SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: In the matters of the adoption of BB, BM and BD Citation:
[2023] ACTSC 45
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matters of the adoption of BB, BM and BD |
Citation: | [2023] ACTSC 45 |
Hearing Date: | 2 March 2023 |
DecisionDate: | 15 March 2023 |
Before: | McWilliam AsJ |
Decision: | 1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the consent of the respondent, the birth mother of BB, BM and BD, to their adoption. 2) Proceeding AD 12 of 2022 is listed on 24 March 2023 for the hearing of the application for adoption orders to be made in relation to BB pursuant to Div 3.6 of the Adoption Act 1993. 3) Proceedings AD 13 of 2022 and AD 14 of 2022 are each listed on 27 April 2023 for the hearing of the applications for adoption orders to be made in relation to BM and BD pursuant to Div 3.6 of the Adoption Act 1993. 4) There is no order as to costs. |
Catchwords: | ADOPTION – application to dispense with birth mother’s consent to adoption – where birth father consents to adoption – whether dispensation necessary in the best interests of each child – where each child has been placed in foster care since infancy – dispensation granted |
Legislation Cited: | Adoption Act 1993 (ACT) ss 5, 6, 26, 30, 35, 39B, 64, 112 Court Procedures Rules 2006 (ACT) rr 3171, 6008, Dictionary |
Cases Cited: | In the matter of the adoption of MSN [2017] ACTSC 92 In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 |
Parties: | Director-General, Community Services Directorate (Applicant) [Not Published] (Respondent) |
Representation: | Counsel I Collins (Applicant) No appearance (Respondent) G Briggs (Child’s Representative) |
| Solicitors ACT Government Solicitor (Applicant) No appearance (Respondent) Briggs Law (Child’s Representative) | |
File Number: | AD 12 of 2022; AD 13 of 2022; AD 14 of 2022 |
McWilliam AsJ
The Director-General, Community Services Directorate (Director-General) is in the process of seeking orders for adoption in respect of three children who are siblings, all of whom are in foster care with long term parenting orders made in favour of the Director-General. The applications presently before the Court are interlocutory proceedings seeking the dispensation of the statutory requirement for the birth mother’s formal consent to the adoption of the three children.
A separate proceeding has been commenced for each child (AD 12 of 2022; AD 13 of 2022; AD 14 of 2022). The matters are travelling together and these reasons deal with applications made in each of the three proceedings.
In order to comply with the privacy (s 64) and confidentiality (s 112) provisions of the Adoption Act 1993 (ACT) (Adoption Act), I will refer to the oldest child as BB, the middle child as BM and the youngest child as BD.
Applications before the Court
Before any orders for the adoption of the children can be made, the birth parents must each provide consent to the respective adoptions (see s 26 of the Adoption Act).
The birth father has consented to the adoption of each of the children by the proposed adoptive parents.
The birth mother has, at times, indicated a willingness to consent to the adoption of each child. However, that is a position that has fluctuated. To date she has not provided any formal consent pursuant to the requirements of s 30 of the Adoption Act, which requires consent to be in a particular form.
Accordingly, an application in each proceeding has been filed seeking the dispensation of the requirement for consent of the birth mother, pursuant to s 35 of the Adoption Act.
Notice of the applications
The Adoption Act does not expressly require personal service of an application to dispense with consent on each birth parent. Rule 3171 of the Court Procedures Rules 2006 (ACT) (Rules) provides that service of the application and supporting affidavit must be served 28 days before the application is heard. The rule does not require personal service. That is consistent with the Adoption Act itself not containing such a requirement.
However, the Court needs to be satisfied that each birth parent is properly on notice of the application. Similar comments were made by Penfold J in the case of In the matter of the adoption of MSN [2017] ACTSC 92 at [17], where her Honour referred to the need to be satisfied that the relevant papers had been properly brought to the attention of each birth parent.
