In the matter of an adoption of QS (No 2)
[2021] ACTSC 107
•21 May 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an adoption of QS (No 2) |
Citation: | [2021] ACTSC 107 |
Hearing Date: | Decided on the papers |
Submissions Last Received: | 16 November 2020 |
DecisionDate: Reasons Date: | 21 May 2021 1 June 2021 |
Before: | McWilliam AsJ |
Decision: | See [116] |
Catchwords: | ADOPTION – APPLICATION TO DISPENSE WITH CONSENT OF BIRTH PARENT – Whether adoption in the best interests of the child – where child has been cared for by applicants for eight years – where child has relationship with birth mother – whether conditional order may be made – whether parens patriae jurisdiction excluded by Adoption Act 1993 (ACT) s 40 WORDS AND PHRASES – “necessary” – whether statutory context means essential or required |
Legislation Cited: | Adoption Act 1993 (ACT) ss 4, 5, 35, 39F, 40, 113 Adoption Amendment Act 2020 (ACT) |
Cases Cited: | Albrecht v Insurance Australia Ltd [2016] ACTCA 58; 316 FLR 303 Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485 |
Texts Cited: | Dennis Pearce AO and Robert Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) Explanatory Statement, Adoption Amendment Bill 2020 (ACT) 1-4 |
Parties: | ND and SQ ( Applicants) TW ( Respondent) Independent Child Representative Director-General, Community Services Directorate |
Representation: | Counsel K Archer ( Applicants) S Leslie ( Respondent) J Provost (Independent Child Representative) K Law-Jamieson (Director-General, Community Services Directorate) |
| Solicitors Infinity Legal ( Applicants) Gabbedy Milson Lee ( Respondent) Legal Aid ACT (Independent Child Representative) ACT Government Solicitor (Director-General, Community Services Directorate) | |
File Number: | AD 1 of 2018 |
McWilliam AsJ:
Introduction
These proceedings concern an application to adopt a child, who will be referred to as “QS”. The identities of the parties have not been published pursuant to s 97 of the Adoption Act 1993 (ACT) (the Adoption Act).
QS has been in the foster care of the applicants – the prospective adoptive parents – since she was three months old. The child is now eight. While QS’s birth father consents to the adoption application, the birth mother opposes the adoption. As a preliminary step to the adoption, it has been necessary for the applicants to seek to dispense with the birth mother’s consent through an application made pursuant to s 35 of the Adoption Act.
It is common ground that if the application to dispense with consent is granted, the Court would then also proceed to consider the substantive application for adoption.
Procedural history
Much of the history of the matter has already been set out in previous judgments concerning QS and the detail does not need repeating here. General background about QS’s circumstances leading up to the present application is set out in In the matter of the adoption of PT [2018] ACTSC 14; 12 ACTLR 301 at [26]-[43]. The background to the present application itself is set out in In the matter of an adoption of QS [2019] ACTSC 357 (In the matter of an adoption of QS) at [23]-[28] and [30].
This matter has been remitted for redetermination by me following proceedings in the Court of Appeal: S and N v T [2020] ACTCA 36; 15 ACTLR 182 (S and N v T). Since that judgment was handed down, three changes relevant to the proceedings have occurred.
First, the Director-General has been joined as a party.
Second, the Director-General has provided the Court with a confidential report dated 17 September 2020 prepared by an independent social work consultant under s 39D of the Adoption Act in respect of QS’s best interests (the Report). By consent, orders were made granting the parties access to the Report and the parties have filed further submissions.
Third, the Adoption Act has been amended by the Adoption Amendment Act 2020 (ACT) (the Amendment Act).
The parties requested that, following the filing of submissions and any further evidence, the Court determine the remitted application on the papers.
Issues
The legislative amendment has had two consequences for the application before the Court. The first is that there is uncertainty between the parties as to which version of the legislation applies to the present proceedings. The Director-General and the applicants submitted that the Court applies the Adoption Act as amended. The birth mother submitted the applicable legislation was the Adoption Act in its form when the application was first made to the Court. The submissions of the child’s representative were somewhat equivocal. However, as I understood the ultimate submission, it was consistent with the submissions of the birth mother, on the basis that the amendment should not have retrospective effect on an application so as to interfere with vested rights.
The second consequence is that, if the new legislative regime does apply, there is a question about how to construe the amendment to the wording of ss 5 and 35 of the Adoption Act, the sections with which the present application is directly concerned.
Once those matters are resolved, the substantive issue is then whether the Court should dispense with the birth mother’s consent and, if so, whether the Court should proceed to grant the adoption.
Which version of the Adoption Act applies?
No transitional provisions were included in the Amendment Act. Such provisions would have assisted the parties and the Court to easily determine whether the Legislative Assembly intended the amendments to apply to proceedings extant in the Court. Nevertheless, the confusion as to what version of the legislation applies to existing matters travelling through the Courts may be resolved by having regard to ordinary principles of statutory construction.
The Director-General helpfully drew attention to Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485 (Qld v AIRC). In that case, the High Court had cause to consider a situation whether proceedings that were before the Australian Industrial Relations Commission were affected by an amendment made to the particular federal industrial statute that governed the procedure.
In Qld v AIRC, Gleeson CJ said at 492 (references omitted):
When a statute changes the law, the effect of the change upon existing rights, liabilities, claims, or proceedings is determined by the meaning of the statute. The common law developed rules of statutory construction as an aid to discovering that meaning. Such rules involved presumptions; but, being rules of construction, they were subject to any contrary intention evinced with sufficient clarity in the statute. When expressed in summary form, those rules distinguished between retrospective and prospective effect, and between procedural provisions, and provisions affecting rights or liabilities. However, such distinctions are not always clear-cut. …
This directs attention to the meaning of the legislation, whether it concerns any existing rights, and if so, what is the impact of the change on those existing rights. In that regard, s 84(1)(c) of the Legislation Act2001 (ACT) (the Legislation Act) is relevant to an understanding of the meaning of the Adoption Act. Section 84(1)(c) relevantly provides that:
“The repeal or amendment of a law does not …affect an existing right, privilege or liability acquired, accrued or incurred under the law.”
Further, s 84(2) of the Legislation Act provides (emphasis added):
An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.
