In the matter of the adoption of MSN
[2017] ACTSC 92
•29 May 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of MSN |
Citation: | [2017] ACTSC 92 |
Hearing Date: | 29 May 2014 |
DecisionDate: | 29 May 2014 |
Reasons Date: | 25 May 2017 |
Before: | Penfold J |
Decision: | (1) Under s 35(1) of the Adoption Act 1993 (ACT): a. the consent of BN to the adoption of MSN by TX is dispensed with; b. the consent of NK to the adoption of MSN by TX is dispensed with; (2) Copies of orders are to be served on the birth parents as follows: a. For BN, service of that order may be effected by service on her step father ...; b. For NK, service of that order may be effected by service on his mother .... |
Catchwords: | CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – Adoption – Children in care of state – application to dispense with consent of birth parents to adoption – whether neglect of child requires moral culpability – whether neglect under Children and Young People Act 2008 establishes neglect under Adoption Act 1993 – scope for parents to discharge parental obligations after child taken into care – whether best interests of child an independent ground for dispensing with consent of birth parent. |
Legislation Cited: | Adoption Act 1993 (ACT), ss 4, 5, 35(1), 39D, 40 Children and Young People Act 2008 (ACT), ss 343, 345 |
Cases Cited: | In the matter of an adoption of D [2008] ACTSC 44; (2008) 39 Fam LR 345 In the matter of an application for adoption of S and in the matter of the Adoption Act 1993 [2003] ACTSC 111; 31 Fam LR 68 Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533 |
Parties: | Director-General, ACT Community Services Directorate (Applicant) BN and NK (Respondents) |
Representation: | Counsel Ms A Tonkin (Applicant) Self-represented (Respondents) |
| Solicitors ACT Government Solicitor (Applicant) Self-represented (Respondents) | |
File Number: | AD 8 of 2013 |
Introduction
The Director-General, Community Services Directorate (the Director-General), applied to the Supreme Court for an order dispensing with the requirement for the consent of the birth parents (whom I shall refer to as the mother and the father) to the adoption of their daughter MSN (the child), who was five years old at the time the application was heard.
The consent of the birth parents was sought because it was proposed that the child be adopted by TX, the woman who has been caring for her since she was 21 months old (the adoptive mother).
On 29 May 2014, I made orders dispensing with the consent of each parent. Following the making of those orders, an application was made for approval of the adoption of the child by the adoptive mother, and on 27 October 2014, that adoption took effect.
When I dispensed with the consent of the parents, I indicated that I would provide reasons in due course. These are my reasons.
Background
The child was born in December 2008, and was initially in the care of the mother. The mother then handed her over into the care of her maternal grandmother (the grandmother) from July 2009, when she was seven months old. At that point, the grandmother had agreed to help the mother care for the child, following concerns on the part of staff in that area of the ACT administration responsible for child protection about the state of the mother’s home and the mother’s lack of basic childcare knowledge, and the making of an interim Care and Protection Order for supervision of the care of the child.
The child was removed from the grandmother’s care in November 2009 and placed in foster care.
A final care and protection order was made on 29 April 2010, placing the child in the care of the Director-General until she turned 18.
The child spent time with two different foster families before being placed with the adoptive mother in September 2010.
The possibility of the child being adopted was initially raised with the birth parents during a “Review of Arrangements” meeting on 6 June 2012, after the child had been with the adoptive mother for nearly two years. The birth parents said that they did not support the child’s adoption, or the making of an Enduring Parental Responsibility Provision, and left the meeting, indicating that they would seek legal advice.
Over the next 15 months or so, there were various contacts between staff of the Director-General (whom I shall refer to generally as case-workers), members of the child’s birth family, and the adoptive mother. Case-workers, in phone calls and letters, offered meetings with the birth parents to provide information and advice. Few of the offers were accepted, but:
(a)on 28 November 2012, case-worker Charmaine Millar supervised a contact visit between the child and the mother, and then explained various aspects of the dispensation and adoption processes to the mother; and
(b)on 3 December 2012, after various attempts by case-workers to discuss the matter with the father, he attended a meeting with Ms Millar, who talked to him about the adoption process; the father said that he had obtained legal advice, and that he would never consent to an adoption order.
There was clear evidence that the child’s birth parents did not have the capacity to provide a safe and stable home for the child, and that they were unlikely to develop that capacity before it was too late for the child. The problems were of various kinds:
(a)The mother, who was 17 when the child was born, did not appear to have the skills to take proper care of the child, and her capacities, including the capacity to develop such skills with help, were apparently affected both by her significant substance abuse and by an unwillingness to accept help or advice.
(b)The father, who was 19 when the child was born, had been largely unavailable to play any part in her care, having spent much of the child’s life estranged from the mother or in prison, including for violent offending against the child’s mother. The father also abused alcohol and illicit drugs.
(c)Neither parent showed any commitment to attending parenting courses, despite encouragement (and the provision of relevant information) from case-workers.
(d)There was violence within the relationship between the child’s parents, but also more broadly within the child’s extended family.
(e)Although the grandmother had taken on a role in the child’s care, the grandmother’s mental health problems appeared to be affecting her parenting capacity; and her own son, aged about seven years, had been removed from her care and placed with his father; he was subsequently reported to have made “significant progress” since being removed from his mother’s care.
