In the matter of the adoption of EP

[2025] ACTSC 264

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the matter of the adoption of EP

Citation: 

[2025] ACTSC 264

Hearing Date: 

18 June 2025

Decision Date: 

25 June 2025

Before:

Muller AJ

Decision: 

See [65]

Catchwords: 

ADOPTION – DISPENSATION WITH CONSENT – Application to dispense with requirement for consent of birth mother to adoption of young child by prospective adoptive parents –- whether relevant person’s identity can be established – whether dispensation necessary in the best interests of the young person – where child has been residing with the prospective adoptive parents for extended period – where no notice of opposition filed – dispensation order made

Legislation Cited: 

Adoption Act 1993 (ACT), div 3.6, ss 5, 6, 26, 31, 35, 39D, 97

Court Procedures Rules 2008 (ACT), r 3171

Parentage Act 2004 (ACT), div 2.2, s 7

Cases Cited: 

In the matter of the adoption of CD [2019] ACTSC 256

In the matter of an adoption of QS (No2) [2021] ACTSC107; 16 ACTLR 25

Parties: 

Director-General for the Community Services Directorate

Representation: 

Counsel

M Van Arkel ( Director-General)

C O’Driscall ( Child’s Representative)

Solicitors

ACT Government Solicitor ( Director-General)

Legal Aid ACT ( Child’s Representative)

File Number:

AD 2 of 2025

MULLER AJ: 

Introduction

1․The child who is the subject of this proceeding is aged 12 years. I will refer to him as EP. He has been in the full-time care of his current foster carers for some six and a half years. For most of the first five years of his life EP was in the care of his birth mother, although he was very shortly after his birth removed from her care due to concerns regarding her capacity to meet his care needs and afford him adequate care and protection. EP was then returned to her in August 2013.

2․The identity of the birth father is unknown.

3․In this application an order is sought dispensing with the requirement for consent of a person to the adoption of a child pursuant to s 35 of the Adoption Act 1993 (ACT) (Adoption Act).

4․The application is brought by the Director-General, Community Services Directorate (the Director-General) in the context of an application for adoption order filed on behalf of the foster carers and prospective adoptive parents on 23 April 2025. The applications are brought by the Director-General as the entity with daily and long-term parental responsibility for the child, pursuant to a final care and protection order made on 27 September 2019. That order has effect until the child attains the age of 18 years.

5․This application is brought because s 26 of the Adoption Act provides that an adoption order must not be made for a child unless consent has been given by each parent. Section 35 provides for dispensing with consent in appropriate circumstances.

6․In accordance with s 97 of the Adoption Act, that prohibits the publication of the name of the child, a parent or guardian of the child, I refer in these reasons to the child as EP, to the prospective adoptive mother as MP and the prospective adoptive father as JL.

Notice of the Application

7․Notice of the application for adoption order, the application for dispensing with consent to adoption, the affidavit of Emma Goodwin, case manager employed with the Adoption and Permanent Care Team of Children, Youth and Families (CYF), and a letter from the ACT Government Solicitor were served personally on the birth mother on 14 May 2025.

8․As service took place more than 28 days before the date of the hearing on 18 June 2025, I am satisfied that the requirements of r 3171 of the Court Procedures Rules 2008 (ACT) were met. I am also satisfied that the letter from the ACT government solicitor set out in clear terms the prospective outcomes at hearing and provided appropriate encouragement to the birth mother to seek independent legal advice and arrange representation for the court hearing date. There was no appearance by or on behalf of the birth mother at the hearing and the Director-General confirmed that there had been no further communication with her after the date on which Ms Goodwin's affidavit was affirmed.

The evidence

9․Affidavit evidence before the court addressing the substantive application comprised the following:

(a)the affidavit of Emma Goodwin of CYF affirmed on 17 April 2025;

(b)the affidavit of MP, the prospective adoptive mother, affirmed on 17 April 2025; and

(c)the affidavit of JL, the prospective adoptive father, affirmed on 17 April 2025.

10․The court was also provided with a copy of a confidential report prepared in accordance with s 39D of the Adoption Act written by Ms Goodwin, and approved by Ms Lukins, a delegate of the Director-General. The report included information relevant to the application for dispensing with consent but also addressed matters relevant to the adoption application.

11․EP was born in January 2013. He has three older maternal siblings now aged 21, 19 and 13. EP has had some ongoing contact with his two oldest siblings in the time since he was removed from his birth mother's care in November 2018, but he has never met the sibling closest in age to him. That sibling now resides with family members of the sibling’s paternal father. That family has no contact with the family of the birth mother.

12․EP has had ongoing contact with his birth mother since the time of his removal. He also enjoys regular contact with his maternal grandparents, communicating with them several times per year either in person or by telephone.

