In the matter of the adoption of CD
[2019] ACTSC 256
•12 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of CD |
Citation: | [2019] ACTSC 256 |
Hearing Date: | 12 September 2019 |
DecisionDate: | 12 September 2019 |
ReasonsDate: | 13 September 2019 |
Before: | Crowe AJ |
Decision: | See [24] |
Catchwords: | ADOPTION – Application to dispense with consent of birth parents – whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – whether declaration required regarding the need to dispense with the father’s consent – declaration regarding the father not required – where dispensation of the birth mother’s consent considered – consent dispensed with PRACTICE AND PROCEDURE – Whether service requirements complied with – where all reasonable steps taken to serve the Application on the birth mother |
Legislation Cited: | Adoption Act 1993 (ACT) ss 4, 5, 26, 35 Court Procedures Rules 2006 (ACT) rr 6, 3171 Parentage Act 2004 (ACT) ss 7, 8, 9, 10 |
Parties: | Director-General, Community Services Directorate (Ex-parte Applicant) |
Representation: | Counsel B Lewis (Ex-parte Applicant) |
| Solicitors ACT Government Solicitor (Ex-parte Applicant) | |
File Number: | AD 1 of 2019 |
Crowe AJ
The Director-General, Community Services Directorate (the Director-General) applied for an order dispensing with the requirement for the consent of the birth mother (the mother) to the adoption of a 9 year old child who I will refer to as CD. The application also sought a declaration as to whether there is any need for consent from the father of CD (referred to as AB). The application was made preliminary to an application for adoption to be made by the long term foster carers of CD.
I heard the application on 12 September 2019 and at the conclusion of the hearing I made an order dispensing with the requirement for the consent of the mother in the terms as sought in the Application. These are my reasons for making that order.
Section 26 of the Adoption Act 1993 (ACT) (the Act) relevantly provides:
26 Consents of parents and guardians
(1) Subject to this division, an adoption order must not be made for a child or young person unless consent to the adoption has been given by—
(a)if the child or young person has not previously been adopted—
(i) each parent of the child or young person;
...
(2) A reference in subsection (1)(a)(i) to a parent of a child or young person does not include a reference to the father of the child or young person unless he is presumed to be the father under the Parentage Act 2004.
The Parentage Act 2004 (ACT) (Parentage Act) makes a number of potentially relevant provisions for the presumption of parentage in particular circumstances. The presumption arises in relation to a child born while the mother and father were married, or while they were in a civil union or civil partnership, and for a period after the end of those relationships (s 7). It likewise arises in relation to a domestic relationship (s 8). The presumption also arises from the fact that persons are recorded as the parents of the child in the Register of Births, Deaths and Marriages (s 9). The presumption can also arise from a finding by a court that a person is the parent of the child (s10).
This Court has power to dispense with consent in certain circumstances. Section 35 of the 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) 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.
(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.
Both ss 26 and 35 are in div 3.3 of the Act.
The Director-General relied upon paragraphs (c), (d) and (e) of sub-s 35(1) in its application to dispense with the consent of the mother. In relation to the father, it was submitted that the evidence did not allow for any finding to be made as to his identity. In particular, none of the circumstances leading to a presumption of parentage under the Parentage Act were present so that the requirement for consent under sub-s 26(1)(a)(i) only arose in relation to the mother.
There was a preliminary issue as to whether the mother had been served. The affidavits of Ms B Lewis and Ms C Jackson-Grieves both affirmed on 10 September 2019 provided evidence of the concerted efforts made to serve the mother with the Application for Dispensing with Consent for Adoption and the supporting affidavits referred to in the Application. It is difficult to resist the impression that the mother was actively taking steps to avoid service. Be that as it may, on 22 August 2019 Ms Lewis sent copies of the Application and affidavits to the mother’s email address as recorded in the files of the Director-General. I infer that there was no indication given to Ms Lewis that the email was not delivered to the addressee. On the same day, Ms Lewis posted copies of the Application and affidavits to the mother at her last known address. This was sent by express post. Tracking of the delivery indicated delivery at 10:32 am on 26 August 2019.