Accordingly, on 2 September 2013, the Director-General made an application under s 35(1) of the Adoption Act 1993 (ACT) asking the Court to dispense with the consent of the birth parents to the child’s adoption.
Scope for dispensing with consent
Dispensing with the consent of a birth parent, however, requires more than a mere conclusion that another family would provide a better environment for the child concerned. The circumstances in which a birth parent’s consent can be dispensed with are set out in s 35 of the Adoption Act, as follows:
35Dispensing with consent
(1)On application, the court may, by order, dispense with the requirement for consent of a person to the adoption of a child or young person if the court is satisfied that—
(a)the person cannot, after reasonable inquiry, be identified or located; or
(b)the physical or mental condition of the person is such that he or she is not capable of considering properly the question whether consent should be given; or
(c)the person has abandoned or deserted, or has neglected or ill‑treated, the child or young person; or
(d)the person has, for a period of not less than 1 year, failed, without reasonable excuse, to discharge the obligations of a parent or guardian, as the case may be, of the child or young person; or
(e)there are any other circumstances that justify the requirement for the consent being dispensed with.
Also potentially relevant are the provisions of ss 4 and 5 of the Adoption Act, as follows:
4Objects of Act
The main objects of this Act include—
(a)ensuring that the best interests of the child or young person are the paramount consideration in the adoption of a child or young person; and
(b)providing an adoption process that promotes the wellbeing and care of children and young people in a way that recognises the child’s or young person’s right—
(i)to grow in a safe and stable environment; and
(ii)to be cared for by a suitable family and to establish enduring relationships; and
(iii)to know about family background and culture and have the opportunity to maintain or develop cultural identity; and
(c)ensuring that the Aboriginal and Torres Strait Islander people are included and participate in any adoption of an Aboriginal or Torres Strait Islander child or young person; and
(d)ensuring that adoption is centred on the needs of the child or young person rather than an adult wanting to care for a child or young person; and
(e)consulting with the child or young person throughout the adoption process and, wherever possible, taking the child’s or young person’s views into account; and
(f)recognising a birth parent’s involvement in making decisions about their child’s future; and
(g)providing for adoption plans to recognise the intentions of parties in an adoption; and
(h)ensuring that equivalent standards apply for a child or young person adopted from the ACT and a child or young person adopted from overseas; and
(i)ensuring that the adoption process in the ACT complies with Australia’s international obligations, in particular the obligations arising under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.
Note The text of the Convention is set out in sch 1.
5Best interests of child or young person paramount consideration
(1)A person making a decision under this Act in relation to a child or young person, must regard the best interests of the child or young person as the paramount consideration.
(2)In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:
(a)the likely effect of the decision on the life course of the child or young person;
(b)the child’s or young person’s age, level of understanding, level of maturity, gender, and personal characteristics;
(c)the child’s or young person’s physical, emotional and educational needs;
(d)the views expressed by the child or young person;
(e)the relationship the child or young person has with the parents, any siblings and any other relatives;
(f)the relationship the child or young person has with the adoptive parents;
(g)the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs;
(h)the alternatives to adoption for the child or young person to secure permanent family arrangements.
In its application, the Director-General relied on the grounds set out in ss 35(1)(c), (d) and (e) of the Adoption Act. The grounds set out in ss 35(1)(c) and (d) relate directly to the behaviour of the birth parents, and I considered it was important to ensure that the birth parents were given a real opportunity to address those matters.
Service of application and related documents
The first difficulty for the Director-General was to serve the necessary papers on the birth parents.
The application for dispensing with consent to the child’s adoption was first lodged in the Supreme Court on 2 September 2013, but it was some months before I could be satisfied that the relevant papers had been properly brought to the attention of each birth parent.
This partly reflected difficulties in serving the parties. Although the mother had public housing in the ACT, she was apparently not easy to find there, and nor could she reliably be found at the grandmother’s address in New South Wales. The father was in custody in the Alexander Maconochie Centre (AMC) at various points during the process, and was apparently not easy to locate at other times.
However, the process was also extended by the fact that the Director-General produced various new documents between the filing of the first application and the hearing of the final application; each new set of documents had to be served, and delays in service in turn necessitated the vacation of listed hearing dates and the setting of further listings, which then required service on the birth parents of details of those new listings.
The process of ensuring that both birth parents had all the relevant information, and were aware of the date of hearing of the application, is summarised in the following table.
Date Events involving the mother Events involving the father 2 September 2013 Application for consent to be dispensed with.