In Qld v AIRC, Gleeson CJ referred to a broadly similar provision in the Acts Interpretation Act 1901 (Cth). His Honour said at 493 (emphasis added):
…A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.
In the present case, when working out the meaning of the Adoption Act (that is, whether its amended form applies to this application), the starting point is the plain words of the Amendment Act, section 2 of which states: “This Act commences on 1 September 2020.”
Those words indicate that if the Court is called upon to consider whether to make orders pursuant to the Adoption Act after 1 September 2020, the provisions in force will be those as amended by the Amendment Act. Absent transitional provisions to indicate otherwise or the operation of the Legislation Act working in a complementary fashion, the amended version of the Adoption Act applies to all decisions made under that statute on or after 1 September 2020.
That leaves for consideration the question of whether there is any existing right under s 35 of the Adoption Act, such that s 84 of the Legislation Act operates to save the old provision. In Qld v AIRC, Gaudron, McHugh, Gummow and Hayne JJ said at 503 (references omitted, emphasis added):
Where what is involved is the exercise of judicial power, that often will require the determination of pre-existing rights or liabilities. This is illustrated by those functions which are appropriate exclusively to judicial action, including the determination of criminal guilt, actions in contract and tort, and suits to enforce trusts. The term "pre-existing rights" will take its content from the state of affairs at some stage before the judicial determination, such as the accrual of a cause of action or institution of an action or application. Hence the ready accommodation here of notions of accrued rights within the sense of s 8 of the Interpretation Act.
Section 35(1) of the Adoption Act, as it stood when the application was made in August 2018, provided as follows:
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.
The amended s 35(1) of the Adoption Act provides:
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) either—
(i) the person cannot, after reasonable inquiry, be identified or located; or
(ii) the person’s identity cannot be established; or
(b) the person is not able to make a fully informed decision in relation to the consent despite receiving adequate and appropriate support to make the decision to the best of their ability; or
(c) it is necessary in the best interests of the child or young person to dispense with the requirement for consent of the person.
Under each version of s 35, the power under s 35(1) is discretionary (‘the court may’) and it is conditioned upon the Court being satisfied that at least one of the specified criteria exists in the present tense; not the past. The nature of the legal right involved requires the Court to have consideration to the current state of affairs vis-à-vis the child.
The time at which the Court assesses whether it is satisfied that any of those criteria apply is not the date when the application is filed; it is at the time the Court is called upon to make the order. For example, an application may be made when a birth parent cannot be located, but when the Court comes to determine the issue, the person has been found. When the Court asks whether one of the criteria in s 35(1)(a) is satisfied, it does not look back to the time of the filing of the application, although of course, such facts may form part of the relevant history.
The right the applicants had before the commencement of the Amendment Act was not one where a cause of action or a statutory right had already accrued or arisen. I accept the submission of the Director-General that no person has a legal right to a dispensation order pursuant to s 35 before the Court considers the application.
Accordingly, the right involved or affected by the operation of s 35 does not take its content “from the state of affairs at some stage before the judicial determination”, to adopt the words used by their Honours in Qld v AIRC at 503. The right of a party is therefore no different to the right of the general public that the Court observe its statutory duty and consider an application in accordance with the particular governing statute “as it exists from time to time”: see Qld v AIRC at 502.
For these reasons, s 84 of the Legislation Act is not engaged.
Such reasoning also answers the concern of the child’s representative that unless the intention of the legislature is clear, courts should not interpret a statute as having retrospective effect on rights or liabilities which have been fixed by reference to past events. The child’s representative drew attention to cases such as Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; 246 CLR 117 at [32], and Maxwell v Murphy (1957) 96 CLR 261 at 267. Accepting that well-established principle, it does not apply here. Although the legislation applies on its face to applications made in the Court that are not yet determined, the amendment does not have ‘retrospective effect’ because there is no existing or fixed right with which it interferes.
For completeness, s 5 of the Adoption Act (set out below at [44]) states that a person making a decision under the Adoption Act in relation to a child or young person must regard the bests interests of the child or young person as the paramount consideration. It then sets out what considerations are to be taken into account in determining the best interests of the child. There is nothing in that section in its form, either before 1 September 2020 or in its amended form, which indicates a contrary position to the Court making an assessment under that section as at the time of the judicial determination.
For these reasons, the Adoption Act as amended applies to the present application.
Understanding the amendments to ss 5 and 35 of the Adoption Act
The relevant criterion for the present application is s 35(1)(c) of the Adoption Act, inserted by the Amendment Act. The Court’s task is to determine whether it is satisfied that “it is necessary in the best interests of the child” to dispense with the requirement for consent.
The insertion of the word ‘necessary’ requires consideration. It is not the wording of the test under s 5 for making the primary adoption order under s 39F of the Adoption Act, which simply refers to the best interests of the child. It is not the wording of the previous test applicable under s 35(1)(e), which had been held to include satisfaction that it was in the best interests of the child to dispense with consent: S and N v T at [62]. The use of the word ‘necessary’ also departs from the usual statutory formulations of the child’s best interests used in family law: for example, see Family Law Act 1975 (Cth) (the Family Law Act) s 65DAA; and Children and Young People Act 2008 (ACT) (the Children and Young People Act) s 464). These matters give rise to the question of whether the legislature intended to impose a higher statutory test.
The Director-General submitted that when regard is had to the context to these amendments, the inclusion of the word ‘necessary’ does not create a more onerous test than the previous legislative regime. It was submitted that this would be inconsistent with the purpose of the Amendment Act. For reasons that follow, I have reached the same conclusion albeit for different reasons.
It assists to first understand the general principles of construction employed to assist the Court to work out the meaning of a provision. These general principles were recently stated by Allsop CJ in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 384 ALR 668 at [4] (emphasis added):
… The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material: See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69]; Mason J in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315 which drew upon Viscount Simonds in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 (cited in Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at 28 [57] and in the other authoritative decisions of the High Court referred to in Federal Cmr of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 at 43 [5]); Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at 519 [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at 671–672 [22]–[23]; and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at 368 [14].
Each word in a statutory provision must be given meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]. The courts are “not at liberty to consider any word or sentence as superfluous or insignificant”: Dennis Pearce AO and Robert Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) (Pearce & Geddes) at 62; and The Commonwealth v Baume (1905) 2 CLR 405 at 414. The principle is even “more compelling if the word (or phrase) in question has been added by amendment”: Pearce & Geddes at 63 and the authorities there-cited.
