In the Matter Of the Adoption Of B
[2013] ACTSC 260
•20 December 2013
IN THE MATTER OF THE ADOPTION OF B
[2013] ACTSC 260 (20 December 2013)
ADOPTION – Dispensing with consent of birth parents: s 35 Adoption Act 1993 (ACT) – whether each parent has abandoned or deserted, or has neglected or ill treated the child – whether each parent has, for a period of not less than one year, failed without reasonable excuse to discharge the obligations of a parent of the child – where child suffered abuse and neglect in home – where birth mother not a participant in abuse but unable or unwilling to prevent it, or unwilling to establish an environment free of abuse
Adoption Act1993 (ACT), ss 4, 5, 7, 35
In the matter ofCB (No2) [1982] VR 681
ReAdoption of D [2008] ACTSC 44
Re Adoption of S and Adoption Act1993 (ACT) (2004) 31 Fam LR 68
Re Application for the Adoption of X (1984) 71 FLR 162
Re P (Infants) [1962] 1 WLR 1296
Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533
Waghorn v Waghorn (1942) 65 CLR 289
Watson v Nikolaisen [1955] 2 QB 286
AD No. 13 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 20 December 2013
IN THE SUPREME COURT OF THE )
) AD No. 13 of 2012
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF THE ADOPTION OF B
BETWEEN: DIRECTOR-GENERAL COMMUNITY SERVICES DIRECTORATE
Applicant
AND:D & S
Respondents
ORDER
Judge: Burns J
Date: 20 December 2013
Place: Canberra
THE COURT ORDERS THAT:
The application to dispense with consent to adoption dated 12 December 2012 is granted.
Pursuant to s 7 of the Adoption Act1993 (ACT) (the Act) this court has jurisdiction to hear and determine proceedings on applications for the making of adoption orders or other orders under the Act. In this case Mr and Mrs M (the applicants for adoption) wish to adopt B, who was born in 2002 and, accordingly, is now 11 years old. On 3 July 2006, the Director-General of Community Services (the Director-General) removed B from his parents, S (his father) and D (his mother), and he has remained in care for the last 7 and a half years. S has not spent any time with B since July 2006 and did not participate in care proceedings in the Magistrates Court. In August 2007, B was placed with Mr and Mrs M as foster carers, and he has lived with them for the last 6 years. B lives with Mr and Mrs M’s biological son (3 years old) and with another child in their care, A, who Mr and Mrs M also propose adopting.
On 5 May 2010, Magistrate Fryar made final orders for parental responsibility, residence, contact and supervision. Both S and D consented to those orders. D continues to spend time with B for three hours, four times a year. This contact is supervised. S has no ongoing relationship with B.
Section 26 of the Act provides that an adoption order must not be made for a child or young person unless consent to the adoption has been given by each parent of the child or young person. A child is defined in the Dictionary to the Act as a person who is under 12 years old, and, as such, B is a child. The mother of B, D has refused to consent to the adoption order. This Court may dispense with the consent of a parent by virtue of s 35 of the Act, which provides:
35Dispensing 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.
By an application dated 12 December 2012, the Director-General seeks an order that this Court dispense with the requirement for consent by S and D to the adoption of B on the grounds:
a)that each parent has abandoned or deserted, or has neglected or ill-treated the child;
b)that each parent has, for a period of not less than 1 year, failed, without reasonable excuse, to discharge the obligations of a parent of the child; and/or
c)that there are other circumstances that justify the requirement for the consent being dispensed with.
In approaching this application I must take into account s 4 and 5 of the Act, which provide:
4 Objects of Act
The main objects of this Act include—
(a) ensuring that the best interests of the child or young person are the paramount consideration in the adoption of a child or young person; and
(b) providing an adoption process that promotes the wellbeing and care of children and young people in a way that recognises the child’s or young person’s right—
(i) to grow in a safe and stable environment; and
(ii) to be cared for by a suitable family and to establish enduring relationships; and
(iii) to know about family background and culture and have the opportunity to maintain or develop cultural identity; and
(c) ensuring that the Aboriginal and Torres Strait Islander people are included and participate in any adoption of an Aboriginal or Torres Strait Islander child or young person; and
(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
(e) consulting with the child or young person throughout the adoption process and, wherever possible, taking the child’s or young person’s views into account; and
(f) recognising a birth parent’s involvement in making decisions about their child’s future; and
(g) providing for adoption plans to recognise the intentions of parties in an adoption; and
(h) ensuring that equivalent standards apply for a child or young person adopted from the ACT and a child or young person adopted from overseas; and
(i) ensuring that the adoption process in the ACT complies with Australia’s international obligations, in particular the obligations arising under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.
NoteThe text of the Convention is set out in sch 1.
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;
(b) the child’s or young person’s age, level of understanding, level of maturity, gender, and personal characteristics;
(c) the child’s or young person’s physical, emotional and educational needs;
(d) the views expressed by the child or young person;
(e) the relationship the child or young person has with the parents, any siblings and any other relatives;
(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.
