In the matter of the adoption of PT
[2018] ACTSC 14
•2 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of PT |
Citation: | [2018] ACTSC 14 |
Hearing Date: | 19 October 2017 |
DecisionDate: | 2 February 2018 |
Before: | McWilliam AsJ |
Decision: | 1. The application is dismissed. 2. The applicant is to pay the respondent mother’s costs of the proceedings. 3. The operation of order 2 is stayed for seven days from the date of these orders. |
Catchwords: | ADOPTION – Application to dispense with consent of birth parents – whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – whether application outstanding in Childrens Court produces uncertainty – application dismissed |
Legislation Cited: | Adoption Act 1993 (ACT) ss 4, 5, 7, 35, 97, pt 3, div 3.3 |
Cases Cited: | Baldry v Jackson [1976] 1 NSWLR 19 Brookfield and Septic Products Australia Pty Ltd (In Liq) v Davey Products Pty Ltd [1998] FCA 1201 Watson v Nikolaisen [1955] 2 QB 286 at 295 |
Parties: | Director General, Community Services Directorate (Applicant) [not published] (Respondent) |
Representation: | Counsel L Holley (Applicant) D Lee (Respondent) |
| Solicitors ACT Government Solicitor (Applicant) Gabbedy Milson Lee (Respondent) | |
File Number: | AD 3 of 2017 |
Introduction
The application before the Court is brought by the Director-General, Community Services Directorate (applicant) in respect of a child who is now five years old. The identity of the child and the birth parents has not been published, pursuant to s 97 of the Adoption Act 1993 (ACT) (Act). The child will be referred to as PT.
PT was removed from her birth parents in September 2012 by Child and Youth Protection Services (CYPS) when she was just two weeks old. In August 2013, final care and protection orders were made under the Children and Young People Act 2008 (CYP Act) until PT attains the age of 18 years.
The present carers of PT have indicated a willingness to adopt her. However, under s 26 of the Act, an adoption order for a person under the age of 18 must not be made unless consent has been given by each birth parent of the child.
That requirement gives rise to the present application, which was filed on 7 February 2017 and seeks to dispense with the consent of the birth parents. Division 3.3 of the Act creates a detailed regime relating to the giving of consent for the adoption of a child, and for the Court dispensing with consent.
The birth mother does not consent to the adoption of her child by the foster carers and is a respondent to this application. The birth father has also not signed any consent in formal compliance with pt 3 of the Adoption Regulation 1993 (ACT) (Regulation). He did not appear on the application.
As will be seen from the reasons that follow, the application is premature given that the birth mother has some relationship with the child, is seeking to increase contact with her and may ultimately seek to regain the care of her child through the Children’s Court. I have not found that any of the preconditions to the exercise of power set out in s 35 of the Act presently exist. In any event, even if the Court had power, the applicant has not discharged his onus to satisfy the Court that it is appropriate in the exercise of discretion to make such an order in respect of either of the birth parents now.
Power of the Court to dispense with consent
The Court’s jurisdiction to determine the proceedings is expressly provided for by s 7 of the Act. Section 35(1) of the Act (located in div 3.3 of the Act) is the critical provision for the purpose of this application. It 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) 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.
In the present case, the applicant relies on paras (c), (d) and (e) above as the ‘grounds’ enlivening the discretionary power of the Court.
The present application was heard on the basis that an application for adoption by the present carers was intended. Section 35(3) of the Act permits an application to dispense with consent to be heard before an application for adoption has been filed.
Relevant legislative provisions
The objects of the Act are set out in s 4. Those that appear to be of greater significance to the present case are:
(a) ensuring that the best interests of the child … are the paramount consideration in the adoption of a child …; and
(b)providing an adoption process that promotes the wellbeing and care of children …in a way that recognises the child’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
…
(d)ensuring that adoption is centred on the needs of the child… rather than an adult wanting to care for a child…; and
…
(f) recognising a birth parent’s involvement in making decisions about their child’s future;
…
Section 5(1) of the Act is also 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. However, that does not mean that it is the overriding consideration or the only consideration: see In the matter of an adoption of D [2008] ACTSC 44 (D) at [37] and the cases there-cited.