Moving next to consider the context, which is immediately important when construing legislation and should be understood in its ‘widest sense’, including other provisions of a statute and its legislative history: see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 per Kiefel CJ, Nettle and Gordon JJ at [14].
As part of the context, the Court also has regard to the terms of the Legislation Act, for the reasons given by Gleeson CJ in Qld v AIRC at 493, set out at [18] of these reasons. In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 (Haureliuk) Refshauge, Burns and Besanko JJ provided a succinct summary of the Court’s task at [19] (emphasis added):
The starting point is the Legislation Act 2001 (ACT). That Act provides that in working out the meaning of an Act, the Court is to prefer to any other interpretation, “the interpretation that would best achieve the purpose of the Act” and that is the case whether or not there is an express statement of the Act’s purpose (s 139). The exercise of “working out the meaning of an Act” means resolving an ambiguity, confirming or displacing the apparent meaning of the Act, finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable or finding the meaning of the Act in any other case (s 138). In performing the exercise of working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole (s 140). Section 141 provides that in working out the meaning of an Act, material not forming part of the Act may be considered in certain circumstances, and it provides for the matters to be taken into account in deciding if these circumstances exist, and the weight that material should be given. Section 142 provides a non-exhaustive list of the material which may be considered in working out the meaning of an Act or statutory instrument.
The context of a provision also includes non-legislative instruments such as explanatory statements by the Legislative Assembly. By virtue of ss 141 and 142 of the Legislation Act, these may be considered by the Court in working out the meaning of an Act or provision of an Act. Such instruments assist in discerning, clarifying, or further elucidating the statutory purpose to which the Court’s interpretation must bend pursuant to s 139.
However, this legislative emphasis on purpose in the choice of construction is not unbounded. In Haureliuk, their Honours went on at [21] to quote Besanko J in the case of Casey v Alcock [2009] ACTCA 1; 3 ACTLR 1 with approval (emphasis added):
In Casey v Alcock (2009) 3 ACTLR 1 at 20–21 [103] Besanko J said:
Subject to one qualification, s 139 of the Legislation Act can be described as the Territory’s equivalent of s 15AA of the Acts Interpretation Act 1901 (Cth). It is clear enough that under s 139 a Court can have regard to the purpose of a provision to determine if more than one construction of the provision is open, even though on its face the provision is not ambiguous. That follows from the definition of ‘working out the meaning of an Act’ (which is the exercise referred to in the section), which includes as part of the definition in s 138 ‘(b) confirming or displacing the apparent meaning of the Act’ and from the reasons for judgment of Dawson J in Mills v Meeking (1990) 169 CLR 214 at 235. Neither s 139 nor s 15AA of the Commonwealth Act authorises a court to rewrite legislation and the construction adopted must be one which is open having regard to the words of the legislation. The qualification referred to earlier is that the words in s 139 differ from those in s 15AA. Section 139 refers to an interpretation which would ‘best achieve’ the purpose of the provision, whereas s 15AA refers to preferring a construction that would promote the purpose or object underlying the provision to a construction that would not promote that purpose or object. It is not clear on the authorities whether the difference in the words used means that the sections have different effects: see Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ; Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, LexisNexis Butterworths, 2006) at 37–38 [2.15].
The important point is that the Court is not authorised to rewrite legislation.
To similar effect is Albrecht v Insurance Australia Ltd [2016] ACTCA 58; 316 FLR 303, where Murrell CJ, Burns and Perry JJ stated that, even if there appears to be an error of legislative drafting, “it is not open to the Court to rewrite the text of the statute” (at [38]). Although regard may be had to explanatory statements as part of context when interpreting a legislative provision in a way that best achieves its purpose, such instruments cannot be used as a substitute for the text itself: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.
These relatively uncontroversial principles have been set out in some detail to assist the parties to understand the Court’s reasoning process in construing a statutory provision, particularly where that provision has been amended and is being construed for the first time, as is the case here. However, the extracts above highlight the importance of context, which is significant in this case.
The ordinary meaning of ‘necessary’
Starting then with the text of the statute, the ordinary meaning of the word ‘necessary’ can be found in the Macquarie Dictionary. It is there relevantly defined as ‘indispensable or requisite’. The plain meaning suggests a higher threshold must be met for the Court to be satisfied about whether dispensation of consent is in the child’s best interests, akin to dispensation being essential.
Statutory context – other provisions of the Adoption Act
The context to what is meant by ‘necessary in the best interests of the child’ includes other parts of the Adoption Act. Although the phrase is not defined, s 5 of the Act bears on the question. It has been convenient to set out the terms of that section with the amendments brought about by the Amendment Act underlined. Section 5 provides:
5 Best interests of child or young person paramount consideration
(1) A person making a decision under this Act in relation to a child or young person must regard the best interests of the child or young person as the paramount consideration.
(2) In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:
(a) the likely effect of the decision on the life course of the child or young person taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging;
(b) the child’s or young person’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances;
(c) the child’s or young person’s cultural, physical, emotional, intellectual, and educational needs;
(d) the views expressed by the child or young person in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision);
(e) taking into account the benefit of maintaining meaningful relationships, the likely effect of the decision on the child’s or young person’s relationship with the following people:
(i) the child’s or young person’s birth parents;
(ii) the child’s or young person’s siblings (if any);
(iii) the child’s or young person’s other relatives;
(iv) carers or other significant people in the child’s or young person’s life;
(f) the relationship the child or young person has with the adoptive parents;
(g) the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs;
(h) the alternatives to adoption for the child or young person to secure permanent family arrangements;
(i) the continuity and sense of belonging that comes from a child or young person having stable emotional and physical living conditions;
(j) the need to protect the child or young person from physical or psychological harm associated with exposure to abuse, neglect or family violence.
From the amendments underlined, what has changed is the addition of extra considerations that must be taken into account by the Court in forming a view about what constitutes the best interests of a child. There has been no change to the requirement to have regard to ‘the best interests of the child’ as the paramount consideration. When comparing the language of s 5 to the language of s 35(1)(c), an ambiguity has been created by using the phrase ‘necessary in the best interests’ as to whether or not the Court must be satisfied under s 35(1)(c) that adoption is essential before the section enlivens the discretion to make an order dispensing with a birth parent’s consent.
