In the Matter of the Adoption of TT
[2017] ACTSC 181
•7 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Matter of the Adoption of TT |
Citation: | [2017] ACTSC 181 |
Hearing Date: | 20 June 2017 |
DecisionDate: | 7 July 2017 |
Before: | Ashford AJ |
Decision: | 1. The requirement for consent of ST to the adoption of TT be dispensed with. 2. Pursuant to Division 3.3 of the Adoption Act 1993 (ACT), no consent of the father of SS be required for the adoption. |
Catchwords: | ADOPTION – DISPENSATION OF CONSENT – Application to dispense consent of birth mother – birth father presumed – birth father not discharged parental obligations – no consent of birth father required – whether requirements of s 35 of the Adoption Act 1993 (ACT) satisfied – other circumstances justifying requirement for consent to be dispensed with – consent of birth mother dispensed with |
Legislation Cited: | Adoption Act 1993 (ACT), ss 4, 5, 35, 35(1)(c), 35(1)(d), 35(1)(e), Div 3.3 Children and Young People Act 2008 (ACT) Parentage Act 2004 (ACT), s 8(1) |
Cases Cited: | AD 7 of 16 (Unreported, Supreme Court of the ACT, Mossop J, 10 March 2017) An Adoption of D [2008] ACTSC 44 An Adoption of SC and QC [2016] ACTSC 268 |
Parties: | Director-General, Community Services Directorate (Applicant) ST (Respondent) |
Representation: | Counsel Mr C Phillipson (Applicant) In person (Respondent) |
| Solicitors Australian Capital Territory Government Solicitors (Applicant) In person (Respondent | |
File Number: | AD 4 of 2017 |
ASHFORD AJ:
The Director-General of Community Services seeks orders that the Court dispense with the requirement for the consent of ST, the birth mother of TT, and BX, the presumed father of TT, to the adoption of TT, pursuant to s 35 of the Adoption Act 1993 (ACT).
The consent is sought as it is proposed the child be adopted by her present foster carers, SN and BN, with whom she has resided since 9 November 2011.
I understand that application is listed for hearing on 20 July 2017.
The child was born on 9 December 2010 and is now six and a half years of age. She is ST’s third child. Her eldest child, born 30 June 2006, was the subject of Child Concern Reports about ST’s homelessness and transient lifestyle at that time and Care and Protection Orders were granted in the ACT Children’s Court transferring daily and
long-term care responsibility to age 18 years to his foster carer.
In respect of the second child, born 30 August 2009, Child Concern Reports in respect of that child, led to the child being placed in out of home care and subsequent adoption.
In respect of TT, prior to her birth, a child protection care conference was convened and ST failed to appear. A case worker was assigned to protect the best interests of the child. Shortly after her birth, there was some concern about the care afforded to the child, noting inappropriate behaviour and an observation that ST appeared not to be attuned to the child’s needs. The concerns continued in respect of the care of the child.
On 24 March 2011, ST presented at hospital with the child in relation to an observed rash and a temperature. Following examination and investigation, a chest x-ray disclosed a number of rib fractures. ST offered two explanations:
(1) Six days prior to hospital attendance, her grandmother had pushed her in a pram which had flipped over and fallen face down.
(2) One week prior to attendance, the child’s grandfather had held her over his shoulder when she arched backwards and he almost dropped her.
Medical reporting from Dr K Morgan was to the effect that, in her opinion, neither explanation was likely to have caused rib fractures, particularly multiple rib fractures, bi‑lateral rib fractures, or posterior rib fractures, and it was her opinion that posterior rib fractures in babies without a history of major trauma were highly suggestive of a non‑accidental injury. An Interim Care and Protection Order was made on 28 March 2011 to 11 April 2011 with provision for contact, residence, supervision and daily and long term responsibility transferred to the Director-General. Those orders were extended and on 25 May 2011, the orders were further extended to 15 June 2011 in the ACT Children’s Court and then to 4 August 2011, when by consent a final Care and Protection Order was made in respect of the child until she reached the age of 18 years. On 9 November 2011, she was placed with her long-term foster carers, the N’s.
On 27 April 2012, a Review of Arrangements Meeting was held and it was concluded that when the child had been with her foster carers for two years, consideration would be given to a permanent order, either enduring parental responsibility, or adoption.
Attempts were made to establish the child's paternity but these attempts have not been successful. The child's birth certificate records that her father is not stated. ST gave evidence that to her belief BX is the birth father. She said they met in July 2009 whilst living in Grafton, New South Wales, and the relationship ended in May 2010. At the time she was nine weeks' pregnant with TT.
She said this was an exclusive relationship and they lived together at his mother's house, together with his two sisters and his daughter aged three, and they supported each other financially. She said the relationship ended when he was told she was pregnant and there were no plans made to raise the child together. She said that he wanted to wait until after the child's birth and then would undertake a paternity test, and if it was positive, he would take care of her. He has never met the child or acknowledged paternity.
