Application of the Adoption of R And: Adoption of Children Act 1965 [1993] ACTSC 17 (5 March 1993)

SUPREME COURT OF THE ACT

APPLICATION FOR THE ADOPTION OF R
And: ADOPTION OF CHILDREN ACT 1965
No. AD27 of 1992
Number of pages - 22
Adoption

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J(1)

CATCHWORDS

Adoption - Dispensing with consent - of natural mother - and of guardian appointed under Immigration (Guardianship of Children) Act 1946 (Cth)

Adoption of Children Act 1965 (ACT), ss.19, 24, 30, 32, 50

Immigration (Guardianship of Children) Act 1946 (Cth), ss.6, 24(3)

In the Matter of an application for the adoption of M (SC ACT; 9/12/92; unreported)

HEARING

CANBERRA, 17 and 23 February 1993
5:3:1993

Counsel for the Applicants: Mr R Clapham

Instructed by: Messrs Meyer Boettcher

and Clapham

ORDER

THE COURT ORDERS THAT:

1. The consent of the natural mother be dispensed with.
2. The consent of the guardian be dispensed with.
3. This child hereby become the adopted child of the applicants.
4. Pursuant to s.50 of the Adoption Act 1965 these reasons may be
published but otherwise the restriction on publication imposed by
that section will continue to apply.

DECISION

HIGGINS J This matter is an application for the adoption of a child I shall refer to as "R".

2. It has had a somewhat lengthy history even though the application was not made until 20 January 1993. An application to dispense with the consent of the natural mother (and of any other relevant person other than the Minister for Immigration and Ethnic Affairs) was made on 19 September 1992.

3. The applicants were married in 1972. They are currently aged 40 and 42 years respectively. It is not disputed that their marriage is a stable and happy one. They are in comfortable financial circumstances.

4. On 31 August 1990, following a history I will refer to later, the applicants travelled to Bangalore in India. On 1 September 1990, the infant R was placed in their care by the Mathruchhaya Foundling Home ("the Home"). On 3 September 1990, the Family Court at Bangalore considered an application by the applicants to adopt R and remove her from India to Australia. The application was supported by the Home, a recognised society, so the Family Court record notes, for the processing of inter-country adoptions. The Court recited certain matters relating to the applicants. A reference was made to the infertility of the applicants following the birth of their natural daughter. A report from ACT Community and Health Services approving the applicants as prospective adoptive parents was tendered to the Court. A Home Study report and an undertaking to do follow-up reports was also noted.

5. The Court was informed that the infant R had been abandoned by her mother at birth. R was born on 30 March 1989 at Sitabhatija Nursing Home. The mother was described as unwed and destitute.

6. The Court considered, having regard to the applicants' circumstances, that it was in R's interests that she be adopted by the applicants and become their child. There was also tendered a report from the President, Karnataka State Council for Child Welfare, Bangalore supporting the application.

7. Orders were made that the applicants be appointed guardians of the child and be permitted to remove the child to Australia. They were additionally ordered to execute a bond for R20,000 "to ensure the adoption of minor child". They were also ordered to "submit their progressive report of the minor child once in 3 months for the first 3 years and 6 months thereafterwords (sic)".

8. The applicants returned to Australia on 1 October 1990. The child R has been in their care since then.

9. There is an application to dispense with the consent of the natural mother. I am satisfied that the mother cannot be found or identified. She did abandon the child. Under s.30 of the Adoption Act 1965, this Court may, by order, dispense with her consent. I do so order.

10. By virtue of s.6 of the Immigration (Guardianship of Children) Act 1946 (Cth) "the Minister" became the child's legal guardian on R's arrival in Australia.

11. I assume that, in accordance with the practice usually followed in such cases, the Minister has delegated guardianship to the Director of Family Services Branch ("the Director"). The Director is the respondent to this application. I will refer to her agency as ("the Branch").

12. In the Matter of an application for the adoption of M (SC ACT; 9/12/92; unreported) an inter-country adoption was considered. I reviewed the legislative and administrative framework relevant to the making of an order for adoption in those circumstances.

13. For the consent of the Director to be dispensed with so as to permit an adoption order to be made, I have to be satisfied that "there are special circumstances by reason of which the consent may properly be dispensed with" (s.30(1)(e), Adoption Act 1965).

14. What, then, are the relevant circumstances?

15. A report, pursuant to s.19 of the Adoption Act 1965 was made to the Court. It is dated 2 November 1992. It noted that there was "conflicting information" regarding the applicants' infertility. That was particularised.