Section 4 of the Adoption Act, which outlines its main objects, is another potentially relevant contextual provision. The objects of the statute generally include:
4(d) ensuring that adoption is centred on the needs of the child or young person rather than an adult wanting to care for a child or young person; and
…
4(f) recognising a birth parent’s involvement in making decisions about their child’s future;…
Although those objectives complement the considerations set out in s 5 and are relevant to what may be ‘necessary in the best interests’ of the child, they do not advance an understanding of whether or not the Court needs to be satisfied that dispensation is required for the best interests of the child.
Statutory context – extrinsic materials
As discussed above, pursuant to ss 141 and 142 of the Legislation Act, consideration may be given to non-legislative instruments as part of the provision’s context in order to interpret s 35(1)(c) in a way that best achieves the purpose of both the Amendment Act and the Adoption Act.
The Explanatory Statement to the Amendment Act relevantly provides at 1-4 (emphasis added):
The Bill maintains limited discretion for the Court to dispense with consent, with guidance regarding determining the child’s best interests. It is intended that the Court’s discretion to dispense with consent should remain limited in recognition of the fact that adoption is such a serious matter, with permanent consequences. The Bill is not aimed at making it easier or harder to dispense with consent. Instead, the amendments are aimed at providing the Court with more guidance about how to assess the best interests of a child or young person, and how to achieve a balance between the rights in play.
…
The Bill streamlines the grounds for dispensing with consent to expressly include ‘necessary in the best interests of the child’. This makes it clear that the Court must make an assessment with reference to section 5 of the Adoption Act. This aligns with the way the Court has approached dispensing with consent applications in the absence of an express connection, and best protects children and young people who are being considered for adoption.
This evinces a clear purpose that the intention behind the amendments was not to make it harder for applicants to obtain a dispensation order than under the previous legislation. A construction of s 35(1)(c) that raised the level of satisfaction to one that dispensation was required in, or essential to secure, the child’s best interests, would arguably be inconsistent with the legislature’s intention as expressed in the Explanatory Statement.
Other judicial consideration of the word ‘necessary’
Other judicial interpretation of the word ‘necessary’ may sometimes assist in discerning the meaning of s 35(1)(c) of the Adoption Act, exercising due caution in considering the language of other statutes. From the examples provided below, there does not appear to be any judicial consideration of the word that would be of any particular assistance in relation to the subject matter or wording of the Adoption Act. However, the examples do help to explain why the amendment and word choice by the Legislative Assembly has required detailed consideration in these reasons, given the careful judicial treatment the word has had in other statutory contexts. Further, this appears to be the first case where a party has relied upon this particular provision as amended in the Adoption Act.
In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, French, Heydon and Bell JJ said at [50]:
The meaning of the word “necessary” in statutes may vary from statute to statute. Its construction depends on the function it performs in the context of a particular statute.”
This statement was cited with approval by Refshauge J in CFMEU v AFP Commissioner [2015] ACTSC 362; 305 FLR 143 at [150].
In a constitutional context, ‘necessary’ has been held to have an element of flexibility to its meaning, rather than strict essentiality. In that context it has been held to mean reasonably appropriate and adapted. In Mulholland v Australian Electoral Commission [2004] HCA 41; 220 CLR 181, Gleeson CJ said at [39]:
It should also be said that the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable", especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy …
There is, in Australia, a long history of judicial and legislative use of the term "necessary", not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted ...
It follows that, when the concept of necessity is invoked in this area of discourse, it may be important to make clear the sense in which it is used, especially if that sense is thought to differ from reasonably appropriate and adapted. Different degrees of scrutiny may be implied by the term "necessary". I have no objection to the use of the term proportionality, provided its meaning is sufficiently explained, and provided such use does not bring with it considerations relevant only to a different constitutional context. Equally, I have no objection to the expression "reasonably appropriate and adapted", which has a long history of application in many aspects of Australian jurisprudence.
In Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [101], Gummow and Crennan JJ adopted the interpretation of ‘necessary’ outlined by the United States Supreme Court in McCulloch v Maryland (1819) 17 US 316:
In McCulloch v Maryland (4 Wheat 316 at 413–414 [17 US 159 at 203] (1819)) the Supreme Court of the United States said of the term ‘necessary’:
Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. … [The word 'necessary'] has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.
In the specific context of determining the admissibility of undisclosed video recording of conversations under the Listening Devices Act 1992 (ACT), I held that ‘necessary’ meant appropriate, but not essential: Dong v Song [2018] ACTSC 82; 331 FLR 326 at [25], citing Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 at [117].
These examples all fall outside of any legislation specifically addressing adoption, or even family law more broadly. However, what they serve to illustrate is that ‘necessary’ can have a variety of different meanings within a broader statutory regime.
The proper construction of ‘necessary’ in s 35(1)(c) of the Adoption Act
While the above authorities provide support for a construction that necessary might be read as appropriate or convenient, in my view, necessary was not intended to qualify the best interests test at all. The confusion arises from an infelicity of drafting. The intention of the legislature, as apparent from the Explanatory Statement, was not that the Court assess whether dispensation was essential in the best interests of the child, but rather that a dispensation order is needed or required because the Court is satisfied that adoption is in the child’s best interests. The word ‘necessary’ ought to be read as linked with the second half of the sentence, as follows: it is necessary to dispense with the requirement for consent of the person because adoption is in the best interests of the child or young person.
It is acknowledged that such a construction might be described as strained because it reorders the words of the provision and effectively reads the words emphasised in the paragraph above into the provision. In that regard, I am mindful of interpretative principles as to whether a purposive construction may permit the reading of a provision in such a way. In Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531, French CJ, Crennan and Bell JJ stated at [38] (references omitted):
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the objection of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
In the present case, the interpretation above falls more into the grammatical or drafting category, in that the last phrase of s 35(1)(c) is simply moved to join with the word ‘necessary’ and any additional words are a small variance. I therefore consider such an interpretation is fairly open, and not impermissibly rewriting the legislation. It gives the word ‘necessary’ work to do but does not elevate the level of satisfaction required in a manner that is inconsistent with what appears to have been the legislative intention behind the Amendment Act, as expressed through the Explanatory Statement. Such an interpretation also ensures consistency with s 5 of the Adoption Act.