10 September 2013 A case-worker contacted the mother using a mobile phone number, and told her that there were papers she needed to see in connection with the proposed adoption of the child; the mother agreed to come to the office to collect the papers the next day. 11 September 2013 The mother did not attend to collect the papers. 2 October 2013 The papers relating to the Director-General’s application for his consent to be dispensed with were served on the father. 4 October 2013 The papers were handed to the mother’s stepfather. 15 October 2013 Ms Millar telephoned the mother. The call went to voicemail, and Ms Millar left a voice message advising the mother that the next court date for the application was 17 October 2013. 17 October 2013 [before Mossop M in chambers] The mother did not appear. Mossop M noted that there was no evidence that the papers handed to the mother’s parents had reached the mother. The father did not appear. Mossop M ordered that the matter be docketed to a judge, since his Honour had appeared as counsel against the father in a civil matter, and as a magistrate had sentenced the father. 23 October 2013 [before Penfold J in chambers] Counsel for the Director-General indicated that an amended application to dispense with consent would be filed, and I ordered that the application was to be served personally on the mother. Counsel for the Director-General indicated that an amended application to dispense with consent would be filed, and I ordered that the application was to be served personally on the father. 3 December 2013: [before Penfold J in court] The mother appeared, with her stepfather and her new partner, and said that she opposed the adoption of the child and needed time to seek legal advice. The father did not appear, but it seemed that he had not been served with the amended application. The Director-General agreed to make further attempts to serve him. 10 December 2013 Attempts were made (on behalf of the Director-General), via Facebook messages, to advise the father of the next court date and to provide at least some of the papers for the application. 20 December 2013: [before Penfold J in court] The mother did not appear. I listed the matter for mention on 5 February 2014, and made the following order:
• The court is to notify the mother of the mention listed on 5 February 2014.
The father did not appear. I listed the matter for mention on 5 February 2014, and made orders as follows:
• The father may be served by substituted service, which can be effected by sending a private message to the Facebook profile of a "[name of the father]” who lives in Canberra, ACT, being a Facebook profile that displays photographs and other identifying information of [the child].
• The application for dispensing with consent that may be served on the father by sending to his Facebook profile under [the previous order] must show the next hearing date as 5 February 2014, and must be sent to the father’s profile before 5 February 2014.
• The Director-General is to file a new affidavit indicating what has been served on the father under [the first order] and attaching everything that has been sent to the father.
• The court is to send notification, to the father's last known address, of the mention listed on 5 February 2014.
6 January 2014 A case-worker sent the father a private message via Facebook, advising that the matter would be mentioned on 5 February 2014. 5 February 2014: [before Penfold J in court] The mother did not appear.
I listed the application to dispense with consent for hearing on 19 May 2014, and ordered that the Director-General serve any further affidavits on the mother by serving them on her stepfather.
The father did not appear.
I listed the application to dispense with consent for hearing on 19 May 2014, and ordered that the Director-General serve any further affidavits on the father via Facebook.
17 February 2014
[before Penfold J in chambers]
The 19 May listing was vacated and the matter was relisted for 29 May 2014. 11 March 2014 [before Penfold J in chambers] The Director-General was ordered to file and serve, by 7 May 2014, any further evidence to be relied on. April 2014 The father was remanded in custody. 28 April 2014 The father was sentenced, and expected to be in custody until May 2014. 30 April 2014 The Further Amended Application for dispensing with consent, including notification of the 29 May listing, was served on the father in the AMC by a process server. 7 May 2014 An affidavit made by Emma Selby, and a report of Sue Connor & Associates, were served on the father in the AMC. 8 May 2014 The Further Amended Application for dispensing with consent, including notification of the 29 May listing, and further evidence, being an affidavit made by Emma Selby and a report of Sue Connor & Associates, were served on the mother by a process server. 29 May 2014 [before Penfold J in court] The mother did not appear. The application was heard and orders were made. The father did not appear. The application was heard and orders were made.
Thus, despite the efforts made to ensure that the birth parents had all the relevant information about the application and were aware of the final hearing date, neither of them appeared at the hearing, and therefore neither of them made any contribution to the decision. That meant, significantly, that none of the material relied on by the Director-General (including in relation to each birth parent the specific claims about that parent relied on to make out a case for dispensing with his or her consent) was challenged by the parents.
The application
The application I dealt with on 29 May 2014 was a Further Amended Application for dispensing with consent to adoption that was lodged on 16 April 2014.
As noted, the Director-General’s application was made in reliance on ss 35(1)(c), (d) and (e) of the Adoption Act. The application recited:
(a)that the mother and father have neglected and ill-treated the child (s 35(1)(c));
(b)that the mother and father have, for a period of not less than one year, failed, without reasonable excuse, to discharge the obligations of a parent of the child (s 35(1)(d));
(c)that there are other circumstances that justify the requirement for the consent being dispensed with, namely that the child is in need of the security and stability provided by a permanent adoption order (s 35(1)(e)); and
(d)also, that dispensing with consent would be in the child’s best interests.
The application was supported by:
(a)an affidavit of George Butterworth affirmed on 4 September 2013;
(b)an affidavit of Charmaine Millar affirmed on 12 September 2013;
(c)an expert report concerning the child prepared by clinical psychologist Sue Connor and dated 1 May 2014; and
(d)an affidavit of Emma Selby affirmed on 5 May 2014.
Evidence – the child’s first two years
It is unnecessary to recite all the evidence provided to me, but the following material outlines salient parts of that evidence.
2008
In early 2008 the mother was reported to have been a victim of domestic violence inflicted by the father and causing a severe eye injury. During the year, concerns were also raised about anti-social behaviour, altercations between the mother’s friends and the mother’s neighbours, and the use of alcohol and illicit drugs at the mother’s home.
2009
In January 2009, a month after the child’s birth, the father was convicted of negligently causing grievous bodily harm to the mother (apparently this related to the violent attack on the mother shortly before she became pregnant). He was sentenced to 10 months imprisonment, to be released after serving four months of the sentence as periodic detention. The mother was reported to be “partying all week”, and going into Civic to buy Ice, possibly leaving the child alone.