Section 5(2) of the Act then provides (relevantly):
(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 …;
(b) the child’s … age, level of understanding, level of maturity, gender, and personal characteristics;
(c)the child’s … physical, emotional and educational needs;
(d) the views expressed by the child …;
(e) the relationship the child … has with the parents, any siblings and any other relatives;
(f) the relationship the child … has with the adoptive parents;
(g) the suitability and capacity of the adoptive parents to meet the child's … needs;
(h) the alternatives to adoption for the child … to secure permanent family arrangements.
These are mandatory considerations. That is important. If the applicant has not placed before the Court evidence sufficient for proper, genuine and realistic consideration of the above matters, then the Court is unable to lawfully exercise its jurisdiction.
Evidence
The evidence relied upon by the applicant was led through a number of affidavits affirmed by Ms Jennifer Shoer, the Manager of the Adoptions Team for CYPS, Community Services Directorate. In addition, the applicant also read the affidavits of Ms Kathryn Smyth affirmed 13 July 2017 in purported compliance with the requirements of rr 61 and 64 of the Court Procedures Rules 2006 (ACT) (Rules) for service for the application and supporting affidavits on each of the birth parents.
The applicant also relied on a transcript of the reasons of Master Mossop (as his Honour then was) delivered on 12 June 2014 in respect of previous appeal proceedings before this Court. The appeal was from final care and protection orders made in respect of PT on 1 August 2013.
The provisions of the Evidence Act 2011 (ACT) (Evidence Act) apply to all proceedings in an ACT court: see s 4. Similarly, the Rules also apply to these proceedings: see r 4.
That position is distinguishable from proceedings under the Children and Young People Act 2008 (ACT) (CYP Act). Under s 716 of the CYP Act, the court is not bound by the rules of evidence and may inform itself of a matter in any way that it considers appropriate.
The distinction has significance in this case, because much of the evidence annexed or exhibited to the affidavits of Ms Shoer appeared to be drawn from earlier proceedings before the Children’s Court (known as the Childrens Court under s 287 of the Magistrates Court Act 1930 (ACT) notwithstanding this does not appear to be grammatical).
Evidence admitted in the Children’s Court may be inadmissible under the provisions of the Evidence Act in this Court, although the mother did not object to its tender in the present proceedings. Of particular concern were the medical reports exhibited to the affidavits of Ms Shoer. It was unclear how that evidence was said to be relevant in these proceedings. Had that been properly articulated, the mother may have objected to it.
First, if the material was relied upon as expert medical evidence, then the deponent, a solicitor and more importantly a lay witness, unable to be cross-examined as to the basis of the opinion presented, was the wrong person to adduce the evidence.
Second, even if the evidence was properly adduced, only one of the reports appeared to comply with the requirements of the expert witness code of conduct (sch 1 to the Rules), that being the Comprehensive Family Assessment prepared by Ms Kim Lehmann, Clinical Psychologist in 2013.
Third, much of the medical evidence was years old. It was difficult to see how it could be relevant to the present application, because the factual history, upon which the recommendations in the medical reports was based (much of which was itself second hand hearsay), had changed.
Fourth, the two more recent medical reports in 2017 appeared to be limited to addressing the developmental difficulties of PT. That is a matter for consideration in the exercise of the Court’s discretion under s 5(2)(b) of the Act extracted above. However, it is a discrete issue and can only take the evidence so far.
While the mother did not object to the applicant’s evidence, that does not mean the Court will uncritically accept everything placed before it. I consider that the evidence was insufficient in critical respects (discussed below). The evidentiary difficulties I have referred to above also resulted in it ultimately being given little weight.
The respondent birth mother relied on her own affidavit affirmed 28 June 2017. She was not cross-examined, she deposed to matters within her own direct personal knowledge and the contents of her affidavit appeared to be plausible. I have accepted her evidence.
Factual findings
There is no dispute that PT was removed from the care of her mother and father in September 2012 at the age of two weeks, following a report that PT had been dropped by the father and an allegation that no medical attention was sought following that incident.