Finally on this question, the above construction is one that advances one of the purposes of the Adoption Act, and of s 35 in particular, that purpose being the removal of what would otherwise be a legal obstacle (being the birth parent’s consent) to the adoption of a child in circumstances where a court is satisfied adoption is in that child’s best interests. The construction is therefore consistent with s 139 of the Legislation Act.
Is dispensation necessary in the best interests of QS?
Applying that construction of s 35(1)(c) of the Adoption Act, s 5(2) of the statute directs the Court to a number of mandatory considerations in forming a view about ‘the best interests’ of QS. These are addressed individually below, but collectively it will be seen that on fine balance, I am satisfied that it is in the best interests of QS for her to be adopted at this stage of her development, and therefore I am satisfied that it is necessary to dispense with the birth mother’s consent to achieve that result.
The situation is that QS has resided with the applicants since she was three months old, which is almost her whole life. While QS knows her birth mother, has spent time with her over the years, has expressed a connection with her, and at times has expressed a desire to live with her mother, at eight years of age, she does not know any other home or care than that of the applicants.
There have been opportunities for the mother to increase contact with QS through previous care orders and care plans under the Children and Young People Act. She has been legally represented at times throughout earlier proceedings. There remains a real concern about the lack of reconsideration of the birth mother’s subsequent fitness to care for her child in the early years after QS was removed from her care as well as the limit on the birth mother’s ability to be in contact with QS more than two or three times a year, but those matters are now all historical. The task is to deal with the factual circumstances that are currently before the Court. It must be acknowledged that the prospect of the birth mother regaining full time care of QS in the medium-term, as has been her expressed desire, is now unrealistic. In addition to this, the report prepared for the Director-General found that the birth mother did not have a commitment or capacity to understand the responsibilities and preparation involved in caring for a child with QS’s level of special needs (discussed below).
5(2)(a): The likely effect of the decision on the life course of the child, taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging
It weighs heavily in favour of adoption that QS has been in the long-term care of the applicants for such a significant period of time. Given that degree of stability, the effect on the ‘life course’ of QS is not likely to be significant. However, I accept that adoption may provide QS with a greater sense of security and permanence during her development, if only through things such as having the same surname as her foster carers, and not being subject to interactions with agents of the Director-General.
In relation to QS’s interactions with agents of the Director-General, both the applicants and the child’s representative have raised concerns about how difficult it is for long term foster carers generally, and for these two applicants particularly. The difficulties arise in their interactions with those legally charged with the long-term care and protection of QS. Evidence before the Court was that QS’s case had been dealt with by 12 to 14 caseworkers under the Director-General and seven to eight caseworkers through the agent of the Director-General. There is no consistency to decision making and this creates significant anxiety. The applicants feel they are parenting by committee, and this prevents them from being the best parents they can be to QS. Adoption would remove much of this logistical stress (and no doubt reduce the mental load on the applicants), with the likely effect on the life course of the child being a positive one. As the child’s representative submitted, relying on the report of Dr Bragg, distress in either the applicants or the birth mother can have an impact upon the child, latent or otherwise. Any decision that reduces ongoing anxiety in the applicants as the primary carers is in the best interests of QS.
There is evidence that QS’s sense of belonging and personal identity is now deeply intertwined with the applicants. The Report recorded observations of the strong positive relationship QS has with her foster parents and commended the applicants for providing an exceptional level of care for QS. This is consistent with the expert reports of Dr Judy Bragg and Dr Michael Rosier, provided in 2018, which commented positively on the relationships between the applicants and QS, both recommending adoption.
However, QS’s ongoing relationship with her birth mother is also crucial for her personal identity. The presence of a loving relationship between the birth mother and QS is obvious. The likely effect of the decision on the life course of QS would be detrimental if it meant that QS lost her relationship with her birth mother. This is a matter discussed below.
5(2)(b): The child's age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances
QS is still young, especially in terms of her level of understanding and maturity. QS understands that her present carers are not her birth parents, and that she is not living with her birth mother and father. Her individual circumstances are more appropriately dealt with under the next mandatory consideration.
5(2)(c) The child's cultural, physical, emotional, intellectual, and educational needs
The evidence does not identify any particular cultural requirements or cultural connection that will be affected by the Court’s decision. However, QS does have special needs, whether they are categorised as physical, emotional, intellectual or educational. They include speech difficulties, QS requiring regular speech pathology since late 2017. In addition, QS was diagnosed with Attention Deficit Hyperactive Disorder on 3 July 2018. In an affidavit updated on 13 October 2020, one of the applicants gave evidence that QS has had a further diagnosis of an ‘intellectual disability’, although a full understanding about the precise nature of the disability was apparently still developing. The Report identified that where a child has additional needs, the benefits of adoption become more pronounced.
That evidence supports earlier evidence before the Court, namely the psychologist report of Ms Morris (attached to an affidavit dated 8 November 2018), where Ms Morris noted that QS’s developmental and intellectual issues make change difficult for her. The Report expresses the view that QS requires consistent, predictable and safe care throughout the remainder of her childhood and likely well into adulthood. While that is still likely to be achieved if the status quo is maintained, the risk of further proceedings in the Childrens Court (so named by s 287 of the Magistrates Court Act 1930 (ACT)) or of a change in care arrangements, however small such a risk might be, does have some bearing on a decision whether adoption is in the best interests of QS.
Further in relation to consistency of care and predictable routines, there are examples that were given to the Court during evidence about parts of QS’s life that are currently dependent upon the timely approval by agents of the Director-General. This has created some issues, either as to approval at all, or in relation to how long it takes to receive a response. One example is evidence that the applicants have experienced challenges in being able to take QS places or to give her permission to go places. I alluded to the difficulties in In the matter of an adoption of QS at [66] and [72]. Such obstacles would be overcome by a guardianship order, but they would also be overcome by an order permitting the applicants to adopt QS.
