In the matter of the adoptions of SC and QC
[2016] ACTSC 268
•4 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoptions of SC and QC |
Citation: | [2016] ACTSC 268 |
Hearing Date: | 4 August 2016 |
DecisionDate: | 4 August 2016 |
Before: | Mossop AsJ |
Decision: | See [55] |
Catchwords: | ADOPTION – Application to dispense with consent of birth mother – Birth father deceased – Whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – Other circumstances that justify the requirement for consent to be dispensed with – Consent dispensed with |
Legislation Cited: | Adoption Act 1993 (ACT), ss 4, 5, 6, 26, 35 |
Cases Cited: | In the matter of an adoption of D [2008] ACTSC 44 In the matter of an adoption of R [2012] ACTSC 36 |
Parties: | Director-General, Community Services Directorate (Applicant) MT (Respondent) |
Representation: | Counsel Ms B Lewis (Applicant) |
| Solicitors Australian Capital Territory Government Solicitor (Applicant) | |
File Numbers: | AD 5 of 2016 AD 6 of 2016 |
MOSSOP AsJ:
These are two applications under the Adoption Act 1993 (ACT) (the Act) to dispense with the consent of the mother of two children to their adoption. The two children are QC and SC. The mother is the respondent who I will refer to as the birth mother.
Evidence in support of applications
The Director-General, Community Services Directorate relies upon the following evidence.
In relation to QC:
(a)the affidavit of Sharon Smith dated 12 May 2016;
(b)the affidavit of Sharon Smith dated 27 June 2016;
(c)the affidavit of Genevieve Butler dated 27 June 2016; and
(d)the affidavit of Beth Lewis of 1 August 2016.
In relation to SC:
(a)the affidavit of Sharon Smith dated 12 May 2016;
(b)the affidavit of Sharon Smith dated 27 June 2016 ;
(c)the affidavit of Genevieve Butler dated 27 June 2016; and
(d)the affidavit of Beth Lewis dated 1 August 2016.
Procedural history
The proceedings were first before me on 29 June 2016. On that occasion a solicitor acting for the Director-General appeared and the birth mother also appeared. I made directions requiring the birth mother to file a notice of intention to respond and any affidavit or other evidence by 15 July 2016. I listed the matter for mention on 22 July 2016 and the application for hearing on 4 August 2016. I also directed the Director-General to notify the birth mother of the terms of the orders made on that day. The affidavit of Beth Lewis dated 1 August 2016 provides evidence that the Director-General complied with the requirement to notify the birth mother of the terms of the orders made on 29 June 2016. By letter dated 8 July 2016 and delivered by courier to the birth mother’s home address on 11 July 2016 the solicitor for the Director-General not only set out the terms of the orders that I had made, but also provided an appropriate explanation as to how those orders might be complied with by the birth mother.
Notwithstanding that notice, when the matter was listed for directions on 22 July 2016 the birth mother did not appear. I therefore made no additional directions.
When the matter was called at the substantive hearing of the application, the birth mother did not appear. The position is therefore that no notice of intention to respond has been filed nor is there any evidence filed on behalf of the birth mother.
Statutory provisions
Section 26 of the Act requires that, subject to div 3.3, an adoption order must not be made unless consent has been given by each parent or guardian of the young person. The provisions of div 3.3 (ss 26-34) provide a detailed regime relating to the giving of consent to adoption. This process is obviously of great significance for the proper operation of the Act. Section 35(1) allows applications to be made to dispense with the requirement for consent of a parent or guardian in certain circumstances. Section 35 provides:
35 Dispensing with consent
(1) On application, the court may, by order, dispense with the requirement for consent of a person to the adoption of a child or young person if the court is satisfied that—
(a) 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.
Note If a form is approved under the Court Procedures Act 2004, s 8 for an application, the form must be used.
(2) On an application for an order under subsection (1), the court may require the director-general to investigate the matter and to provide a written report to the court.
(3) To facilitate the making of arrangements for the adoption of a child or young person, on the application of the director-general or the principal officer of a private adoption agency, the court may make an order under subsection (1) before an application for an adoption order has been made, and the first order has effect for the purpose of any subsequent application for an adoption order.
(4) On the application of the director-general or of the person the requirement for whose consent was dispensed with, the court may revoke an order made because of subsection (3) at any time before making an adoption order.
Consistently with what is contemplated by s 35(3) the present applications are brought in advance of the determination of an application for adoption of QC and SC by the adoptive parent.
In determining whether or not to exercise the power under s 35 it is also, in my view, necessary to have regard to the provisions of ss 4 and 5 of the Act.
4 Objects of Act
The main objects of this Act include—
(a) ensuring that the best interests of the child or young person arethe 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.