The applicant has had responsibility for PT since the time of her removal in 2012, via a series of emergency, interim and then final parenting orders made in the Children’s Court. PT has resided with her present foster carers since she was four months old.
The mother gave a first-hand account of what she did after the child was dropped. I prefer her evidence to the hearsay accounts relied upon by the applicant. The mother is in the best position to know what she did in September 2012. I accept her evidence that she monitored PT for 20 minutes and then took her to see a doctor the same night, whereupon she was advised there was nothing to be concerned about. However, whether the mother sought medical assistance following the incident makes no difference to the consideration below.
In any event, the applicant took a view about that incident and intervened. That resulted in an assessment being undertaken of both the birth mother and birth father in January 2013.
At the time of the assessment, the mother was 19 years of age. She was co-operative, well-groomed, had never used drugs and did not have any recorded issues with impulse control.
However, the birth father, residing with the mother at the time, had difficulties with anger management and there was domestic violence apparent in their relationship. There was also an acrimonious relationship with their residential neighbour, which at the time was considered to contribute to an unsafe living environment.
Each of the birth parents was assessed to have a low IQ, a tenuous financial position and lack of protective capacity and planned strategies for keeping PT safe. Both parents also had difficulty accepting support from services that were available to assist them with parenting.
It is unnecessary to detail further the history leading to the orders being made by the Children’s Court because the correctness of those orders is not in dispute here.
On 1 August 2013, orders were made in the Children’s Court for the applicant to take over responsibility for PT until she attained the age of 18.
Contact between the mother and PT was initially on a monthly basis. However, the applicant then delegated the case management of PT to Barnardos, who in 2015 determined to reduce the frequency of contact from once a month to twice a year, generally to coincide with PT’s birthday and at Christmas.
The mother has attended all supervised contact. During these visits, she colours in with PT, has baked a cake for PT’s birthday, brings her puzzles, and shares snacks that she has brought.
The mother’s evidence is that PT is shy for the first twenty minutes or so during contact, which she understands, however PT quickly comes out of her shell and goes straight to her. During contact, PT shadows her mother and copies her. In December 2015, PT asked, ‘Are you my mummy?’ The mother indicated that she was. During subsequent contacts, PT has said, ‘come with me mum. We are going to another room’ and ‘mummy can you come home with me?’
On 6 June 2016, the mother commenced proceedings in the Children’s Court seeking to restore contact with PT to once a month. The submission for the mother, which I accept, is that she appreciates the bond between the carers and PT and accordingly is seeking a gradual restoration, by first seeking regular contact. The affidavit evidence did not go so far as to depose to gradual restoration. However, the inference that there remains such a possibility is open from the remainder of the affidavit and I have proceeded on that basis.
The mother is no longer in a relationship with the birth father.
In November 2016, Dr Bragg conducted a review and recorded that the main concern of one of PT’s carers was ‘emerging problems associated with [PT’s] contact with her birth family and how to manage the contact so that it is in [PT’s] best interests.’
Dr Bragg further records the carer as saying, ‘he thinks that the change in the relationship is related to the birth parents’ struggle to accept that [PT] will not be returning to their care.’
On 7 February 2017, the applicant commenced the present proceedings in this Court.
The proceedings in the Children’s Court are yet to be heard. It appears from the correspondence of Ms Smyth dated 17 May 2017 that the proceedings have been adjourned at the request of the applicant, pending the resolution of this application.
Whether s 35(1)(c) applies in respect of the birth mother
In D, Refshauge J stated at [6]:
6. To make an order for adoption and sever the family ties with a child's parent is, of course, a serious matter. Such is clear from the unanimous decision of a Full Court of the High Court of Australia in Mace v Murray (1955) 92 CLR 370 especially when referring at 380 to "the grave responsibility which the application placed" on the judge hearing an adoption application, to the fact that "the natural ties between mother and child ought not to be lightly broken" and to the need for "powerful reasons ... [to] be shown before a court can properly deem it just and reasonable, notwithstanding a mother's objection, to sever the relationship between her child and herself and make the child for most purposes of the law ... the child of other persons." As was said to like effect in Hitchcock v WB [1952] 2 QB 561 at 568 "[a]n adoption order is an order of the most serious description."