It appears Child and Youth Protection Services (CYPS) have been in contact with BX from about December 2011 and arrangements in respect of DNA testing were discussed. BX decided in March 2016 that he would not undertake the testing and he told CYPS he did not believe he was TT's father. He has been notified of these proceedings but has made no indication of any intention to participate.
Affidavits of Service have been filed and I am satisfied with all the matters in respect of his notification and that all matters have been attended to. The Parentage Act 2004 (ACT) provides for circumstances to give rise to a presumption that a person is the parent of a child. ST has given evidence that she was in a domestic and sexual relationship with BX from July 2009 to May 2010 and that he left when she advised him she was nine weeks' pregnant.
There were no plans to raise the child together. TT's birth certificate, as noted, records her father as "not stated". He has not met the child and has never acknowledged the child to be his child. He has never paid for her upkeep.
From all the evidence, I am of the view I should find BX to be the presumed father of TT and pursuant to s 8(1) of the Parentage Act that he has abandoned or deserted the child and has, since her birth, failed to discharge the obligations of a parent towards a child under s 35(1)(c) of the Adoption Act.
I, therefore, will make a declaration that under Div 3.3 of the Adoption Act no consent of the father of TT is required for her adoption.
ST and her circumstances
Since 4 August 2011, TT has been subject to a Final Care and Protection Order with daily and long-term care responsibility held by the Director-General until she turns 18. ST has not held parental responsibility since 28 March 2011. She has contact with the child two or three times a year. ST is obviously upset at not seeing the child more regularly and wishes to maintain contact with the child, although her primary objective is to have full care and control of TT, saying she feels she has never been given a chance to demonstrate being a mother to TT.
She acknowledges that both of her other children are no longer in her care but that she is now in a situation where she feels capable and willing to look after TT if given the chance. ST is presently undertaking a Certificate Course in Community Services and Works as a sales consultant for Tupperware. She lives with her partner in Morwell, Victoria. He is apparently working. Since orders were made in the Children's Court in 2011, she has made one attempt to have orders changed or set aside to get TT back in her care, but that application was never followed through as she was not granted legal aid.
Since then she has made no further attempt to vary or set aside the final orders which are in place. The Director-General's records indicate that caseworkers have advised her of her right to do so once a year. ST has indicated to case managers that she was willing to consent to a provision for enduring parental responsibility being included in TT's long-term Care and Protection Order but not to adoption.
It seems the prospective adopting parents are committed to maintaining contact with ST and TT, and TT has a life book in which photos and information are placed and to provide updates as to TT's progress on a regular basis. At the present time the carer's progress reports have not been very regular but there is some phone contact. The carers are happy to negotiate additional contact around birthdays, Christmas, and the like.
ST acknowledges the problems she experienced in respect of caring for her two older children and with TT but says she is now capable of looking after TT and giving her a stable and loving environment. Section 35 of the Adoption Act 1993 provides:
(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 deciding whether or not to exercise the power under s 35, it is also necessary to have regard to the provisions of ss 4 and 5 of the Act.
4 Objects of the 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
...
5 Best interests of the child or young person are a 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; and
(h) the alternatives to adoption for the child or young person to secure
permanent family arrangements.
The Director-General submits that s 35(1)(d) applies in that ST has failed without reasonable excuse to discharge her parental obligations, and also s 35(1)(c) in that she has neglected or ill-treated the child. In regards to s 35(1)(d), it is submitted the child TT, having been taken into the State's care, ST has never sought to revoke those orders by application to the Children's Court; although she made some inquiries in 2011 but did not ever follow through, although she had been made aware that such application could be made.
In respect of s 35(1)(c), the submission is that while TT was in ST’s care for some three months after her birth, the child sustained multiple rib fractures, with medical evidence to the effect that such posterior rib fractures in babies, without a history of major trauma, were highly suggestive of non-accidental injury.
ST maintains her explanations as to how those injuries may have been sustained, however, commonsense would also suggest the rib fractures are painful, particularly in a young baby, and no medical attention was sought, even if ST’s explanations can be accepted as to how the injuries were sustained. As well, there was concern in respect of TT having impetigo and scabies at the time she was taken from ST and the doctor opined that it appeared she had been left supine for extended periods in damp and infected bedding.
The care workers expressed concerns as to ST’s parenting capacity from observation over a period of time, including a time when ST and TT were at the QEII Family Centre for a brief period of supported placement. It was observed ST had limited social interaction with the child and prioritised her own and her then partner's needs above those of the child, and failed to comfort the child when she was unsettled. Undoubtedly those factors indicate an ill treatment and neglect of TT by ST at that time.
