In the matter of an adoption of T

[2012] ACTSC 61

IN THE MATTER OF AN ADOPTION OF T
[2012] ACTSC 61 (3 May 2012)

ADOPTION – application to dispense with the consent of child’s biological mother and father – best interests of the child as paramount consideration  - making a dispensing order before an application for an adoption order has been made – dispensation only permitted where there is a proposal from a specific person for the adoption of the child – whether application to dispense with consent would facilitate the making of arrangements for the adoption of a child -  consent of both parents dispensed with

Adoption Act 1993 (ACT), ss 4, 5, 29, 35

No. AD 2 of 2012

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              3 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. AD 2 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

IN THE MATTER OF AN ADOPTION OF T

ORDER

Judge:  Higgins CJ
Date:  3 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The consent of the biological mother and father be dispensed with.

1. The Director-General of the Community Services Directorate (“the Director-General”) has applied to dispense with the consent of the parents of a child I shall refer to as “T”.  The mother has been served with that application but has not sought to oppose it.  The identity of the father is not known.

1. Counsel for the Director-General, Ms Chandra, drew my attention to the fact that there is currently no application for adoption either pending or contemplated.

1. The provisions of the Adoption Act 1993 (ACT) are subject to the overriding object of ensuring that the best interests of the child are “the paramount consideration” (s 4(a)). That includes the relationship between the child and his or her natural parents and relatives (s 5(2)(e)).

1. Under s 29, a consent to adoption may be general or limited (s 29(3)). For example, the consent may be limited to a person in whose custody the child or young person has been placed by the Chief Executive (now the Director-General) in accordance with a law of the Territory.

1. The provision relating to dispensation with consent is s 35:

Dispensing with consent

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

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

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

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

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

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

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

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

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

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

1. Clearly, s 35(1)(a) justifies dispensing with the consent of the natural father of the child in the circumstances relevant to the present case.

1. Section 35(3) states that a dispensing order may be made before an application for an adoption order has been made. That order is revocable at any time before an adoption order is in fact made (s 35(4)).

1. Where no adoption order has been applied for it would not ordinarily be appropriate to make a dispensing order unless arrangements for the adoption of the child were in train.  If it was not so there would be no “arrangement for the adoption of a child” to “facilitate”.

1. In this case, the Director-General has filed a report under s 35(2). That report reveals that, in fact, Ms S has applied to the Director-General for the adoption of T, her long-term foster child. Neither the Director-General nor Ms S have applied to the court for an order for adoption. To my mind, the circumstances giving rise to T’s placement clearly justify the making of an order dispensing with the consent of the mother by virtue of s 35(1)(c). The question is whether it is appropriate to make such an order in the present circumstances.

1. The report expresses the opinion that the best interests of T would be promoted by her adoption.  I agree, given the reasons expressed for it.

1. It is apparent that there is currently a proposal from a specific person for the adoption of T. In my view, s 35(3) permits the dispensation with consent only if there is such a specific proposal. That must be so because otherwise it could not be concluded that the best interests of the child would be served by the making of the order. The term “application” in s 35(4) refers to an application to the court. In the present case, the Director-General is the guardian of T and the current application to the Director-General foreshadows such an application. Though not yet formalised, it establishes that there are, in fact, arrangements for the adoption of T which the current application to dispense with the consent of the mother would facilitate.

1. I am satisfied that, if granted, the present application would facilitate a proper and lawful current arrangement for the adoption of T, and I order, therefore, that the consent of the natural mother be dispensed with for the purpose of facilitating that proposal. If it is determined that, for any reason, the proposal should not proceed, then that order should be revoked under s 35(4).

   I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

   Associate:

   Date:      3 May 2012

Counsel for the Applicant:  Ms L Chandra
Solicitor for the Applicant:  ACT Government Solicitor
Date of Application:  28 March 2012
Date of judgment:  3 May 2012