The Application for dispensing with consent

13․Before orders for the adoption of a child can be made consent of each parent of the child, and each guardian of the child, is required: s 26 of the Adoption Act. Consent must be provided in the prescribed form: s 30 of the Adoption Act. Consent may be revoked within 28 days after the date on which it is given only by filing a notice of revocation in the Supreme Court. An additional 14-day period may be provided on application, but the period may not otherwise be extended: s 31 of the Adoption Act.

14․The court may dispense with the requirement for consent of a person to the adoption of a child in a number of circumstances. The applicant in this case relies upon section 35(1)(c) of the Adoption Act.

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)either—

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

(ii)   the person’s identity cannot be established; or

(b)the person is not able to make a fully informed decision in relation to the consent despite receiving adequate and appropriate support to make the decision to the best of their ability; or

(c)it is necessary in the best interests of the child or young person to dispense with the requirement for consent of the person.

Note If 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 do one or both of the following:

(a)investigate a matter;

(b)make an assessment of the best interests of the child or young person.

Note See s 5 and s 6 for the matters that must be taken into account by a decision-maker in forming a view about the best interests of a child or young person.

(3)The director-general must give the court a written report detailing the conclusion of an investigation or assessment made under subsection (2).

(4)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.

(5)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 (4) at any time before making an adoption order.

15․In the decision of In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 at [58] the court interpreted those words to mean, “it is necessary to dispense with the requirement for consent of the person because adoption is in the best interests of the child or young person”.

16․In respect of the birth father, the position of the Director-General is, in accordance with s 26(2) of the Adoption Act, that the unidentified father of the child does not meet the definition of a “parent” for the purposes of the section as he is not a person presumed to be the father under div 2.2 of the Parentage Act 2004 (ACT) (Parentage Act). The circumstances giving rise to a presumption of parentage begin at s 7 of the Parentage Act. I am satisfied that none of the identified presumptions arise from the material before me. I am therefore satisfied that the birth father does not meet the definition of a person required to give consent to the adoption of the child within the meaning of s 26 of the Adoption Act. See In the matter of the adoption of CD [2019] ACTSC 256 at [7] and [15] - [16].

17․In respect of the birth mother, I am satisfied that it is necessary and appropriate to dispense with the requirement for consent, consistent with the best interests of the child: s 35(1)(c) of the Adoption Act.

18․Sections 5 and 6 of the Adoption Act deal with matters to which regard must be had in forming a view as to what is in the best interests of the child. Section 6 has no application here as EP is not an Aboriginal or Torres Strait Islander child.

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 taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging;

(b)the child’s or young person’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances;

(c)the child’s or young person’s cultural, physical, emotional, intellectual, and educational needs;

(d)the views expressed by the child or young person in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision);

(e)taking into account the benefit of maintaining meaningful relationships, the likely effect of the decision on the child’s or young person’s relationship with the following people:

(i)   the child’s or young person’s birth parents;

(ii)     the child’s or young person’s siblings (if any);

(iii)    the child’s or young person’s other relatives;

(iv)    carers or other significant people in the child’s or young person’s life;

(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;

(i)the continuity and sense of belonging that comes from a child or young person having stable emotional and physical living conditions;

(j)the need to protect the child or young person from physical or psychological harm associated with exposure to abuse, neglect or family violence.

Is adoption in the best interests of EP

19․In reaching the view that adoption is in the best interests of EP I have had regard to the mandatory best interests criteria set out in s 5 of the Adoption Act that apply to consideration of the application for adoption itself.

The likely effect of the decision on EP’s life course, taking into account the need to preserve his cultural inheritance, personal identity and sense of belonging: s 5(2)(a)

20․I am satisfied that adoption is very likely to have a positive impact on EP's life course.

21․At the time of his entry into the care of his foster carers, EP was about to commence his schooling and at that time there were disturbing issues emerging in relation to the management of his health care and the meeting of his developmental milestones. He has now spent approximately half of his lifetime in the care of MP and JL.

22․The evidence before me demonstrates that he has in that period developed a strong sense of belonging to the family unit he has formed with his carers. He has been provided with a loving and stable environment. EP's medical issues have resolved, and he appears happy and healthy. His developmental milestones are now age appropriate.

23․The relationship that EP has formed with MP and JL is described as a typical parent-child relationship.

24․Evidence concerning EP's performance at school and in his sporting activity is all affirming of the proposition that his current care arrangement has resulted in his life continuing on a very positive trajectory.

25․In terms of his cultural inheritance there is nothing arising from the evidence to suggest that there will be any adverse effect on EP’s understanding of, or access to, his birth history and his birth family.

26․It is noteworthy that EP has expressed a desire to keep his current name: “It's a great name, I've had it for a long time”. The expression of that desire in concert with his expressed desire for the adoption to proceed suggests that EP has a healthy sense of comfort in his identity as a member of his birth family resting easily with his desire to establish the permanence of his present family arrangement.

