Woodbury and Anor and Fowler

[2020] FamCA 195

FAMILY COURT OF AUSTRALIA

WOODBURY AND ANOR & FOWLER [2020] FamCA 195

FAMILY LAW – ADOPTION – release of adoption report – best interests of child does not form paramount criterion for determining release of Report – procedural fairness

Family Law Act 1975 (Cth) s 60G
Adoption Act 1993 (ACT) ss 4, 4(a), 4(b), 4(f), 5, 39D, 39F, 58, 60, 64, 112, 113, 115, Division 5.3
Legislation Act 2001 (ACT) ss 137(3), 139, 140

Northern Territory of Australia & GPAO and Others (1999) 161 ALR 318

APPLICANT: Ms Woodbury

SECOND APPLICANT: Mr Woodbury

RESPONDENT: Mr Fowler

INTERVENOR: Director-General, Community Services Directorate

FILE NUMBER: CAC 2580 of 2018

DATE DELIVERED: 24 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mrs Evans

SOLICITOR FOR THE SECOND APPLICANT: Mrs Evans

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INTERVENOR: Legal Services, Community Services Directorate

Orders

1. The report in relation to the proposed adoption of X, prepared by the Child and Youth Protection Services, Community Services Directorate pursuant to s39D of the Adoption Act 1983 (ACT) and provided to the Canberra Registry of the Family Court of Australia (the Report) is permitted to be made available to Ms Woodbury and Mr Woodbury.

2. The above order is subject to the following conditions:

   (a)The Report is to be provided by the Canberra Registry of the Family Court of Australia in electronic form to the solicitor for Ms Woodbury and Mr Woodbury (the solicitor);

   (b)A single copy of the report may be printed;

   (c)The electronic version of the Report is to be deleted by the solicitor within 48 hours of the receipt of the electronic version;

   (d)No electronic copy of the Report may be retained;

   (e)The printed copy is to remain in the custody of the solicitor; and

   (f)The printed copy is to be given to the Canberra Registry of the Family Court of Australia on the expiration of the relevant appeal period following the resolution of the proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Woodbury & Fowler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2580 of 2018

Ms Woodbury

Applicant

And

Mr Woodbury

Second Applicant

And

Mr Fowler

Respondent

And

Director-General, Community Services Directorate

Intervenor

REASONS FOR JUDGMENT

introduction

1. These proceedings concern both an application pursuant to s 60G of the Family Law Act1975 (Cth) (the Act) filed on 25 September 2019 by Ms Woodbury (the Mother) and Mr Woodbury (the Stepfather) for leave to commence adoption proceedings, and for a corresponding adoption order pursuant to the Adoption Act 1993 (ACT) (the Adoption Act) in relation to X (born in 2010).

2. The application also seeks other relief, purportedly under the Act.

3. The adoption application relies upon the cross vesting jurisdiction.

4. This particular aspect of the proceedings concerns the release of a report prepared pursuant to s 39D of the Adoption Act, in relation to the proposed adoption, prepared by Child and Youth Protection Services, Community Services Directorate, an administrative body of the Australian Capital Territory charged with responsibility under the Adoption Act.

5. The Report, where provided to the Court, is a mandatory consideration in the determination of an adoption application, pursuant to s 39F of the Adoption Act.

6. The Director, who was responsible for the preparation of the Report, advised the Court, on provision of the Report to the Court, that the Director wished to be heard prior to any release of the Report being authorised by the Court.  The Director appeared on 11 March 2020 and subsequently 18 March 2020 to oppose the release. On 18 March 2020 the Mother and Step Father appeared by their solicitor.  They sought the release of the Report to them.  There was no appearance by the Father.

Opposition to the release of the report

1. While it was accepted by the Director, who appears and is treated as a party pursuant to s 115 of the Adoption Act, that it is within the discretion of the Court to order that the report be released to persons concerned with the proceedings, the Director opposed such a course as not in the interests of the children, and relied on a number of provisions of the Adoption Act to resist such a course. The Director also said to the Court that it is not the practice of the ACT Supreme Court to release such reports in determining an adoption, although no authority was cited as to such practice.