The above statement places the context for what follows. It is the applicant who bears the ‘heavy onus’ in seeking to persuade the Court the birth parents’ consent should be dispensed with: Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915 per Moffitt P at 918. It is not for either birth parent to demonstrate here that he or she has recent and effective capacity to parent. The question is whether the Court ought dispense with the birth parents’ consent so as to enable the familial tie to be permanently severed.
The applicant relies on ‘neglect’ and ‘ill-treatment’ as enlivening s 35(1)(c) of the Act. The words ‘abandoned or deserted’ may thus be put to one side.
At a general level, s 35(1)(c) has been construed as requiring an element of ’morally reprehensible conduct’: D at [17] per Refshauge J, citing Waghorn v Waghorn (1942) 65 CLR 289 at 295-296; Watson v Nikolaisen [1955] 2 QB 286 at 295; and Re An Application for the Adoption of X (1984) 71 ACTR 21 (at 23).
As to ‘neglect’, Penfold J gave some consideration to the term in the recent decision of In the matter of the adoption of MSN [2017] ACTSC 92 (MSN) at [63]-[71]. Her Honour distinguished the term from ‘neglect’ as defined in s 343 of the CYP Act, on the basis that the two had a different focus, with the Act focussing on the conduct of the birth parent. Her Honour went on to state that factual findings concerning ‘neglect’ under the CYP Act did not translate to factual findings under the Act, although the same evidence might be relevant in the separate proceedings.
As to ‘ill-treatment’ of a child, the term has been held to mean knowingly and without moral justification causing physical pain or mental suffering to the child: D at [21]; referred to with apparent approval recently in the decision of MSN at [60]. Consistent reasoning is also found in the judgments of In the matter of CB and Ors (No 2) [1982] VR 681 at 693 and The King v M [1946] VLR 106 at 114.
The child was only in the care of the mother for two weeks. During that time, the only conduct relevant to the allegation of neglect or ill-treatment was that the child was dropped by someone else. On the evidence before this Court, the dropping of the child in her first two weeks of birth by the father does not appear to be anything other than an accident. The morally reprehensible element of the conduct is entirely missing.
There was a further submission by the applicant that the birth parents were unable to consistently maintain their home to a suitable standard of cleanliness and that the birth mother in the two weeks after the child was born was observed to be underfeeding PT and that PT had failed to gain weight since her discharge from hospital.
The evidence relied upon does not support that submission. On 4 September 2012, the day the mother was discharged from hospital with PT, CYPS After Hours Service conducted a visit to the residence of the birth parents. The home was ‘observed to be tidy and no concerns were noted.’
On 5 September 2012, the CYPS conducted a further home visit. Again, the unit was observed to be ‘clean and tidy with significant progress made on removing clutter. [PT] was observed sleeping in her bassinette appropriately dressed and wrapped in soft blankets.’
On 6 September 2012, CYPS noted ‘dirty nappies and bags of rubbish’ in the kitchen. The living area and bedroom ‘were cluttered and untidy’. However, on 10 September 2012, there was a significant improvement observed in the home conditions. The home was described as ‘tidy, clean and warm’. PT was observed to be settled and fed.
PT was removed from her birth parents’ care on 12 September 2012.
At best, the evidence is that on isolated days immediately after the birth of the child, the house was not always in a state of cleanliness that was acceptable to CYPS. Further, there could have been many reasons why a child did not gain weight in the first two weeks, including difficulties in breast feeding, and that matter was not explored in the affidavit evidence.
Importantly, neither the Children’s Court, nor this Court on appeal from that decision, made a finding that PT had been neglected or ill-treated. Even then, on the authorities above, such a finding would not be determinative here because the test for a care and protection order under the CYP Act is different.
The finding of Mossop M in this Court was that there was a risk of abuse or neglect if a care and protection order was not made. That is a very different factual finding from that required to engage s 35(1)(c) of the Act.
I find that there is insufficient evidence before the Court to establish that PT was in fact neglected or ill-treated as those words are understood through the authorities in the context of the Act. An application based on s 35(1)(c) is not made out.