27․The evidence of MP and JL is to the effect that the three of them have bonded as a family and that EP has established a normal family routine in a loving family environment. JL observed:

[A]dding [EP] to our family has only strengthened our bond and affection for each other. As a family unit we enjoy spending time together, while also supporting and encouraging each other's individual interests. Our home and little family is our safe and secure place.

28․The Director-General’s observation of the family arrangement are entirely positive.

29․EP is of Scottish ancestry on the maternal side. The ongoing engagement with his grandparents has enabled EP to develop a good understanding of his Scottish family heritage. There is no suggestion in the material before the court that this arrangement will be adversely affected by the adoption process.

30․It is unfortunate that notwithstanding EP's clearly expressed desire, the birth mother has been unwilling to provide him with any certainty concerning the identity of his birth father. The evidence demonstrates a high level of inconsistency in her communications from time to time with EP and other parties concerning the father's identity. EP appears resigned to the prospect that he may never know the identity of his birth father. Accepting that there is some prospect that information concerning the identity of his father may become available to EP at some future time, I am not satisfied that the possibility is such that it impacts in any significant way on the best interests considerations to which the court must have regard.

31․The prospective adoptive parents have expressed a commitment to the continuation of open communication with the maternal birth family to encourage and facilitate the relationship between EP and his birth mother as well as other maternal family members.

32․For the reasons set out above I consider that an adoption order is unlikely to have any negative impact on EP’s life course, the preservation of his cultural inheritance or the development of his personal sense of identity. On the contrary, the likelihood is that those matters will be positively impacted.

Age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances of EP: s 5(2)(b)

33․EP is aged only 12 years, but he displays a good level of understanding concerning the adoption process, and the consequences of adoption in terms of the permanent change in his legal relationships with his birth family and his prospective adoptive family.

34․EP is described as intelligent, articulate and logical in his thinking. He has displayed a good understanding of the concepts of a birth family and a foster family and his place in those two family units.

35․His individual circumstances are discussed in greater detail below. There are no particular personal characteristics or gender issues that require consideration

Cultural, physical, emotional, intellectual, and educational needs of EP: s 5(2)(c)

36․It is the opinion of the Director-General that EP has received a high standard of care from his prospective adoptive parents.

37․He is healthy and his immunisations are up to date. He receives regular medical care including optical and dental care. I am satisfied that EP is receiving medical care as required. He has been experiencing some sleeping issues that are being addressed with appropriate therapeutic input.

38․He is observed to be a confident, active and happy child, who is popular amongst his peers, and has well established friendship groups. He continues to meet his developmental milestones.

39․EP appears to be performing well in his schooling with positive feedback from his teachers. Initially he required support from school staff in social engagement, but he is now considered to have age-appropriate development. He participates in a range of out of school activities including piano, trombone, soccer, futsal and taekwondo. He has had the opportunity to represent the ACT in a national futsal competition.

40․EP has no particular physical needs that require special consideration for adoption. His intellectual and educational needs are being met not only through his ongoing participation in his schooling, but through the active programme of out of school education that his prospective adoptive parents arrange for him, including opportunities for travel and participation in a range of outdoor activities.

41․Notwithstanding the difficulties in his early years that are described in some detail in the confidential report, EP’s emotional needs are well supported in his current foster care arrangement.

42․MP and JL both attest to the financial and emotional stability of the home, with both in stable public service employment and living in their own home in the ACT.

43․I am satisfied on the basis of the material before me that EP has throughout his time in foster care received a high level of care and support across the entire range of his present life needs. There is a sound basis to support the conclusion that the level of care he has enjoyed thus far is likely to continue whilst he remains in the family provided for him by MP and JL.

EP’s views: s 5(2)(d)

44․EP is described as displaying a high level of confidence and maturity for his age. He is open with his peers and teachers regarding his life history and the circumstances in which he has come into the care of MP and JL.

45․Consistent with that display of maturity EP has also been quite clear about his wishes in respect of the adoption process.

46․It is his expressed desire to secure permanence in the present arrangement through the process of adoption. In his words, so that I know I will live with MP and JL forever.

47․I am satisfied that EP has a reasonably good understanding of the permanent and binding nature of the adoption process. It is evident that he wishes for the adoption to proceed notwithstanding that he is aware that to do so is against the wishes of his birth mother. In his words, “it is my choice and not hers”. In the circumstances EP's views are persuasive in the court forming a view about what is in his best interests.