16. The history of the applicants' efforts to be approved as prospective adoptive parents was outlined. They had asked to be so considered for local adoption as early as May 1980. Following a report from a psychiatrist it was considered that approval should not be given. This was because, in the doctor's opinion, the female applicant was over-anxious and in some unspecified "mental state".

17. In June 1980, the applicants sought approval to adopt from Indonesia. The male applicant, for reasons which do not appear, became "aggressive" and threatened legal action and to make representations to "the Minister" when the application was not processed as quickly as he thought it should be.

18. In fact, assessments were done, albeit after solicitors were engaged by the applicants. In September 1980, their request was refused. The major reason for that refusal seems to have been lack of information on some personal matters and a fear that "in view of unconfirmed infertility the birth of a natural child following adoption may place unbearable strain on the marriage".

19. The reasons for that latter conclusion were not revealed. I can only say that it is not self-evident.

20. On 17 March 1981, the applicants had a natural daughter. That did not end their desire for adoption.

21. In June 1985 they enquired of the Family Services Branch ("the Branch") about adopting a child from Sri Lanka. An application was formally made in July 1985.

22. In August 1985 (the report says "1988" but it must be wrong), the matter was referred to another psychiatrist for advice. That psychiatrist noted that the applicants now had a child of their own and, accordingly, the previous reservations might well be inapplicable. Further assessment was recommended.

23. The further assessment was commenced in December 1986. The delay was due to a backlog in the Branch. However, for reasons relating to a health risk to their natural daughter in travel to Sri Lanka, the applicants asked for approval to adopt from Korea.

24. An assessment for that purpose was completed in March 1987. It did not recommend approval. The key reservations were in relation to attitudes. Those reservations seemed to centre on the assessment of the applicants as "rigid, insecure and defensive".

25. Their marriage relationship was criticised as failing to foster an "open, secure and supportive emotional climate" for an adopted child. It was suggested that the applicants did not display an understanding of the problems that could arise with adopted children and had "poorly developed crisis and conflict resolution skills".

26. That assessment, of course, is, as such assessments not infrequently are, couched in vague and emotive language. The factual bases for the judgments made are not disclosed. It does, however, indicate that the relevant officers had genuine concern about the suitability of the applicants to be adoptive parents.

27. An independent psychiatric assessment was recommended. That was done.

28. The psychiatrist selected by the applicants expressed the opinion that they were "appropriate and reasonable parents for a child given into their care".

29. Much has been made in this case of the attitude of the Branch towards the applicants. However, it should be noted that the Branch accepted the opinion of the independent psychiatrist. This is significant in light of the fact that officers within the Branch continued, no doubt, to have reservations about the suitability of the applicants as prospective adoptive parents.

30. Approval was given in May 1987 for the applicants to adopt a child from Korea. In July 1987 the Branch received a letter from the relevant Korean adoption agency. The agency declined to approve the applicants on the ground that the report from "the social worker who conducted the ... assessment" did not "highly recommend" the applicants as good adoptive parents. I do not know who the "social worker" was or upon what basis that negative opinion was formed. It is not even clear to me whether it is a local "social worker" or one engaged by the Korean adoption agency that is referred to but it was probably the latter.

31. It is clear that the applicants were anxious to complete adoption procedures and were frustrated by what they, no doubt, perceived as bureaucratic obstruction and delay.

32. The Branch provided further information to the Korean agency. However, in August 1987 during a conversation with a member of the Adoption Unit in the Branch, the Korean agency advised that it would not approve an adoption by the applicants.

33. What information was conveyed to the Korean agency was not before me. I cannot say whether or not it was likely to have supported the applicants' case so far as the Korean agency was concerned.

34. The applicants were advised by "two social workers" of that decision in September 1987.

35. In October 1987, the applicants gained Branch approval to adopt a child from Fiji. The relevant Fijian agency was so informed. It was also informed that the Korean agency had refused an allocation "due to concerns held". I do not know what the "concerns" referred to were or whether they were particularised to the Fijian agency. The Branch apparently viewed this process as supporting the applicants' case for adoption. It probably was but it could not be said to have been enthusiastically doing so. That is not a criticism of the Branch. If officers held well-based reservations it would, I think, have been irresponsible not to advise the Fijian agency of those matters so that it could make an informed assessment.

36. It was not until August 1988 that the applicants were advised that an allocation was likely in "3 to 4 months".

37. In December 1988 an allocation was made. The child was, however, mildly physically handicapped. The applicants did not accept that allocation. Indeed, it seems the offer was outside the terms of the Branch approval in any event.