Whether s 35(1)(d) applies in respect of the birth mother
Similarly with ground (d), the evidence does not establish that the mother has failed for more than a year, without reasonable excuse, to discharge the obligations of a parent.
There were court orders in place lawfully depriving the birth parents of the opportunity to ‘discharge’ their parental obligations. The mother contested the application in the Children’s Court, appealed the decision which was determined in June 2014, and has since June 2016 been seeking to increase her contact with the child. She has effectively been continually seeking to discharge her parental obligations ever since PT was removed from her care.
The applicant submitted, through the affidavit of Ms Shoer and oral submissions, that there was a residual natural and moral duty of a parent to show affection, which had somehow not been discharged here, because the application filed by the mother in the Children’s Court seeks only an increase in contact.
That submission ought be rejected on the facts as well as the law. With regard to the facts, I find that the mother has attempted to demonstrate affection, care and interest to the extent that she was permitted to do so, given that the applicant (through Barnardos) reduced contact to two visits a year when the child was but three years old.
Further, as submitted by the mother, the fact that her application in the Children’s Court seeks an increase in contact rather than a complete return of custody demonstrates that the mother has some insight into the welfare of her child and an understanding that PT has formed an attachment to her carers over the years. In my view, the mother’s restraint is an indicator of a change in her attitude, placing PT’s best interests over her own.
With regard to the law, the applicant supported the submission by relying upon the decision of Refshauge J in D. However, properly analysed, that decision does not support the proposition for which the applicant contends. His Honour stated at [23]-[25]:
23. The ground set out in par (d) has also received some consideration. In Re P (infant) [1962] 1 WLR 1296; [1962] 3 All ER 789, Pennycuick J said of s 5(2) of the Adoption Act 1958 (UK), which is relevantly in identical terms, at (WLR) pp1301-2 (and in All ER at 793-4 although repeated in slightly different words):
Sub-section (2) refers in general terms to the obligations of a parent with no qualifications; and it seems to me that in this sub-section the expression `obligations of a parent' must include first the natural and moral duty of a parent to show affection, care and interest towards his child; and second as well as the common law statutory duty of a parent to maintain his child in the financial or economic sense.
These words were adopted by Harris J in the Supreme Court of Victoria in R and R v E [1974] VicRp 36; [1974] VR 291 at 297.
…
25. The issue of whether there is a reasonable excuse has also been considered. Thus, it has been that the fact that a child is made a ward of the State and the parents seek the return of the child to them, the refusal by the Minister cannot result in a finding of a failure to support the child without reasonable cause: Re an infant K and the Adoption of Children Act [1973] 1 NSWLR 311 at 345-6. …
There is nothing in the above reasoning that suggests that the mother’s ‘natural and moral duty’ to show affection, care and interest continues unaffected by either the orders of the Children’s Court or the subsequent decision by Barnados to reduce the mother’s contact. Such orders or decisions are outside the mother’s control and may also constitute a ‘reasonable excuse’ for any perceived lack of demonstrated affection. In this case, I have found that they do.
The applicant’s reliance on D is therefore misconceived in the circumstances of this case where the mother has actively sought to care for and gain access to her child, and when she sees her, she is loving and giving.
For those reasons, s 35(1)(d) is not a ground for dispensing with the mother’s consent.
Whether s 35(1)(e) applies in respect of the birth mother
As to ‘any other circumstances’ in para (e), this has been described as a ground of wide import, which cannot properly be circumscribed, though it has to be considered judicially: D at [30]. 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].
The applicant contends that there are ‘other circumstances’ here to justify dispensation. They are considered individually and cumulatively below and as part of that consideration, I have taken into account the matters set out in s 5(2) of the Act above as those factors are relevant to whether the circumstances ‘justify’ dispensation. I have not set out the specific findings under each paragraph of s 5(2) because in large part the reasoning on those matters is subsumed by what follows in addressing the submissions of the applicant.
It was submitted that the child has been out of the parents’ care since September 2012 and the carers are the only parents PT has known on a long term, day-to-day basis.