Section 247 of the Legislation Act 2001 (ACT) (Legislation Act) relevantly provides:
247 Service of documents on individuals
(1) A document may be served on an individual—
…
(b) by sending it by prepaid post, addressed to the individual, to a home or business address of the individual; or
…
(d) by emailing it to an email address of the individual; …
“Email address” is defined in s 246 the Legislation Act as follows:
email address, of an individual, corporation or agency in relation to anything done or to be done under a law, includes the latest email address of the individual, corporation or agency (if any) recorded in a register or other records kept by the administrator of the law.
Section 250 of the Legislation Act then provides for the date of service if one of the means provided for in s 247 is used:
250 When document taken to be served
(1) A document served by post under this part is taken to be served when the document would have been delivered in the ordinary course of post.
(2) However, subsection (1) does not affect the operation of the Evidence Act 2011, section 160 (Postal articles).
Note The Evidence Act 2011, s 160 provides a rebuttable presumption that a postal article sent by prepaid post addressed to a person at an address in Australia or an external territory was received on the 7th working day after posting.
(3) If the sender has no reason to suspect that a document served by fax or email under this part was not received by the recipient when sent, the document is presumed to be served when sent unless evidence sufficient to raise doubt about the presumption is given.
(4) For subsection (3), the sender has reason to suspect that a document served by fax or email under this part was not received by the recipient when sent only if, on the day the document was sent or on the next working day, the equipment the sender used to send the document indicated by way of a signal or other message that—
(a) the equipment did not send the document when the equipment was used to send the document; or
…
(c) for an email—the address to which the email was sent was not an email address of the recipient.
The evidence of Ms Lewis satisfied me that the mother probably did receive the email attaching copies of the Application and supporting affidavits on or about
22 August 2019. I was thus satisfied that she had been served on that date pursuant to sub-ss 247(1)(d), 250(3) and (4). Moreover, further service was effected on no later than 29 August 2019 by post pursuant to sub-ss 247(1)(b) and 250(1) and (2).
My attention was directed to r 3171 of the Court Procedures Rules 2006 (ACT) (CPR). That rule requires service of the Application and affidavits not later than
28 days before the hearing. Having regard to the circumstances of this case, including the notice given to the mother by letter in February this year, the apparent attempts to avoid service, and the fact that the mother has made no effort to meet with CD in the last several years, I determined to dispense with the requirements of r 3171 pursuant to r 6 of the CPR, insofar as it required service 28 days or more before the hearing.
The substantive evidence in support of the Application was contained in the affidavits of Leanne Graham, affirmed 25 June 2019, and Marnie Johnstone, affirmed
27 June 2019.
At the hearing an issue arose as to whether any person could be identified as a father of CD for the purposes of sub-s 26(1)(a) of the Act. The evidence established that:
(1) The mother claimed that a man (AB) with whom she had had sex at around the time of CD’s conception was the father;
(2) At one point the mother said that she had just had “casual” sex with AB, at another point she said they were “together” for 8 weeks or so;
(3) When interviewed a few months after CD’s birth the mother did not know AB’s surname or date of birth;
(4) AB did not admit that he was the father. He alleged that he and the mother had not been in a relationship and that the mother had been having sexual relations with a number of other men at the approximate time of conception;
(5) At one point AB appeared willing to undertake a DNA test for paternity. However, this did not eventuate as he changed his mind in relation to taking the test;
(6) There is no evidence that the mother and AB were at any time married, or in a civil union or civil partnership, or domestic relationship. Moreover, no father is identified in CD’ birth certificate. There is also no evidence to indicate that at any time has a court made a finding as to CD’s paternity.
(7) AB has never had any contact with CD.
