In the matter of the adoption of CD
[2017] ACTSC 411
•22 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of CD |
Citation: | [2017] ACTSC 411 |
Hearing Date: | 19 October 2017 |
DecisionDate: | 22 December 2017 |
Before: | McWilliam AsJ |
Decision: | 1. Pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of [the birth father], the father of [CD], is dispensed with. |
Catchwords: | ADOPTION – Application to dispense with consent of birth mother – whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – other circumstances that justify the requirement for consent to be dispensed with – consent dispensed with |
Legislation Cited: | Adoption Act 1993 (ACT) ss 4, 5, 26, 35 |
Cases Cited: | D v Director-General, Department of Community Services [2005] NSWCA 474 In the matter of an adoption of D [2008] ACTSC 44 Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533 |
Parties: | Director-General, Community Services Directorate (Applicant) [not published] (Respondent) |
Representation: | Counsel J Noble (Applicant) Self-represented (Respondent) |
| Solicitors ACT Government Solicitor (Applicant) Self-represented (Respondent) | |
File Number: | AD 7 of 2017 |
This application concerns a child who has been in foster care since she was 6 months old and who has had the benefit of the same carers since that time, being May 2013. She will be referred to as CD.
The foster carers are taking steps to adopt CD and the application proceeded on the basis that they will be the adoptive parents.
Section 26 of the Adoption Act 1993 (ACT) (Act) requires that, subject to division 3.3 of the Act, an adoption order must not be made unless consent has been given by each parent or guardian of the young person. The provisions of division 3.3 provide for a detailed regime relating to the giving of consent to adoption.
The birth mother has already provided her consent. However, the birth father has refused to consent to the adoption.
Accordingly, on 23 June 2017, the Director-General, Community Services Directorate (applicant) filed an application pursuant to s 35 of the Act seeking to dispense with the consent of the birth father. For the reasons that follow, the Court will exercise its discretion to dispense with the birth father’s consent.
The Court’s power to dispense with consent
Sub-section 35(1) of the Act as follows:
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 present application was initially put on the basis of paras (d) and (e) above, but after hearing from the birth father as to all the circumstances that have combined to prevent his access to the child, the application was ultimately put on the basis of the last item in the above list of circumstances, namely that there are other circumstances that justify the requirement for consent being dispensed with.
That ground has been described as one of wide import, which cannot properly be circumscribed: In the matter of an adoption of D [2008] ACTSC 44 (D). Its generality does not mean that it is to be treated as of lesser value than the other grounds provided for by s 35(1) of the Act: see Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533 at 537-538, cited in D at [31].
Section 5 impacts upon the Court’s satisfaction under s 35(1) of the Act. It relevantly provides that a person making a decision under this Act in relation to a child must regard the best interests of the child as the paramount consideration.
Sub-section 5(2) of the Act provides:
(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.
While the best interests of the child has been described as the paramount consideration, it is not the determinative consideration or the only consideration: see D at [37] and the cases there-cited. It is not necessary to expressly review each of the factors in this section by way of a checklist in order to give them consideration: see D v Director-General, Department of Community Services [2005] NSWCA 474 at [44] in relation to similar legislation. However, in the present case, it has been helpful to take that approach.
I have also had regard to the objects of the Act in s 4. It is unnecessary to set them out in full here.
Evidence in support of applications
The applicant relied upon three affidavits of Ms Kirsten Gentle, a social worker employed with ACT Child and Youth Protection Services (CYPS) affirmed 22 June, 10 August and 19 October 2017.
There were also affidavits of service read in the proceedings in relation to both the birth mother and the birth father.
The birth father was self-represented. He did not file an affidavit but presented his case orally. As there were literacy difficulties, he was also given the opportunity following the hearing to have the transcript and affidavit material read to him and to file any further submission by 16 November 2017, if he wanted to respond further. He did not choose to do so.
Factual background to the application
Ms Gentle was not cross-examined, and the birth father did not contest much of the factual background leading up to the present application. The following history is thus drawn from the affidavits.
CD was born in late 2012 and is the only child of the relationship between the birth mother and birth father. As stated above, she was removed from her mother’s care and placed with her current foster carers in May 2013. She has been in that arrangement for more than four years and the evidence of Ms Gentle was that CD views her foster carers as her own parents. Final care and protection orders were granted in February 2014, under which the applicant bears responsibility for CD’s supervision, residence, contact, daily and long-term care until she reaches the age of 18 years.
The birth mother has another child, born in 2009 from a previous relationship. The other child was taken into care in 2010 when she was 11 months old and is also the subject of final care orders until she attains the age of 18 years. She resides in long term foster care in the Northern Territory.
The birth father has three other children, aged 30, 28 and 25 years respectively, none of whom were the subject of any care and protection orders or intervention by any authority. None of the older children reside with the birth father.
The birth mother has a significant deficit in intellectual functioning, although it has been asserted that this is not to the point where she was incapable of giving her informed consent to the adoption of CD by her foster carers. There is no application to dispense with the birth mother’s consent before this Court such as to require any consideration of that issue.