There are two parts to that submission. Yes, the foster carers have been caring for PT on a long term day-to-day basis. However, they are not the only parents PT has known. The mother’s evidence is that PT knows she is her mother. PT calls her ‘mum’ and she appears to enjoy spending time with her mother. She expressed a desire to spend more time with her by bringing her home.
Further, in this case, the mere fact that a child has been in foster care essentially from birth is not of itself sufficient to justify dispensation of the mother’s consent when the child is so young and the mother has been seeking to increase contact since the child was four years old. If the child were much older, the position may have been different.
The applicant then submitted there is no evidence that either parent has the capacity to meet the needs of PT, or that there is any prospect of PT being returned to the care of either parent.
I reject that submission. It is not supported by the now dated evidence and the onus is on the applicant to establish the facts for which he contends. The present position is that there are proceedings on foot where the question of access to PT is very much live and the evidence yet to be tested.
The mother may have turned her life around. She is no longer in a relationship with the birth father, although what ongoing contact she has with him was not stated. It is not clear whether the mother has also moved, so that the influence of the neighbour is no longer an issue. The mother is now older and may have matured in her attitude towards accepting help in parenting her child. Although she has a low IQ, there was expressly no finding by the psychologist in 2013 that the mother was ‘mentally retarded’ and I note that this application was not brought on the ground of s 35(1)(b) of the Act. A low IQ does not of itself render the mother an unfit parent and this Court ought exercise considerable caution before accepting the applicant’s contention that there are no prospects of PT being returned to the care of the mother.
The mother has not been given the opportunity to demonstrate her capacity to care for her child now, in her present circumstances, namely without the involvement of the birth father and thus potential exposure to domestic violence, or other external stressors that were causing conflict in her life when she gave birth five years ago.
It may be that the changed circumstances are sufficient to persuade the Children’s Court in the coming years that the mother ought be given such an opportunity. All that the mother is currently seeking from the Children’s Court is that her contact with PT be increased so that it is sufficient to ensure that she maintains a relationship with her daughter and is not ultimately shut out from that opportunity in the future. There is no evidence before the Court as to what motivated the applicant’s delegate to reduce the mother’s contact when the child is so young. Hard as it might be for the carers to accept (whose interests I have taken to be represented by the applicant), the CYP Act expressly provides for reviews of long term care and protection orders, and one of the principles in s 350 of the CYP Act is that priority must be given to supporting the child’s parents to provide for the wellbeing, care and protection of the child.
However, those are all matters for the Children’s Court. They would have been determined had the applicant not taken the surprising step of seeking to adjourn those proceedings. I fail to see how that adjournment was in any way in the best interests of PT. The separate legal representation of the child (pursuant to s 107 of the Act) has much to commend it in cases such as the present, for it was only at the hearing that the complete picture of the litigation came to light.
The applicant also referred to PT’s best interests as being served by stability and security. However, that submission was difficult to understand, because orders as to PT’s long-term care are presently in place. The grant or refusal of the application to dispense with the birth mother’s consent in these proceedings has no effect on those orders.
If the true intention of that submission was to imply that severing the parental ties would effectively stultify a graduated return to the mother’s care through the processes in the Children’s Court, and that this would achieve stability and security over and above the existing long-term care and protection orders, then I do not accept that reasoning.
Management of change is always difficult, but not impossible, and it is an inherent part of the responsibility with which the applicant has been entrusted by the present orders of the Children’s Court. A child who has predictable, ongoing regular contact with her birth mother while remaining in the primary care of her foster carers with whom she has an attachment is not necessarily in an unstable or an insecure environment. Every case is different and the evidence will need to be considered by the Children’s Court.
Another submission said to constitute ‘other circumstances’ was the contention that PT has been diagnosed with developmental difficulties in respect of her language skills, and the carers have identified and put in place appropriate supports for her. As stated above, that is the only discrete aspect where there was current medical evidence.
Again, that also appears to me to be a submission more appropriately directed to the Children’s Court. I am not considering here who would be ‘the better parent’ or whether the carers would provide greater developmental opportunities for the child, or whether those opportunities would be in the child’s best interests so as to outweigh a mother’s right to care for her own child. The Court here is only concerned with ‘other circumstances’ that may justify dispensing with a birth parent’s consent so as pave the way for adoption.
