In the matter of the adoption of MS
[2017] ACTSC 412
•22 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of MS |
Citation: | [2017] ACTSC 412 |
Hearing Date: | 29 November 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 [MS], is dispensed with. 2. Pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of [the birth mother], the mother of [MS], is dispensed with. |
Catchwords: | ADOPTION – Application to dispense with consent of birth mother and father – 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, 7, 10, 26, 35, 39A, 39I |
Cases Cited: | 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] (First Respondent) [not published] (Second Respondent) |
Representation: | Counsel Mr K Archer (Applicant) Self-represented (First Respondent) Self-represented (Second Respondent) |
| Solicitors ACT Government Solicitor (Applicant) Self-represented (First Respondent) Self-represented (Second Respondent) | |
File Number: | AD 8 of 2017 |
This application concerns a girl who is almost 18 and wishes to be adopted by her current foster carers, with whom she has been living since January 2011, and who share the desire to adopt her.
Section 26 of the Adoption Act 1993 (ACT) (Act) requires that, subject to division 3.3 (which creates a detailed regime relating to the giving of consent to adoption), an adoption order for a person under the age of 18 must not be made unless consent has been given by each parent or guardian of the young person.
Neither of the girl’s birth parents consent to the adoption.
The Act provides a mechanism for the Court to make an order dispensing with the consent of the birth parents in certain circumstances. For the reasons that follow, I have decided that, in the circumstances of this case, it is appropriate to make such an order.
Present application
The application to dispense with consent dated 13 July 2017 was filed by the Director-General, Community Services Directorate (applicant). The application is brought pursuant to s 35 of the Act (located in division 3.3 of the Act) and the Court has jurisdiction to determine the proceedings pursuant to s 7 of the Act.
The birth mother and father were active respondents to the application and appeared at the hearing, representing themselves. The applicant was represented by Mr Archer of Counsel.
In support of the application, the applicant read the affidavits of a social worker employed within ACT Child and Youth Protection Services, and a Case Manager at ACT Together with responsibility for the management of the girl. Each were affirmed on 13 July 2017.
The respondent mother and father had each affirmed affidavits on 27 November 2017 and these were read without objection.
The Court’s power to dispense with consent
Sub-section 35(1) of the Act relevantly provides 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) …
(b) …
(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 application filed relied on paras (d) and (e) above. During the hearing, the applicant sought to broaden the application to rely on para (1)(c), however I refused the oral application as the evidence had already been filed and the matter had been given an early hearing date at the express request of the applicant. I was concerned that the two self-represented litigants before the Court were not in a position to deal with such a late amendment and would have required an adjournment to ensure that no procedural unfairness arose.
As to ‘any other circumstances’, in para (e), this has been described as a ground of wide import, which cannot properly be circumscribed: In the matter of an adoption of D [2008] ACTSC 44 (D).
It has been said that the use of the word ‘other’ does not mean that the special circumstances must be exclusive of, or unrelated to, the subject matters of the other grounds, nor is the generality of that ground 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].
Even so, in the present case, given how the evidence was presented and characterised up to the date of the hearing, care has been exercised in the consideration of the evidence below to ensure that the Court’s ruling with respect to any application based on para (c) above was not circumvented by the use of the evidence in the same way under the broader ground in para (e).
Relevant legislative provisions
The objects of the Act are set out in s 4. The two that are of greater significance to the present case are:
(d)ensuring that adoption is centred on the needs of the …young person rather than an adult wanting to care for a …young person; and
(e) consulting with the …young person throughout the adoption process and, wherever possible, taking the … young person’s views into account; …
Sub-section 5(1) is relevant to the Court’s satisfaction under s 35(1) of the Act. It 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.
Although the welfare and interests of the child has been described as the paramount consideration, it is not the overriding consideration or the only consideration: see D at [37] and the cases there-cited. Were the position otherwise, the Act would have allowed consent to be dispensed with whenever the adoption order would, in the view of the Court, be in the best interests of the child. However, in providing for the residual discretion of the Court and the statutory requirement for the consent of the birth parents, the Act balances other moral interests.