By February 2009, a domestic violence order was in place between the child’s birth parents, and a breach of that order had been reported, in which the mother had held a screw-driver to the father’s throat and threatened to kill him if he did not leave. The person who reported the incident had also reported:
the child, sleeping on a mattress on the floor, making lots of wheezing noises. Refuse on the floor, dirty baby wipes...significant amount of pornography on the walls in the lounge room. When mum was holding the baby, she wasn’t supporting the neck...believe the baby is under fed. Distended stomach, very skinny arms and legs.
In March 2009, the father’s periodic detention order was cancelled, which presumably resulted in him serving a further period of his sentence in full-time custody.
Also in March 2009, there was an altercation between the mother and a person identified only as a male (but apparently not the father), in which the mother wielded a knife at the male; it is not clear whether any charges were laid arising from that altercation.
On at least three occasions between April and June 2009, child protection authorities were involved with the child’s family; this included visits to the mother’s home in the ACT, and the maternal grandmother’s home in NSW; both homes were recorded as being in a “state of neglect”.
In July 2009, the month in which the maternal grandmother took over as the child’s primary carer:
(a)an incident of family violence between the mother and the maternal grandmother was reported;
(b)The father was released from prison (apparently having been incarcerated after the cancellation of his periodic detention order);
(c)the mother was charged with shoplifting; and
(d)the mother signed a document which she gave to the maternal grandmother, as follows:
I, [the mother] also known as [the mother’s alternative name] hand over full custody of my daughter [the child] to her grandmother [the grandmother] from 17th of July 2009.
In September 2009, ACT authorities became aware of concerns in NSW about the grandmother’s two young sons, who had poor school attendance records, and who, when they did attend, often came late and without proper lunches. NSW and ACT child protection workers visited the grandmother’s home; the ACT child protection worker recorded that the child was sitting in the garden and “looked content” (although her clothes were “shabby”), but that there was no food in the fridge, only four cans of Jim Beam (although there was in the freezer some unidentifiable “food”, described by the grandmother as the child’s “provisions”).
A report to ACT authorities (described as a “Child Concern Report”) made in September 2009 alleged that the mother was a habitual ice and marijuana user and often left the child unattended. This report was marked for no further action, because by that point the child was in the care of the grandmother.
Pursuant to an order made in the Childrens [sic] Court, Ms Connor visited the mother’s home for the purposes of preparing a report, and described the “home environment” as “disgusting”; she also noted the presence of a male who appeared to be drug-affected.
Also in September 2009, the father was charged with a number of offences including drink-driving.
In October 2009, Ms Connor provided her report on the child, and recommended that child protection authorities should consider a long-term foster care placement with a view to adoption for the child.
In October 2009, the principal of the school attended by the grandmother’s young son reported observing the child to be “grubby”.
In November 2009:
(a)the child was removed from the grandmother’s care; concerns had been raised about neglect, about a high level of conflict between the mother and the grandmother (who were both involved in the child’s care) and about the grandmother’s “instability, erratic and disorganised thoughts and increasing paranoia”. It seems that by this stage, much of the child’s day-to-day care was being undertaken by the day-carer who also cared for the grandmother’s younger son;
(b)the child’s new foster-carer took her to hospital, concerned that she was wheezing and seemed short of breath;[i] and
(c)the child’s father was charged with attempted arson (in 2011 he was convicted of this offence and sentenced to a term of imprisonment).
In December 2009, the child was assessed by the Child At Risk Health Unit (CARHU). Concerns were raised about her development, including her failure to grow, and put on weight, as expected for her age.
2010
In January 2010, the child suffered a number of chest infections, and CARHU noted that she was developing satisfactorily, but was a “significantly tiny baby for her age” and needed “close monitoring”.
By February 2010, the grandmother had obtained an apprehended violence order against the mother, and the grandmother’s husband had obtained an apprehended violence order against the grandmother.
In a report finalised in February 2010, case-worker George Butterworth and his supervisor reported that the child’s birth had not yet been registered and that there was a dispute about her paternity. The report notes:
[the mother] informed this department on 27 January 2010, that she had received a threatening phone call from [the father] advising her that, ‘the baby is not mine’, that he was going to hurt [the mother], ‘her father and the rest of her family’.
In April 2010:
(a)the father was remanded in custody (the circumstances of that remand are not clear, but may have resulted from the father’s sentencing for a series of driving offences committed in September 2009) – he remained in custody until March 2011; and
(b)a final care and protection order was made in the Magistrates Court, placing the child in the care of the Director-General until she turned 18.
In August 2010 the child was placed in the adoptive mother’s care, and in September 2010 the placement became a permanent care placement.
Evidence – the parents’ attitudes and capacities
I have already mentioned in general terms the limited capacities of the birth parents to provide proper care of the child, and their apparent unwillingness to make any effort to expand their parenting skills. Evidence of these problems includes the following:
(a)When being assessed in 2009 by Ms Connor, the mother gave Ms Connor the impression that “she was very happy with herself ... and unlikely to see any reason to change”.
(b)Mr Butterworth reported that during contact visits, the mother “fails to purposefully interact and engage with her daughter”, and noted occasions on which the mother seemed to be “more interested in her mobile phone than with [sic] playing with her daughter”]; Mr Butterworth noted that the mother “appears to lack confidence and also the ability to meet [the child’s] basic needs” and that she engages in play with the child, but struggles to deal with any behavioural challenges posed by the child.