I am not satisfied that there is any individual circumstance or combination of factors present in relation to this young child that justify the order sought through the application of s 35(1)(e) of the Act. That position may change in the years to come, but the severance now of a parental tie when the mother is clearly willingly and lovingly involved in the child’s life, and wants to be more involved, is premature.
The Court’s discretion
Those reasons are sufficient to also dispose of any residual discretion if I had found that either of ‘grounds’ (c), (d) or (e) had been engaged. There is certainly evidence that might lead one to conclude that ultimately, adoption of this child in the future might be in her best interests. However, I am not satisfied that time has yet come and it is preferable to err on the side of caution, given the serious consequences of such an order.
On the evidence before the Court, the mother and the carers are at odds (albeit the carers remain willing to continue to maintain contact with the birth parents), and that is understandable given that they both clearly love PT. However, the solution is not to use the adoption process as a means to determine the conflict in favour of the carers. I am concerned, given the timing of the present application, the evidence in relation to the issues and opinions of the carers, and the mother’s reported opinion about the carers, that any adoption order made by this Court is not viewed as such a mechanism.
As mentioned, the refusal of the application would make no difference to the stability of the present care and responsibility arrangements. On the other hand, the granting of the application may have a very significant effect on the outcome of the extant Children’s Court proceedings and that is a factor that also tells against granting the application now.
This conclusion will no doubt disappoint the foster carers, whose intentions are the genesis for the application notwithstanding that they are not parties to it, and who I do not doubt on the evidence have provided a stable and loving environment for PT. The outcome of the application is not to be taken as being in any way critical of the conduct or intentions of the carers, nor will it be determinative of any future applications if the circumstances change, based on more current, relevant and certain evidence.
The birth father
The birth father may be in a different category when it comes to considering the likely relationship with the child and the likely effect of the decision on the life course of the child with particular regard to him.
Given the conclusion I have reached in relation to the consent of the birth mother, there is little to be gained by considering that evidence on this occasion. There is no benefit in dispensing with the father’s consent now when any foreshadowed application for adoption cannot proceed and the circumstances may change between now and any future application, with D v Director-General, Department of Community Services [2005] NSWCA 474; 34 Fam LR 445, a case involving a change in capacity to consent between hearing and appeal, being a cautionary tale in that regard.
Nevertheless, there are certain procedural issues why I would not have been in a position to make findings now in relation to the birth father. I have set out the difficulties for the applicant’s benefit with regard to any future application made seeking to dispense with the birth father’s consent.
Service of the application not established
Given the seriousness of this application, that the birth father did not appear at the hearing, and that he did not sign any consent in formal compliance with pt 3 of the Regulation, the Court must closely scrutinise the process by which service is effected, notwithstanding that Ms Smyth, who affirmed the affidavit of service, is a solicitor and an officer of the Court.
There is nothing before the Court to confirm precisely what documents have been served on the birth father.
What the Court has is an email dated 8 February 2017, annexed to Ms Smyth’s affidavit, asserting that Ms Smyth personally served two documents when the birth father was at the Children’s Court.
As a separate matter, service in the precincts of a court might in some circumstances amount to a contempt if it has ‘such a deterrent effect as to obstruct the administration of justice’: see Baldry v Jackson [1976] 1 NSWLR 19 at 25; Brookfield and Septic Products Australia Pty Ltd (In Liq) v Davey Products Pty Ltd [1998] FCA 1201; see also the discussion by Lindgren J in Re O'Sullivan; Ex Parte O'Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145.
Perhaps the circumstances here make it unlikely that service of whatever documents were handed over would have been set aside, but I have jettisoned any concern about that issue because of the more critical matters that follow.
The email itself is hearsay evidence, but given the affidavit was affirmed by the apparent sender of the email, that is not fatal. The more important issue is that the email merely refers to two documents that Ms Smyth asserts she served on the birth parents. Nowhere does the affidavit of service actually attach what documents were served, nor did the email attach the documents that were served.
