S and N v T
[2020] ACTCA 36
•10 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | S and N v T |
Citation: | [2020] ACTCA 36 |
Hearing Date: | 20 May 2020 |
DecisionDate: | 10 July 2020 |
Before: | Elkaim J, Robinson AJ and Crowe AJ |
Decision: | See [69] |
Catchwords: | APPEAL – ADOPTION – Standard of Satisfaction – Dispensation of consent – nature of hearing |
Legislation Cited: | Adoption Act 1993 (ACT) ss 4, 5, 6, 19, 26, 35, 37D, 39D, 39F, 39K, 40, 113, div 3.3 Adoption Act 2000 (NSW) s 90 Supreme Court Act 1933 (ACT) ss 37E, 37N, 37O |
Cases Cited: | ABA v EWF (1977) 3 Fam LR 11,487 Briginshaw v Briginshaw (1938) 60 CLR 336 Re X and Adoption of Children Ordinance 1965 (1984) 2 FCR 533 |
Parties: | S and N (Appellants) T (Respondent) Independent Child Representative |
Representation: | Counsel K Archer and M Davis (Appellants) S Leslie (Respondent) K Mistry (Independent Child Representative) |
| Solicitors Infinity Legal (Appellants) Gabbedy Milson Lee (Respondent) Legal Aid ACT (Independent Child Representative) | |
File Number: | ACTCA 2 of 2020 |
Decision under appeal: | Court: Supreme Court of the ACT Before: McWilliam AsJ Date of Decision: 18 December 2019 Case Title: In the matter of an adoption of QS Citation: [2019] ACTSC 357 |
THE COURT:
Introduction
The appellants challenge the decision of the primary Judge, her Honour Associate Justice McWilliam, to refuse their application to dispense with the consent of the birth mother for the adoption of the child (QS): see In the matter of an adoption of QS [2019] ACTSC 357. Her Honour in her reasons for decision (at [1]) summarised the circumstances of the application before her as follows:
The application before the Court arises in the context of proceedings where the foster carers (the applicants) are seeking to adopt a young girl. The young girl, who is now seven years old, has been in their care since she was a few months of age. In order to proceed with their adoption application, they are first seeking to dispense with the consent of the birth mother, who opposes the adoption. The birth mother has been seeking to increase contact with her child, with a view to allowing the child to reside with her in later years.
The primary Judge noted that an application had been made previously for a dispensation order in relation to the same child, QS, by the Director-General of the ACT Community Services Directorate. That application was dismissed as premature in circumstances where there were proceedings underway in the Children’s Court which had the potential to increase the contact between the child and the birth mother: see In the matter of the adoption of PT [2018] ACTSC 14.
Her Honour recorded that s 26 of the Adoption Act 1993 (ACT) (the Act) prevented the making of an adoption order without the consent of the child’s birth parents. The birth father consented to the adoption by the appellants. The issue before her Honour was whether the consent of the birth mother should be dispensed with under s 35 of the Act. Her Honour noted at [8] of her reasons:
Although this particular application is limited to whether to dispense with the birth mother’s consent, it was heard as part of more substantive proceedings brought by the applicants seeking to adopt QS. Procedurally or technically, there is a two-step process. Practically however, the application to dispense with a birth parent’s consent raises for consideration whether the Court should permit the adoption of QS. It would be futile to dispense with a birth parent’s consent if the Court were not minded to grant the adoption of the child by the applicants, and the Act expressly requires the Court to take into account whether adoption is in the best interests of the child (discussed below), including alternatives to adoption, as part of the consideration of any dispensation application.
The decision of the primary Judge
The appellants, in their application at first instance, relied upon ss 35(1)(d) and (e) of the Act which provide:
35Dispensing with consent
(1)On application, the court may, by order, dispense with the requirement for consent of a person to the adoption of a child or young person if the court is satisfied that—
…
(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.
Her Honour ultimately concluded in relation to s 35(1)(d) that she was not satisfied that the birth mother had failed to discharge her parental obligations for more than a year, or that she had failed to do so without reasonable excuse. The appellants do not appeal from that conclusion.
In relation to s 35(1)(e) of the Act, the primary Judge said at [13]-[14]:
As to whether sub-para 35(1)(e) applies, this requires consideration of whether there are ‘other circumstances’ that ‘justify’ dispensation. Sub-paragraph (e) 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 being of lesser value (see D at [31] and the authority there-cited).
The wording of sub-para (e) involves overlapping reasoning processes. The Court must be satisfied not only that there are ‘other circumstances’ so as to enliven the criterion, but that these circumstances ‘justify’ dispensation. That second aspect is also part of the reasoning process that must be undertaken when considering whether to exercise the overall discretion to dispense with the birth mother’s consent.
Her Honour referred to s 5(1) of the Act requiring the Court to take into account as the “paramount consideration” the best interests of the child or young person (in these reasons, references to “child” should, unless the context indicates otherwise, be read as meaning “child or young person”). Section 5(2) of the Act then provides:
5Best interests of child or young person 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.
Reference was then made to the decision of Refshauge J In the matter of the adoption of D [2008] ACTSC 44 (D) in relation to what was then s 6 of the Act. In particular, her Honour noted Refshauge J’s comment at [37] that while the best interests of the child was the paramount consideration it was not, in effect, the determinative or only consideration. Her Honour then posed the question: In balancing the different factors then, how does a judge reach a conclusion that a particular set of circumstances “justifies” dispensation?
The primary Judge answered that question in the following paragraphs at [18]-[19]:
18. The Adoption Act 2000 (NSW) includes a requirement that the Court be satisfied that adoption is ‘clearly preferable’. This has been held to require that adoption be “obviously, plainly or manifestly preferable to any other action that could be taken by law” (Deputy of Community Services v D [2007] NSWSC 762 at [25]). The degree of conviction in favour of adoption must be commensurate with the gravity of the decision (Application of A; Re D [2006] NSWSC 1056 at [53]).
19. While the equivalent ACT legislation does not use the same language and therefore does not contain such a test, I consider these principles to be a helpful elucidation of the task confronting a Court in this jurisdiction when determining an application to dispense with consent (and an adoption application). The degree of conviction a judge must reach is the same when forming a view that the circumstances ‘justify’ dispensation of consent for the purpose of adoption (referring to the ACT legislation).