(c)In January 2010, in discussion with Mr Butterworth about opportunities to take part in parenting groups, the mother said: “I don’t feel that I need them. I don’t think I did anything wrong with [the child]. I clothed and fed her”.
(d)The father, although reported to have been “never in a position to provide full-time care” to the child “due to relationship issues or being in custody”, was observed during contact visits to engage well with the child in play, to “attend to her personal needs”, and to “show awareness in terms of environmental risks” (eg to the child’s safety).
(e)Mr Butterworth reported in 2010 that the father had been given information about parenting support courses, had several times told case-workers that he would advise Care and Protection Services about programs he would like to take part in, but had subsequently failed to identify programs in which he was interested.
Evidence – the permanent care placement
Expert evidence
Mr Butterworth’s Child Protection Assessment Report prepared in February 2010 quotes publications about:
(a)the need for young children to form close relationships with caregivers in their early years, in order to equip them for satisfactory relationships in later life and more generally in the interests of their “affective, behavioural and cognitive development”;
(b)the damaging effects, even for very young children, of growing up in an environment of domestic violence, in particular the effects on their developing brains.
That general evidence was not challenged, and I have no reason to doubt its accuracy.
Care provided by the adoptive mother
There was clear evidence that the adoptive mother was providing a secure and loving home for the child. Much of that evidence was provided by the adoptive mother, but its general tenor was also supported by the observations of case-workers and by a second report prepared by Ms Connor.
Having recommended in 2009 a long-term foster care placement with a view to adoption, Ms Connor provided the second report about the child, dated 1 May 2014. Among other things, the report addressed:
(a)the nature of the relationship between the child and the adoptive mother;
(b)the importance of a child’s attachment to a “primary attachment figure”, and the risks of disrupting an existing attachment including in particular the risks of removing her from her current carer, the adoptive mother;
(c)the child’s development since she was assessed by Ms Connor in October 2009;
(d)the child’s understanding of her current arrangements, of her birth parents, and of her relationship with the birth parents and with her birth family more broadly;
(e)the short- and long-term impact of an adoption on the child, and the child’s wishes about her ongoing care arrangements;
(f)whether circumstances justified the child being adopted by the adoptive mother, and whether this was the appropriate time for any such adoption; and
(g)in summary, whether an adoption would be in the child’s best interests.
In preparing her report, Ms Connor referred to:
(a)the report that she had prepared in 2009, before the child had been placed with the adoptive mother, in relation to the child and the parenting capacity of her birth family, including Ms Connor’s conclusion then that “foster care is recommended with a view to adoption”;
(b)reports from case-workers in 2013;
(c)a report prepared in 2013 by the child’s pre-school teacher;
(d)an interview with the child’s then current case-worker, who among other things had supervised the child’s contact with members of her birth family over a period of three years;
(e)direct observation of the child and the adoptive mother at their home;
(f)the Bene-Anthony Family Relations Test (Children’s Version), administered by Ms Connor to the child in April 2014.
It is unnecessary to recite all the material provided by Ms Connor, but it is worth noting that one of the significant features of this case is the clear evidence that the child’s first 12 months were quite unsettled, and left her with ongoing feelings on insecurity and resulting anxiety. By the age of nine months, her primary attachment was the grandmother, but as indicated above, that carer’s capacity to look after the child deteriorated rapidly in subsequent months. Ms Millar reported that, when the child was first placed with the adoptive mother at the age of 21 months, she:
was independent and would change her own nappy, feed and settle herself. This is unusual for a child of her age and is often a sign of neglect.
This has been addressed to a considerable extent by the placement with the adoptive mother. Ms Millar noted that:
Now [the child] has learned to enjoy and be comfortable with being dependent on her primary care giver.
However, the child still suffered considerable anxiety, especially about change. In 2014 she started school, and needed a lot of support to cope with being separated from the adoptive mother. Ms Connor recorded the adoptive mother’s report:
After [the child] started school, [the adoptive mother] estimated she would say “I love you” fifty times a day to her, ask her if they would be together “forever” and demand reassurance that [the adoptive mother] was going to collect her after school. [The adoptive mother] said she had to prepare [the child] in case she was inadvertently delayed for any reason. [The child] would say to her “But if you don’t come I’ll have to get another Mummy and I don’t know where to find one”. [The child] worried what would happen to her if [the adoptive mother] died and constantly, ten to fifteen times a day (and given she was at school for six hours, [the adoptive mother] noted this was a lot), told her she loved her, that they would be together forever and that she was the best Mummy ever.
Ms Connor concluded:
[The child] has been in the care of her current foster carer, [the adoptive mother], for more than 3½ years. She has regular contact with significant members of her birth family. [The child] was well attached to [the adoptive mother] and very settled and secure. Disrupting this bond would be very detrimental to her. [The adoptive mother] is very committed to [the child] and makes every effort to facilitate her contact with her birth family and knowledge of her origins. Making an Adoption Order would ensure [the child]’s stability and security.