The likely effect of the decision on EP’s relationship with his birth parents, siblings, other relatives and carers or other significant people in their lives: s 5(2)(e)

48․The birth mother and in turn her children including EP have a very significant history with child and youth protection services (CYPS). The history of CYPS interventions for all of her four children spans approximately 18 years. The summary of the records that is available to me indicates that the birth mother has struggled to maintain an adequate level of care and protection for each of her children at various times and for varying reasons. There have been some 41 child concern reports in respect of the care of EP or in respect of EP's behaviours. Those reports have led to 14 separate appraisals. The concerns have included medical neglect, general neglect, exposure to family and domestic violence, homelessness and parental substance abuse, all contributing to prospective adverse emotional and psychological impacts upon the children. In the case of EP there were particular concerns of significance in relation to medical care.

49․For the time that EP has been in the care of his prospective adoptive parents, he has spent time with his birth mother approximately 7 times per year. The attendances coincide with significant dates such as birthdays, Christmas and school holidays. On occasions one of his siblings has also attended. With the passage of time, and EP's development of greater independence of thought, there have been occasions, particularly more recently, where EP has resisted contact with his birth mother.

50․When questioned about his desired level of contact with his birth mother for the future, EP indicated that he would like his level of contact to stay the same as it is currently. There is a reasonable prospect that with the emotional and psychological stability of an adoption EP will be more comfortable in his interactions with his birth mother, with less concern that the security and stability of his present family arrangement may be negatively impacted by those interactions.

51․I am satisfied that the ongoing regular interactions with EP's birth grandparents, who he identifies as “Nanny” and “Pop”, impact upon him in a very positive way. I am satisfied that MP and JL have consistently provided support for these interactions and there is no reason to conclude that such support will not continue into the future.

52․EP is currently in a situation where there is reasonably regular contact with his birth mother and with other members of his biological family.

53․The question then is whether adoption will in any way hinder the prospect of the continuation and development of that connection in future years. I am satisfied, given the stability of the current family arrangement, and the commitment of the prospective adoptive parents to the maintenance of contact with the birth family as evidenced by their demonstrated commitment to continued contact and communication over the last six years, that the progression of the adoption process is unlikely to negatively impact the prospect of the continuation of connections with EP’s birth family in future years.

EP’s relationship with the adoptive parents: s 5(2)(f)

54․The evidence before me points to the existence of loving and stable relationships between EP and his prospective adoptive parents. He identifies with them as parental figures.

55․Ms Goodwin attests to MP and JL meeting EP's physical, emotional, psychological and educational needs, which they have done consistently in the time that he has been in their care. By way of example, they have demonstrated their ability to address and resolve EP’s medical issues.

56․The family has financial security and the capacity to provide EP with physical and financial security into his adult years. The parenting input they have provided for EP over a period of in excess of six years of full-time care has occurred with minimal involvement from the Director-General, and there have been no concerns raised in relation to their care.

57․Providing stability and permanency in EP's present family arrangement through adoption is a factor that is strongly in his best interests.

58․I am satisfied that EP has also formed positive relationships with wider family members of his carers that are likely to assist in creating an environment of stability and belonging for him.

59․I consider it likely that the adoption process will only enhance and strengthen the development of these relationships.

The suitability and capacity of the adoptive parents to meet the child's needs: s5(2)(g)

60․I am satisfied with reference to the detailed background material in the confidential report, together with the affidavits of the prospective adoptive parents that they have, and will, continue to provide for EP's needs at a high level.

The alternatives to adoption for EP to secure permanent family arrangements: s 5(2)(h)

61․I have carefully considered the alternatives to adoption. I am satisfied that there is no realistic prospect of EP’s biological mother taking on a permanent parenting role. No other wider biological family member has been identified who may present as a suitable alternative.

62․Consideration has been given to the option of an enduring parental responsibility order. The primary disadvantage of such an arrangement is that the legal relationship ends when EP attains the age of 18 years. Although in some family arrangements that may not present as a practical difficulty, I am satisfied that in EP's case, with reference to the instability of his family situation before the commencement of the current period of care, the provision of an arrangement that is permanent in the legal and emotional sense is strongly in his best interests.

The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions: s5(2)(i)

63․For the reasons set out above I am satisfied that an adoption order will enhance EP's currently stable living environment by providing the present arrangement with legal permanency.

The need to protect EP from physical or psychological harm associated with exposure to abuse, neglect or family violence: s5(2)(j)

64․For the reasons set out in the confidential report I am satisfied that it would not be in EP’s best interests for him to return to the care of his birth mother.

Orders

65․For these reasons the following orders are made:

(a)Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT), the Court dispenses with the requirement for the birth mother’s consent for the adoption of the child who is the subject of this application.

(b)Proceeding AD 2 of 2025 is listed on 23 July 2025 at 9:30am for the hearing of the application for adoption orders to be made in relation to the child pursuant to div 3.6 of the Adoption Act 1993 (ACT).

(c)There is no order as to costs.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller

Associate:

Date: 25 June 2025