Sub-section 5(2) of the Act then provides (emphasis added):
(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 …young person;
(b)the … young person's age, level of understanding, level of maturity, gender, and personal characteristics;
(c)the … young person's physical, emotional and educational needs;
(d)the views expressed by the … young person;
(e)the relationship the … 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 emphasised parts of the section above are the matters that I consider carry significant weight in the exercise of the Court’s discretion in the present case.
It is also relevant to the present case (given the present age of the girl) that through a combination of ss 10, 39A and 39I of the Act, once a person reaches the age of 18, the consent of the birth parents is not required before an adoption order may be made.
These matters will be considered below.
Facts giving rise to the proceedings
The affidavit of the social worker sets out the history that forms part of the circumstances in which dispensation of consent is sought. The girl was born in 2000 and is the second of four children born to her birth mother. She has an elder brother. Her younger siblings currently reside with the birth mother.
There were two birth certificates in evidence for the girl. The earlier birth certificate, issued on 2 July 2002, records the respondent father as the birth father, and this is consistent with the birth mother’s own evidence. She was in a de facto relationship with the birth father for three years while living overseas.
A later birth certificate, issued in 2014, records a different person as the birth father (and a different hospital as the place of birth). That person is the birth mother’s now ex-husband. She married him in 2007 and he became the children’s step-father. Together they moved to Australia in 2008 so that the birth mother could attend university in Australia.
It is uncontroversial that the birth mother has been a victim of ongoing domestic violence at the hands of two men, neither of whom were the birth father (who remained overseas throughout this time).
The first person was the step-father. The affidavit evidence alleged that he was incarcerated in 2009 following an assault of one of the birth mother’s other children. He was then deported from Australia in approximately December 2011. The birth mother obtained a divorce in May 2011 and has had no further contact with him as he was not the birth father of any of her children. The applicant has previously obtained the Court’s dispensation of consent in relation to the step-father listed on the second birth certificate for the girl.
The second person was someone with whom the birth mother formed a relationship following the incarceration of her then husband in 2009. It transpired he was also abusive. He drank heavily (on the birth mother’s own evidence) and the uncontroverted evidence was that he ultimately attacked her with a pickaxe in January 2011. The girl the subject of these proceedings called the police and the incident ended with the new partner being shot by police. The three younger children were taken into the emergency care by the present foster carers of the girl.
The girl’s two younger siblings have since been returned to their mother. The birth mother is herself an intelligent woman, based on the language used and the contents of her detailed affidavit and the submissions she made to this Court. She is ‘financially stable’, as she described it, with qualifications from the Australian National University and she is currently undertaking further university study. There is no suggestion that she consumed alcohol to excess or that she used any illicit substances.
Notwithstanding that her birth mother may have been capable of caring for the girl, since 2011, the girl has expressed a wish not to return to the care of her birth mother. In February 2014, following a seven-day contested hearing, a final care and protection order was made in relation to the girl until she attained the age of 18 years, which permits her to reside with her current foster carers with the applicant having overall responsibility for her welfare.
Consideration
I will deal first with the application under para (e) of s 35(1) of the Act because I consider it to be determinative of the application.
As will be shown from the discussion of the different mandatory considerations of s 5 of the Act below, the simple fact is that this 17 year-old girl has been in a stable living environment with her foster carers for many years. She is happy. She is loved. She has thrived.
The close bond between the girl and her proposed adoptive parents is evident, but what is also clear is that this girl has driven the process that brings the parties before the Court. She has been requesting adoption since she was 14 years old. As pointed out above, the girl will be able to make the application herself in the coming months without further reference to her birth parents or whether they consent. I do not see sufficient reason to make the girl wait that extra few months and to embark upon the whole process again at her own expense. That would not be in her best interests, when I am satisfied (for the reasons that follow) that the applicant is entitled to the order now and it remains the girl’s fervent wish to legally and permanently confirm the sense of belonging to her foster carers that she already feels.
