application to the Court ... that were pending”, the second dealing with “incidental proceedings”. This can be illustrated by dividing the words of the paragraph as follows:
[First part]
proceedings on an application to the Court for an order under the repealed laws that were pending immediately before the commencement of this Act may be continued and dealt with, and
[Second part]
incidental proceedings may be instituted, continued and dealt with, under the provisions of this Act as if this Act had been in operation when the application was made and an adoption order may be made under this Act accordingly.
The bolded terms in the two parts of the paragraph indicate that the incidental proceedings referred to in the second part are those arising out of the application referred to in the first part, namely the application to the Court that was pending when the Act commenced. The second part does not provide a generalised power to institute proceedings incidental to past orders, but instead provides a power to continue incidental proceedings (such as appeals) so as to permit the making of an adoption order under the 1993 Act in response to an application made under the 1965 Act that was pending at the commencement of the 1993 Act. That interpretation is consistent with the fact that finalised orders had been separately dealt with by paragraph (a).
The submission made by the Attorney-General seeks to read the second part as if it was a free standing provision when it is not and fails to give appropriate weight to the existence of the words “when the application was made”, which must be a reference back to the “application to the Court” referred to in the first part.
The second reason for not accepting the interpretation contended for by the Attorney-General is that it is not an interpretation which would have been necessary when s 120 was enacted. That is because “adoption order” was defined to include an order under the repealed act and hence any proceeding, including an application for discharge of an adoption order, that could be made in relation to an order under the 1993 Act could, subject to any specific provision to the contrary, be made in relation to an order made under the 1965 Act. Further, nothing in the subsequent amendments indicate a change in the intended operation of s 120.
The Attorney-General’s submissions sought to rely upon s 30 of the Human Rights Act 2004 (ACT). I do not accept that in this case that provision or s 139 of the Legislation Act 2001 (ACT) can be deployed to overcome the effect of the 2008 amendments or permit an interpretation of s 120 which is, in my view, inconsistent with its text.
Conclusion
Because of the amendments made by the Statute Law Amendment 2008, the Court is no longer able to discharge an adoption order made under the 1965 Act. This was clearly a consequence not intended by the legislature. It is not a matter which can be remedied by the Court through any orthodox process of statutory interpretation. It is therefore a matter which needs to be addressed by the Legislative Assembly. Rather than dismiss the present application I consider it appropriate to adjourn the application without a further hearing date in anticipation of the Assembly rectifying the problem identified in these reasons.
Orders
The orders of the Court are:
1. The proceedings are adjourned sine die.
2. The plaintiff has liberty to have the matter relisted by making that request by email to my associate.
3. The Registrar is directed to send a copy of these reasons to the Attorney-General.
4. These reasons are to be anonymised prior to publication on the internet.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 6 December 2016 |
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