Her Honour then set out the objects of the Act contained in s 4. Relevantly these are as follows:
4Objects of Act
The main objects of this Act include—
(a)ensuring that the best interests of the child or young person are the paramount consideration in the adoption of a child or young person; and
(b)providing an adoption process that promotes the wellbeing and care of children and young people in a way that recognises the child's or young person's right—
(i) to grow in a safe and stable environment; and
(ii) to be cared for by a suitable family and to establish enduring relationships; and
(iii) to know about family background and culture and have the opportunity to maintain or develop cultural identity; and
…
(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
…
In the course of dealing with s 35(1)(d), the primary Judge set out the background to circumstances under which QS was removed from her parents and the subsequent attempts by the birth mother to increase contact. Her Honour expressed some concerns as to the management of the latter, as follows, at [23]-[28] and [30]-[31]:
23.…QS was removed from her birth parents in September 2012 by Child and Youth Protection Services (CYPS) when she was just two weeks old, under an emergency order. In August 2013, final care and protection orders were made under the Children and Young People Act 2008 (ACT) (CYP Act) placing QS in the long-term care of the Director-General until she is 18 years old. The Director-General retains the discretion as to those with whom QS is placed.
24.I have considerable reservations as to how this case was managed at that early stage. It is not clear from the evidence why the Director-General, as guardian of the child, did not revisit the ability of the birth mother to care for QS or even the potential to increase contact once the child was a little older and once the birth mother had ceased her relationship with the birth father. This is troublesome in light of the principles set out in s 350 of the CYP Act, which include priority being given to supporting the child’s parents to provide for the care and protection of the child, and the encouragement of contact with the child’s family.
25. However, whatever the circumstances were which led to a long-term care and protection order being made in respect of the child at such a young age many years ago, the Court cannot rewind the clock. The facts are that QS has been the subject of long-term care orders since her early months. As observed by Robb J in the Adoption of IEK [2019] NSWSC 171 (“IEK”) at [158]:
The Court does not review the decision that have already been made by the Children’s Court about parental responsibility. The Court does not form judgments about the fault of any person who had parental responsibility for the child in the past, and the only concern is the present and future objective and emotional circumstances of the child in the light of what is and will be in the child’s best interests.
26.Nevertheless, for a number of years now, the birth mother has been attempting to bring about increased contact with her child, with a view to ultimately making it possible for the child to live with her, should she choose to do so later in life. In June 2016, when QS was 4 years old, the birth mother made an application to the Children’s Court to increase contact with her child. She was regrettably prevented from pursuing that application while the previous adoption proceedings in this Court were on foot.
27.On 19 June 2018, the birth mother withdrew her application to increase contact. The evidence establishes that she took this course because she had succeeded in reaching an agreement with the applicants and the Director-General for her contact to increase to three visits per year. This was consistent with her consistently stated intention of a gradual increase in contact, which she thought would be the least disruptive course and therefore in the best interests of her child.
28.Again, however, the birth mother’s efforts to see her child more have been thwarted. Due to no fault of either the birth mother or the applicants, the increase in contact is yet to occur. There appears to have been subsequent miscommunication, or possible mismanagement as between the Director-General as legal guardian of QS, and her delegate, ACT Together (Barnados). For reasons not identified, Barnados has refused to honour the agreement made by the Director-General, and as at the date of hearing, was continuing to restrict the birth mother’s contact with QS to two visits a year. How the Director-General has permitted this most unsatisfactory state of affairs to continue at such a vital stage of the child’s development is unclear on the evidence.
…
30.Relations between the birth mother and the applicants have been understandably strained for a number of years while they have been opposing parties in litigation concerning QS. The applicants have at times felt insulted by some of the conduct of the birth mother, although it appears that the parties may have been able to move on from past friction. Nevertheless, the strained relationship has led to the birth mother not communicating with the applicants as they would like, and they have perceived this as showing a lack of interest in QS. On the evidence, it has also led to the applicants not being inclined to facilitate informal contact at the level the birth father currently enjoys, which is monthly, albeit not face-to-face.
31.Having observed the birth mother under cross-examination and having received her affidavit evidence, the majority of which I accept, I reject the contention that she has shown a lack of interest in (or care or affection for) her child for more than a year. The birth mother has a low IQ, combined with a shy or perhaps gentle personality. She is easily overwhelmed and I accept her evidence that she finds it difficult to communicate with the applicants, whether in writing or orally (whether by telephone or face-to-face during contact visits). Listening to and observing the birth mother in the witness box has led me to conclude that her communication difficulties may be exacerbated under stress.
In relation to the appellants the primary Judge commented as follows, at [32]:
I have read the evidence of the applicants and observed one of them under lengthy cross‑examination. They are educated, articulate, well-intentioned and willing to speak up when they perceive a situation to be unsatisfactory to them. In contrast to the birth mother, at least one of the applicants in the process of being cross-examined, displayed a much stronger personality. That is not a criticism. Rather, it gives context to the dynamics between the birth mother and the applicants. In particular, it assists in understanding why the birth mother may have presented to the applicants as lacking an interest in QS.
Her Honour then turned to consideration of s 35(1)(e). At [39], her Honour said:
It is important to emphasise the “heavy onus” upon the applicants in seeking to persuade the Court to dispense with the birth mother’s consent (see Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915 per Moffitt P at 918).
Reference was then made to comments made by the High Court in Mace v Murray (1955) 92 CLR 370 (Mace) at 380 and 385 as to the need for strong reasons in order to dispense with the consent of a mother over her objection. Her Honour then noted as follows, at [42]-[45]:
42.More recently, in IEK at [56], Robb J stated:
The very idea that the Court should make an adoption order in respect of a child over the objection of birth parents, at least where it is not reasonably self-evident that those parents are not capable of properly caring for the child, is a challenging issue for all reasonable-minded people.
43.These principles have been set out to explain to the applicants why, notwithstanding that QS has been in their care for a number of years, they face a considerable challenge in seeking to adopt QS in circumstances where both the birth mother and birth father are presently involved in QS’s life, and further, where there is no good reason to prevent the birth mother’s greater involvement.