38. An allocation was next sought from an appropriate agency in India. It was the perception of the Branch at this time that the applicants were not heeding advice given to them. This attitude was said to raise, once more, "concerns about their suitability as adoptive parents". The facts by reference to which that conclusion was drawn was not detailed. The connection between the premise and conclusion is not, to my mind at least, self-evident.

39. In January 1989 a further assessment interview was conducted with the applicants. They were, at the end of February 1989, approved to adopt a child from India. Those making the assessment still had reservations. These reservations were expressed in terms of opinions that the applicants lacked insight into such issues as racial prejudice and culture shock; they had an inability to see what impact an additional child would have on their family and had "unrealistic expectations" as to how the child would adjust. Reference was also made to "their demonstrated unwillingness to cope with a child with health problems".

40. Again, I do not know whether those opinions are soundly based. They are subjective judgments. The last mentioned seems surprising, however, in view of the fact that the applicants had coped, it seems, with health problems affecting their natural child. The refusal of an allocation of a "special needs" child from Fiji had been supported by the Branch. It could not be reasonably said to have "demonstrated unwillingness to cope" with a child with health problems.

41. In any event, notwithstanding these reservations, the applicants were given approval. In March 1989, a relevant Indian adoption agency was notified and all relevant documents and reports forwarded to it.

42. An allocation was made of the infant R (born 30 March 1989) on 27 May 1989. It was accepted in July 1989 and, as previously recited, the child was adopted according to Indian law and brought to Australia.

43. There is an allegation in the report from a member of the Australian High Commission in New Delhi concerning dealings with the applicants. They were, according to that report, greatly upset by the delays they experienced in India, were emotional, "hated India" and were not coping.

44. This was interpreted within the Branch as a "demonstrated inability to accept the culture of the adopted child". I am not sure, even if the highly coloured detail in the report accurately reflects what happened, that such a conclusion could fairly have been drawn. It was suggested that a visa for the child should be refused.

45. On 11 September 1989 there were further discussions within the Department of Immigration, Local Government and Ethnic Affairs ("DILGEA"). The practical difficulties of then refusing a visa were considered. The then Director, on 14 September 1989 decided not to withdraw approval. It was resolved, however, to monitor the situation closely on the return of the applicants to the Territory.

46. These concerns were not shared with the applicants nor were they asked, at that time, to explain their conduct or comment on the accuracy of the report the Branch had received. It is understandable that no adverse decision was made at that time. This makes it more difficult now, in 1993, to assess what interpretation or weight should properly be allocated to this incident.

47. Visits by Branch officers to the applicants' home took place on five occasions between 5 October 1990 and 15 November 1990. The reports resulting noted that R was well accepted in the family and progressing normally. Had the matter been assessed at that point, it would be fair to conclude that previous "concerns" would have been regarded as having been allayed.

48. On 2 January 1992 the Branch received a "notification" regarding R. An informant alleged that R was "strictly disciplined", had been subjected to standing in corners, had her face slapped and was subjected to "rejection and emotional abuse" by applicants.

49. The Branch investigated these allegations. The applicants, according to the Branch reports, denied these allegations, save that the male applicant conceded that the female applicant had once slapped R on the face. He did not condone that action. They described R as sometimes "naughty" and spiteful to their natural daughter.

50. They were advised that the Branch wished to carry out further visits and to interview R.

51. At this stage, the applicants were perceived by the officers dealing with them to be uncooperative and even obstructive.

52. As at 2 November 1991, the date of the Section 19 Report, the Director was not prepared to recommend that an adoption order be made.

53. The applicants disputed much of what was contained in the Report. Some matters in dispute have little or no bearing on the present situation and I will not, therefore, refer to all those matters.

. The male applicant pointed out that he was an adopted child (one
of eight). His parents were, he felt, capable of giving advice
on the problems of adoption.
. He did acknowledge stress and anxiety over the adoption process
but attributed it to the attitude of the Branch officers.
. He blamed the Branch for any perceived rigidity and lack of
supportive climate.
. He considered Branch officers to have been biassed and their
opinions suspect as a result.
. He said that the child allocated from Fiji had also had a heart
murmur and might have been refused a visa on medical grounds, a
matter not mentioned in the s.19 Report. It was with reluctance
that they had refused the allocation.
. He disputed the account given of their dealings within the
Australian High Commission in New Delhi. He did agree that some
things he was reported to have said were stated but may have been
"taken out of context".
. The allegations made in the notification of 2 January 1992 were
strongly disputed. There was, he said, an "isolated incidence"
when the female applicant slapped R across the face. Otherwise
the allegations of abuse were denied.
. He admitted that he was not cooperative with Branch officers but
attributed this to being "victimised and harassed" by the Branch
over the years.