Another significant matter in assessing the child’s best interests is the degree to which the child’s knowledge and contact with her birth family can be maintained, but without creating ongoing insecurity. This was a particular task taken on conscientiously by the adoptive mother. I note in that context:
(a)Ms Millar’s report of 12 contact visits with the child, involving one or more of the birth parents, the grandmother, the mother’s stepfather, the father’s brother, and the mother’s half-brothers, between May 2011 and April 2013;
(b)that the adoptive mother had taken the child to visit the father in the AMC three times between October 2010 and February 2011; and
(c)Ms Millar’s summary in 2013 that:
[The child] has been observed to enjoy her contact with her birth family. [The child] is happy to kiss and cuddle her birth family members. Contact has been positive and once the allocated time has ended, [the child] is happy and comfortable to leave again with [the adoptive mother].
Consideration
Abandonment etc (s 35(1)(c))
Abandonment and desertion
Provisions along the lines of s 35(1)(c) of the Adoption Act (at [13] above) have been interpreted as requiring an element of “morally reprehensible conduct” on the part of a parent (In the Matter of the Adoption of B [2013] ACTSC 260 at [16]; In the matter of an adoption of D [2008] ACTSC 44; 39 Fam LR 345 (D) at [17] to [22]), at least in relation to abandonment and desertion. It seems that the focus of previous judicial consideration has been on the meaning of abandoning or deserting a child (actions which are not relied on in this case), but the previous consideration of such matters may be indirectly relevant.
Refshauge J in D referred to previous explanations of “abandoned” and “deserted” (Re X and the Adoption of Children Ordinance 1965 (1984) 2 FCR 533 (Re X); In the matter of CB and Ors (No 2) [1982] VR 681 (CB), and cases cited therein), saying that:
(a)“abandoned” denoted “a morally culpable leaving of a child without anyone to provide physical care for him or her” (at [19]);
(b)“deserted” denoted “leaving a child for whom one is legally and morally responsible without good cause or excuse” (at [20]); and
(c)“deserting” a child is less serious than abandoning it (at [20]).
It is clear, however, that “abandoning” and “deserting” a child both involve some moral culpability, referred to in Re X as “morally reprehensible conduct” (at 537).
Ill-treatment
Refshauge J also considered ill-treatment, noting at [21], by reference to CB, that it involved “[k]nowingly and without moral justification causing physical pain or mental suffering” to a child.
The child’s insecurity and anxiety that is described by case-workers and the psychologist may in fact justify the description of “mental suffering”, but I suspect that, when coupled with the reference to “physical pain”, the “mental suffering” included in “ill-treatment” is more immediate mental suffering than the gradual development of insecurity and associated anxiety.
I was accordingly not satisfied that the evidence established “ill-treatment” of the child.
Neglect
The Director-General noted that the Final Orders made in 2010 by the Childrens [sic] Court (at [7] above) were made following a determination that the child was “in need of care and protection” under s 345 of the Children and Young People Act 2008 (ACT) (the CYP Act), which was relevantly as follows:
(1)For the care and protection chapters, a child or young person is in need of care and protection if—
(a)the child or young person—
(i) has been abused or neglected; or
(ii) is being abused or neglected; or
(iii) is at risk of abuse or neglect; and
(b)no-one with parental responsibility for the child or young person is willing and able to protect the child or young person from the abuse or neglect or the risk of abuse or neglect.
Section 343 of that Act defined “neglect” as follows:
343What is neglect?
In this Act:
neglect, of a child or a young person, means a failure to provide the child or young person with a necessity of life if the failure has caused or is causing significant harm to the wellbeing or development of the child or young person.
Examples—necessities of life
1 food
2 shelter
3 clothing
4 health care treatment
The concept of “neglect” in the CYP Act has a different significance and a different operation from that concept used in the Adoption Act. The CYPAct test for when a child is “in need of care and protection” has two limbs, namely:
(a)that the child is neglected, in that there is a failure to provide him or her with any of the “necessities of life” and that the failure causes significant harm to the child’s well-being or development; and
(b)that no-one with parental responsibility for the child is willing and able to protect the child from the neglect.
That is, the test focuses on the status or condition of the child rather than the conduct of any other person in particular.
In contrast, in relation to dispensing with consent under s 35(1)(c) of the Adoption Act, the question is the conduct of the birth parent who has refused to consent to an adoption.
In summary, a child may be “neglected” through no fault of a birth parent, and a birth parent may have neglected, for the purposes of the Adoption Act, a child who is or was not “neglected” under the CYP Act.
For that reason, while the Director-General may be correct in submitting that the determination by the Childrens [sic] Court that the child was neglected for the purposes of the CYP Act “supports the conclusion that [the child] was at risk of abuse or neglect in her parents’ care”, that determination does not establish that either birth parent had neglected the child for Adoption Act purposes.
On the other hand, the evidence relied on by the Magistrate in making that determination (to the extent that such evidence is before me) is clearly relevant in determining the question that arises under the Adoption Act.
No explanation of “neglect” emerged from the case law mentioned by the Director-General, or other case law that I identified myself. However, since all the other elements of s 35(1)(c) appear to require some degree of moral culpability, it seems reasonable to apply a similar approach to considering whether “neglect” has been established for that provision.