44.In IEK, Robb J went on to refer to, and adopt a decision of, Hallen J in Re the Adoption of AJH [2017] NSWSC 1751, where his Honour referred to the need to take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems. Hallen J then stated at [295]:
Thus, it is not enough to show that a child could be placed in a more beneficial environment for her, or his, upbringing. There is often required an acute, and difficult, decision to be made and, often, all practicable answers, to some extent, may be unsatisfactory. Sometimes, the alternatives are finely balanced and will call for critical and often anxious scrutiny.
45. Those words resonate loudly in this case.
The primary Judge summarised the submissions of the appellants which she saw as relating to the general benefits of adoption. Her Honour said at [52]:
52.The submissions about ‘other circumstances’ are really arguments in favour of the general benefits of adoption Brereton J has referred to a number of benefits in Adoption of Hogarth (No 2) [2019] NSWSC 9 at [51]:
(1) First, adoption contributes to providing, for children who cannot be raised by their birth family, the stability, security and certainty that they need. It provides certainty and permanence for children, both directly, and indirectly through the additional certainty it affords their adoptive parents. The possibility of further changes, disruptions and separations are minimised. Aspirations to restoration expressed by birth parents are practically foreclosed. In this way, the security afforded by an adoption order is in the interests of the child as much as the adoptive parents.
(2) Secondly, adoption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and – because it is not limited to age 18 – not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents. While adoption legally severs the parental relationship between the children, the birth parents, and any biological siblings, that is typically in circumstances where the legal parental relationship has, in reality, been devoid of practical parental responsibility, and the opportunity for the children to know and have some relationship with their birth family is preserved, in the context of an open adoption, through contact. The security and certainty provided by an adoption order may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the birth parents.
(3) Thirdly, adopted children are raised in a legally recognised family, rather than remaining “State wards” for the duration of their childhood; “out-of-home” care is thus replaced by in “in-home” care. The need for departmental intervention, and departmental approval for significant decisions of the carers, is removed, along with the stigma potentially associated with being a “State ward”. One aspect of this is that, where their legal name corresponds with that of the family with which they live and identify, they are enabled to choose for themselves whom they tell of their status, without it being self-evident from their different surnames. Children who do not live with their birth families tend to control knowledge of that circumstance closely, and the assumption of the adopters’ surname which is an ordinary concomitant of adoption facilitates this.
In the context of those comments, the primary Judge concluded that the first criterion of s 35(1)(e) had been made out, at [55]:
I accept that there are ‘other circumstances’ arising, given that the foster carers are parenting QS as if she is their own, and have done so for six years. Further, the constant and often frustrating interactions with representatives or delegates of the Director-General make their daily care of the child more difficult than it otherwise might be. I accept also the general benefits of adoption for children in long-term foster care and that those benefits of themselves may create ‘other circumstances’.
Having reached that conclusion, however, her Honour exercised the overall discretion under s 35(1) against the appellants. Her Honour said at [56]:
However, after consideration of the parties’ evidence, in particular, the expert evidence before the Court, and anxious scrutiny of the alternatives to adoption at QS’s current age, I am not satisfied that the circumstances justify dispensation, having regard to the degree of conviction that must be reached before granting such an order. There are other avenues available to the applicants which may equally be in the best interests of QS (discussed below). Their existence detracts from an adoption order.
In relation to the matters which the Court was required to take into account in assessing the best interests of the child her Honour commenced by referring to ss 5(2)(f) and (g). Her Honour did so as follows, at [57]:
There is clearly a loving bond between the applicants and the child. There is no issue as to their suitability or capacity to meet QS’s needs (see sub-paras 5(2)(f) and (g) of the Act). QS has been fortunate to have a very stable upbringing in terms of the foster care provided.
In relation to s 5(2)(a) the primary Judge saw no particular advantage for QS in making an adoption order. Her Honour said at [58]-[59]:
58.In terms of likely effect of the decision on QS’s life course (sub-para 5(2)(a) of the Act), that stability will continue, in that the refusal to grant an adoption order does not change the current position of the foster carers in any way. (The converse position, being the likely effect of a decision to grant adoption, is discussed below). The expert evidence as to general benefits of adoption for children in foster care does not persuade me that this particular child might be adversely affected if an adoption order were not made at this stage of her life. To the extent that the experts did purport to offer an opinion as to how QS may be impacted if an adoption order were not made, the evidence was somewhat speculative. It was qualified under cross-examination once the research relied upon transpired not to be directly on point with regard to QS’s developmental issues. I was not satisfied by the evidence that QS would respond or develop any differently to other children in foster care in terms of feelings of stability or security. It may be assumed that every young child wants to feel that they belong and that they are ‘normal’.
59.Having heard the evidence, and in particular the evidence of the applicants as to their interactions with those handling QS’s case on behalf of the Director-General, I appreciate they have concerns about continuing to be exposed to the possibility of having QS removed from their care if an adoption order is not made. However, it would clearly not be in QS’s best interests to take her away from the people who have cared for her for as long as she can remember. There was no serious suggestion that the placement of QS with her current carers was genuinely at risk; or at least, no evidentiary foundation for any such suggestion.
In relation to s 5(2)(b), her Honour did not see this provision as weighing heavily in the balance one way or the other. She commented at [60]:
The child is still young, certainly in terms of her level of understanding (sub-para 5(2)(b) of the Act). An adoption order while the child is still young, and before she has the maturity and understanding of what it means to be in foster care, might prevent QS feeling any insecurity in that regard. Realistically though, QS already knows who her birth mother and father are, and she knows she is not living with them. She is fortunate to have been in foster care with the same people and to have built an attachment to them for as long as she can remember. Given those circumstances, it is difficult to predict whether the lack of an adoption order would have any psychological consequence for QS.
On the other hand, the primary Judge placed considerable weight on the possible effects on QS and the birth mother if an adoption order was to be made. Her Honour was of the opinion that it would lead to uncertainty in the amount of contact between QS and the birth mother, and that the past level of contact was not in QS’s best interests. It is necessary to set out her Honour’s reasoning at [61]-[65]; [68] and [70] in full:
61.Conversely, the child is still young enough to benefit from an improved relationship with her mother. The presence of a loving relationship between the mother and the child is obvious (sub-para 5(2)(e) of the Act). QS clearly identifies the birth mother as her mother and wants to spend time with her, and the birth mother feels the same way. That mother/daughter relationship is likely to continue, and ideally will grow further. The birth mother has a genuine desire, willingness and apparent capacity to be involved in QS’s life and to take on a greater role than has been previously permitted.