5 Best interests of child or young person paramount consideration
(1) A person making a decision under this Act in relation to a child or young person, must regard the best interests of the child or young person as the paramount consideration.
(2) In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:
(a) the likely effect of the decision on the life course of the child or young person;
(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.
While the provisions in s 4 provide a general background against which the provisions of the Act must be interpreted and provide the context in which discretions must be exercised, s 5 is a legislative command which must be given effect to in determining the outcome of an application under s 35.
Grounds for the application
In each case the Director-General relies upon the following grounds:
(a) the mother has abandoned or deserted, and has neglected or ill treated the children; and
(b) the mother has, for a period of not less than 1 year, failed, without reasonable excuse, to discharge the obligations of a parent of the children; and
(c) there are other circumstances that justify the requirement for the consent being dispensed with-namely, it is in the best interests for [the child] to be adopted to be adopted by [the child’s] foster carer.
Facts
SC was born on 28 August 2009. She is therefore six years and 11 months old. Her father is LC.
QC was born on 6 September 2010. He is therefore five years and 11 months old. His father is also LC.
Officers of the Director-General had contact with the birth mother prior to the birth of SC. An older child of the birth mother had been subject to a long-term care and protection order and was residing in foster care. The reports prior to SC’s birth was of the birth mother being under the influence of intoxicating substances, homeless and in a violent relationship with the birth father. There had been multiple reports in relation to the birth mother’s care of her eldest child prior to that child entering care. Those reports focused on the birth mother’s mental health, transient lifestyle, domestic violence perpetrated against her partner at the time and an unexplained injury to the child.
The history that I recount below took place against a background of the birth mother continuing to be involved in drug use and suffering mental health problems at various times which precluded her from reasonably fulfilling her role as a parent.
On 7 September 2010 an interim care and protection order with a supervision provision was made by the ACT Children’s Court for SC.
From 8 December 2010 the children were cared for by their birth father.
In December 2010 or January 2011 the relationship between the birth mother and birth father broke down. The birth mother was the subject of a domestic violence order which prevented her from having contact with the birth father, but the evidence indicates that there were times when that was not complied with and no complaint to the police was made.
In August 2011 SC and QC commenced respite care with various carers. They continued to see their grandmother RC and be cared for by their birth father.
On 19 October 2011 the Children’s Court made two year care and protection orders in relation to SC and QC. The children remained in their birth father’s care. There were continuing reports to the Director-General in relation to the care being received at his house.
On 23 November 2012 both children began having regular weekend respite care with a foster carer, the proposed adoptive parent.
Further reports were received by the Director-General indicating that the birth father’s ability to care for SC and QC had deteriorated over time. Reports were received in February 2013 that the birth father was using cocaine, usually when the children were in respite care. In February 2013 the birth mother was present at the home notwithstanding the existence of a protection order preventing her from being so. A number of reports were received in February and March relating to the care being received from the birth mother and father, injuries to the children and drug use by their parents.
On 2 April 2013 the birth father signed voluntary care agreements for 28 days in response to officers of the Director-General speaking to him and raising concerns regarding the welfare of SC and QC. The children were placed with the proposed adoptive parent for the duration of the voluntary care agreement. The children have in fact been in the proposed adoptive parent’s care since that date.
The birth father died on 9 April 2013. He was 29 years old. The cause of death on his death certificate was described as “accidental overdose of a combination of heroin and methamphetamine”. Information was received by the Director-General that the birth mother had contacted emergency services the previous evening to report that she and the birth father had used unspecified illegal drugs and had both fallen asleep and that she had been unable to rouse him and called for an ambulance.
The next day the Director-General took emergency action in relation to the children on the basis that there was no parent willing and able to care for them. The Director-General filed applications for care and protection orders for SC and QC until they reached 18 years.
On 12 April 2013 the Children’s Court granted interim care and protection orders in relation to the children and revoked the orders dated 19 October 2012.
The assessment report prepared for the Children’s Court by officers of the Director-General dated 31 May 2013 provides:
[the birth mother] has not been able to demonstrate that she has the capacity to parent [SC] and [QC]. Prior to the children being placed with their current carer the children have had respite care with the foster carer since November 2012. [SC] and [QC] have formed a strong attachment with their foster carer.
[SC] and [QC], like other children their age have the right to a permanent and stable placement where their physical safety and emotional well-being can be assured until they reach independence. The children had gone through lots of trauma within their short period of life and at this age, [SC] and [QC] rely solely on the adults in their life to care for them. The children have little ability to protect themselves and are entirely dependent upon others for their safety and well-being.
[SC] and [QC] remain in need of care and protection as there is no parent willing and able to provide them with appropriate care and at this time it is in [the children’s] best interests for orders to be made which provide them with a stable and secure placement.
