Re X and the Adoption of Children Ordinance 1965

[1984] FCA 211

Re: AN APPLICATION FOR THE ADOPTION OF X
And: THE ADOPTION OF CHILDREN ORDINANCE 1965
No. G12 of 1984
Adoption - Infants and Children - Appeal
2 FCR 533

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
McGregor(1), Gallop(1) and Neaves JJ.

CATCHWORDS

ADOPTION - Child born in foreign country - Male applicant appointed legal guardian of child by court of that country and authorised to remove child to Australia - Child brought to Australia with approval of Department of Immigration with the intention that it be adopted by the applicants - Application to dispense with mother's consent - Whether "reasonable inquiry" made to find mother - Whether child "abandoned" or "deserted" - Whether "other special circumstances" existed for consent to be properly dispensed with - Adoption of Children Ordinance 1965, section 30.

APPEAL - Federal Court of Australia - Decision of Supreme Court of the Australian Capital Territory refusing to dispense with consent of mother to adoption of child born in foreign country - Appellants seeking to adduce evidence additional to that before Supreme Court - Evidence admitted - Federal Court of Australia Act 1976, section 27 - Federal Court Rules, Order 52 rule 36.

Infants and Children - Adoption - Dispensing with consent - Grounds - Child born in foreign country - Child left in care of religious community with view to adoption - Existence of "other special circumstances" - Adoption of Children Ordinance 1965 (A.C.T.), s. 30.

Appeal - Federal Court of Australia - Decision of Supreme Court of the Australian Capital Territory refusing to dispense with consent of mother to adoption of child born in foreign country - Appellants seeking to adduce fresh evidence on hearing of appeal - Federal Court of Australia Act 1976 (Cth), s. 27 - Federal Court Rules 1979 (Cth), O. 52, r. 36.

HEADNOTE

Held: (1) The word "deserted" and the word "abandoned", in the context of s. 30 of the Adoption of Children Ordinance 1965 (A.C.T.), involve an element of morally reprehensible conduct.

Waghorn v. Waghorn (1942) 65 C.L.R. 289, per Dixon J. at p. 295, referred to.

(2) An unmarried mother who deliberately left her new born child in the care of a religious community knowing that the child would be cared for by that community with a view to its being adopted had not deserted or abandoned the child within the meaning of s. 30.

(3) Consideration of what constitutes "other special circumstances" for the purpose of s. 30(1)(e) relating to dispensing with consent.

R. v. E. (1974) V.R. 291; A.B.A. v. E.W.F. (1977) 3 Fam. L.R. 11,487, referred to with approval.

(4) The discretion conferred on the Federal Court to receive fresh evidence on appeal should be exercised in this case because, inter alia, the order from which the appeal is brought is such that, if affirmed, may well have the effect of finally determining the application for adoption, and the fresh evidence was not available at the time of the hearing of the matter at first instance.

HEARING

Canberra, 1984, July 10, 19. #DATE 19:7:1984

APPEAL.

Appeal from an order of the Supreme Court of the Australian Capital Territory dismissing an application under s. 30(1) of the Adoption of Children Ordinance 1965 (A.C.T.).

T. M. Johnstone, for the appellants.

Cur. adv. vult.

Solicitors for the appellants: Crowley & Chamberlain.

F.P.C.

ORDER

The appeal be allowed.

The consent of the mother of the child to its adoption as required by sub-section 24(3) of the Adoption of Children Ordinance 1965 is dispensed with.

Appeal allowed.

Consent of the mother of the child to its adoption as required by s. 24(3) of the Adoption of Children Ordinance 1965 (A.C.T.) dispensed with.

JUDGE1

This is an appeal from an order of the Supreme Court of the Australian Capital Territory made on 2 April 1984 dismissing an application to dispense with the consent of the mother of a child in respect of whom proceedings for an adoption order are pending in that Court.

Section 24 of the Adoption of Children Ordinance 1965 ("the Ordinance"), so far as material, provides that, subject to Division 2 of Part IV of the Ordinance, the Court shall not make an order for the adoption of an illegitimate child who has not previously been adopted unless consent to the adoption has been given by the mother of the child. Sub-section 30(1) of the Ordinance provides -

"(1) The Court may, by order, dispense with the consent of a person (other than the child) to the adoption of a child where the Court is satisfied that -

(a) after reasonable inquiry, that person cannot be found or identified;

(b) that person is in such a physical or mental condition as not to be capable of properly considering the question whether he should give his consent;

(c) that person has abandoned, deserted or persistently neglected or illtreated the child;

(d) that person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent or guardian, as the case may be, of the child; or

(e) there are any other special circumstances by reason of which the consent may properly be dispensed with."

