In the matter of an adoption of R

[2012] ACTSC 36

IN THE MATTER OF AN ADOPTION OF R
[2012] ACTSC 36 (8 March 2012)

FAMILY LAW AND CHILD WELFARE – child welfare other than under the Family Law Act 1975 (Cth) – adoption – dispensing with consent – consent of both parents dispensed with.

Adoption Act 1993 (ACT), ss 26, 35
Immigration (Guardianship of Children) Act 1946 (Cth)

Mace v Murray (1955) 92 CLR 370
Re an Adoption of D (2008) 39 Fam LR 345

No. Ad 1 of 2012

Judge:             Refshauge J
Supreme Court of the ACT

Date:              8 March 2012

1. On 6 March 2012, I made an order under s 35 of the Adoption Act 1993 (ACT), dispensing with the consent of the parents of R, a child who is the subject of an application for adoption by two residents of Canberra. These are my reasons for that order.

1. Section 26 of the Adoption Act prohibits an adoption order being made unless, where a child has not previously been adopted, consent is given by each parent of the child and each guardian of the child.

1. That provision is, however, subject to the Act and, in this case, s 35 permits the court to dispense with consent in certain circumstances. It relevantly provides:

(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.

1. In this case, R was born in Korea.  The birth certificate annexed to the affidavit of the applicant in support of the application to dispense with consent showed that no parents were recorded, though there was some information in the Initial Social History which was part of the material filed in support of the adoption.

1. In addition, the President of the Korean agency in whose care R had been prior to the adoption had been appointed R’s guardian and by a formal document, duly witnessed, consented to the adoption of R.  R had then been brought to Australia by the applicants with a view to her adoption.

1. Apart from the above matters, no facts were relied on by the applicants to satisfy me that I should dispense with the consents required under s 26 of the Adoption Act.

1. Consent is an important part of the adoption process.  The seriousness of an adoption, particularly because of the consequences in the severance of family ties of a formal, legal kind with a child’s birth parents, as emphasised by the High Court in Mace v Murray (1955) 92 CLR 370 at 380, is justification enough for taking the issue of consent seriously and not treating it as a mere formality.

1. In Re an Adoption of D (2008) 39 Fam LR 345, I discussed the various matters set out in s 35(1) of the Adoption Act. Applying that approach, it seems to me that the only ground relevant to this application is that in s 35(1)(e), since the others require a degree of knowledge about the circumstances or actions of the birth parents of R, or some real inquiry and there was simply insufficient evidence of any of that.

1. So far as s 35(1)(e) is concerned, I summarise what I said in Re an Adoption of D at 351–2;  [29]–[37].

1. This ground is one of wide import and cannot be circumscribed, though it has to be considered judicially.  It should be given equal value with the other grounds.  It only refers to “circumstances” not, as it predecessor, “special circumstances”.

1. Relevant to this ground is the child’s relationship to the person or persons whose consent is material and facts which have occurred since the applicants came into contact with the child, such as the circumstances in which the child came to Australia, the intention of the applicants and the government agencies concerned and the consequences for the chid if no adoption order is made.

1. The welfare and interests of the child shall, for this ground, be a paramount consideration.  That, however, does not mean that it is an overriding consideration nor the only consideration.

1. In this case, the applicants have had R in their care since 14 February 2011 with the consent of the Korean agency where the guardian is located.  The legal guardian in Korea has consented to their adopting R.  There is no official record of the parents of R on the birth certificate though the application did name them.  R was born on 4 December 2009 and so was under the care of the guardian for over twelve months.

1. R has been in Australia under the Immigration (Guardianship of Children) Act 1946 (Cth) and a guardian has been appointed under that Act who is the Manager of the ACT Adoptions and Permanent Care Unit of the Department of Disability, Housing and Community Services, clearly with a view to facilitating the adoption of R by the applicants.

1. There is clearly some knowledge of who the birth parents of R are.  This, however, does not require any further steps to be taken in this case.  The Initial Social History, from which this information came, made it clear that adoption was contemplated by the birth parents.  R was placed in the guardian’s care shortly after birth and the History records that the birth mother hoped “that her child would grow up happy in the loving care and support of good adoptive parents.”

1. It seems to me that it is certainly in the best interests of R that there be an adoption order.

1. All these matters combine to satisfy me that I should accede to the application and that the ground under s 35(1)(e) is made out.

1. Accordingly, I make the order under s 35 of the Adoption Act dispensing with the consent of R’s birth parents.

   I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date:               8 March 2012

The Applicants:  In person

Date of hearing:  6 March 2012
Date of judgment:  8 March 2012