5(2)(d): The views expressed by the child in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision)
The author of the Report has determined that it is not in QS’s best interests for her to be interviewed directly regarding her views and wishes surrounding her proposed adoption. That decision was made having regard to the length of time QS has been residing with the applicants and the intellectual disability recently identified. The Report included the professional opinion that at this stage, QS did not have the capacity to understand what adoption is and to have a view about the application. The author of the Report was concerned that speaking to QS directly about those concepts might confuse her and cause her anxiety. I accept and agree with that evidence. Given the age of QS in combination with those matters, this factor does not carry any weight.
5(2)(e): The maintenance of meaningful relationships with birth parents and other relatives
This is a factor to which I give very significant weight. On the evidence before the Court, I strongly consider it to be in the best interests of QS that her connections with her birth parents be maintained or, in the case of the birth mother, even improved. The birth mother submitted that she has consistently shown a determination to be seen as the mother of QS, to have a relationship with her daughter and to play as large a part in her life as she was permitted to play by law. Counsel for the birth mother further submitted that the fact that the birth mother has fought three sets of proceedings to prevent her child being adopted against her consent is telling of her love for her daughter and willingness to fight to have her daughter in her life. I accept that submission.
The birth mother submitted that if an adoption order were made, she would become wholly reliant upon the applicants to allow her to see or communicate with QS. Included in the birth mother’s submissions was a contention that the applicants were only willing to support limited contact and that they insist that such contact be supervised by them (and no one else), which the birth mother submitted has affected her ability to have a meaningful relationship with her daughter.
The Report addressed this aspect and the present adoption plan is for face-to-face contact between QS and the birth mother to occur at least three times a year: in April, August and December. There is also an indication that the applicants will prepare newsletters regarding QS so that this can maintain a connection, both with the birth mother, but also with the extended family whose relationship with QS has not been maintained over the years. Accordingly, the author of the Report did not have a concern about any lack of commitment on the part of the applicants to facilitating contact between QS and her birth family members. However, the history of this matter and the evidence of the parties is that they have been in conflict and that the relationship between the birth mother and the applicants is one that has (understandably) at times been frosty.
Over the years, the frequency of QS’s contact with the birth mother has indeed been affected by the poor relationship between at least one of the applicants and the birth mother. It is telling that the applicants have developed what appears to be a good relationship with the birth father and that he has been able to see QS apparently on a regular basis and without incident. In the case of the birth mother, where there has been hotly contested litigation for years against the applicants, access arrangements have been at the bare minimum.
It should not be inferred from this statement of the current state of affairs that the applicants are entirely responsible for the lack of more regular contact. As submitted by the child’s representative, there was evidence before the Court that the conduct of the birth mother has meant she has not taken advantage of the applicants’ willingness to have more frequent contact visits on an informal basis. Further, the birth mother did not request any increase in her contact in the consultation process for the most recent care plan that was implemented from August 2020. The point I make is simply that it is one thing to profess a desire to facilitate regular contact, but another thing to implement it when times get tough between persons, each of whom loves QS. It is clear to me, having seen the parties give evidence, that there are very different personalities involved and the likelihood of ongoing friction is high.
The applicants have indicated that they would be willing to agree to a conditional order to give effect to the adoption plan, which could be made pursuant to s 40 of the Adoption Act. However, as pointed out by the author of the Report, and as I previously found in In the matter of an adoption of QS at [73], where a parent does not consent to the adoption (as is the case here) s 40 does not apply and there is no other power of the Court to ensure compliance with the adoption plan.
The only reference in the Adoption Act for an adoption plan is as part of the mandatory matters that are required to be included in the Report pursuant to s 39D of the Adoption Act. This gives rise to two difficulties.
First, absent an order by the Court, such reports are confidential: see s 113 of the Adoption Act. Without such an order, a party may not even know what is said to be the proposed adoption plan.
Second, there is no provision for the Court to ensure that the parties follow the adoption plan, such as registering the plan. It leaves open the possibility that applicants for adoption may come to Court on one basis, and the Court may make an order on what is said to be the proposed plan in relation to contact with the birth parent, but once an order for adoption is made, the applicants may do as they like without any recourse open for the birth parent. It is unsatisfactory that a birth parent facing such circumstances would have to then embark upon further litigation in the Family Court of Australia seeking some form of limited parenting order pursuant to s 65D of the Family Law Act available to persons with whom the child is to spend time.
As counsel for the birth mother submitted, there has been no ability to seek an order for spending time with QS up to this point, as s 60ZK of the Family Law Act prevents such a course while QS is under the care of the Director-General.
There is much to be said for a statutory regime such as that provided in Part 4 of the Adoption Act 2000 (NSW), which allows for a non-consenting birth parent to still have input into the adoption plan in the event that an order for adoption is made, and for that plan to be registered and to have effect as if it were an order of the Court.
In light of the lack of statutory power for the Court to ensure that a child’s relationship with his or her birth parents is meaningfully maintained if an adoption order were made, and noting that the legislature has expressly stated this as a ‘benefit’ in the mandatory criteria in s 5 that are considered when determining the child’s best interests, I have given consideration to whether there is any other power which may enable the Court to make an adoption order subject to certain enforceable conditions.
The Court has parens patriae jurisdiction, which is a supervisory power concerning the care of those who are unable to care for themselves, such as minors and disabled persons: see Marion’s Case (1992) 175 CLR 218 at 258-259. It is recognised as protective in nature, to be exercised for the benefit or welfare of the vulnerable and extends as far as necessary for their protection. In Re Application of Local Health District; Patient Fay [2016] NSWSC 624, Sackar J said at [22]-[23]:
The jurisdiction’s focus is essentially protective in nature. In exercising the jurisdiction the Court’s concern is predominantly the welfare of the person involved: Re Frances and Benny [2005] NSWSC 1207 at [17] per Young CJ in Eq.
The jurisdiction is not encumbered with technicalities. No jurisdictional limits have been described and, subject to the requisite nexus to the child or incapable person, it is seemingly unlimited. The situations in which the jurisdictions can be invoked are myriad.
There is some uncertainty as to the source of the jurisdiction in the Australian Capital Territory. Prior to self-government, s 11 of the Seat of Government Supreme Court Act 1933 (Cth) gave the Court the same jurisdiction as the Supreme Court of New South Wales immediately before 1 January 1911. That included the exercise of the parens patriae jurisdiction: see Minister for the Interior v Neyens (1964) 113 CLR 411 (Neyens) at 418; RH v CAH [1984] 1 NSWLR 694 at 703-704.
