Re An Application of the Adoption of 'B' [1995] ACTSC 6 (16 February 1995)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF 'B' No. AD26 of 1994
Number of pages - 9
Family Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Family Law - adoption - application to dispense with consent - notification of parties - the meaning of "person interested" - question as to whose consent is relevant for the purpose of dispensation - child subject of wardship order in favour of the Director of Family Services - the meaning of "appropriate person" - the situation arising where paternity is unclear.

Children's Services Act 1986 (ACT), ss 108, 109

Adoption Act 1993 (ACT), O76 r11 (Pt 7), ss 27, 35, 36, 43
Child Welfare Ordinance 1957 (ACT), ss 19, 83(2), 88(1), 89
Birth (Equality of Status) Act 1988 (ACT), ss 7, 8, 9, 10

Minister for the Interior v Neyens [1964] HCA 71; (1964) 113 CLR 411
Re: AB (1950) VLR 1

HEARING

CANBERRA, 7 December 1994
16:2:1995

Counsel for the Applicants: Mr D C Metcalf

Instructing solicitors: Crossin Barker Gosling

Counsel for the Respondent: Ms E M Gray

Instructing solicitors: Wood Fussell

Counsel for the Child: Ms H Cory

Instructing solicitors: Legal Aid Office (ACT)

Counsel for Director of Family
Services: Ms J King

Instructing solicitors: ACT Government Solicitor's Office

ORDER

THIS COURT DECLARES THAT:
(1) The Director and the natural mother, 'A', are each persons whose consent to the proposed adoption is required pursuant to s27 of the Adoption Act unless dispensed with pursuant to s35 of that Act.

(2) Pursuant to s97 of the Adoption Act these reasons may be published but otherwise the restriction on publication imposed by that section will continue to apply.

DECISION

HIGGINS J This is an application to dispense with the consent of 'A' to the adoption of her infant daughter 'B' by the applicants. That dispensation is sought for the purpose of permitting the applicants then to apply for the adoption of 'B'.

2. The child, 'B', was born on 18 August 1992. 'A' is her natural mother. On 1 March 1993 Magistrate Ward determined that the child was in need of care and made a wardship order in favour of the Director of Family Services (ACT) pursuant to the provisions of the Children's Services Act 1986 (ACT) (CS Act).

3. The mother of the child is intellectually disabled. She has exhibited some behavioural problems. It was because of those difficulties that Magistrate Ward made the orders which he did. The mother has, however, been permitted access to the child since the wardship order was made. She has not exercised that access to the extent that she could have done.

4. On 22 January 1993, the Director placed the child with the applicants. It is her intended case plan that the child remain with the applicants until she attains her majority. The applicants have three other children. The child is treated in all respects as an integral member of their family.

5. On 15 April 1994, taking the view that the Director was the legal guardian of the child, solicitors for the applicants wrote to the Director seeking her consent to the child's adoption by the applicants.

6. The Director took legal advice and replied, on 29 July 1994, that her advice was that the position was legally unclear as to who, whether the Director, the parents or each of them was a person or were persons whose consent was necessary.

7. The natural aunt of the child, 'C', has expressed a desire to be heard on the question as to whether the consent of the natural mother should be dispensed with.

8. The matter came before me on 7 December 1994. Counsel for the Director, Ms King, drew attention to certain material indicating that there was conflicting evidence as to which of two male persons was the natural father of the child. She sought directions and rulings as to the persons whose consent was required to the adoption order proposed. She contended, correctly in my view, that it was necessary for me to rule upon this question before proceeding to determine whether any such consent should be dispensed with. She also raised a question as to who ought be given notice of the substantive application and be entitled to be heard thereon.

9. Notification is not a contentious issue.

10. Order 76 r11 (Part 7 - Adoption) of the Rules of Court relating to Adoptions requires notice to be given to each "person interested". However, the Court has a discretion under r11(1)(c) to nominate "any person" as someone who should be notified of an application for a dispensing order. The natural mother is clearly a "person interested". She has been notified. The putative fathers are either each a "person interested" or, at least, are persons who should be notified. The natural aunt has no legal interest but because of the family connection and the disability of the natural mother, albeit that the latter is separately represented by counsel, the aunt is also a person who, in my view, ought to be notified. The Community Advocate has appeared in relation to previous care and access proceedings concerning the child. It seems to me that, as submitted by counsel for the Director, she is also an appropriate person to be notified of the application.

11. I have given directions accordingly. I now turn to the substantive preliminary issue upon which a ruling is necessary.