That applies with greater force where s 35(4) of the Adoption Act permits the Director-General (among others) to make an order dispensing with consent of a person in advance of any application for an adoption order. If an order for dispensation of a birth parent’s consent is made before any hearing of an application for an adoption order takes place, then the Director-General does not need to notify the birth parent of the hearing of an application for an adoption order. Section 39B of the Adoption Act only requires an applicant to serve written notice of the application and its return date “on anyone whose consent to the adoption is required but whose consent has not been given” (emphasis added). If a dispensation order has been made in respect of a birth parent, then that birth parent’s consent is no longer “required” and therefore, the birth parent does not need to be served with the application for adoption at all.
In the present case, each proceeding in respect of BB, BM and BD was commenced by way of an application for an adoption order and the application for dispensation has been brought as an application in proceeding. The file does not disclose any notice of intention to respond or oppose the application by the birth mother. There is no address for service in the proceeding, which means that the birth mother is not currently an active party in any of the adoption proceedings (see the Dictionary to the Rules, which defines “active party”).
Rule 6008(3) of the Rules provides that if an application in a proceeding is to be served on a person who is not an active party, the application must be served personally unless the Court otherwise orders, and not later than two days before the return date.
In this case, the evidence before the Court (an affidavit of service) established that the birth mother was personally served with notice of the applications for dispensation of her consent on 9 January 2023. She did not appear at the hearing, but I am satisfied that each application in proceeding and its return date was properly brought to her attention and that the Director-General complied with the Rules pertaining to service.
The Court’s power to dispense with consent
Under s 35(1)(c) of the Adoption Act, the Court may make an order dispensing with the requirement for consent of a person to the adoption of a child or young person in a variety of circumstances, one of which is where it is satisfied that “it is necessary in the best interests of the child or young person to dispense with the requirement for consent of the person.”
I gave detailed consideration to those words in the case of In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25. At [58], I concluded that they meant “it is necessary to dispense with the requirement for consent of the person because adoption is in the best interests of the child or young person.” The Director-General did not argue that any different interpretation applied in the present case.
Sections 5 and 6 of the Adoption Act deal with the factors to consider when deciding what is in the best interests of the child or young person:
5Best 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 taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging;
(b)the child’s or young person’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances;
(c)the child’s or young person’s cultural, physical, emotional, intellectual, and educational needs;
(d)the views expressed by the child or young person in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision);
(e)taking into account the benefit of maintaining meaningful relationships, the likely effect of the decision on the child’s or young person’s relationship with the following people:
(i) the child’s or young person’s birth parents;
(ii) the child’s or young person’s siblings (if any);
(iii) the child’s or young person’s other relatives;
(iv) carers or other significant people in the child’s or young person’s life;
(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;
(i)the continuity and sense of belonging that comes from a child or young person having stable emotional and physical living conditions;
(j)the need to protect the child or young person from physical or psychological harm associated with exposure to abuse, neglect or family violence.
Section 6 of the Adoption Act contains mandatory, additional considerations if the child or young person is Aboriginal or Torres Strait Islander. In each of the present proceedings, the case manager for Child and Youth Protection Services (CYPS) has affirmed an affidavit, in which she explains in detail the history of the investigations undertaken and basis for concluding that each of the three children are not to be identified as Aboriginal. I accept that evidence. Accordingly, the considerations in s 6 do not apply here.
The evidence
Each of the matters the subject of s 5 of the Adoption Act has been carefully considered in the separate reports provided for each child in the affidavits of Ms Jamie Edwards, a permanency specialist who has been employed within the ACT Together consortium since 2020, and the relevant case manager within the adoption and permanent care team in CYPS, namely Ms Katelyn Lindner in the case of BB and Ms Emelda Foroma in the case of BM and BD.
Is adoption in the best interests of BB?
The likely effect of the decision on BB’s life course, taking into account the need to preserve his cultural inheritance, personal identity and sense of belonging
BB is seven years old. He was taken into the care of the Director-General following emergency action when he was five days old. He has been with his current foster carers since he was five months old, and they are his proposed adoptive parents. The reports forming the affidavit evidence record BB as having a well-established sense of belonging and identity within the foster carers’ family unit, which includes a foster brother who was adopted by the foster carers in 2020.