2. The Director relied upon s 113 of the Adoption Act, which deals with the release of such reports, s 5 of the Adoption Act which deals with the paramountcy of the best interests of the child, and s 64 of the Adoption Act which deals with privacy.

3. Although the Director asserted that the release of the Report was contrary to the interests of the children, no matter particular to this case was identified in support of this proposition.  Rather, generic considerations were identified, such as breach of privacy, in some cases safety issues (which were identified as not being a concern in this case), the impact upon a person’s psychological state, or a child being placed at risk.  Further, the non-release of reports was said to be important in terms of allowing a child free expression of his or her views.

4. Against the non-release of the Report one matter was identified, being the requirements of procedural fairness.  The Report is a matter to be taken into account in determining whether or not an adoption order should be made as sought by the Mother and the Stepfather.

the cross vesting scheme

1. By virtue of the Commonwealth and Territory cross vesting laws, the Family Court of Australia in invested with the jurisdiction of the ACT Supreme Court in respect of adoption pursuant to the Adoption Act. In exercising that jurisdiction this Court is to adopt the procedures of the ACT. The issue raised by the Director is at first a statutory construction issue, and then a discretionary determination to be in accordance with that statutory construction.

Statutory interpretation

1. In order to determine the issue of the release of the Report, it is necessary to construe the provisions that govern its release.

2. The Legislation Act 2001 (ACT) (the Legislation Act) is the legislation that governs statutory interpretation in the ACT. It centrally provides at s 139 that:

   In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

3. Importantly, in determining the meaning of the provisions in this matter, s 140 of the Legislation Act points to the need to take account of the legislative context of an enactment:

   In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.

4. In this instance, assistance is derived from s 4 of the Adoption Act which sets out the Objects of the Act. The Director relied specifically upon the paramountcy principle, and its effect on the processes to be adopted. To that end, although not addressed in relation to such, those appearing most salient to the current dispute appear at s 4(a) and (b):

   Objects 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

5. These in turn are to be considered in the light of common law presumptions as they relate to the issue of affording parties to litigation procedural fairness[1]. Section 137(3) of the Legislation Act is in the following terms:

   In particular, this Chapter (Interpretation of Acts and Statutory Instruments) assumes that the common law presumptions operate in conjunction with this chapter.

   [1] See discussion of the principle of legality in Statutory Interpretation in Australia, 9^th ed, D Pearce.

Section 113

1. Section 113 of the Adoption Act deals directly with the release of such reports.  It is in the following terms:

   Contents of reports not to be disclosed

   Except as the court otherwise orders, a report to the court under section 39D must not be made available to a party to the proceedings or any other person.

2. The default position is that such reports are not to be released.  The release requires a discretionary determination that the release should take place.  No considerations particular to either the exercise of, or refusal to exercise this discretion are set out to guide such a determination.

Section 5

1. The Director relied upon s 5 of the Adoption Act and submitted that the paramountcy of the best interests of the child is the determinant of whether a release order should or should not be made.  The provision is in the following terms:

   Best interests of child or young person paramount consideration

   (1)A person making a decision under this Act in relation to a child or young person, must regard the best interests of the child or young person as the paramount consideration.

   (2)In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:

   (a)the likely effect of the decision on the life course of the child or young person;

   (b)the child’s or young person’s age, level of understanding, level of maturity, gender, and personal characteristics;

   (c)the child’s or young person’s physical, emotional and educational needs;

   (d)the views expressed by the child or young person;

   (e)the relationship the child or young person has with the parents, any siblings and any other relatives;

   (f)the relationship the child or young person has with the adoptive parents;

   (g)the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs;

   (h)the alternatives to adoption for the child or young person to secure permanent family arrangements.