Whose consent is required?
(i) The Current Legislation
12. The requirement for consent is made by s27 of the Adoption Act 1993 (ACT) (Adoption Act). It provides:

(1) Subject to this division, an adoption order shall not be made in
respect of a child who has not attained the age of 18 years unless
consent to the adoption has been given by each person who is an
appropriate person ascertained in accordance with subsection (2).
(2) For the purposes of subsection (1), a person is an appropriate
person in relation to a proposed adoption of a child if the person
is -
(a) in the case of a child who has not previously been adopted -
(i) each parent of the child; or
(ii) the guardian of the child; and
(b) in the case of a child who has previously been adopted - each
adoptive parent or guardian of the child.
(3) A reference in subparagraph (2)(a)(i) to a parent of a child
shall not be read as including a reference to the father unless he
is presumed to be the father under the Birth (Equality of Status)
Act 1988.

13. The reference in s27(3) to the Birth (Equality of Status) Act 1988 (ACT)(B(ES) Act) is a reference to s7 of that Act. That section provides:

(1) If a child is borne by a married woman -
(a) who is cohabiting with her husband at the time of the child's
birth; or
(b) within 10 months after the woman ceased cohabiting with the
husband;
the husband shall, for all purposes, be presumed to be the father of
the child.
(2) If a woman bears a child within 10 months after a marriage to
which the woman was a party has been terminated -
(a) by the death of the woman's husband; or
(b) otherwise than by a decree of dissolution of marriage;
the woman's husband shall, for all purposes, be presumed to be the
father of the child.
(3) If -
(a) after the parties to a marriage separated they resumed
cohabitation;
(b) within a period of 3 months after resuming cohabitation they
again separated; and
(c) the woman bears a child within 10 months after the period of
cohabitation ends;
the woman's husband shall, for all purposes, be presumed to be the
father of the child.
(4) If -
(a) a child is borne by a woman who is, at the time of the child's
birth, cohabiting with a man with whom she has cohabited throughout
the period of 6 months before the child's birth; or
(b) a child is borne by a woman who cohabited with a man throughout
a period of at least 6 months, being a period that ended not more
than 10 months before the child's birth;
the man shall, for all purposes, be presumed to be the father of the
child.

Subsections (5) and (6) are not relevant for present purposes.

14. A presumption also arises from registration in a register of births in s8 of the B(ES) Act:

(1) Where, before or after the commencement of this section, the
name of a person is entered in a register of births or a register of
parentage information as the name of the father of a child, the
person shall, for all purposes, be presumed to be the father of the
child.
(2) Where, before or after the commencement of this section, the
name of a person is entered in a register of births or a register of
parentage information as the name of the mother of a child, the
person shall, for all purposes, be presumed to be the mother of the
child.

15. There may, also, be an acknowledgment of paternity pursuant to s10 or a finding by a "recognised court" pursuant to s9.

16. The "presumption" referred to is not characterised by the legislation as "conclusive". It follows that it may be displaced if a contrary conclusion is established at least on the balance of probabilities.

(ii) The Director - wardship - guardianship
17. Section 19 of the Child Welfare Ordinance 1957 (ACT) (CW Ordinance) had placed the issue beyond doubt. It provided:

Notwithstanding any other law of the Territory relating to the
guardianship or custody of children or young persons, the Minister
is the guardian of a child or young person who is a ward, to the
exclusion of the parent or other guardian.

18. That provision was considered by the High Court in Minister for the Interior v Neyens [1964] HCA 71; (1964) 113 CLR 411 (per Barwick CJ, McTiernan and Taylor JJ concurring) to have ousted the previous protective jurisdiction of this Court. It gave the Minister and only the Minister the role of guardian of the child once the child became a ward. The Minister had the exclusive power to continue or terminate the wardship.

19. The exclusivity of the provision was severely criticised: see 425 per Barwick CJ. The entire Ordinance, including that provision, was repealed by the CS Act 1986 as from 26 April 1988.

20. Section 108 of the CS Act addresses the question of the guardianship of a ward. It provides:

(1) Notwithstanding any other law in force in the Territory relating
to the guardianship of children, the Director is the guardian of a
child who is a ward to the exclusion of the parent or person who
would otherwise be the guardian of the child.
(2) Subsection (1) has effect both within and beyond the Territory.

21. However, instead of removing control of wardship orders from judicial scrutiny, as the CW Ordinance did, s83(2) requires that the period for which the order has effect must be specified. Notwithstanding that provision, s88(1) permits the Children's Court to vary or revoke the order on application. Section 89 requires the Community Advocate to apply for an annual review of any such order. Thus a wardship order must be judicially scrutinised at least once in every 12 month period.

22. The CS Act also provides that the Director becomes the pro tempore guardian of a child in respect of whom all relevant consents to adoption have been given or dispensed with as the case may be pending the making of an adoption order: see s36(1) Adoption Act. That provision has no application so long as the child is a ward pursuant to the CS Act: see s36(3) Adoption Act.

23. It is a usual incident of wardship that a guardian has the responsibility of consenting or not to an adoption of the ward. The terms of s109(1) of the CS Act supports that view in the case of a child made a ward of the Director. It provides:

While a child is a ward of the Director, the Director has, subject
to this Act, the custody of the child to the exclusion of the
parents or other guardian of the child and has the same rights,
powers, duties, obligations and liabilities as a natural parent of
the child would otherwise have.