BB’s foster carers are originally from England and upon adoption, BB would inherit British citizenship. However, his foster carers have settled permanently in Australia. BB has also had consistent natural contact with his birth family, organised and supported by his carers.
The decision to dispense with adoption is considered to be important for providing psychological certainty over the course of his life, as well as enhancing the sense of security for BB in the life that he has established with his foster carers.
BB’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances
BB is almost eight years old and has an understanding of, and connection to, his birth family. Ms Lindner deposes to BB having an age-appropriate understanding of adoption. He experiences some anxiety in relation to his legal status being different to that of his foster brother, who has already been adopted by BB’s foster carers. BB wants to be on the same legal standing as his big brother within the foster carer family unit.
BB’s cultural, physical, emotional, intellectual, and educational needs
BB has a positive and friendly nature and has no particular cultural or physical needs. He was reported to rarely get sick, and to be developing well.
Emotionally, BB is described as confident, outgoing, smart, and incredibly loving and compassionate. BB has a number of therapeutic needs, which include attention deficit hyperactivity disorder and oppositional defiance disorder, as well as anxiety. He has previously experienced speech and language delays. In response to this, BB’s foster carers have secured multiple supports and they are detailed in the affidavit of Ms Edwards. It is unnecessary to repeat that detail here.
BB’s foster carers have also attended to his intellectual and educational needs. Details of his attendance at primary school in the ACT and extra-curricular educational pursuits such as swimming and Oz-Tag have been provided.
On the totality of the evidence provided in the reports, it is clear that BB’s foster carers are providing a high level of care and proactivity in relation to BB’s needs, and have done so for the past seven years. I am satisfied that each of BB’s general and particular needs are being well met by his foster carers and that they will continue to give his needs the careful consideration that has been evidenced to date.
BB’s views
To the extent that BB’s views are able to be ascertained, given his young age and maturity, they are entirely consistent with his long-term care placement with his foster carers moving to adoption. He has expressed his wanting to be adopted and his birth parents have each expressed their awareness of that desire. The evidence referred to BB’s foster carers and birth parents all knowing that it will be a relief for BB to know that he is no longer a child in care.
The likely effect of the decision on BB’s relationship with birth parents, siblings other relatives and carers or other significant people in his life
BB has three siblings with the same birth parents. In addition to BM and BD there is a third boy born in 2019. All are the subject of long-term care and protection orders, with provisions for contact, supervision, residence and parental responsibility in favour of the Director-General. BB also has a number of maternal and paternal siblings.
It is to the credit of BB’s foster carers that, over the past seven years, they have created and nurtured an open and amicable relationship with BB’s birth family as well as a strong network of family connectedness to ensure that BB remains connected with his birth family. BB has quarterly contact with all of his siblings, his birth parents and maternal grandparents. Such contact has been arranged independently of CYPS or ACT Together. BB is able to have phone contact with his birth parents whenever he chooses.
Ms Edwards deposes in detail to BB’s relationship and contact with his birth mother and father and to BB’s connections with his extended maternal and paternal families.
Due to the consistency of strong inter-connected associations between foster families and birth families, the likely effect of the decision appears to be minimal. There is no suggestion that any court order would have an impact on the continuation of such contact. The foster carers have demonstrated both an intention, and an ability outside statutory oversight, to ensure that BB’s meaningful relationships with all of his family members are maintained.
BB’s relationship with the adoptive parents
As might be expected, BB’s relationship with his foster carers is the same as any natural parent/child relationship. BB sees them as his psychological parents and primary attachments. I accept the view of the case manager, Ms Lindner, that the grant of an adoption order would serve to remove any doubt or uncertainty about the legitimacy of that relationship that might arise as BB grows up.
The suitability and capacity of the adoptive parents to meet BB’s needs
To some extent, this has already been addressed in relation to the other mandatory considerations. Both foster carers are obviously suitable and capable of meeting BB’s needs. They have consistently demonstrated an ability to provide a high level of attuned care for BB. Personally, they each have faced the parenting challenges with an optimistic and positive approach. They have displayed a deep appreciation for the needs for BB at every level.