Having regard to the matters set out in paragraph [15], and particularly those in sub-paragraph (6), I found that the only person whose consent is required under
sub-s 26(1)(a) of the Act is the mother. I do not see the utility of making a declaration to this effect given that AB was not a party to the Application and had not been served with the Application and supporting affidavits.
The circumstances of the mother were known to the ACT child protection authorities well before the birth of CD. Numerous child concern reports had been received before CD’s birth in relation to her other children such that a pre-birth alert was sent to both local public hospitals. A further child concern report was made in relation to CD the day after his birth. This led to an appraisal at the hospital where CD was born and the taking of Emergency Action under s 406 of the Children and Young Persons Act 2008 (ACT). CD was placed with a short term foster carer upon his discharge from hospital.
On 29 April 2010, the ACT Children’s Court made an interim Care and Protection Order in respect of CD. Thereafter, further assessments were made of the mother’s capacity to care for CD and in August 2010 an application for a Final Care and Protection Order was made on the basis that CD would be at significant risk of abuse or neglect if he was returned to the care of the mother. That Order was made with the consent of the mother on 16 November 2010. There is no evidence to suggest that the mother has since sought to revoke or amend that Order.
The mother had irregular contact with CD until November 2010. Since then there has been one further contact meeting between the mother and CD. That occurred in 2015.
When he was a little under 1 year old CD was placed with his long term foster carers. He has remained with them ever since. The evidence before me establishes that they have provided him with a loving and stable family environment. The family includes another foster child who is a few years younger than CD. CD regards that child as his sibling.
As noted above, the grounds set out in the Application rely on sub-ss 35(1)(c), (d) and (e) of the Act. The particular circumstances relied upon in relation to the latter paragraph, as contained in the Application, are:
(i) the child has been out of the mother's care for 9 years;
(ii) the child has resided with the proposed adoptive parents for 8 years;
(iii) the child has not had any contact from his mother for 4 years;
(iv) the mother has failed to sustain an interest in the child's life, participate in permanency planning for him, or seek that he be returned to her care;
(v) the mother is unlikely in the reasonably foreseeable future to have the capacity to appropriately care for the child;
(vi) the child is bonded and attached to the proposed adoptive parents;
(vii) the proposed adoptive parents are suitable persons who are capable of meeting the child's needs, and the child is thriving in their care;
(viii) the child has expressed a wish to be adopted by the proposed adoptive parents;
(ix) no other suitable kinship carer for the child has been identified;
(x) the existing relationship the child has with his half-sibling is not likely to be impacted by an adoption order, and the proposed adoptive parents are supportive of birth family contact; and
(xi) the proposed adoptive parents are effectively the only parents the child has known, and it is in his best interests for that relationship and the security of the placement to be formalised and made permanent.
I found that each of these circumstances is established by the evidence filed in support of the Application. I was mindful of the objects set out in s 4 of the Act, and the requirement that the paramount consideration in making a decision under the Act is “what is in the best interests of the child” (sub-s 5(1)). Having regard to each of the paragraphs under in sub-s 5(2), I was strongly of the view that it would be in CD’s best interests to become a permanent member of the family in which he has lived for the last 8 and a half years.
Having regard to the particular circumstances listed in [21] above, I was satisfied that it was appropriate to dispense with the requirement for the consent of the mother to the adoption of CD. In that light I did not see it as necessary to make any findings in relation to sub-paragraphs 35(1)(c) or (d).
Orders of the Court
Accordingly, the orders of the Court in respect of the Application to Dispense with Consent to Adoption, as made on 12 September 2019, are as follows:
(1) Pursuant to r 6 of the Court Procedure Rules 2006 (ACT), the Court dispenses with r 3171, in so far as it required service of the Application 28 days prior to the hearing.
(2) Pursuant to s 35 of the Adoption Act 1993 (ACT), the requirement for the consent of the birth mother of CD to the adoption is dispensed with.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 13 September 2019 |
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