Following the repeal of that section, the express link to the jurisdiction of the New South Wales Supreme Court that existed at the time of the surrender of the Territory was removed. The Director-General submitted that s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) might provide sufficient legislative source to confirm the continuing existence of the parens patriae jurisdiction in this Court. A similar approach was taken by Miles CJ in Public Trustee v Thompson [2000] ACTSC 4; 155 FLR 18 at [4] in reference to s 20 of the Supreme Court Act 1933 (ACT), which mirrors the terms of s 48A.
Assuming, without deciding, that to be correct, there are recognised limits on the exercise of parens patriae jurisdiction. The jurisdiction should be exercised with caution: Re Elizabeth [2007] NSWSC 729 at [17]; Re Beth [2013] VSC 189; 42 VR 124 at [127]. The Director-General submitted that using the jurisdiction to interfere with parental decision-making appears to have been exercised only in highly unusual circumstances and often in areas where parents have no capacity to make a decision. Examples include: Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 (medical treatment for anorexia), Marion’s Case (sterilisation), K v Minister for Youth and Community Services [1982] 1 NSWLR 311 (abortion), Re Thomas [2009] NSWSC 217; 41 Fam LR 220 (protective detention of a child).
Further, and critically for this case, the parens patriae jurisdiction can be displaced by express legislative intent or by necessary implication: see Neyens at 419; Carseldine v Director of Department of Children’s Services (1974) 133 CLR 345, 351. Whether a prerogative power has been displaced by implication depends upon the terms of the statute: Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at 540.
In the present case, even if the Court has parens patriae jurisdiction which has not been wholly excluded on the subject of adoption by the very existence of the Adoption Act, s 40 of the Adoption Act is an express limit. It sets out the circumstances in which an adoption order may include conditions. The converse, by necessary implication, is that absent those circumstances prescribed by statute, a conditional adoption order may not be made.
5(2)(f) and 5(2)(g): The relationship the child has with the adoptive parents and their suitability and capacity to meet the child’s needs
The relationship between QS and the applicants strongly favours adoption. The Report is an independent view confirming that the applicants “have provided an exceptional level of care” for QS. QS is relaxed and confident in her home environment with the applicants. She seeks out the applicants for direction, comfort and support. Cementing QS’s relationship with the applicants through formal adoption is likely to enhance the sense of family between them.
The applicants have also specifically demonstrated their capacity and suitability to meet the heightened needs of QS. The Report found that given QS’s diagnoses, she will likely require support into adulthood. It also found that the applicants are able and committed to support QS to her full potential. This is evidenced by their day-to-day care of QS, taking her to medical appointments and tests, and also by the fact that one of the applicants has ceased paid employment to provide full time support for the child indefinitely.
5(2)(h): The alternatives to adoption for the child to secure permanent family arrangements
This has already been largely addressed in considering the other mandatory considerations. QS is unlikely to return permanently to the care of her birth mother or father, at least in the medium term. She has next to no real connection with extended family and, fortunately for QS, there is no other foster carer who has been involved with her care. During these proceedings, guardianship by the applicants was raised with the parties. No party sought that such an alternative be pursued. I am therefore satisfied that alternatives to an adoption order have been considered and that adoption in favour of the applicants with a view to securing permanent family arrangements for QS is now the better course.
5(2)(i): The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions
As will be apparent from the earlier considerations, this is a situation where QS already has stable emotional and physical living conditions. These matters have already been addressed as part of s 5(2)(a) and incidentally in other aspects of these reasons, such as the reference above to adoption promoting a sense of family.
5(2)(j): The need to protect the child from physical or psychological harm associated with exposure to abuse, neglect or family violence
There is no issue warranting comment in relation to this mandatory criterion.
Conclusion
For the above reasons, I am satisfied on the balance of probabilities that it is necessary to dispense with the requirement for consent of the respondent birth mother as adoption is in the best interests of QS. The application under s 35(1)(c) has therefore been allowed, with orders granting the adoption to follow.
As noted by Hallen J in Re the Adoption of AJH [2017] NSWSC 1751 at [295], decisions of this nature involve the fine balancing of alternatives, and it is often difficult to predict what will be best for a child’s long-term development. Notwithstanding the Court of Appeal held that too high a burden was applied when this application was initially determined in 2019, I adhere to the view expressed in In the matter of an adoption of QS at [74] that the modern family comes in all shapes and sizes. The family of QS may still include the applicants and the birth parents in what becomes a stable and loving arrangement. QS will always know her birth mother and have the opportunity to connect with her to a greater degree, if she chooses, as she grows older. It was the birth mother’s wish that QS could come and stay with her in later years if she desired. Whether that is an overnight period or for longer periods of time is not a matter for this Court. However, if the applicants’ present adoption plan is implemented successfully, there is no reason why such opportunities might not present themselves in the future.
Further conduct of the proceedings
The dispensation of the birth mother’s consent will facilitate the granting of the application for adoption.
In S and N v T, the Court of Appeal stated at [53]:
…The primary Judge at [8] of her reasons referred to the adoption application as being a “two-step” process. It is not clear why the matter was being approached in that way.
Their Honours went on to state at [54] (emphasis added):
…Unless an order has been made under s 35(3), an application for a dispensation order should be “heard and determined with the adoption application itself”.
The reasoning of the Court of Appeal in S and N v T was concerned with the comments of Refshauge J in the earlier judgment of In the matter of an adoption of D [2008] ACTSC 44; 39 Fam LR 345 (The adoption of D) at [57], where his Honour noted warnings expressed by the courts at considering an application to dispense with consent apart from the consideration of the adoption order itself. The Court of Appeal confirmed (at [51]) that it can only be in an exceptional case that the Court would be able to conclude that, regardless of whom the adoptive parents might be, the consent of a birth parent should be dispensed with.
At [53] of S and N v T, their Honours also referred to r 3170(4) of the Court Procedures Rules 2006 (ACT) (the Rules) as reflecting the comment of Refshauge J in The adoption of D. Rule 3170(4) is as follows:
(4) The application for a dispensing order must be made at the same time as the application for an adoption unless the Adoption Act, section 35(3) applies.