From their observations and collation of the reports concerning the foster carers over the past seven years, Ms Linder and Ms Edwards refer to BB’s foster carers as demonstrating insight into the unique challenges that children in care and adopted people face, and their open, warm and supportive communication style will assist them in supporting BB as he grows up and continues to process and understand his experiences and circumstances.
The alternatives to adoption for BB to secure permanent family arrangements
Ms Lindner as the Director-General’s delegate has considered alternatives to adoption, such as an enduring parental responsibility order. She considers adoption as the most appropriate solution for BB and his circumstances. BB already refers to himself by the surname of his foster carers and identifies his foster brother as his big brother. In BB’s case, there is a significant disadvantage if an enduring parental responsibility order were made instead of an adoption order, in that he already knows that his foster brother has been adopted. Any different arrangement for him is likely to have a psychological impact. I accept that it is important for BB’s security and identity within the family unit to be embedded while he is younger.
The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions
BB already has stable emotional and physical living conditions. I accept the view of Ms Lindner that an adoption order will serve to further reinforce the permanency and finality of this.
The need to protect BB from physical or psychological harm associated with exposure to abuse, neglect or family violence.
BB has been the subject of long-term care and protection orders and has been permanently placed with his current foster carers. There is no real prospect of BB being returned to either of his birth parents or, at this stage, being placed with any other kinship carer. There may have been a historical reason to protect BB but on any view, BB’s future is with his current foster carers, with or without an adoption order.
Having considered each of the mandatory considerations, it will be readily apparent that adoption is overwhelmingly in BB’s interests and that a dispensation order in respect of the requirement for the birth mother’s consent to his adoption is therefore necessary.
Is adoption in the best interests of BM and BD?
Due to their joint placement, the factors affected the two younger children have been considered together for reasons of efficiency, as many of the considerations overlap.
The likely effect of the decision on the life course of BM and BD, taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging
BM and BD are seven and five years old respectively. They are residing together with different foster carers from those of BB. They have done so since each was only days old. Their foster carers are the proposed adoptive parents of BM and BD. Due to the fact that they are each the subject of permanent placements under long term care and protection orders, the decision concerning adoption is not likely to be one that changes their life course. BM and BD both already enjoy a strong sense of belonging within their foster family.
However, as with BB, the decision to dispense with adoption is considered to be important for providing psychological certainty over the course of the lives of BM and BD. It will enhance the sense of security for them in the life that they have established with their foster carers.
Their family and cultural connections are otherwise addressed in the criteria that follow. There is no particular cultural preservation issue.
BM and BD’s ages, levels of understanding, levels of maturity, gender, personal characteristics and individual circumstances
BM has just turned seven. She has an understanding of where she has come from and an awareness that she grew in her birth mother’s tummy and in her foster carers’ hearts. She knows she has siblings who live with other families. She has ongoing contact and connection with her birth parents and extended family and that includes access to photobooks of her birth family, foster family and significant friends.
BD is five. Having resided with his foster carers since he was three days old, they are his parents for all intents and purposes. BD similarly has knowledge of having siblings that live with other families and that they are connected to his birth parents.
BM’s and BD’s cultural, physical, emotional, intellectual, and educational needs
BM is healthy and meeting all her developmental milestones. She is described as bright, energetic, and an active girl.
BM’s emotional and behavioural development was also described as age appropriate. She is able to advocate for herself, is kind to her brother (BD) and her foster brother in the family unit and has built strong friendships at school.
BD has Perthes disease in his right hip, which has required ongoing medical appointments at Sydney Children’s Hospital at Westmead. BD’s foster carers have ensured that BD’s condition is always monitored and have managed these visits themselves. He sometimes experiences pain, and again, BD’s foster carers attend to this.
BD is otherwise developing at an age-appropriate level, both emotionally and intellectually.