62.In the medium and longer term future, it is a realistic possibility that QS will also be in more regular contact with her birth mother. The birth mother is in stable employment and stable accommodation. She is unaffected by drugs, domestic violence or other vices that might make more regular contact ill-advised or untenable. There was also nothing put before the Court to demonstrate that more regular contact with the birth mother would have any adverse effect on QS. Indeed, QS has been in regular contact with her birth father without any apparent detriment.
63.The applicants have indicated to the Court a willingness to promote more regular informal contact, ‘as long as it remained in QS’s best interests’. This was a position which has obviously changed since they presented an adoption plan to the Director-General, indicating they wished to reduce contact with the birth mother to twice a year.
64.The difficulty is that if an adoption order were made (sub-para 5(2)(a) of the Act), the likely outcome, in terms of QS’s contact with her birth mother, would be uncertain. Neither the Court nor the Director-General would have any role in ensuring that the birth mother’s access to her child was facilitated regularly. It is something that, apart from two court ordered visits per year, has been and would be at the whim of the applicants.
65.I am not satisfied that the opportunity for QS to establish a loving relationship with the birth mother while in the care of the applicants has been exhausted, particularly when it is clear that this has been successfully achieved with the birth father and was in the process of being achieved with the birth mother. The present guardian of QS, the Director-General, has been unable (for whatever reason) to ensure that this avenue has been pursued, in even a small way, in accordance with her agreement in 2018 with the parties. No doubt the birth mother will take whatever further steps she needs to in order to ensure that the agreement is implemented. In that sense, this further application remains premature. I consider that in this case, the child and the birth mother should be afforded every opportunity to improve their relationship through more frequent contact before any adoption order is made. Two or three times a year is insufficient and not in the best interests of QS.
…
68.It will be apparent from what has been said that I have a concern about the likely effect of a decision to permit the adoption on QS’s life course. The general benefits of adoption have been discussed above and they weigh significantly in favour of adoption. However, this child’s family presently includes both the applicants and her birth parents. If an adoption order were made, I am not convinced that QS’s relationships with her birth parents would be unaffected, and in my view, that would be detrimental for QS.
…
70.A further issue if an adoption order were made, is the possibility that the child will later feel abandoned by her birth mother, when it is clear that this is not the case. The child may also come to resent the applicants for seeking adoption without the birth mother’s consent, particularly when the contact arrangements were unsettled at the time of this application.
In relation to any wishes expressed by QS her Honour noted at [67]:
Currently, QS has enjoyed spending time with her birth mother, and she has at times expressed a desire to live with her (sub-para 5(2)(d) of the Act). That is not a factor to which I attach any significant weight given the child’s age and developmental needs (sub-paras 5(2)(b) and (c) of the Act), but I have taken the evidence into account merely as an indication that the mother’s involvement in the child’s life is something the child presently enjoys.
Her Honour concluded at [71] and [75]-[76]:
71.It is extremely difficult to predict what may happen either way, but these concerns mean that I am simply not satisfied that QS would plainly be better off in the medium to long term with an adoption order in favour of the applicants. As such, the “heavy onus” has not been discharged.
…
75.In what has been a difficult decision given the uncertainties discussed above in respect of each consideration, the result is that I have been persuaded not to take the exceptional step of dispensing with the mother’s consent to adoption. At this stage of their relationship, it is not in the best interests of QS to deprive her of the birth mother’s parental ties or for that bond to be severed by a court order that would ultimately permit adoption. I am equally not satisfied that the birth mother should lose her entitlement to call her child her own at law simply because she is poor, has intellectual difficulties, and did not initially cope with the upheaval of giving birth to a child at the age of 19. It is clear that those difficulties have had devastating consequences for the birth mother in terms of how she deals with child and youth protection workers, the applicants and even, it appears, from how she has engaged with the justice system in bringing about change in a timely manner. This is not to put the birth mother’s interests above those of her child; rather, it is to recognise each side of the relationship at stake.
76.The general psychological benefits of adoption are not as clear in this case. As it is not plainly in QS’s interests to make an adoption order, the more cautious approach is for the applicants to pursue other avenues which would give a greater degree of certainty for them than they currently have.
In terms of the alternatives to adoption (s 5(2)(h)), her Honour considered whether any conditional order could be made under s 40 of the Act that could guarantee the contact of the birth parents with QS. However, the power to make such an order required the agreement of the birth parents and those applying for the adoption.
The primary Judge acknowledged that the restoration of QS to the care of the birth mother was probably not a realistic medium-term alternative. Even so, her Honour concluded that the existing arrangement was well settled and likely to be ongoing if an adoption order was not made. She did, at the end of her reasons, raise with the parties the possibility of the appellants seeking a guardianship order under s 39K of the Act. Such an order could be made subject to conditions.
Her Honour ordered that (1) the application be dismissed; and (2) that the applicants pay the respondent’s costs, and the costs of the child’s representative. Her Honour also made some consequential orders which are not material to the appeal.
Grounds of appeal
The appellants appeal against orders (1) and (2) as noted in [26] above. The grounds of appeal are:
4. Her Honour acted on a wrong principle in finding:
(i)That the interests of the parents should be given significant weight in the exercise of discretion under s 35 of the Adoption Act 1993 (ACT).
(ii)That the making of an order of dispensation under s 35 of the Adoption Act 1993 (ACT) was indicated only if it was clearly or manifestly preferable to make such an order.
(iii)Her Honour otherwise than as particularised in ground 1, misconstrued the principles governing the exercise of discretion as to the making of an order for dispensation under s 35 of the Adoption Act 1993 (ACT).
(iv)Her Honour made findings as to the best interests of the child that were unreasonable given the weight of the evidence suggesting an order for dispensation should be made in the child’s best interests.
Submissions
Appellants’ submissions
The appellants argued that the primary Judge had erred in importing a test developed in relation to the Adoption Act 2000 (NSW) (the NSW Act) in making the determination required under s 35(1).
The point was made that the NSW Act operates quite differently from the Act. There were significant textual differences. Of particular significance was s 90(3) which provides:
90Court to be satisfied as to certain matters
…
(3)The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.