It will be readily apparent that the orders made on this application do not also finally determine the application for adoption. In light of what has been said by the Court of Appeal above, it is important to explain the reasons for this.
Neither r 3170(4) of the Rules nor s 35(3) of the Adoption Act preclude the Court from engaging in a process whereby the application for dispensation is determined first. An adoption order cannot be made without a dispensation order if one is required, and r 3170(4) is directed to ensuring that a party who requires such an order seeks both at the same time. Section 35(3) of the Adoption Act permits an application for dispensation to be made in advance of any adoption proceedings at all. That is an exception to the case that ordinarily an application for dispensation is made in the context of a substantive application for adoption by particular applicants. However, again, s 35(3) does not require that where there is a substantive application for adoption existing (as is the case here), an application for dispensation cannot be dealt with in advance.
The issues in deciding whether an adoption order should be made and whether the Court should dispense with consent are “inextricably bound together”: see S and N v T at [54], adopting the language used in In the matter of an adoption of QS at [8]). However, there may be very sound reasons for separating the two applications in a particular proceeding.
The first is the detailed evidence that is given on a dispensation application, and the discussion of it, which may be highly sensitive and inflammatory. While the issues are linked, there may be differences in the evidence for each application. There are matters raised in the confidential reports provided under s 39D of the Adoption Act, that the Court may wish to discuss with the proposed adoptive parents, and that are personal to them and relevant to a final adoption order but not relevant to the application for dispensation.
The second is that the parties to each application may be different. On a dispensation application, the birth parent who does not consent to an application is a party. Once dispensation has occurred, the birth parent does not need to be notified of when the adoption order may be made: see s 39B of the Adoption Act.
These matters of sensitivity may have very significant consequences for contested applications. It may be necessary or desirable for the child or young person who is the subject of the application for adoption to be present at the hearing and determination of that adoption application. Depending on age and maturity and so forth, it may be considered important for them to feel part of the proceedings. After all, they are the person at the heart of the process. However, in some circumstances, bringing a child face to face with a birth parent who is fighting dispensation of his or her consent may have severe detrimental psychological impacts on the child. There are instances where a party may be self-represented and neither the Court, the Director-General nor the proposed adoptive parents have any prior indication as to whether he or she will attend Court to contest the application for dispensation. The Court cannot always predict how a hearing of a contested application to dispense with consent might proceed.
The third is that adoption proceedings take place in closed court: s 112 of the Adoption Act. People other than parties to the proceedings or their legal practitioners or representatives must, except as otherwise permitted by the Court, be excluded during the hearing of the proceedings. Parties may agree that certain people be permitted to attend the hearing, subject to an order by the Court permitting their attendance. Those people are likely to be very different at an adoption hearing from those at a contested application for dispensation. Again, it may be important for other family members to be present at an adoption hearing, in particular so that if the order is made, all members of the family (including extended family) are part of what is an important occasion.
The fourth is that there may be certain arrangements that need to be made before a final adoption order is made. The present case is an example. The applicants had a desire to change the surname of QS to reflect their own surname, but on the evidence before the Court, the applicants have yet to attend to the legalities of changing their respective surnames so that they will jointly share the same surname as QS on her adoption. In light of these reasons, the applicants may need some further time to attend to any formalities prior to the making of such an order.
Finally, the delay in making the final order for adoption following a strenuously contested application for dispensation of consent also acts as a precautionary measure in the event that there is any further appeal from a judgment on the application in the meantime. Again, the real possibility for detrimental psychological consequences on a child or young person who is present at a concurrent dispensation and adoption hearing, which is then determined with an order for their adoption made, only to have that overturned on appeal, must give the Court and the parties pause for consideration as to how particular matters are dealt with. That is quite apart from the practical difficulties, albeit minor, that would flow in a situation where an adoption order was made and a child’s birth certificate had been amended in the meantime.
Respectfully, none of these considerations were addressed by the Court of Appeal in S and N v T in expressing the view that an application for a dispensation order should be heard and determined with the adoption application itself unless the application is made pursuant to s 35(3) of the Adoption Act. The Director General was not a party to the appeal, which may have deprived the Court of Appeal of arguments and submissions relevant to the consideration of this issue. Even though it is clear that the Court’s satisfaction under s 35 is inextricably linked to the Court’s assessment that adoption is in a child’s best interests, it is procedurally advantageous to allow the Court flexibility in managing what are sensitive proceedings, including when an order determining the application should be made (at the same time as the order for dispensation, or after further hearing at a later date).
Precedent must be followed and single instance judgments must adhere to statements at the appellate level that are binding upon them. However, in light of the fact that the issue was not a contested issue on appeal with a consequent lack of full argument provided in relation to that issue, I have taken the Court of Appeal’s reasoning at [54] of S and N v T to be an expression more in the nature of what should occur when it is practicable and appropriate to do so, rather than as an express prohibition on what has otherwise been a discretionary matter for the Court and the parties as to whether to take a single or two-step approach to applications for dispensation of consent and adoption. In this regard, I note that the judgment of Refshauge J in The adoption of D, on which the Court of Appeal in S and N v T relied, was itself a decision where the application for dispensation was determined in advance in the context of a pending application for adoption.
Costs
The parties have indicated that there is to be no order as to costs.
Orders
The Orders of the Court, made on 21 May 2021, were as follows:
1. Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT), the Court dispenses with the requirement for the consent of the respondent, the birth mother of QS, to the adoption of QS.
2. The applicants are to approach the Registrar for a listing for orders to be made in relation to the adoption of QS pursuant to Div 3.6 of the Adoption Act.
3. There is no order as to costs.
| I certify that the preceding one-hundred-and-sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Dominic Page Date: 8 June 2021 |
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Amendments
06 August 2021 Replace “Haureluik” with “Haureliuk” Paragraph: [38], [40]
Replace “Mullholland” with “Mulholland” Paragraph: [54]
Replace “court” with “Court” Paragraph: [25]
Replace “Gordon JJ)” with “Gordon JJ” Paragraph: [37]
Replace “Adoption Act)” with “Adoption Act” Paragraph: [81]
Replace “s (5)(2)(a)” with “s 5(2)(a)” Paragraph: [95]
Replace “Honour” with “Honours” Paragraph: [101]
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