THE HISTORY OF THESE PROCEEDINGS
As already noted, these proceedings commenced on 12 December 2012. Prior to that time, in October 2009, the Director-General approached D in relation to the proposed adoption. D indicated she would not consent to the adoption. On 9 November 2011, both S and D were advised in writing that an adoption order was an option for B’s permanent care. S did not respond, and D agreed to attend a meeting in January 2012 but did not do so. On 9 February 2012, a delegate of the Director-General met with D, who indicated she would not consent to an adoption order. On 17 May 2012, S was provided with a letter advising that the applicants for adoption proposed adopting B, but S did not sign a consent to adoption. On 29 August 2012, D reiterated her position that she would not consent to the adoption. She maintained that position in further discussions with the Director-General and others throughout September 2012.
On 15 February 2013, the application first came before me in chambers, and D maintained her opposition to the adoption order.
The application next came before me in chambers on 18 March 2013. At that time an affidavit sworn by Patricia Johns on 8 March 2013 in support of the application had been filed and served on the mother. D was still unrepresented at this time. I adjourned the application to 9 April 2013 and requested that the mother prepare a list of any matters referred to in the affidavit with which she did not agree, or which she wished to challenge. On or about 9 April 2013, D filed a two-page document which did not address in any detail the facts alleged in the affidavit. She did, however, effectively contest the allegations that B had been neglected, ill treated, abandoned or deserted by her. Accompanying that document were a number of testimonials speaking of the character of the mother and her commitment to her children.
On 9 April 2013, the mother again attended the continued hearing of the application in chambers. She remained unrepresented. I adjourned the proceedings further to 23 April 2013 and directed the Director-General to file any additional material upon which she would seek to rely in the application by that date. My associate was advised by email that the Director-General had issued subpoenas to the Domestic Violence Crisis Service and to the Australian Federal Police for the production of documents relevant to the application and they were also attempting to contact witnesses who were no longer employed by the Director-General to provide affidavits. As such, dates in April and May were vacated to allow the Director-General to collect that information and for the parties to consider the material produced. Documents were produced on 6 May 2013 by the DVCS, and leave was granted to the parties to inspect those documents. On 20 May 2013, documents were produced by the AFP, and the parties were granted leave to inspect those documents. The matter was further adjourned until 9 July 2013.
On that date the mother was unable to attend due to illness. The proceedings were accordingly further adjourned. From time to time the proceedings were adjourned in chambers due to the D’s inability to attend. Times were found on Mondays and Tuesdays as D informed the court she worked Wednesday through Friday. She also indicated an intention to be legally represented, although this did not eventuate.
In late July 2013, I set a hearing date for the application of 4 November 2013. Subsequently, in early August 2013, the mother asked that this date be vacated and a later hearing date allocated, as she did not think a hearing in November gave her adequate time to prepare and to obtain legal advice. I set down a directions hearing in chambers on 26 August 2013 to consider what the parties had to say about the proposal to vacate the hearing date. D did not attend that directions hearing. At my direction, the Registrar advised all parties that the matter remained listed for hearing on 4 November 2013.
The mother did not appear at the hearing of the application at 10:00 am on Monday 4 November 2013. I adjourned the proceedings to allow my associate and the Director-General to attempt to contact D. My associate was unable to contact her, but the representatives of the Director-General were able to speak to her on the telephone. D claimed that she had understood that the matter would be listed at 2:00 pm that day. Evidence was placed before me that the representative of the Director-General who spoke to the mother offered to provide her with transport by taxi to the court so that she could attend the hearing. She declined that offer. Nor did she ask that the proceedings be adjourned, or stood down until later in the day. She simply asked that she be notified of the outcome of the application. I therefore determined to proceed with the application in her absence.
Subsequently, I received a written submission dated 6 November 2012 from D. I provided a copy of this submission to the Director-General, who subsequently indicated an objection to my taking into account the contents of the mother’s submission. I have taken into account the contents of the submission forwarded by D, although, in my view, it can be given little weight in comparison with the sworn testimony put before the Court by the Director-General.
THE HEARING OF THE APPLICATION
At the hearing of the application the Director-General was represented by counsel, Ms Tonkin, B was also separately represented by an Independent Children’s Lawyer. B, through his representative, indicated to the Court his willingness for the adoption to proceed. That willingness was also evident in affidavit material filed in support of the application. The following material was received as evidence at the hearing:
·An affidavit of Patricia Anne Johns sworn 12 December 2012;
·An affidavit of Patricia Anne Johns sworn 8 March 2013;
·An affidavit of Patricia Anne Johns sworn 2 May 2013;
·An affidavit of Rachel Davidson sworn 13 May 2013;
·An affidavit of Owen Noordhof sworn 30 April 2013;
·An affidavit of Karen Osborne sworn 3 May 2013;
·An affidavit of Anthony Baldock sworn one November 2013; and
·A folder of documents produced on subpoena together with a chronology.