Mr Archer, senior counsel for the appellants, pointed out that there is no equivalent provision in the Act. He argued that the primary Judge had, in applying the approach developed by the NSW authorities set herself a standard of satisfaction which was higher than that required by the Act.
The appellants also argued that her Honour had omitted from her consideration the fact that the applicants had, effectively, been parenting QS for seven years, and that during that time the birth mother had had periods of contact with QS for two or three times each year since August 2014. The appellants added that, realistically, that arrangement was not likely to change.
The appellants submitted that the primary Judge had failed to engage adequately with the expert evidence. Her Honour’s finding at [58] of her reasons, that the evidence was speculative, did not accurately reflect what had been said by Dr Bragg.
The appellants argued that some of the findings made by the primary Judge were unreasonable, having regard to the evidence. They were as follows:
(1)The possibility of an improved relationship with the birth mother. There had been contact between the birth mother and QS twice a year for four years. The appellants referred to the evidence of Ms K Lehman as providing an explanation for that. That frequency could only be changed by an order of the Children’s Court. There was no evidence that such a change was likely, or that the birth mother had demonstrated a capacity to play a greater role in the care of QS.
(2)The desirability of greater contact with the birth mother. Her Honour found that contact more than twice a year was best for QS, and that contact frequency with the birth mother was important at QS’s “vital stage of...development”. There was no evidence to support these findings. Indeed, they were contrary to the expert evidence.
(3)The potential for a loving relationship with the birth mother while QS was in care. Her Honour concluded that this potential had not been “exhausted”. However, it was submitted that the evidence of the difficulties in the appellants’ dealings with the mother, and destabilising comments which she had made on occasions suggested that that conclusion was doubtful. Reference was made to the expert evidence which indicated that in circumstances where the birth mother was unsupportive of the placement increased contact was contraindicated.
(4)Failures of the Director-General. The appellants argued that it was not for the Director-General to revisit the ability of the birth mother to care for QS, or for increased contact, having regard to changed circumstances. Those issues were the subject of the birth mother’s application to the Children’s Court which was withdrawn in 2016. It had been open to her to apply to vary the orders made in 2013 at any time since that date.
(5)Adverse effects on QS of increased contact. Her Honour’s comment that nothing had been put before the Court to indicate such effects was contrary to the expert evidence.
Submissions of the child’s representative
Ms Mistry appeared as the child’s representative in this Court, as she did before the primary Judge. Ms Mistry generally adopted the submissions made by the appellant.
Further submissions were made in support of two of the grounds of appeal:
(1)In relation to Ground 4(i) Ms Mistry argued that the statements made by the primary Judge in relation to the attempts by the birth mother to increase contact with a view to residence in later years, and the lack of evidence that increased contact might have an adverse effect on QS were contrary to the evidence. The only evidence of any attempt to increase contact was the reference to a single (withdrawn) application to the Children’s Court during the period of six years since 2013. The absence of any realistic plans for residence in the future was highlighted by the answers given by the birth mother under cross-examination. She was completely unable to explain when or in what circumstances she would make an application for QS to be restored to her care. As to the second point reference was made to the report of Ms Lehman, and the conduct of the birth mother during a number of contact visits over the years.
(2)Also in relation to Ground 4(i), Ms Mistry pointed to her Honour’s comment at [65] of her reasons that the birth mother would “no doubt” take the necessary steps to ensure that the agreement made in June 2018 to increase contact would be implemented. The point was made that there was no evidence that the birth mother had in fact done anything to take such steps.
(3)Ms Mistry also made further submissions in relation to Ground 4(iv). She argued that the findings of the primary Judge in relation to s 5(2)(a) were against the evidence and the weight of the evidence. In relation to ss 5(2)(b) and (c) Ms Mistry pointed to the evidence of QS’s disabilities and special needs, and the opinions expressed by Ms Morris and Dr Bragg in that context. As to s 5(2)(e), reference was made to In the matter of the adoption of MSM [2017] ACTSC 92 at [102]. Finally, in relation to s 5(2)(h) Ms Mistry challenged the option of a guardianship order under s 39K. Such an order would prolong the uncertainties of QS’s status. Such an order would lead to the probability of further litigation on the part of the birth mother under the Children and Young People Act2008 (ACT).
Ms Mistry referred the Court to the decisions in the cases of In the matter of the adoption of CD [2017] ACTSC 411 and In the matter of the adoption of TT [2017] ACTSC 181 as indicating an inconsistency of approach in the instant matter.
Ms Mistry submitted that the evidence in this matter overwhelmingly supported the making of the dispensation order, having regard to the best interests of the child.
Respondent’s submissions
Ms Leslie appeared as counsel for the respondent.
In relation to Ground 4(i) Ms Leslie made the point that the reference in the ground to “the interests of the parents” is vague and uncertain. Moreover, nowhere in her Honour’s reasons did she make a finding that such interests should be given significant weight. Even if that had occurred, it is argued, it would be necessary for the appellants to demonstrate that such a consideration indicated a failure to properly exercise the discretion required under the Act (referring to House v The King (1936) 55 CLR 499 (House v The King)).
Ms Leslie submitted that properly understood, the various references by her Honour to the relationship between the birth mother and QS were matters relevant to the considerations required to be taken into account under s 5(2). In broad terms, they were relevant to the determination of what was in the best interests of QS, not of her birth parents. It followed that the appellants did not get to first base in demonstrating the asserted error in her Honour’s reasoning.
As to Ground 4(ii) Ms Leslie pointed to the acknowledgement by the primary Judge at [19] of her reasons of the different language used in the Act from s 90(3) of the NSW Act. In the context of that acknowledgement her Honour said that the principles developed by the NSW authorities provide “a helpful elucidation” of the task which confronted her. Ms Leslie pointed to the authorities in the High Court and in this jurisdiction which emphasise the gravity of a decision to dispense with a birth parent’s consent to adoption. It is submitted that her Honour simply approached the matter in the light of those authorities. She did not apply an incorrect test as argued by the appellants. That can be seen, it is said, from the language used by her Honour at [71] of her reasons.
Ms Leslie argued that Ground 4(iii) has, in the circumstances, no real content. It adds nothing to the other grounds.