In respect of s 35(1)(e), the Director-General submits it is in the child's best interest for her to be adopted by her foster carers, noting that TT is thriving and settled in her placement and she has lived with and been cared for by those carers since she was 11 months old. The Director-General is of the opinion the carers have demonstrated their commitment to the child's wellbeing and development and there is a strong bond between the child and her carers. It seems TT has recently been diagnosed with some mild to moderate developmental delays and her carers are aware of this and are putting in place a range of supports, with professional advice and assistance, to address those issues.
ST gave evidence of her love for TT and her desire to care for her. She acknowledges past problems with drug and alcohol abuse. She denies causing injury to the child and disputes the medical evidence in respect of the cause of the rib fractures. She has continued to maintain contact visits for two hours, two or three times a year. She feels she receives little information about the child and the carers acknowledge that at times they have not provided updates to ST, however there is some telephone contact.
The carers have expressed an intention to maintain contact with ST if the adoption goes ahead. ST acknowledges that TT does not really know her. ST tendered some photographs of herself and TT taken at contact visits; the child seems well and happy.
I have regard to prior decisions of this Court and in particular to decisions of Mossop AJ, as he then was, in the matter of An Adoption of SC and QC [2016] ACTSC 268 and Refshauge J in the matter of An Adoption of D [2008] ACTSC 44. There is a further unpublished judgment of Mossop J, AD 7 of 16, given on 10 March 2017.
In regard to this application and the provisions of s 35(1)(c), clearly there were significant concerns as to TT’s safety and wellbeing during the time she was with ST and I have come to the conclusion on balance that those concerns had a sound basis and I accept that evidence. The fact of the two other children being placed in care is also a matter of concern.
In respect of s 35(1)(d), I note that since 4 August 2011 TT has been subject to a Final Care and Protection Order, with daily and long-term care and responsibility placed in the hands of the Director-General until TT turns 18 years of age. Whilst ST has expressed a wish to have TT restored to her care, I am satisfied she did not make any attempt to place the matter before the ACT Children's Court, citing a lack of finances and denial of legal aid as her reasons. I also accept that she was informed and aware such application could have been made once a year under the Children and Young People's Act.
In respect of s 35(1)(e), I have regard to the comments of Refshauge J in the Adoption of D where he stated at [30]:
This ground is, perhaps, the most important though it has not been shown on the decided cases to be by any means the most common ground on which applications for the dispensation of consent rely. By its very nature, it is a ground that is of wide import and cannot properly be circumscribed, though it has to be considered judicially.
He described the issue in relation to this ground to be whether the obligation in s 5 of the Adoption Act that the welfare and interests of the child shall be the paramount consideration has any role, determining that in the Territory it did. He noted at [37]:
The majority of cases, however, have decided that while the paramount consideration, it “is not the overriding consideration nor is it the only consideration”; ABA and Anor v EWF (1977) 3 Fam LR 11,487 at [47].
In determining all these factors and having regard to s 35(1)(e) and the provisions of the Adoption Act, I have regard to the decisions, In the matter of an Adoption of D, supra, and In the matter of an Adoption of SC and QC, supra, and I am satisfied I should consider this ground as encompassing the totality of the evidence in this case as follows:
1. TT was placed in short-term foster care on 29 March 2011, the Final Care and Protection Order was made on 4 August 2011;
2. TT has been out of the birth mother's care and in the care of her foster carers since 9 November 2011;
3. ST has seen the child on an intermittent basis in supervised visits since that time, she wishes to have sole care and responsibility for TT;
4. I am satisfied TT is well cared for and happy in her present placement, where she has been for some five and a half years and has formed strong bonds with the proposed adoptive parents who provide security and a stable environment;
5. Some developmental difficulties have been diagnosed and appropriate support has been identified and put in place to assist the child;
6. Stability and permanency for children is very important;
7. There is little evidence before me as to ST’s capacity to resume full-time care of TT on a day-to-day basis. ST clearly has had difficulties in the past, evidenced by her two older children being placed in care. Then, of course, I have concerns in respect of TT and the lack of care whilst with ST. I do not doubt her love for TT but I must focus my decision on the needs of the child rather than on the needs of ST.
Should I not grant the orders sought, I am concerned that this would entail great difficulties for the child, considering that she has bonded strongly with her proposed adoptive parents and is being well cared for, and is receiving all the requirements for her stability and security in a loving home.
I am very aware that this is not a decision to be taken lightly. Taking all the matters into consideration, I have come to the conclusion that I am satisfied the circumstances justify the requirement for the consent of ST to be dispensed with. I therefore will make the orders as follows:
1. The requirement for the consent of ST to the adoption of TT be dispensed with; and
2. I make a declaration that under Div 33 of the Adoption Act 1993 no consent of the father of TT is required for her adoption.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford. Associate: Date: 21 July 2017 |
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