Before the Supreme Court the applicants relied on the grounds expressed in paragraphs (a), (c), (d) and (e) above.

The following statement of the facts that were before the Supreme Court is taken from the judgment of that Court.

The applicants are husband and wife. The husband is an Australian citizen domiciled in Australia. The wife was by birth a national of a foreign country. The applicants, being childless, wished to adopt a child born in that country. They were informed that a suitable child had been born in November 1982 at a place in the foreign country familiar to the wife. They went to that country and made contact with the head of a religious community which had the de facto custody of the child. They were informed of the date of the child's birth and of the name of its mother.

The husband petitioned a court of competent jurisdiction in the foreign country for an order that he be appointed "legal guardian" of the child and for orders that he might be allowed to take the child out of the country to Australia and to apply for the required passport and visa. There was filed in support of this petition a document, described as an affidavit, made by the child's mother. She deposed that she was unmarried and that the child had been born to her on a date stated, that the child had been abandoned by the father and that she did not wish to disclose her address or give any information about the father or other relatives of the child. She deposed that she had without any inducement or consideration freely and voluntarily handed over the child to the religious community "to place the said child in adoption and/or guardianship with any suitable person or couple of any . . . creed, colour or community in (the country) or abroad." The affidavit continued -

"I say that I have abandoned the said child because I am unable to look after, maintain, educate and bring up the said child and have no relatives and friends willing to do so. I hereby declare that I have relinquished all the rights and claims and/or obligations of a parent and child between me and the said child are terminated (sic). The authorities of the aforementioned institution or agency may in their discretion place the said child in adoption and/or in guardianship with any suitable person or couple of any race, . . . or creed in (the country) or abroad."

Appropriate orders were made by the court in the foreign country whereby the male applicant was appointed guardian of the child. It was stated that the court had no objection to the child being brought out of the country. The applicants duly brought the child to Australia and have cared for it since.

The Supreme Court concluded that what was done by the court in the foreign country did not amount to an adoption order and this conclusion is not disputed. The Supreme Court further held that none of the grounds mentioned in paragraphs (a), (c), (d) or (e) of sub-section 30(1) of the Ordinance had been established. In relation to the first of those grounds the Court relied upon the absence of any inquiry as to the whereabouts of the mother. In relation to the second, the Court held that the words "abandoned, deserted or persistently neglected or illtreated the child" in paragraph 30(1)(c) referred exclusively to morally reprehensible conduct and were "not apt to refer to a mother who deliberately leaves her child in the care of a religious community when she knows that the child will be cared for by that community with a view to its being handed over to the care of properly constituted adopters or guardians". In relation to paragraph 30(1)(d) the Court was not satisfied that the mother had failed to discharge the obligations of a parent without reasonable cause. Finally, the Court took the view that there were no special circumstances justifying the dispensation with the mother's consent.

The notice of appeal filed herein on behalf of the applicants asserts that the Supreme Court was in error in failing to dispense with the mother's consent upon the grounds mentioned in paragraphs (c) and (e) of sub-section 30(1) of the Ordinance.

When the appeal came on for hearing before this Court counsel for the applicants sought to have admitted further evidence which had not been adduced before the Supreme Court. This evidence related, inter alia, to enquiries made in the foreign country since the date of the Supreme Court's order as to the whereabouts of the mother of the child. The evidence is to the effect that persons associated with the religious community to which reference has already been made had on three occasions visited the address of the mother last known to the community but had not been able to locate her, the occupants of that address stating that they had no knowledge of her whereabouts. The applicants sought, by relying on this evidence, to contend that the ground stated in paragraph 30(1)(a) of the Ordinance had been made out.