In relation to Ground 4(iv) Ms Leslie addressed the appellants’ arguments under four sub-headings. They were as follows:
(1)Expert evidence. Ms Leslie submitted that her Honour had properly considered the expert evidence and had explained at [58] of her reasons why she found it unpersuasive. The weight to be given to the expert evidence was very much a matter within the discretion of the trial judge. The appellants failed to demonstrate any appealable error in that regard.
(2)Relationship with the Director-General. It is submitted that there was indeed evidence from the appellants that the relationship with the Director-General in relation to day to day decisions about travel, sleepovers, school excursions, etc. could create delay and uncertainties. Moreover, there was evidence that the appellants felt “at risk” as foster parents and that the continuity of their relationship with QS had been threatened by a delegate of the Director-General. However, these matters did not demonstrate that it was in QS’s best interests for an adoption order to be made. It was submitted that such reasoning would apply in almost every long-term fostering case. Such an approach is contrary to the correct application of s 35. Moreover, it was pointed out that the Director‑General was not a party to the proceedings and that her Honour, appropriately, did not make specific findings about these matters. The comments which her Honour did make did not lead to the conclusion that any difficulties in the relationship with the Director-General should result in a dispensation order.
(3)Misconstruction of the appellants’ case at trial. This refers to the submission summarised at [32] above. Ms Leslie pointed to [1] and [55] of her Honour’s reasons. She stated that it is clear that her Honour did take those circumstances into account. In relation to future contact arrangements between the birth mother and QS, it was submitted that it was not for her Honour to make a finding about that in the proceeding before her. She was however entitled to comment as to the importance of the relationship between QS and her mother.
(4)Unreasonable findings. Ms Leslie submitted that insofar that her Honour made a finding that there was a possibility for an improved relationship between QS and her birth mother it accorded with common sense, and was not erroneous. As to the comments about the mother-daughter relationship continuing and “ideally” growing, these are consistent with the appellants’ own evidence. The latter was, in any event, no more than the expression of a reasonable hope for QS’s future. In relation to the finding that the birth mother had the desire, willingness and capacity to take a greater role in QS’s life, Ms Leslie submitted that such a conclusion was open on the evidence, having regard to the respondent’s refusal on two occasions to consent to adoption applications in relation to QS.
In conclusion, Ms Leslie submitted that the issue before her Honour was not whether a child would be better off living with his or her parents or with the prospective adopting parties. Nor was it whether there was any chance that the child might be restored to a parent’s care. The decision required the application of statutory considerations to a factual matrix which was unique to each child and each family. The appellants had failed to demonstrate that the primary Judge had erred in carrying out that task.
Consideration
It is necessary, at the outset, to consider the nature of the appeal in this matter. The appeal is brought as of right under s 37E(2)(a) of the Supreme Court Act1933 (ACT). This is on the basis that the rejection of the dispensation application effectively brings the adoption proceeding to an end. This Court must have regard to the evidence before the Court below, and may draw inferences from that evidence: see s 37N of the Supreme Court Act. (No question of further evidence arises here.) The powers of this Court are set out in s 37O. Relevantly, that section provides:
37OOrders on appeal
(1)The Court of Appeal has the following powers in relation to the order appealed from:
(a)to confirm, reverse or amend the order;
(b)to give any order it considers appropriate, or refuse to give an order applied for;
(c)to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate;
…
(5)The Court of Appeal may exercise powers under subsection (1) in relation to the order appealed from —
(a) despite any application in the notice of appeal that part only of the order be reversed or amended; and
(b) in favour of all or any of the respondents or other parties, including any who have not appealed from or complained of the order.
…
There was some debate at the hearing of the appeal as to whether the decision under
s 35 was a “discretionary” decision to which the principles in House v The King applied. The use of the term discretionary is probably not helpful in this context: see Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [37]-[40]. It is essential to analyse the decision-making process required by the statute.
The starting point is of course that the overall issue to be determined is whether an adoption order should be made. The section of the Act which governs the making of an adoption order is s 39F which is as follows:
39FDeciding application for adoption order for child or young person
(1)The court must not make an adoption order for a child or young person unless—
(a)each consent required under division 3.3 has been given; and
(b)the period within which each required consent may be revoked has expired without the consent having been revoked; and
(c) after considering the report or reports given to it under section 39D (Report on proposed adoption) or section 57A (Report on child for intercountry adoption) and any other evidence, the court considers that —
(i) each applicant is of good reputation and able to fulfil the responsibility of the parent of a child or young person (including protecting a child’s or young person’s physical and emotional well being); and
(ii) each applicant is suitable to adopt the particular child or young person having regard to—
(A)the applicant’s age, education and attitude to adoption; and
(B)the applicant’s physical, mental and emotional health, particularly as it impacts on capacity to nurture the child or young person; and
(C)any other relevant consideration; and
(iii) the adoption is in the best interests of the child or young person.
(2) In deciding whether or not to make an adoption order, the court must have regard to—
(a) the views expressed by the child or young person in the consultation required under section 39E (Consultation with child or young person before adoption order made); and
(b)any preferences expressed in an adoption plan given to the court as part of a report required under section 39D (Report on proposed adoption).
(Note omitted)
Section 39F(1)(c) refers to a report under section 39D of the Act. That section states:
39DReport on proposed adoption
(1)The director-general, or the principal officer of a private adoption agency that made the arrangements that resulted in an application for an adoption order for a child or young person, must give a written report to the court.
(2)The written report must include—
(a)information about the circumstances of the child or young person; and
(b)information about the proposed adoption, including the applicant’s reputation, ability to fulfil the responsibility of a parent and suitability to adopt the particular child or young person; and
(c)an adoption plan.
(3)The adoption plan may include anything that is appropriate taking into account the best interests of the child or young person, including—
(a)the preferences of a parent of the child or young person and of any person whose consent is required for the adoption in relation to the social, religious and financial characteristics of the adoptive family; and
(b)arrangements for exchanging information about the child’s or young person’s medical background or condition; and
(c)arrangements for ongoing contact between the child or young person and 1 or more of the following:
(i) a parent of the child or young person;
(ii) a person whose consent is required for the adoption;
(iii) a person who otherwise has a significant relationship with the child or young person; and
(d)the way the child or young person is to develop an understanding about his or her family background and culture and have the opportunity to maintain or develop cultural identity.