Likely effect of the decision
I have considered the likely effect of the decision on the course of the girl’s life. There are only a few months before the girl attains adulthood. She is already entitled to live with her current foster carers until she is 18. It does not appear that the Court deciding to dispense with the consent of the birth parents will have any practical effect on the course of the girl’s life. It will, of course, have a legal effect, and that is highly significant for the girl (discussed separately). Certainly, I do not consider that at this stage of the girl’s development, there is likely to be any deleterious effect if dispensation orders were made.
Age, level of understanding, level of maturity, gender and personal characteristics
As will be apparent from the foregoing comments, I have placed great weight on the girl’s age, level of understanding and level of maturity. The psychological evidence before the Court is that even when the girl was thirteen, she was talkative and articulate. That is further supported by the letters from the girl annexed to the affidavit of her case manager at ACT Together, set out below and relevant to this consideration. That evidence was highly persuasive to the Court’s decision. The girl exhibits a level of intelligence, maturity and insight that is impressive. This fact means that greater weight will be given to the girl’s views.
Physical, emotional and educational needs
At this stage of the girl’s development, and having regard to the existing final care and protection orders, the decision will not affect the girl’s physical and educational needs.
However, the girl has an emotional need to legally belong to her foster carers. On the evidence before the Court, that need is deeply felt. The decision to dispense with the birth parents’ consent would facilitate the adoption process, fulfilling that need.
The views expressed by the young person
The girl’s views are consistent and clear. The following is an extract of a letter written when the girl was 14:
I am writing to let you know what I want to happen in my life. I understand that adoption is a big thing and there has to be a reason of why you want to be adopted into that family. I want to be adopted so I know I belong in my family, and they have me and I have them forever and nothing can separate us. I want this to be my first and last family.
…
Growing up I lived in a violent environment with domestic violence, so I just gave up on my future. Living with the [foster carers has] changed who I am for the better. They have introduced me to new cultures, they have supported me through all the bad times, taught me to love and respect all people and included me. There are so many things that they have taught me. I love them so very much and would not have changed anything because they are the perfect people and family. I am such a different person now, and you wouldn’t have guessed I grew up having bad things happen in my life.
Adoption has become a very big part of me even if I haven’t reached that stage yet. I know it will make me very happy and grateful. I know that the family takes me in and involves me in their life as a family member, sister, auntie, granddaughter, so I feel like I have been a part of this family … All we need is a signed paper confirming that our relationship has been legalised.
Adoption will legally make me a part of this family that I have chosen, … Some people don’t get the opportunity to pick their perfect family, they just get what is in their way. Mine luckily appeared at the right time when I needed to be loved, cared for and heard.
The letters over the subsequent years merely serve to confirm the initial view expressed above. Such views support the dispensation of the consent of the birth parents and warrant great weight.
The relationship the young person has with the parents, any siblings and any other relatives
The relationship the girl has with her birth mother is poor. In her affidavit evidence, the birth mother admits that she is not perfect, that she struggled with starting a new life in Australia while trying to give her family a better future, and that she has made poor choices with her relationships with men. She disputes that she has been verbally abusive towards the girl on occasions over the years but she accepts the relationship with the girl has been difficult since at least 2011, when the girl was removed from her care.
There is controversy among the evidence as to why the girl did not have more contact with her birth mother over the period of 2011 to 2017. I accept the birth mother’s evidence that she has encountered difficulties in maintaining a relationship with the girl that were not of her own making, and she no doubt has much regret about the resulting lack of a better bond with her daughter.
The birth mother attributes much of this difficulty to the applicant and the foster carers. She believes there has been a degree of manipulation which has affected the girl, including using psychological or counselling services only for reporting purposes, as opposed to family counselling purposes to facilitate the restoration of the girl to her birth family.