54. On 16 February 1993 a further report was received by the Court from the Director.

55. She advised that a "further notification" had been received concerning the behaviour of the female applicant towards R. It was alleged that on 24 December 1992 at the Belconnen Mall carpark, the female applicant was observed screaming angrily and uncontrollably at R. The child appeared "terrified". She hid in the car seeming to fear being left behind. She was screamed at further to persuade her to get out of the car. The "older child" was then told to get her out of the car. The "mother" then said she could not take it any more. She had had enough. The incident had taken 5-10 minutes.

56. R was later interviewed by Branch officers. She showed no signs of disturbance but was said to have stated that her mother did smack her on her face. The applicants denied that this was true. They said she was only smacked on her bottom. It was understood that such actions were, in either case, by way of correction of the child only.

57. The workers who interviewed the applicants could perceive no sign that the child R was abused but were concerned that there had been notifications, that R reported being slapped on the face although this was denied, that the female applicant seemed "paranoid" about the Branch, and that the male applicant seemed to hint at leaving the Territory if an adoption order was not made.

58. A further interview was held on 5 February 1993. The female applicant agreed that there had been "an incident" at the Mall. R had thrown a "tantrum". She was reported to have denied, however, that she had "screamed" at R or left or threatened to leave her behind.

59. The allegation and the denial are, unfortunately, reported in such indefinite terms that it is impossible to discern what really happened. The reference to "screaming" is pejorative. "Yelling" would, for example, be likely to describe the same conduct. The denial, as reported, of the "threat" does not correspond with the stated allegation. The child was reported (presumably by reason of what she said) to fear being "left behind". The "mother" was not reported as having said anything to warrant such a fear. Indeed, she seemed to have been trying to persuade R to get out of the car and come with her.

60. Clearly, access to R for Branch officers has become "more difficult" as a result of the lack of trust between the applicants and officers of the Branch. The Director has recommended in her supplementary report a further, independent assessment of R and her family and that the applicants enrol in a parenting or parent counselling course.

61. This was said to be in view of "the above unresolved concerns". I assume that to refer to the four concerns enumerated at page 2 of the supplementary report.

62. There was also tendered by the Director, an affidavit from a Social Worker employed in the Branch. She was the case officer for this adoption matter.

63. Again, some matters referred to in that affidavit are of no present relevance and I will not refer to them. Generally, the affidavit is in argumentative terms rather than factual. Given that the affidavit being answered contained a number of emotive rather than factual statements, that is not surprising. There is no further factual material adduced in that affidavit justifying or otherwise the four matters stated by the Director in her supplementary report of the same date to be of concern.

64. On 20 February 1993, the male applicant swore a further affidavit in reply to the affidavit and report of 16 February 1993. That affidavit also offers little by way of further factual matter.

65. There was, however, an affidavit from a family friend who had been present during the visit by Branch officers with R on 5 February 1993. The applicants had absented themselves to enable the Branch officers to question R without them being present but had asked for two friends to be present to monitor the contact. The case officer reported that, indeed, they had acted as neutral observers.

66. The perception of the interview by the family friend is different from that of the case officer. She felt that words were put in R's mouth. R had, she said, agreed that she was sometimes smacked when she had been very naughty. "When asked whether this was on her face she concurred and pointed to her bottom. She did not point to her face until the question was again asked..."

67. The Director did not seek to have that deponent cross-examined.

68. In the result, I am satisfied that the Director has bona fide concerns which prevent her from recommending that an adoption order be now made. I am also satisfied that the relationship of trust and cooperation which should exist between the applicants and the Branch has broken down. It is possible that some of the blame for the present mistrust lies with some officers who have previously dealt with the applicants. It may be that their own personalities and the stressful history of this adoption process has been to blame. I am certainly not satisfied that any of the Branch officers concerned with this current application have conducted themselves or this matter otherwise than with propriety and concern for R's welfare. That does not exclude the possibility that some of their concerns may not be soundly based.

69. On the positive side, the family relationship between the applicants, their natural daughter and R seems within normal limits, happy and stable. It is appropriate, however, to give due weight to the Director's concerns. In doing so, the factual basis for them must be considered.