The further evidence also related to the involvement of the Welfare Branch of the Department of Territories and Local Government (or its predecessor) in the arrangements pursuant to which the applicants brought the child to Australia. It was with the knowledge of the Director of Welfare, who had approved the applicants as suitable persons to adopt a child born in the foreign country, that the applicants travelled to the foreign country for the purpose of taking lawful custody of a child duly approved by a competent court of that country as being available for adoption in Australia by them. The Director made a report to the foreign court which was thus made aware that the child was to be adopted by the applicants if the foreign court approved the applicants as guardians and authorised the removal of the child to Australia. The child entered Australia with the knowledge and approval of the Director and the Department of Immigration and on the basis that the child was the ward of the Minister for Immigration, such guardianship being delegated to the Director. The evidence also referred to the opinion of the Director that it is not in the best interests of the child that, remaining in Australia, the child is not able to be adopted by any person and must remain in the custody of persons without those persons having the legal obligations of parents. If the child remains unadopted it cannot until age 16 be naturalised and obtain the benefits of citizenship of this country.

The remaining further evidence which the applicants sought to adduce related to the law of the foreign country pursuant to which teh arrangements for guardianship and emigration of the child were made and carried into effect. It appears from that evidence that there is no law in the foreign country providing for the adoption of a national of that country by a foreign applicant, the only way of effecting such an adoption being in accordance with the law of the country in which the foreign applicant resides. In order to facilitate such adoption the courts of the foreign country will in appropriate cases appoint the foreign applicant as guardian of the person of the child and permit him to take the child to his country of residence.

In an appeal the Court has a general discretion to receive further evidence: Federal Court of Australia Act 1976, section 27: Federal Court Rules, Order 52 rule 36. In considering whether the discretion conferred by that section should be exercised in favour of the applicants we have had particular regard to the circumstances that the order from which the appeal is brought is not only interlocutory but is such that, if it is affirmed, may well have the effect of finally determining the application for adoption and will certainly do so if the fears expressed by the applicants that any efforts which they may be able to make to ascertain the whereabouts of the mother of the child are doomed to failure are well founded. We have also considered whether the appropriate course was for the applicants to make a further application to the Supreme Court for dispensation with the mother's consent, supporting that application by the further evidence which they sought to adduce on the hearing of the appeal.

It is clear that most, if not all, of the further evidence on which the applicants seek to rely was not available at the time of the hearing of the matter before the Supreme Court though it may be a question whether it could not with all due diligence have been available at that time. Nevertheless we have, in the particular circumstances of this case, concluded that we should exercise our discretion in the applicants' favour and admit the evidence.

It is clear that if the further evidence had been available to the Supreme Court a different and, we suggest, strong case could have been made for the exercise of discretion pursuant to section 30 of the Ordinance.

The evidence supports that there has been "inquiry" within the meaning of paragraph 30(1)(a) as to the whereabouts of the mother of the child, she being the appropriate person to give consent (sub-section 24(3)). That evidence was not available to the Supreme Court and the question is whether that further evidence, taken with the evidence that was before the Supreme Court, can be said to amount to "reasonable inquiry" within the meaning of that paragraph. The applicants have sworn that they have no knowledge of the whereabouts of the mother and that to the best of their knowledge and belief it would be impossible to find her. The order of the court of the foreign country wherein the male applicant was appointed guardian stated that the father was unknown and his identity had never been disclosed by the mother. The further evidence supports that inquiries at the last known address of the mother had been made by persons from the institution where the child was born but the occupants at that address had no knowledge of her whereabouts. On the evidence of the female applicant, the town wherein the child was born is densely populated. It is also to be noticed that, in the affidavit of the mother dated 17 December 1982, i.e. some 23 days after the birth of the child, she stated that she did not wish to disclose her full identity or whereabouts or give any information concerning the father or other relatives of the child; that she had "abandoned" the child because she was unable to look after it and had no relatives or friends willing to do so; and that the authorities of the institution where the child was born might, in their discretion, place the child for adoption in the country of birth or abroad. Although this evidence goes a considerable distance towards establishing that "reasonable inquiry" was made we prefer not to rest our decision upon paragraph 30(1)(a) of the Ordinance.

We are also of opinion that the evidence does not establish that the mother "abandoned" or "deserted" the child within the meaning of paragraph 30(1)(c) of the Ordinance. It may be that "abandoned" implies a more serious failure on the part of a mother who leaves her child than does "deserted". However, although the Supreme Court did not expressly deal with the word "deserted", we agree that, in its context, that word as well as the word "abandoned" involves an element or morally reprehensible conduct: cf. Waghorn v. Waghorn (1942) 65 C.L.R. 289 per Dixon J. (as he then was) at p. 295. Since we are not satisfied that the conduct of the mother was in the circumstances shown to be reprehensible we are of the opinion that a basis for dispensing with consent pursuant to paragraph 30(1)(c) of the Ordinance has not been made out.