CYPS have previously engaged with the birth father in 2012 and 2013 with the view to facilitating contact with CD and assessing his ability to care for her. CYPS prepared a report in 2013, which accepted that the birth father was a well-meaning individual who wanted to be part of his child’s life. I accept this remains the case notwithstanding that he lives in Taree. He has only seen CD on limited occasions since she was born, but he is currently engaging with CYPS to attempt to increase contact. The birth father indicated that there were also difficulties initially with seeing CD when she was born, due to the breakdown of the relationship with the birth mother which resulted in a court order preventing him from approaching the birth mother and thus the child. Added to this was the fact that he then lived in Sydney, and has later lived some distance away, requiring significant travel time. The evidence discloses that his financial circumstances did not, and do not, permit him to travel regularly.
The concerns in the 2013 CYPS report, which was directed to care of CD and not any proposed adoption, centred around the birth father’s own difficult and abusive childhood, witnessing and being a victim of domestic violence. He had not received counselling in relation to those events and there was a concern about unresolved trauma that may have impacted upon his parenting of his other children. He was noted to have an extensive criminal history and self-reported alcohol misuse issues from early childhood into adulthood.
The two adult sons of the birth father had misused drugs and alcohol. In 2013 when the interview was conducted, the birth father’s eldest son had been incarcerated due to drug related charges and his second eldest child was said to be in a homeless youth hostel in Sydney.
The birth father’s family relationships with his other children and with his own siblings were reported to be fragmented.
The facts detailing CD’s present circumstances are dealt with as part of the Court’s consideration below.
Consideration
The application was put on the basis of there were ‘other circumstances’ justifying the requirement for consent being dispensed with. It need hardly be said that the Court approaches such an order as a matter of grave concern.
The natural ties between a parent and child ought not be lightly broken. There need to be powerful reasons before a court will properly deem it just and reasonable, notwithstanding a father’s objection, to sever the relationship between child and parent: see D at [6] and [9]. The fact that the Act requires the birth parents’ consent before an adoption order may be made reflects that position: D at [10].
In the present case the father remains willing to care for the child. From the above factual history presented by the applicant, there is some historical reservation expressed by CYPS, but there is really very little evidence that his parenting capabilities are such that he should no longer be entitled to call himself CD’s father – that is, that they form part of the ‘other circumstances’ justifying the order sought.
In 2013, Mr Desmond Chawota, CYPS case worker and an assessor whose qualification was BA (Honours) Social Work, held a view that the birth father needed to demonstrate positive parenting strategies and to understand parenting as an adaptive process along with child development. That evidence was directed to a different question, and it is by no means clear to me that it ought be relied upon to found the present application.
Further, and to the extent that this was the submission put during the hearing, it is not relevant to this Court’s consideration that the birth father is 54 years old and all his elder children have now departed the family home. Such a submission could only be understood as suggesting that by comparison, the environment for the child with her present (younger) foster parents is in some way preferable.
When this issue was discussed during the hearing, the applicant ultimately accepted that such a consideration was more apt in an application by the birth father to revoke the final orders that had been made in a different Court under a different legislative regime.
It is the applicant who bears the ‘heavy onus’ in seeking to persuade the Court the birth father’s consent should be dispensed with: Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915 per Moffitt P at 918. It is not for the birth parent to demonstrate that he has ‘recent and effective’ capacity to parent, the language used by the applicant.
Nor is it for the birth father to demonstrate that he would be a better parent than the foster carers. That is particularly so where the applicant is not able to demonstrate any conduct or behaviour on the part of the birth father that would in effect disentitle the parent from retaining his or her family ties, such as ill treatment, neglect or abandonment.
Lord MacDermott in Re W [1971] AC 682 at 706 spoke of the question of whether a parent’s consent was unreasonably withheld not being solved merely by a view formed by a court, or by a child welfare officer, or a man or woman in the street, that life with the proposed adopters would be ‘a better bet for the child’.
His Lordship was speaking of a different statutory test of reasonableness in the legislation thereunder consideration. The present Act has significantly relaxed the restrictions on the Court’s discretion by comparison, and in particular the reasonableness of the withholding of consent is not a touchstone for the Court’s consideration here. Nevertheless, having heard the submissions made by the applicant based on the evidence before the Court, I express some disquiet in the application seeking to sever the family tie over the opposition of a willing parent in the circumstances of the present case. It has been a question of very fine balance whether the circumstances here truly ‘justify’ such an exceptional order being made.
Likely effect of the decision
CD is plainly too young to understand the full ramifications of the decision, such that a change would have an effect on her in the short term. In the longer term, it seems to me that the decision to permit the severing of the birth father’s parental tie to CD, so as to enable the adoption of CD by the foster carers, is likely to enhance the sense of belonging and stability for the child as she grows up. As I indicated during the hearing, due to the age of the child and the length of time she had been with her carers, stability, certainty and belonging was the consideration that to my mind required the greatest weight in this case.