The most important material in terms of this application was the documentation subpoenaed from the DVCS and the AFP. It would be the work of many days to set out in this judgment in detail the incidents involving B and his family revealed in these documents. I do not think that is necessary to do so, bearing in mind the fact that none of the essential details were disputed by the mother. Nor do I consider it in the best interests of B or his mother that the events referred to in these documents be rehearsed here. It is sufficient to say that I am satisfied that the environment in which B resided with his mother, father and brothers was one in which domestic violence, substance abuse, physical abuse and damage to property was common. I emphasise that D did not engage in this behaviour herself, but she was unable to control S and her sons and stop them from engaging in this type of behaviour in the presence of B, and encouraging him to behave in a similar fashion.
THE ALLEGED GROUNDS FOR THE ADOPTION
Ground (a) – That each parent has abandoned or deserted or has neglected or ill treated the child.
Refshauge J in ReAdoption of D [2008] ACTSC 44 noted that this ground has been construed as requiring an element of ‘morally reprehensible conduct’ on the part of the parents: see also Waghorn v Waghorn (1942) 65 CLR 289 at 295-6; Watson v Nikolaisen [1955] 2 QB 286 at 295; Re Application for the Adoption of X (1984) 71 FLR 162. In Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533 the Federal Court followed these cases but noted that “abandoned” implies a more serious failure on the part of a parent who leaves a child than does “deserted”. A decision to similar effect is In the matter ofCB (No2) [1982] VR 681 at 692. In a later case, Re Adoption of S and Adoption Act1993 (ACT) (2004) 31 Fam LR 68, Connolly J held (at [10]–[11]) that where a child was removed from its birth parents because of substance abuse, domestic violence and neglect until age 18, in determining whether this ground was made out, the Court could take into account other circumstances, such as the length of time the child has been living with the applicants, the child’s age and any view expressed by the child.
The evidence in this case indicates that B was removed from his parent’s care following the substantiation of multiple child concern reports regarding being subjected to physical and verbal abuse and sexually inappropriate behaviours within the home. In addition, he was exposed to domestic violence by his father and his brothers. His mother was unable or unwilling to protect him. The evidence establishes that after B was removed from his parents’ care on 3 July 2006, the mother was given the option of B being restored to her care if she was able to keep S and two of her other sons away from the family home. D rejected this option, apparently opting to work on her marriage and was unwilling to make the choice requiring S and her other two sons to leave the family home. In November 2005, a court ordered Family Assessment Report was prepared by a clinical psychologist. He found that if B were to continue to be exposed to the ongoing and intense abuse in the family home, both physical and verbal, he would expect B to develop dysfunctional attitudes and behaviours.
On all of the evidence I am satisfied that B has been abandoned by his father, S. I am also satisfied that he has been neglected by both S and his mother, D. I am also satisfied that he was ill treated by S.
I am satisfied that this ground under s 35(1) is made out.
Ground (b) – Each parent has, for a period of not less than one year, failed without reasonable excuse to discharge the obligations of a parent of the child.
This ground was clearly made out with respect to S. He has had no contact with B in over seven years: see Re Adoption of D.
In Re P (Infants) [1962] 1 WLR 1296 Pennycuick J said of a cognate provision in the Adoption Act 1958 (UK):
Subsection (2) refers in general terms to the obligations of a parent with no qualifications; and it seems to me that in this subsection the expression “obligations of a parent” must include first the natural and moral duty of a parent to show affection, care and interest towards his child; and second, as well, the common law statutory duty of a parent to maintain his child in the financial or economic sense.
I am satisfied that this ground is made out by the failure of both parents by their failure, for not less than one year, to discharge their obligations as parents in exposing B to the risk of abuse and neglect. This is consistent with the declaration made in the Childrens Court in 2006, and confirmed in 2010 that B was in need of care and protection as no parent was willing or able to protect him from abuse or neglect.
Ground (c) – There are other circumstances that justify the requirement for the consent being dispensed with.
I have considered the cases to which I was referred by counsel, but I am not satisfied that this ground is made out.
CONCLUSION
I am satisfied that the grounds set out in section 35(1)(c) and (d) for dispensing with the consent of the parents of B have been made out by the Director-General. I am satisfied that it is in B’s best interests to dispense with consent to adoption. B has not been in his parents care for 7 and a half years. He has had no contact with his father at all during this period, and limited contact with his mother. I accept that his mother loves B, but she has proved incapable of caring for and protecting him. Neither parent has provided maintenance or support for B’s upbringing since July 2006. B has been in a stable and secure placement with the applicants for adoption, and has formed strong relationships with them and other members of their household.
I dispense with the requirement for consent by the mother, D, and father, S, to the adoption of B.
I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 20 December 2013
Counsel for the Applicant: Ms A Tonkin
Solicitor for the Applicant: ACT Government Solicitor
Counsel for the Independent Children’s Lawyer: Ms J Heinze
Solicitor for the Independent Children’s Lawyer: Infinity Legal
Counsel for the Respondents: No appearance
Date of Hearing: 4 November 2013
Date of Judgment: 20 December 2013
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