(4)If the child or young person is under the guardianship of an authority in a State or another Territory having functions under the law of that State or Territory corresponding to those of the director-general, the court may be given a report from that authority about the circumstances of the child or young person and the proposed adoption in addition to or instead of a report mentioned in subsection (1).
(5)A written report is not required under this section if the application is for an adoption order mentioned in section 57 (Adoption in ACT of ACT child or young person by parents from Convention country).
(Notes omitted)
It can be seen that the Court is prohibited from making an order unless the Court is able to reach certain factual conclusions (s 39F(1)(c)(i)) and value judgments (ss 39F(1)(c)(ii) and (iii)). The effect of s 5 is that s 39F(1)(c)(iii) must be regarded as the paramount consideration. Moreover, in making that evaluative judgment the Court must take into account the matters referred to in s 5(2).
Sections 39F(1)(a) and (b) direct the attention of the Court to Division 3.3 of the Act which deals with consent. Clearly, where an order for dispensation is made under s 35 such that there is no “consent required under division 3.3”, then there can be no impediment to the making of an adoption order under those paragraphs.
In D, Refshauge J said at [57]:
57. I note that in this case I have made the order dispensing with the consent of the birth father independently of the consideration of the adoption order. The latter consideration has been adjourned because the report required under s 19 of the Adoption Act 1993 (ACT) had not been completed. I am conscious of the salutary comments of O’Bryan J in In the matter of CB and Ors (No 1), supra, at 662 that warnings have been expressed by the courts at considering an application to dispense with consent apart from the consideration of the adoption order itself. He quotes what Gillard and Murphy JJ said in Director-General of Social Welfare v Black and Ors (Unreported, Full Court of the Supreme Court of Victoria, 29 June 1965) that:
The court’s power [to consider dispensing with consent separately] in our opinion, ought to be exercised very sparingly, for it can only be in an exceptional case that the court would be able to conclude that, regardless of whom the adopting parents might be, the consent of the child’s mother, if refused, should be dispensed with.
I respectfully agree. Nevertheless, in this case the application for adoption is pending and, in all the circumstances, I considered that it did not conflict with these sound principles to proceed in this case.
Section 19 of the Act in 2008 when the matter of D was decided equates to s 37D of the Act as it is now. The s 37D report here was available to the primary Judge. She refers to it in [7] of her reasons. The report remains confidential unless the Court orders otherwise: see s 113 of the Act. The report was not included in the appeal papers, no application was made for it to be made available to the parties, and the Director-General was not represented. As a result, this Court at the appeal hearing declined to take it into account in determining the appeal.
The comment of Refshauge J is reflected in the r 3170(4) of the Court Procedures Rules 2006 (ACT) which provides:
3170Dispensing order – application
…
(4)The application for a dispensing order must be made at the same time as the application for an adoption unless the Adoption Act, section 35(3) applies.
Subsection 35(3) of the Act permits the Court to determine an application to dispense with consent in advance of the adoption application itself where the Director-General (or the principal officer of a private adoption agency) applies for such an order. There is nothing in the appeal papers to suggest that such an application was made here. The primary Judge at [8] of her reasons referred to the adoption application as being a “two‑step” process. It is not clear why the matter was being approached in that way. This Court endorses the comment of Refshauge J as extracted in [51] above. Unless an order has been made under s 35(3) an application for a dispensation order should be heard and determined with the adoption application itself. As her Honour acknowledged in paragraph [8] the issues in deciding whether an adoption order should be made, and whether consent should be dispensed with, are inextricably bound together.
It is necessary to say something more about the elevation of the best interests of the child under s 5 as the “paramount consideration” for a person “making a decision under this Act”.
As her Honour commented, Refshauge J had, in D, adopted what had been said by Connor J in the Family Court of Australia in ABA v EWF (1977) 3 Fam LR 11,487. Connor J was dealing with an application under the Adoption of Children Act 1896 (WA) (the WA Act). Section 2A of that Act stated “For all purposes of this Act, the welfare and interests of the child shall be regarded as the paramount consideration”. Connor J concluded that that provision only applied where the decision to be made concerned the welfare and interests of the child. It was in that context that His Honour referred to it not being “the overriding consideration nor is it the only consideration”.
The other authorities referred to by Refshauge J dealt with similarly worded provisions to the WA Act section. There is no real analysis in those decisions which is relevant to the Act in its present form. Indeed, at the time Refshauge J was considering D, s 6 of the Act provided:
For this Act, the welfare and interests of the child concerned shall be regarded as the paramount consideration.
However, that section was replaced with the substantial amendments made to the Act by the Adoption Amendment Act 2009 (No 2) (ACT). The Explanatory Memorandum (EM) set out the background to the amending bill:
In the light of major legal and public policy initiatives over the last fifteen years, including the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption and the enacting of the ACT Human Rights Act 2004, there was a need to review sections of the Act in terms of contemporary relevance and accountability requirements.
The EM further noted:
The profile of adoption in the ACT community has changed significantly since 1993. Overseas and step-parent adoptions now comprise over 80 % of adoption orders made in the ACT. Adoption of infants from the local community is unusual and often related to complex family difficulties. Another emerging trend is that, as part of permanency planning for children and young people in out of home care, progressively more long-term carers are seeking to secure adoption orders for children in their care. Adoption is referred to in the Children and Young People Act 2008 as a consideration for ensuring the long-term placement of a child or young person in a safe, nurturing and secure environment.
Revisions of terminology used in the Bill, in particular to describe child-centred practices, provide a further reflection of consistency with the Children and Young People Act 2008.
Having regard to the language of s 5, and in particular the reference to the obligation now imposed on a person making any decision under the Act, we consider that the old authorities referred to by Refshauge J ought not be applied to the operation of s 5. Section 5 should be applied in accordance with the plain words used. Any decision to be made under the Act must be made in the context that the paramount consideration, that is the most important or pre-eminent consideration, will be the best interests of the relevant child.
In the context of an adoption application the finding of what is in the best interests of the child might well be determinative. Indeed, having regard to the relationship between s 35 and the decision as to whether an adoption order should be made, it is difficult to see how a decision that it was in the child’s best interests to be adopted by the proposed adoptive parents could result in any outcome other than a dispensation order.