On 3 July 2013 the Children’s Court granted final care and protection orders for SC and QC in favour of the Director-General until the children were 18 years old.
The birth mother has had no face-to-face contact with the children since they entered the proposed adoptive parent’s full-time care on 2 April 2013. Prior to that, although the evidence is that the children did in fact have contact with their birth mother when she was present in the birth father’s house, she had no approved contact with the children since 20 October 2011 because she had not engaged with the staff of the Director-General.
In April 2015 officers of the Director-General made contact with the birth mother to discuss permanency planning for the children. The birth mother failed to attend scheduled appointments with the Director-General staff.
In January 2015 the birth mother contacted Barnardos, a charity concerned with the care and protection of vulnerable children, and wrote letters to SC and QC dated 19 January and 7 February 2015. Upon the advice of Barnardos, the proposed adoptive parent informed the children in general terms and discussed the letters at an age appropriate level.
In March 2015 Barnardos contacted the birth mother to arrange a meeting to discuss permanency planning. The birth mother said that since the birth father’sdeath she had not been doing well and was only just getting back on her feet. She had no fixed address, however, felt that her mental health was well managed by a doctor. She was informed of the plan for the proposed adoptive parent to either adopt or obtain enduring parental responsibility for the children and the birth mother advised that she would seek advice from legal aid because she wanted her children returned to her. She did not want them to be adopted because she wanted to be the one caring for them.
On 14 April 2015 the birth mother met with SC and QC’s Barnardos caseworker and gave the caseworker presents for both children. She continued to have sporadic engagement with the Barnardos caseworker during the months that followed. In October 2015 she provided additional letters to the Barnardos caseworker. In February 2016 Barnardos had contact with the birth mother and discussed making arrangements for her and the proposed adoptive parent to meet face-to-face to commence building a relationship that would support contact with the children. Subsequently the caseworker from Barnardos attempted to arrange a meeting with the birth mother, but that was not successful because the birth mother requested that the meeting be rescheduled and then turned up early for the meeting and said that she could not wait. As there was no caseworker available to speak with her, she left presents for SC and QC without speaking to the caseworker about them. In those circumstances no progress has been made in relation to arranging meetings between the birth mother and the proposed adoptive parent commencing contact between the birth mother and the children.
In November 2015 an officer of the Director-General spoke to the birth mother by phone. The birth mother expressed the view that it was unfair for the children to be adopted out. She stated that when the children were removed from her care she was homeless. She said she now has a two-bedroom townhouse and a partner who she believes she will marry in the future. She said she did not understand why the children were removed and she believed that the children were taken illegally. She believed that she was now “in a better place”. She said that she had considered going to court to fight for her children and also considered a shared care arrangement between herself and the children’s foster carer.
Since the lodging of the present application there have been discussions between a Barnardos caseworker, the birth mother and her current partner in relation to the proceedings. The communications between the casework and the birth mother’s partner indicated his opposition to course being adopted. Facebook posts which were in evidence indicated a lack of consent to any adoption, the birth mother referring to the children being “unfairly adopted out”.
The officers of the Director-General support the proposal that the proposed adoptive parent adopt the children.
They identify the long history of care for the children by the proposed adoptive parent, respite care commencing in November 2012 and full-time care from April 2013. Ms Smith describes the current situation of SC and QC as “a warm, stable and loving environment which contributes to their happiness and well-being”. She describes that the children have a trusting relationship with the proposed adoptive parent and a strong attachment to her. She said that their emotional and physical needs are consistently met to a high standard. She refers to the clinical research which has established the importance of stability and permanency for children and young people requiring out of home care. Ms Smith identifies that the proposed adoptive parent remains willing to meet with the birth mother to discuss possible future involvement in the children’s lives.
On 9 October 2015 the birth mother contacted Barnardos to advise that she believed she was of aboriginal heritage. Barnardos caseworkers attempted to gain further information in relation to the birth mother’s family background, however, the birth mother either failed to attend meetings or terminated the meetings. In December 2015 Barnardos advised the Director-General that after significant family tree research it was not possible to find evidence to support the claim and a Barnardos caseworker communicated that position to the birth mother on 4 February 2016.
The evidence does not establish that either child is an “aboriginal or Torres Strait Islander Child or young person” within the meaning of that defined term in s 6 of the Act. Therefore the additional requirements set out in that section do not apply in the present case.
Consideration
The threshold for the capacity to dispense with consent is found in the matters set out the various paragraphs of s 35(1). In the present case the Director-General relies upon paragraphs (c), (d) and (e).
The scope and operation of those provisions and their antecedents have been the subject of judicial consideration on a number of occasions. The most comprehensive examination of the authorities relevant to the current Act is to be found in the decision of Refshauge J in In the matter of an adoption of D [2008] ACTSC 44 (Adoption of D).