2. The first matter to be observed in relation to this provision is that the paramountcy principle is directed to the making of a decision in relation to a child or a young person, rather than to the making of a procedural determination.  A decision such as the one in issue here, as to the release of a report, is not a “decision in relation to a child or a young person” but, as described in GPAO is adjectival to such a decision being taken.[2]

   [2]Northern Territory of Australia & GPAO and Others (1999) 161 ALR 318

3. Although in a very different context, in GPAO Gleeson CJ and Gummow J dealt with the reach of the paramountcy principle contained in Part VII of the Act, and, in particular, its impact upon issues such as admissibility and the production of documents to the Court in advance of a trial. They observed that under the Act the best interests of the child form the ultimate issue for the Court to determine. To this end at [68] they observed that:

   In any kind of litigation, the formulation of the ultimate issue may have an important influence upon the practical operation of the adjectival rules which apply to such litigation. It has long been recognised that the paramountcy principle has such an influence in proceedings concerning the welfare of children.

4. However, they also identified that the issues of the production of documents to the court pursuant to subpoena and issues of admissibility are anterior to the determination of the ultimate issue of the best interests of the child.

5. As was succinctly put by Gaudron J in the same case:

   [139] It is correct to say, as was contended for the first respondent, that the "paramountcy principle" permeates the whole of PtVII of the Act. But, so far as concerns s65E of the Act, its significance is, in terms, confined to "deciding whether to make a particular parenting order". It does not apply to the conduct of proceedings for the making of such an order or the procedures to be observed in relation to those proceedings.

6. While the ultimate issue colours the processes of the court, it does not, without other statutory support, determine anterior issues of admissibility, or here, remove the requirements of natural justice.

7. In short, the best interests of the child does not form the paramount criterion for determining the release of the Report. Section 4 does not detract from this conclusion.

Section 64 of the Adoption Act

1. The Director relied on this provision as it relates to privacy to resist the release of the report. Section 64 is in the following terms:

   Protection of privacy

   (1)A person is not, because of this division, entitled to personal information relating to another person (whether alive or dead).

   (2)In subsection (1):

   personal information means information or an opinion, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

2. It may be seen that s 64 has application only in relation to Division 5.3, which itself confers a restricted positive right of access to information for an adopted person, adoptive parent, birth parent or relative of the adopted person, or child or descendant of the adopted person.[3]  It does not apply more broadly to the Adoption Act and its processes.

   [3] Per s 58 of the Adoption Act in defining an associated person

The report

1. Even if the above legal analysis was incorrect, and the paramountcy principle was to govern the release of the report, such principle would not dictate the non-release of the report in this instance.  The report itself expresses that X (the child the subject of the proceedings) is aware of all of the circumstances of the proposed adoption, and that her biological father is an instigator of the application.  No particular matter was identified to suggest that the release of this report is contrary to X’s best interests.

Procedural fairness

1. The Mother and Stepfather are entitled to a fair hearing of their application for an adoption order.  A necessary element of such a fair hearing is that they be apprised of the evidence to be taken into account by the court in determining the application.  The Report forms a central part of that evidence.  Failure to permit the Mother and Stepfather to access the report would deny them of notice of the evidence they are to meet in prosecuting their application.  Such failure would amount to a denial of procedural fairness.

Conclusion

1. The Report forms a central evidential consideration as to what are in X’s best interests under the Adoption Act. Accordingly it is necessary for the Court to consider its content in determining whether or not to make the adoption order sought by the Stepfather and supported by the Mother.  Giving such consideration to the Report without giving the Stepfather and Mother access to the Report conflicts with the inherent obligations of the Court to accord procedural fairness to the Stepfather and the Mother. This matter justifies the exercise of the discretion to permit access to the Report.

2. Given the non-appearance of the biological Father the issue of the release of the report to him does not at present arise.

3. Orders will be made granting access to the Report to the Stepfather and Mother. 

4. It may be observed that the Adoption Act creates a scheme that restricts the principles of open justice.  Section 60 provides that the records of a court, other than the order or decision of the court must not be made available to any person. Further, s 112 provides that the proceedings are not to be conducted in open court.  This colours the nature of the orders to be made that provide access to the Report.

5. Given the generally restrictive scheme of the Adoption Act, pending further submissions to the Court, that access will be conditioned on the appropriate control of the document.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 March 2020.

Associate: 

Date:  24 March 2020