The mere description of a document that was served in an email might, in some cases, be sufficient to enable the Court to draw the inference that formal service under the Rules had been effected, but errors can be made and I am not prepared to draw the inference here in light of the non-attendance of the birth father and lack of any written consent under the Regulation. For example, a different document may have been accidentally handed to the birth father or critical pages might be missing from a document explaining the nature of the proceedings and the birth father’s rights.
Lack of service not cured by subsequent correspondence
Consideration was given to the subsequent correspondence sent by the applicant, with a view to possibly making a finding that in all the circumstances, the birth father was properly on notice of the proceedings (and understood their serious nature given the applicant’s evidence that he also had intellectual difficulties, the extent of which was unclear). However, the evidence again falls short of enabling the Court to be so satisfied.
Ms Shoer’s evidence includes a letter sent by Ms Smyth to the birth father at an address in Coffs Harbour and an email address that bears no resemblance to the birth father’s identity, such as to enable any inference to be drawn that the father was properly on notice.
The Court is not in a position to know whether the stated contact details as a means of communication were correct or not. There is no explanation as to how these contact details were arrived at.
Curiously, Ms Shoer deposes to Ms Smyth receiving an email from the former solicitors for the birth father, which apparently requested the solicitors to pass on to the applicant the birth father’s contact details. It is unclear why Ms Smyth did not include that information in her own affidavit.
However, once again, the email from the former solicitors is not attached to Ms Shoer’s affidavit and the contact details are not otherwise set out by Ms Shoer in the body of the affidavit.
Ms Smyth purports to have communicated to the birth father that until he gives his consent, he remains a party to the Court proceedings and she will continue to send documents about the proceedings and ‘tell you when it is in Court’. This was a prudent and appropriate course to take. However, once a solicitor (acting for a model litigant) communicates with a self-represented litigant as to the future conduct of the proceedings, a later failure to adhere to the process the applicant puts in place may cause difficulties from a procedural fairness perspective.
Ms Smyth then deposes to sending a letter on 17 May 2017, again using the contact details referred to above, but again not giving any indication of how she knows these contact details are current or annexing the correspondence she received from the former solicitors. There are no responses to any of this correspondence from the birth father.
In any event, the letter refers to two sets of proceedings in different courts and was sent at a stage where the hearing of this application had not yet been allocated and the order in which the proceedings were to be heard was uncertain.
There is no letter after the directions hearing on 26 July 2017 confirming that the applicant had informed the birth father that the adoption matter had been listed for hearing on 19 October 2017. This is what Ms Smyth told the birth father she would do, notwithstanding that there was no obligation under the Rules on the applicant.
Had there been no doubt as to what documents were served, and no gaps in subsequent communications as to what course would be followed, the question of service and notice (and procedural fairness in the circumstances of this case) would not have arisen.
However, the cumulative effect of the inferences the applicant asks the Court to make is not sufficient to ensure certainty of service or notice to the birth father, such that the Court would proceed with making any order in relation him. Again, erring on the side of caution is the more appropriate course given the seriousness of the order sought.
None of the procedural or evidentiary issues were canvassed with the applicant during the hearing and it was not incumbent on Mr Lee, who appeared for the birth mother, to raise them on behalf of a different party.
I did not consider it necessary to subsequently give the applicant the opportunity to address any of the evidentiary or procedural points because, as it transpires, these aspects of the reasoning are made moot by the finding above that the application is premature insofar as it concerns the birth mother.
Conclusion and Orders
For the above reasons, the application ought be dismissed, and in my discretion, with costs. I will stay the order for costs for a period of seven days to permit either party to make an application for an alternative order, through contacting my associate.
I cannot leave this matter without saying that it is a matter of great regret that the hearing of the application in the Children’s Court at a critical time for PT’s development given her young age has been delayed. The parties may wish to give consideration to expedition in that regard.
The orders of the Court are as follows:
1. The application is dismissed.
2. The applicant is to pay the respondent mother’s costs of the proceedings.
3. The operation of order 2 is stayed for seven days from the date of these orders.
| I certify that the preceding one hundred and fifteen [115] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 2 February 2018 |
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