In relation to the mother’s conduct, I noted:
(a)her continuing drug abuse;
(b)her failure to care for the child properly while the child was still living with her, her delivery of the child into the care of the grandmother (at [32] above), and her failure to make more than occasional visits to the child after that; and
(c)her failure, after handing the child over to the grandmother, to maintain a sufficient awareness of the child’s care arrangements to enable her to recognise and respond to the serious deterioration in the grandmother’s mental health, one effect of which was to leave the child regularly in the care of another person apparently unknown to the mother.
Some of the evidence of the mother’s neglect of the child suggested that the neglect might have been attributable to the mother’s immaturity, ignorance, and lack of proper family and community support. However, against this evidence must be set the evidence of the mother’s continuing substance abuse, her refusal to recognise her lack of parenting skills, her lack of interest in pursuing the development of those parenting skills such as by attending courses proposed by case-workers, and, ultimately, her decision to hand the child over to the care of the grandmother without any subsequent monitoring of either the child’s welfare or of the grandmother’s continuing capacity to care for the child.
I concluded that the mother’s conduct had amounted to neglect of the child.
In relation to the father’s conduct, I noted:
(a)the father’s treatment of the mother;
(b)his incarceration during the child’s first year (noting that this incarceration appears to have resulted from his serious assault on the mother);
(c)his (later abandoned) disputing of his paternity when the child was very young;
(d)the evidence that after he was released from prison in July 2009 (around the time that the child was handed over to the grandmother) and before April 2010 when he was again incarcerated, he visited the child only six times.
The father’s incarceration for a significant proportion of the child’s life before she was placed with the adoptive mother is certainly an explanation for his apparent failure to provide any kind of day-to-day care, emotional support or financial support to the child. However, those periods of incarceration resulted from the father’s own actions, all of which must in the absence of challenge be seen as morally culpable.
The evidence that a domestic violence order was in place between the mother and the father for some time during the period when the child was in the care of her birth mother or the grandmother may have had some impact on the father’s capacity to spend extended time with the child, but does not seem to explain the father’s apparent failure to pay any serious attention to the well-being of the child when he was in the community (not only, or necessarily, by spending time with her, but, for instance, by taking steps to satisfy himself that the child was in the care of a person who could be trusted to look after her).
Having regard to the father’s incarceration and the circumstances of that incarceration, taken together with the absence of evidence of any significant contribution by the father to the child’s physical or emotional welfare, or any attempt to find out whether the child was being properly cared for, even during his periods in the community, I concluded that the father had effectively neglected the child, in various different circumstances, since her birth.
Finally, while it is possible that a genuine dispute about the paternity of a child might explain or in some circumstances excuse “neglect” of that child while that dispute was unresolved, the disputing of paternity in this case did not appear to have been genuine, it was not relied on in explaining any failure by the father during the period in which that dispute was “live”, and I did not consider it as any kind of an excuse for the neglect that I found.
Failure to discharge parental obligations (s 35(1)(d))
The Director-General’s relatively close supervision of the child and her birth parents from before the child’s birth, and the relatively swift action by the Director-General in removing the child from the mother and grandmother before she was a year old, made it more difficult to find that either birth parent had failed, for a period of not less than one year, without reasonable excuse, to discharge the obligations of a parent of the child.
Once the child was removed from the grandmother and placed in foster care, each parent had an “excuse” for not providing day to day care for the child. Being reliant on Centrelink benefits, or being incarcerated, may also be excuses for the apparent failure of both parents to provide financial support. The scope for the parents offering any kind of emotional support after the child was removed from family care may also be limited, because it seems that contact visits with children in care are (no doubt for good reason) limited and fairly tightly regulated. For this reason, I did not rely, to establish a failure to discharge parental obligations, on the evidence that between July 2009 and April 2010 each parent saw the child on a total of six occasions.
Whether the removal of the child by the authorities constituted a “reasonable” excuse for a failure to discharge parental obligations is a more difficult question, although I note Refshauge J’s discussion in D at [25] of the case of Re an infant Kand the Adoption of Children Act [1973] 1 NSWLR 311 at 345-6, in which it was held that where a child had been made a ward of the state and the parents’ attempt to have the child returned to them had been refused, the child’s status was a reasonable excuse for a failure to discharge the obligations of a parent.
The Director-General noted that, in the four years since the final care and protection order was made in April 2010, neither parent had applied for that order to be revoked, and appeared to contend, on that basis, that it was open for me to find that each parent had failed to discharge his or her obligations as a parent for a period of at least one year.
The evidence that is before me suggests that a revocation application by either parent was unlikely to have been successful. However, I note:
(a)the youth of both the parents and their generally chaotic lives;
(b)the impression likely to be given to the parents by the making of something described as a “final” care and protection order;
(c)the evidence of substantial efforts, outlined at [9] and [10] above, by case-workers to advise the parents about the proposal for the child to be adopted and, apparently, to persuade them to consent to such adoption and, in contrast, the absence of any evidence suggesting that case-workers or anyone else had advised the parents that revocation of a “final” order was available within the legislative scheme in appropriate circumstances, and advised them about the nature of those circumstances.
Accordingly, I could not be satisfied:
(a)that the parents or either of them knew that revocation of the final order was a possibility; or
(b)that the failure to seek the revocation of the final order and the return of the child was a considered and informed decision by either parent.
In those circumstances, I was not willing to find, in reliance on the parents’ failure to seek revocation of the final care and protection order, that either parent had, for a period of not less than one year, without reasonable excuse, failed to discharge the obligations of a parent.