We turn to a consideration of paragraph 30(1)(e). The circumstances under which the Court may dispense with the relevant consent are set out in the paragraphs (a) to (e) of sub-section 30(1). In our opinion there is no reason why these paragraphs should not be given equal value, to the end that if the Court were satisfied that e.g. after reasonable inquiry the person whose consent was necessary could not be found, it might, pursuant to paragraph (a) in its discretion (see the word "may") dispense with that consent; or if the Court were satisfied that the person had abandoned, deserted or neglected or ill-treated the child, it was by paragraph (c) similarly entitled. In our opinion, it must also be that if there were "other special circumstances" the consent could, pursuant to paragraph (e), be dispensed with. We would add that the word "other" in our view does not mean that there must be special circumstances which are quite exclusive of or unrelated to the subject matters of paragraphs (a) to (d). For instance, in our view, if the mother or other relevant person had left the child though in circumstances which did not involve any reprehensible conduct (as we have concluded) and although inquiries had been made which perhaps had not reached what objectively and separately considered one might describe as "reasonable", it could not be said that those factors should be excluded from a consideration of what might, in totality and perhaps in addition to other matters, amount to "special circumstances" (cf. R. and R. v. E (1974) V.R. 291; A.B.A. and Anor. v. E.W.F. (1977) 3 Fam L.R. 11,487). Paragraph (e), in our view, has to be given the widest connotation and, we suggest, is not to be restricted by some approach which omits a consideration of the subject matters specifically mentioned in the earlier paragraphs.

It is possible to find in this case "special circumstances" ("facts peculiar to (this) particular case": A.B.A. v. E.W.F (supra)) which are not immediately referable to the welfare of the child, as would appear to have been the approach to the construction of section 30 adopted by the Supreme Court. Those circumstances include that the mother was unmarried, that she was unwilling to disclose the father's name or whereabouts (which were otherwise unknown), that she was concerned that no-one should know who he was, that she had handed the child over to the institution wherein it was born with the intention that it should be adopted realising that it might be taken out of the country where born, and that a competent court in that country had appointed the male applicant as guardian specifically stating that it had no objection to the child being taken out of the country and being aware that the guardian was an Australian citizen who would return here with the child with the purpose and intention of adopting it. Further, there was no guardian of the child other than the male applicant. The circumstances also include that the child has been brought into this country with the approval of the Department of Immigration, and, if there were to be no section 30 consent, there can be no adoption. Further, part of the "circumstances" are to contemplate what might be the situation if there were no adoption i.e. the child will not return to its own country, it will not have parents, and, inter alia, the mother's wishes will be frustrated - cf. Re F. (A Minor) (1982) 1 All E.R. 321. Moreover, the child having been brought into this country with the approval of the Department of Immigration, it was the intention of the Director of the Welfare Branch of the Department of Territories and Local Government that the child should be adopted by the applicants; in fact, the child was brought into this country on the basis that the child was the ward of the Minister for Immigration but to be adopted by the applicants. The affidavit of Ethel Clarice McGuire states that the guardianship of the child has been delegated (i.e. meanwhile) to the Director of Child Welfare in the Australian Capital Territory.

In our view "special circumstances" are satisfied by these factors quite apart from any consideration as to the welfare of the child. However, when that factor is considered - as in our view it must be by reason of section 15 - there is strong argument for exercising the section 30 discretion. We have before us not only what was before the Supreme Court but further compelling material. We are, therefore, in a position to exercise the discretion which was entrusted to that Court. In our opinion we should now exercise that discretion - see Federal Court of Australia Act 1976, sub-sections 28(1) (b) and 28(4) - and ourselves dispense with the consent of the mother. This will leave the way open to the applicants to apply for custody without that consent being available according to the otherwise requisite formality.

The orders of this Court are -

1. The appeal be allowed.

2. The consent of the mother of the child to its adoption as required by sub-section 24(3) of the Adoption of Children Ordinance 1965 is dispensed with.