The decision-making required under s 35(1) does require the Court to engage in a two‑stage process. The first stage must be the combination of fact finding and evaluation required under the particular paragraph(s) relied upon by the applicant. The only paragraph relevant here is now s 35(1)(e). It is a paragraph of extremely wide import: cf Re X and Adoption of Children Ordinance 1965 (1984) 2 FCR 533 at 537-538. As in that matter, we are of the view that the best interests of the child is an “other circumstance” for the purposes of a decision under s 35(1)(e).
The primary Judge at [55] of her reasons (which is extracted at [16] above) accepted that the general background to the application before her provided sufficient “other circumstances” for the purposes of s 35(1)(e). We agree with that conclusion.
However, her Honour in addressing the question of whether or not the dispensation order should be made, in our view, fell into error in applying to the applicants an onus of satisfaction which went beyond that required by the Act itself. While it may be accepted that, as a general proposition, it is a serious and grave decision to transfer the parental responsibility for a child away from birth parents to others (as acknowledged in Mace), such a consideration should not divert the Court from the application of the statute according to its terms. Taking guidance from NSW authorities bound by the requirement that adoption should be the “clearly preferable” outcome, and reference to terms such as the “heavy onus” to be discharged and the “exceptional” step of making a dispensation order are apt to lead the Court to set the bar too high in making the evaluative decisions required by the Act. In our opinion her Honour misdirected herself in that regard.
The standard to be applied is that required by s 140 of the Evidence Act 2011 (ACT). That section provides:
140Civil proceedings—standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is satisfied, it must take into account—
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
It is not necessary for the purposes of this appeal to reconcile the precise degree to which this section interacts with the principle stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Suffice to say that it must be accepted that the nature of the proceeding here requires that the Court would not conclude that adoption was in the best interests of QS without a careful examination of the whole of the evidence. In that context, making due allowance for the different nature of the matter there in question, we agree with the comments of Ormiston JA in Kantor v Vosahlo [2004] VSCA 235 where his Honour said at [22]-[24]:
22.For purposes such as the present, where the Court has to be satisfied affirmatively on the capacity of the testatrix to make a valid will, the burden of proof or, more precisely, the standard of proof therefore remains the same, that is, upon the balance of probabilities, but the Court is not to reach such a conclusion unless it has exercised the caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence. If that process results in the Court being affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will, then a grant of probate should be made.
23.Lest it be thought that the “process” or method of approach, which has been laid down for consideration of testamentary capacity and which I have endeavoured to explain, is in reality another way of expressing that a heavier burden of proof rests on the propounder in a case such as the present, it may be useful to make a comparison with a “process” of deliberation, which, although of necessity not entirely analogous, has applied in another jurisdiction of the Court. The criminal law over the centuries has required juries to be warned as to the way in which they should address proof of particular issues or in reliance on the evidence of particular kinds of witnesses. Thus in a variety of circumstances judges have warned juries of the dangers of convicting the accused on the unconfirmed evidence of accomplices or certain complainants unless, having scrutinised the evidence with great care, having considered the relevant circumstances and having paid heed to the judge’s warning, they are satisfied of the truth and accuracy of the evidence: see, e.g., Jenkins v. The Queen, Longman v. The Queen. Now, strict though that warning is, it has never been suggested that the standard of proof, as such, in criminal trials has thereby been altered. A criminal jury in those circumstances is never told that they can convict only if they are satisfied beyond any doubt, reasonable or otherwise. And this is for the very good reason that the warning is directed (again) only to the “process” or method of approach whereby the jury should decide whether the prosecution case is made out to the criminal standard. It is a warning to stop and stand back, to exercise caution in particular and out of the ordinary circumstances, which require a judge to issue a warning of danger, but it does not result in any increased or heavier standard of proof.
24.A not dissimilar approach applies to a case such as the present, in a civil trial, on an issue which not infrequently in the past was left to the practical common sense of juries. Warnings were given, even if not in precisely the same terms as would now be appropriate: see, for example, the warning given to the jury by Hannen, J. in the oft-cited case of Boughton v. Knight. Likewise a judge must apply to the relevant issue the same caution as would be appropriate for a jury direction in this kind of case. The caution now (and for many years past) to be applied by judges has already been stated. It should affect the manner in which they reach their conclusions but it has not been intended to change the standard of proof. To say that the burden in these cases is a “heavy” one is to misunderstand that process, whereas I would not read any error in the observations by Mayo, J. and Eames, J. in the cases cited having regard to the way in which they examined the relevant authorities. I would therefore conclude that the learned trial judge misdirected himself in the present case.
(Citations omitted)
Having regard to the error of principle which we see in the way in which the primary Judge approached the application before her, the question arises as to whether the matter should be remitted for further determination, or whether this Court should review the evidence and decide the application itself. Ms Leslie, in oral submissions, argued for a remittal, should the Court be minded to allow the appeal. She referred to the possible need for recanvassing the expert evidence or perhaps for further cross-examination. Given that there was no challenge to her Honour’s findings as to the credit or character of the witnesses, we are not persuaded by that submission. In the interests of achieving some finality to this litigation we would have preferred to have embarked on the determination of the dispensation application ourselves. However, we see an insurmountable obstacle to that course.
On our analysis the crucial, if not determinant, consideration to the dispensation decision is whether or not it would be in QS’s best interests for the adoption order to be made in favour of the applicants. Having regard to s 39F(1)(c) it is mandatory for the Court making that assessment to consider the s 39D report. In our view, that requires the Court, in deciding the s 35 application, to take into account the s 39D report. Because we are not in a position to do that (see [52] above) we conclude that, unfortunately, there is no alternative but to remit the application for re-determination.
Orders
The orders of the Court are:
(1)The appeal is allowed and Orders 1 and 2 made by the Associate Judge on 18 December 2019 are set aside.
(2)The matter is remitted for further hearing and decision according to law.
(3)The respondent is to pay the costs of the appeal of the appellants and the child’s representative.
(4)Order 3 above is stayed for 14 days, and thereafter until further order if either party or the child’s representative exercises the leave granted in Order 5 below.
(5)Either party, and the child’s representative, has leave to seek a different order as to costs by notifying the Associate to Justice Elkaim accordingly within 14 days of the date of these orders.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Acting Justice Robinson and Acting Justice Crowe. Associate: Date: 10 July 2020 |
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