In In the matter of an adoption of R [2012] ACTSC 36 at [7], Refshauge J said:
Consent is an important part of the adoption process. The seriousness of an adoption, particularly because of the consequences in the severance of family ties of a formal, legal kind with a child’s birth parents, as emphasised by the High Court in Mace v Murray (1995) 92 CLR 370 380, is justification enough for taking the issue of consent seriously and not treating it as a mere formality.
As will be apparent from what I have said earlier in these reasons, I concur with what his Honour said and treat the current application with the degree of seriousness indicated.
In relation to paragraph (c), in Adoption of D Refshauge J considered the operation of the provision at [17]-[22]. The authorities referred to their by his Honour make the following points:
(a)the paragraph requires an element of “morally reprehensible conduct”;
(b)“abandoned” implies a more serious failure on the part of a parent than does “deserted”;
(c)abandon denotes a morally culpable leaving of a child without anyone to provide physical care for him or her;
(d)deserted involves leaving a child for whom one is legally and morally responsible without good cause or excuse; and
(e)ill treating a child meant knowingly and without moral justification causing physical pain or mental suffering to the child.
In relation to paragraph (d), the authorities gathered together by Refshauge J make the following points:
(a)The obligations of a parent include first the natural and moral duty of a parent to show affection, care and interest towards his or her child as well as the common law and statutory duty of a parent to maintain his or her child in the financial or economic sense.
(b)When the question of “reasonable excuse” is considered that requires asking whether a reasonable person judging the conduct of the parent would be satisfied that the parent had reasonable cause not to discharge the obligation of the parent on the occasion under consideration. That requires the Court to consider the particular circumstances of the parent prevailing at that time and require the court to make an objective assessment of the situation in the light of those circumstances.
His Honour referred to a number of cases as illustrations where a reasonable excuse has been found to exist.
In relation paragraph (e), Refshauge J said:
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.
The authorities to which he referred demonstrated that:
(a)the ground should be given equal value to the other grounds;
(b)the word “other” did not mean that the circumstances must be exclusive of or unrelated to the subject matter of the other grounds; and
(c)the statutory mandate in s 5 to make the best interests of the child the paramount consideration is a factor which can be taken into account when deciding whether there is a ground for dispensing with consent, and consideration of that ground is not only limited to the point at which, after the threshold is passed, the discretion is exercised.
In relation to the statutory mandate in s 5 of the Act, the authorities referred to by his Honour demonstrate that although the consideration is the “paramount consideration” it is not the overriding consideration nor the only consideration.
I approach the operation of the provisions of s 35(1) in a manner consistent with the decision in Adoption of D and the authorities therein.
In my view it is sufficient to resolve this case on the basis that the requirements of s 35(1)(e) are satisfied. The circumstances which lead me to that conclusion are:
(a)The children have been out of the birth mother’s care since 20 October 2011 apart from some periods when she was in the birth father’s house.
(b)She has not seen them since 2 April 2013.
(c)There is no evidence that she has had, during the period during which they were out of her care, the capacity to reasonably meet their needs.
(d)While there is evidence of a desire on the part of the birth mother to care for her children there is no evidence that she is likely in the reasonably foreseeable future to have the capacity to appropriately care for them. Paragraph (d) of the objects of the Act appears particularly relevant in relation to assessment of the birth mother’s position. Her history tells against the prospect that she will have the capacity to care for them. It is possible she may have the capacity to care for them at some time in the future, however, at that point the factor referred to in (g) below will be even stronger than it is presently.
(e)No other suitable kinship carer has been identified.
(f)The children have been in the care of the proposed adoptive parent on a part-time basis since 23 November 2012 and on a full-time basis since 2 April 2013.
(g)The children are appropriately bonded and attached to the proposed adoptive parent who the evidence discloses is a suitable carer.
(h)The children’s best interests are served by stability and security and long-term attachment to their proposed adoptive parent.
In those circumstances I am satisfied that the circumstances justify that the requirement for consent be dispensed with.
For the avoidance of doubt, I have also had specific regard to each of the matters identified in s 5(2). I note that there is no express evidence of the views of the children. That is consistent with their young age. However, the evidence is consistent with them desiring to maintain their long-term bond with the proposed adoptive parent.
Orders
The orders of the Court are:
1. In proceedings AD5 of 2016, pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of [the birth mother], the mother of [SC], is dispensed with.
2. In AD6 of 2016, pursuant to s 35 of the Adoption Act 1993 (ACT) the requirement for the consent of [the birth mother], the mother of [QC], is dispensed with.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 16 September 2016 |
2
2
1