For the purposes of this application, the Court does not now engage in who might bear responsibility for the present circumstances. Sadly, it was ongoing domestic violence that tore this family apart and one of the consequences may be that the family dynamic is forever altered.
The care of a child is a highly sensitive and often emotionally charged issue. I accept that the birth mother loves the girl and has at all times wanted to continue to care for her. It has been said elsewhere that the love of a mother for her child has been recognized as one of the strongest of all human instincts. It is one that in the ordinary course can be relied upon to endure throughout life, whatever may befall, and so assumes an added significance when one is considering the welfare of the child on the long view of her life: see Re an Infant K, Adoption of Children Act [1973] 1 NSWLR 311 (Re an infant, K) at 328-9 per Moffitt JA (as his Honour then was) and the case there-cited. In those circumstances, it would be unrealistic not to expect some level of frustration and hostility between the birth mother, those who work for the applicant, and the foster carers.
Ultimately though, and notwithstanding what is said below in consideration of the positions of the birth parents, I cannot see that the very great importance of preserving any parental tie between the girl and her birth mother outweighs the other factors favouring the dispensation of consent. Practically, it is unlikely the relationship between the two will be either strengthened or weakened by the present decision on whether to dispense with consent, noting that it facilitates the final adoption process. The future relationship the girl and her birth mother will have, and what role each plays in the other’s life, will be determined outside the scope of a courtroom and one might expect it to depend on forgiveness, compassion and perhaps a broader understanding of domestic violence, achieved through further counselling. The relationship between the two no longer depends substantially on whether the birth mother remains the lawful parent.
The relationship the girl has with her birth father is non-existent. The girl was unaware of his existence until August 2016 when she received an unsolicited communication from him. The lack of any meaningful relationship is a product of a number of choices the birth parents have made over the years.
The birth mother accepts that during their relationship, the birth father was a great father and very committed to the two girls he had with the birth mother. He provided for those children by way of clothing, food supply, baby formulae, and money for the birth mother.
The birth father’s affidavit evidence and his oral submissions also reveal the birth father to be intelligent and hard-working, consistent with the birth mother’s view of him. There is no evidence of any domestic violence. He appears to be a good and loving man. Had he remained in the girl’s life after the age of two, the girl’s upbringing – and who was caring for her over the past six years in particular – may have taken an entirely different course.
However, the fundamental hurdle for the birth father is that he has not remained in the girl’s life such as to establish any bond. The birth mother and father separated due to the birth father being unfaithful. Critically, the birth mother banned the birth father from seeing their two children. She relocated to live in a different province with her family and there were cultural considerations which included a historical failure to pay a dowry (notwithstanding they never married) that meant the extended family did not accept him or otherwise facilitate access to his children.
The birth mother started a new relationship, changed the names of her children and left for Australia, all without telling the birth father. This made it difficult for the birth father to track down his two girls. I accept that he attempted to intermittently make contact with the birth mother to see the girl and her sister, and has attempted to provide for his children financially, but that has generally been without success and primarily this is because of the birth mother’s general reluctance to have him involved in her life at all.
All of this is really by way of explaining the circumstances that have led to the lack of the birth father’s involvement in the girl’s life. The birth father has come to reach out to the girl recently, following her sister seeking him out in 2016, which gave him a means to communicate with the girl through electronic channels.
It is true that the circumstances may not have been entirely of his own making, but again, that is not to the point for the purposes of considering the present application. Ultimately, the girl’s relationship with the birth father is not a matter that weighs against the dispensation of his consent being in the girl’s best interests.
Similarly, the relationship the girl has with her siblings will not be affected by this decision either way. Although the long term effects of not being part of the same family are obviously a relevant part of this consideration, the final care and protection orders are in place, and those orders have previously divided the girl from her siblings. The Court does not intrude on those previous findings. The dispensation of the consent has no separate impact.
The relationship the young person has with the adoptive parents
By contrast, the relationship the young person has with her proposed adoptive parents is strong. Some of the evidence supporting that fact has been set out above, but it is supported through the comprehensive affidavit of Ms Gentle, which included expert psychological evidence. It is a factor that favours the dispensation of consent.