Other circumstances justifying dispensing with requirement for consent (s 35(1)(e))
The Director-General submitted that the child’s need for security and stability, as documented by Ms Connor and case-workers who provided affidavits in this case, provided a sufficient basis for dispensing with the consent of the birth parents.
The Director-General further relied on the proposition, also supported by most of the evidence before me, that it would be in the best interests of the child that her adoption by the adoptive mother was able to proceed, sooner rather than later, and that dispensing with the birth parents’ consent was necessary to permit this.
I did not disagree with the applicant’s submissions as to the child’s need for security and stability, or as to how that security and stability could best be ensured. What was not clear was whether the conclusion that the proposed adoption would be in the child’s best interests itself amounted to “other circumstances” justifying dispensing with the retirement for the birth parents’ consent to an adoption.
Under ss 4(a) and 5(1) of the Adoption Act, the best interests of the child are respectively the paramount consideration in the adoption of a child and the paramount consideration in making a decision under that Act. However, there is some uncertainty in the case law about whether the best interests of the child are, of themselves, a circumstance that might justify dispensing with the consent of birth parents to an adoption.
In Re X, the Federal Court of Australia (McGregor, Gallop and Neaves JJ) at 538 identified a series of “special circumstances” (as the applicable legislation then required) which their Honours said were “not immediately referable to the welfare of the child” (although one might think that circumstances such as that if the child could not be adopted “the child will not return to its own country [and] it will not have parents” were in fact relevant to the welfare of the child).
Their Honours concluded that the circumstances they found would satisfy the “special circumstances” test “apart from any consideration as to the welfare of the child”, and accordingly, as I read the decision, did not need to decide whether a finding that adoption would be in the best interests of the child was of itself a special circumstance sufficient to justify dispensing with a requirement for the consent of a birth parent. The Federal Court overturned Blackburn CJ’s refusal (see Re an application for the adoption of X (1984) 53 ACTR 21) to dispense with the requirement of the mother’s consent; however, their Honours reached their conclusion without explicitly rejecting Blackburn CJ’s view at 24 that, although the equivalent of s 35(1)(e) of the Adoption Act conferred a wide discretion:
it would be an abuse of such discretion to make the order sought on grounds which have nothing to do with the substantive facts, as known, of the child’s relationship to the person whose consent is material, but relate only to the applicants and to the events which have occurred since the applicants came into contact with the child.
I am inclined to share Blackburn CJ’s view to the extent that it means that the fact that an adoption would be in a child’s best interests is not, by itself, a circumstance that would justify dispensing with the consent of the birth parents (a view apparently shared by Connolly J in In the matter of an application for adoption of S and in the matter of the Adoption Act 1993 [2003] ACTSC 111; 31 Fam LR 68 at [9]).
Accordingly, I would have hesitated in the current circumstances to rely solely on the desirability of the child’s adoption proceeding as the basis for dispensing with the birth parents’ consent.
On the other hand, having found that the birth parents had both neglected the child, the desirability of adoption in the best interests of the child provided important support for a decision to exercise the discretion to dispense with the consent of the birth parents.
Conclusions
It is a serious decision to deprive birth parents of their legal relationship with their child, and even more serious to do so by permitting the child to be adopted without their consent.
The Adoption Act makes various provisions relating to the rights of birth parents which, while clearly not a substitute for retaining that legal relationship, may ameliorate to some extent the effects of losing that relationship.
For instance, under s 39D(3) of the Adoption Act, an adoption plan must be provided to the court before an adoption is approved (ss 39D(1) and (2)), and such a plan may include:
(c)arrangements for ongoing contact between the child or young person and 1 or more of the following:
(i)a parent of the child or young person;
(ii)a person whose consent is required for the adoption;
(iii)a person who otherwise has a significant relationship with the child or young person;
Section 40 of the Adoption Act provides that adoption orders may be made subject to conditions including, by agreement between the birth parents and adoptive parents, that the birth parents have a specified right of access to the child, or that the adoptive parents are to provide specified information about the child that will be given to the birth parents as specified.
On the other hand, it is also a serious matter to deprive a child of the stability that can be provided by her adoption into a loving family, when it is apparent that it will be a long time, if ever, before her birth parents (or even one of them) can offer that kind of loving stability to their child.
The birth parents in this case were adults (although it must be noted that the mother was only 17 when the child was born). There may be many reasons why, at the point when their consent was dispensed with, they appeared to be unable to care adequately for their child, and the material put before me, which suggested that both parents had grown up in more or less dysfunctional households, may provide some of those reasons.
However, having identified a basis for dispensing with the consent of the birth parents, and having concluded that the adoption would be in the best interests of the child, I considered that the undoubted disadvantages suffered by the parents in their own lives could not justify risking their child’s future by allowing them to obstruct her security as a member of a safe family, on the off-chance that at some point in the future their own lives will change so that they are able to provide adequate care for her.
For those reasons, I made orders dispensing with the consent of each birth parent to the adoption of the child.
| I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Nishadee Perera Date: 25 May 2017 |
[i] The report setting out this material (annexed to Mr Butterworth’s affidavit) refers to this event taking place in November 2010, but this appears to be a mistake, since the report was finalised in February 2010.
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