Age, level of understanding, level of maturity, gender and personal characteristics
Similarly, CD’s young age, her level of understanding and maturity all speak, in my view, in favour of a decision that facilitates the adoption in this particular case.
CD is being raised to know that she has another ‘mummy’ and another ‘daddy’. However, as she comes to a better understanding of the role of her foster carers, if an adoption order were not made, there may be a risk of insecurity developing and having a destabilising effect. In this regard, I have taken into account the opinion of Mr Chawota that as CD grows to understand her current arrangements, it will be important for the adults in her life to ensure that they assist her to develop a sense of security.
The steps the foster carers are taking to adopt CD are in my view, designed in part to increase the sense of security for the child.
CD’s gender and personal characteristics are neutral considerations. There are no particular racial or cultural matters that require any particular focus here.
Physical, emotional and educational needs
The applicant submits that CD has below average speech, mobility development and cognitive abilities and that the foster carers have been proactive in taking steps to obtain assistance and treatment for CD in this regard. Given the birth father’s lack of literacy and current lack of employment, his ability to attend to CD’s developmental difficulties might have been of some concern.
He was asked during the hearing about how he might contribute to CD’s long term stable environment, and he mentioned that he had a stable living environment with new furniture, that he lived next door to the local school and across the road from a park. Although he was receiving benefits from Centrelink, I took his evidence to the Court to be to the effect that he would do whatever he could to feed and clothe CD and otherwise meet her needs.
Having taken into account both parties’ evidence, I do not consider there was sufficient evidence as to what CD’s asserted difficulties were, what steps were required to address them and how much any recommended measures would cost, so as to enable the Court to form any view that the personal characteristics of CD required serious consideration here.
Importantly, there are already care orders in place, so that the foster carers are likely to continue to be responsible for CD’s welfare and development even if the Court declined to dispense with the birth father’s consent. Accordingly, while noting the asserted difficulties, I have not given them weight in the exercise of the Court’s discretion.
The views expressed by the young person
Because of CD’s age, understandably there are no views that the Court could properly take into account.
The relationship the young person has with the parents, any siblings and any other relatives
CD sees her birth mother and her extended maternal birth family on four occasions per year. This contact is organised and supervised by CD’s foster carers. CD also has contact with her half-sister on four occasions per year. It is not proposed that current access arrangements would change following any adoption process, as long as the arrangement continued to be in the best interests of the CD.
While CD has not been seeing the birth father four times a year, it may be that through increased engagement with the foster carers a similar arrangement could occur. There is no evidence that CD has had any contact with any of the birth father’s other children.
The present relationships with the birth parents and siblings are not likely to be impacted, were the dispensation of consent ordered. At one point during the hearing, the birth father indicated that he would be reluctant to be involved in CD’s life if an adoption order were made. However, after clarification with him, that did not appear to be his considered position and I find that his level of attachment to CD is such that he would still wish to be involved, albeit to a limited extent.
Accordingly, the relationship between CD and her birth families is unlikely to be affected in the short term. As far as considering the long term relationships, given the present care and protection orders already in place, the matter appears to be neutral.
The relationship the young person has with the adoptive parents
This is a significant factor in favour of dispensing with the birth father’s consent. For all practical purposes, the proposed adoptive parents are CD’s parents. They are really all that she has known to date. The evidence is that the bond is strong. As indicated above, formalising that relationship through lawful adoption will strengthen the relationship as CD grows up.
Suitability and capacity of the adoptive parents to meet the young person's needs
There is no doubt that the proposed adoptive parents are highly suitable and have the capacity to meet CD’s needs. The evidence establishes the care and support the proposed adoptive parents display, as well as their very sensitive attitude to the child’s understanding and ongoing relationship with her birth parents and half-siblings.
The alternatives to adoption for the young person to secure permanent family arrangements
This factor is also neutral. The final care and protection orders have already achieved a secure permanent family arrangement for the girl. If the Court does not make an order facilitating the adoption of the girl by her current carers, the arrangement will simply continue. Although there is always a chance that circumstances may change such that the applicant, who has the responsibility for the child’s welfare, could alter the current placement of the child with her present foster carers, I consider that possibility to be so unlikely in circumstances where they are seeking to adopt her as to disregard it.
Conclusion
For the above reasons, on balance, I have judged there to be ‘other circumstances’ to justify an order dispensing with the birth father’s consent. These are the increased security, stability, certainty and sense of belonging that would be achieved over the long term through the adoption of CD, and in particular the fact that the foster carers are the proposed adoptive parents. They are who the child has known to be her parents for the past four years and her interests will be best served by the legal formalising of that arrangement.
The disappointment of the birth father at this decision is well appreciated by the Court. I note, however, that the decision does not mean that he will have no role to play in the girl’s life and it is hoped that all those affected will support the relationship between the birth father and the girl in the years to come.
The applicant properly does not seek any order for costs.
Orders
The orders of the Court are as follows:
1. Pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of [the birth father], the father of [CD] is dispensed with.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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