Suitability and capacity of the adoptive parents to meet the young person's needs
This factor carries less weight due to the girl’s stage of development. However, to the extent that it must be considered, the affidavit of Ms Gentle confirms that the foster carers are on the register of suitable people for adoption, kept by the applicant.
The birth mother commenced her submissions by acknowledging the excellent care the girl had received, and there is some further support to be found in the contents of Ms Gentle’s affidavit. During the hearing, I raised my concerns about the hearsay nature of much of the evidence before this Court. However, as there was no serious contest as to the suitability or capacity of the adoptive parents, I have taken this factor into account in favour of an order dispensing with the consent of the birth parents.
The alternatives to adoption for the young person to secure permanent family arrangements
This factor is 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.
Other matters
The birth parents in their affidavit evidence are each very concerned about the cultural implications. The birth mother states that ‘adoption’ is alien to her culture. She states that in her culture, the family/clan/tribe and the community all share the parental responsibility in the upbringing and welfare of the child, to feed her, cloth her and send her to school. The upbringing is shared between blood lines, not strangers. One paragraph of the birth mother’s affidavit that I think fairly encapsulates her position is as follows:
As a parent it is beyond grief to dispense my consent to give my child away to the care of a stranger when I am the biological parent, I am fit and capable and there is no question as to my parental capacity by the ACT Children’s Court. It is also unacceptable in my Culture and against my Customary Traditions.
Part of the birth father’s affidavit evidence is to similar effect and he confirmed this in oral submissions. I accept that evidence. It is consistent with the decision to sever the parental tie being one of the gravest that a judge may ever take: In re B (an infant) [1971] 2 WLR 129 at 138.
There are occasions where, notwithstanding a birth parent’s capacity and willingness, it is in the child’s best interest that they be cared for by someone else. That has obviously happened here and in that sense, it is a somewhat unusual case. However, even in cases where it is not proper to change the custody of a child, a court may still have no hesitation in refusing to sever the parental tie: Re an infant, K at 328 per Moffitt JA. Careful consideration has been given here to that important distinction.
The birth parents each expressed their desire to look to the future with their daughter, but the Court cannot set the history of this case and the present circumstances at naught, with a view to permitting the birth parents to essentially start again and attempt to build or rebuild a relationship with this girl based on their parental ties.
While the Court is sympathetic to the wishes of the birth parents, that issue has been expressly addressed by the legislature in the objects of the Act, one of which is to ensure that the adoption is centred on the needs of the young person rather than an adult wanting to care for a young person. The Court must apply the Act with a view to achieving its express objectives.
Conclusion
For the above reasons, I am satisfied that this case falls into the category of ‘other circumstances’ justifying the dispensation of the consent of the birth parents.
It is therefore unnecessary to determine whether the application would also have succeeded on the ground set out in s 35(1)(d) of the Act. At the hearing, I expressed reservations about the applicability of that section in circumstances where there were final court orders lawfully depriving the birth parents of the opportunity to ‘discharge’ their parental obligations. In my view, given that the birth mother had contested the application resulting in those orders, and the birth father did not know where his child was or that those orders were even being sought, each birth parent had a ‘reasonable excuse’. The applicant’s submission that the ground could nevertheless be relied upon – because there was a residual natural and moral duty of a parent to show affection, care and interest towards the child that at least the mother had failed to discharge – appears to misapply the statement made by Mossop AsJ (as his honour then was) in the decision of In the matter of the adoptions of SC and QC [2016] ACTSC 268 at [46]. The applicant’s submission also runs contrary to the reasoning in D at [25] and with Re an infant, K at 345. However, it is preferable for any detailed consideration of that question to await a case where the determination of that issue is necessary for the resolution of the application.
Properly, the applicant did 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 [MS], is dispensed with.
2. Pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of [the birth mother], the mother of [MS], is dispensed with.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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