Both BM’s and BD’s educational needs are presently being met, with each attending school or pre-school respectively. They appear to both be thriving with their foster carers providing a happy, loving, and secure environment. They each have age-appropriate routines. The foster carers have community connections and awareness of the availability of professional resources if they are ever required.
As already discussed, BM’s and BD’s cultural needs through connection to birth family members are supported and encouraged.
In short, it appears that BM’s and BD’s cultural, physical, emotional, intellectual and educations needs are all being met by their current foster carers and that an adoption order would cement what is already in place.
BM’s and BD’s views
Given their young age and levels of maturity, and the fact that they have only ever known the love and care of their foster carers, no views were expressly sought or given by BM and BD about adoption. BM and BD were each described as being excited about the possibility of all of them having the same last name.
The likely effect of the decision on BM and BD’s relationship with their birth parents, siblings, other relatives and carers or other significant people in their lives
The foster carers have demonstrated a willingness and commitment to ensure that BM and BD have regular contact with their birth parents and siblings, including on special occasions such as birthdays. They see each other face to face at least four times a year.
BM and BD have a strong bond with each other and enjoy play dates with their other siblings. Contact with extended family is also organised by the foster carers.
The decision is unlikely to have any impact on the relationships with those people. The foster carers organisation of contact without supervision by CYPS or ACT Together reveals an understanding of the importance of these relationships.
BM and BD’s relationships with their adoptive parents
BM and BD are settled and thriving with their adoptive parents. They have been described as extremely loved and admired by their foster carers, prioritising the children and treating them as they would their own children. They have each developed a strong sense of belonging, security, and bond with their foster carers.
The suitability and capacity of the adoptive parents to meet BM and BD’s needs
The above discussion demonstrates that the adoptive parents have each shown the commitment and the means to raise BM and BD in a loving household that meets BM’s and BD’s physical, emotional and educational needs. I am satisfied the foster carers have the underlying suitability and capacity to meet BM’s and BD’s ongoing needs if an adoption were to be made.
The alternatives to adoption for BM and BD to secure permanent family arrangements
The alternatives to adoption are the same as those discussed in relation to BB. There is no realistic prospect of BM and BD being returned to their birth parents. There is an alternative of an enduring parental responsibility order that would secure a permanent family arrangement, but I agree with the Director-General’s view that adoption would provide a deeper level of security and familial ties with their adoptive parents over time as BM and BD grow up.
The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions
Both BM and BD already have stable emotional and physical living conditions. Given that each is the subject of a permanent placement with their current foster carers that position is unlikely to change. Once again, the sense of belonging would only be enhanced by an adoption order. As the children get older, knowing that the people they have viewed as their parents since they were babies is their life-long family is likely to enhance psychological and emotional stability for BM and BD.
The need to protect BM and BD from physical or psychological harm associated with exposure to abuse, neglect or family violence.
As with BB, BM and BD are the subject of long-term care and protection orders. Accordingly, they will remain in a safe and stable home. An adoption order is not presently required in order to protect them from physical or psychological harm associated with exposure to abuse, neglect, or family violence.
Having considered each of the mandatory considerations, I am satisfied that adoption is in the best interests of each of BM and BD. Such an order would achieve at law what is already the case in practice and has been for many years. Accordingly, a dispensation order in respect of the requirement for the birth mother’s consent to the adoption of BM and BD by their foster carers is necessary.
Conclusion
For the above reasons, the orders of the Court are as follows:
1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the consent of the respondent, the birth mother of BB, BM and BD, to their adoption.
2) Proceeding AD 12 of 2022 is listed on 24 March 2023 for the hearing of the application for adoption orders to be made in relation to BB pursuant to Div 3.6 of the Adoption Act 1993.
3) Proceedings AD 13 of 2022 and AD 14 of 2022 are each listed on 27 April 2023 for the hearing of the applications for adoption orders to be made in relation to BM and BD pursuant to Div 3.6 of the Adoption Act 1993.
4) There is no order as to costs.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 15 March 2023 |
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