70. I will deal with each in turn.

Notifications:
71. Both involved the female applicant primarily. If accepted, they show her as volatile and to sometimes use disciplinary corporal and other punishment inappropriately. However, the "face-slap" is said to have been "one-off". The "screaming" incident is capable of being construed as a reaction to a tantrum by R. It does not show that the female applicant subjects the child to emotional or physical abuse.

72. Indeed, the observations of the child, as reported by Branch officers, does not demonstrate any sign of abuse. On the contrary, they observed normal progress and relationships appropriate to a successful placement.

73. The fact that two persons felt moved to report matters is not itself persuasive of anything. It warranted the investigations undertaken but does not take the matter any further.

Face-Slapping:
74. It does not, of course, establish a practice of the female applicant using this inappropriate means for disciplining R that R says it was used. For a start, the child is now only three years of age, four on 30 March next. If she recollects the admitted face-slapping incident she might well describe it in terms of what happens when she is "naughty" but be referring to that single episode. It is also possible that the social worker inadvertently "led" the child to express the statements attributed to her. Certainly, that was the perception of the family friend who swore an affidavit in these proceedings.

75. In the result, I am not persuaded that I should reject the male applicant's sworn evidence that the "face-slap" was a "one-off" episode.

Paranoia:
76. To some extent, I can understand the female applicant's reported perception. She is faced with complaints about her attitude and conduct towards R, attributed to unknown persons, one of whom must have been a family friend or visitor. The applicants are aware that the Director has guardianship powers in relation to R. They place a less dramatic construction on their perception of their conduct than does the Director. The concern as expressed by the Director is, certainly, couched in terms more dramatic than is warranted.

77. The point may be illustrated by reference to the female applicant in the supplementary report. "She has stopped allowing friends into the house because she does not trust anyone". The literal meaning conveyed by that statement is contradicted by the reference to the interview with R when two family friends, obviously trusted, were present in the family home acting as witnesses.

No ties - might leave Territory:
78. The applicants have now as many ties as they ever had in the Territory. The facts reported to support the "concern" are literally true. The applicants have sold their home and are renting accommodation. The applicants have expressed a thought that sometime they could move to Queensland. However, it seems to have been assumed by the person providing the Director with information for the supplementary report that there was a causal link between those matters and the making of the adoption order. The male applicant explained, in his affidavit, a basis for this, namely, that their trust in some friends has been shaken by the fact that one of them was the source (apparently) of the first "notification". That is a fairly tenuous basis on which to draw the conclusion expressed in the finally stated matter of concern. What was the source is not stated.

79. Even so, it would perhaps have made the matters raised less of concern if the Director had been informed that the applicants had recently purchased a block of land in the Territory upon which they have arranged to have a home built.

80. It follows that, so far as I can see, there are no subsisting reasons of any weight preventing the making of an adoption order.

81. Of course, there remains the question of the consent of the Director to the adoption.

Consent of Director:
82. The Immigration (Guardianship of Children) Act 1946 (Cth) applied to R as from her arrival in Australia. The Director deposes, and I accept, that she is, by virtue of delegations granted under that Act, a legal guardian of R. Her consent is required under s.24(3).

83. The Court may, by order, dispense with that consent (s.30 1(e) Adoption Act 1965). To do so the Court must be satisfied that there are "special circumstances".

84. There is, in this case, a clear deadlock between the applicants and the Director. The applicants have had care and control of R since September 1989. They have in their favour an adoption order valid in Indian law. The Director does not propose to end their care and control. The applicants, quite reasonably from their viewpoint, say that further evaluations and assessments are otiose and intrusive. The director, also quite reasonably from her view point, has concerns which, although not based on evidence I can accept, are real enough to her.

85. I think it is in the interests of the child R that this situation be resolved. It has gone on too long already. It must add to tension in the home for various reasons which are obvious from the history which I have recited. In the circumstances, it would not be fair to the Director virtually to force her to consent to an adoption order when she is not really satisfied that she should.

86. In the circumstances, the test required by s.30(1)(e) is satisfied. I order that the consent of the guardian appointed by virtue of the Immigration (Guardianship of Children) Act 1946 (Cth) be dispensed with.

87. In consequence of that order, I make an order for the adoption of R by the applicants.

88. I direct that these reasons may be published but that the restrictions imposed by s.50, Adoption Act 1965 otherwise remain, in particular that no details identifying or tending to identify the child or the applicants be published.

Counsel for Director of Family Services: Ms K Y Sim