24. Section 27(1) of the Adoption Act requires consent to adoption from "each person who is an appropriate person ascertained in accordance with subsection (2)". The alternative categories in this case are provided by subs 2(a)(i) and (ii). Whilst s27(2)(a)(i), referring to "each" parent of the child, does not grammatically follow, it clearly intends that each living "parent" of the child will be "an appropriate person". The term "parent" is to be interpreted in accordance with s27(3) of the Adoption Act. There may, of course, be more than one "guardian" of a child for the purposes of s27(2)(ii). Even though there is a plural reference in s27(2)(i) and a singular reference in s27(2)(ii), it is not intended, in my view, that only one guardian, if there is more than one, would be "an appropriate person", to give consent. The consent of each guardian would be required.

25. Usually, before consent is given, the parents or parent of a child will be a guardian. There is nothing in s27(2) to suggest that a person cannot be "an appropriate person" by reason of belonging to more than one category of "appropriate" persons.

26. There is no reason, in my view, to consider that the word "or" separating s27(2)(i) and s27(2)(ii) was intended to imply that if there is a "parent", the "guardian" is not "an appropriate person" nor, conversely, is it a tenable view that if the Director, or any other person, is appointed exclusive guardian of the child, that the consent of each parent is thereby excluded.

27. I note that such an interpretation of s27(2) accords with the view taken of a similar provision by Barry J in Re: AB (1950) VLR 1 at 2. That provision in the Adoption of Children Act 1928 (Vic), was as follows:

4(3) An adoption order shall not be made except with the consent in
writing of every person or body who or which -
(a) is a parent or guardian of the infant in respect of whom the
application is made; or
(b) has the actual custody of the infant; or
(c) is liable to contribute to the support of the infant;
Provided that the Court may dispense with ...

The opinion therein expressed was in the following terms:

The first question is whether it is necessary, apart from
dispensation under the proviso to obtain consent to the adoption
order from the parent or guardian and from the person or body who
has the actual custody of the infant and from the person who is
liable to contribute to the support of the infant. It seems to me
that this question can only be answered by regarding the purpose of
the legislation. That purpose is to enable suitable persons to
adopt children, but as that may mean the disturbance of existing
states of affairs involving emotional attachments, it was thought
desirable, for obvious reasons, that whenever possible the adoption
should be effected without opposition from those who, because they
are the parents or the custodians of the childe, or responsible for
its support, may be affected by the order.
The opening words of sub-sec 3 of sec 4 are designed to cover all
the persons who may have an interest in or an attachment to the
child, and also any institution or body that may have cared for it.
Under (a) the begetters of the child and anyone deriving rights of
guardianship through them ...; under (b), those persons or bodies
who have the physical custody of the child and who thus have an
interest in its welfare; and while (c) could cover parents ... In
terms the classes are not necessarily mutually exclusive; for
example, the mother of an illegitimate child may come within (a) as
its parent, within (b) as the person having the actual custody of
the child, and within (c) as a person liable to contribute to the
support of the child. It is clear enough, however, that the general
purpose of the sub-section is that wherever there is a person or
body that comes within any of the descriptions of sub-section 4(a)
and (b) and (c), prima facie an adoption order may not be made
without the consent of that person or body.

28. This view is supported by a consideration of the finality effected by a valid adoption order, as provided for by s43 of the Adoption Act.

29. It follows that, in my opinion, the Director is an "appropriate person" within the meaning of s27 of the Adoption Act in addition to any other person s27(2) of the Adoption Act declares to be "an appropriate person".

(iii) The parents of the child - the mother - the possible fathers.
30. It follows that the natural mother is also an "appropriate person" within the meaning of s27 of the Adoption Act.

31. Therefore, by virtue of s27(1), the consent of the Director and the natural mother is required before an adoption order can be made unless that requirement is dispensed with.

32. The further question is whether any and which of the two persons who might be the father of the child is "an appropriate person".

33. The Director provided, at the direction of the Court, all information in her possession as to those two persons. Much of that information comes from the natural mother herself.

34. The first candidate as a possible "parent" which, subject to s27(3), ordinarily means biological parent, is 'P'. He and the natural mother were married in Adelaide in August 1985. They moved to Canberra about 1988. They lived together at Ainslie Village. There was domestic disputation between them. In mid-1990 a Domestic Violence Order was taken out by the natural mother against 'P'. That order was discharged about August 1991.

35. The second candidate as a possible "parent" is 'G'. At the time she gave birth to 'B' in August 1992, the natural mother attributed her pregnancy to a "violent rape" of her by 'G'. However, this allegation was not supported by any corroborative evidence. Later, when faced with possible care proceedings, she alleged she would have the support of 'G' in caring for the child and, further, that 'G' would assume cohabitation with her and help her care for the child. That statement seems inconsistent with her allegation of rape, although it is consistent with a belief by her that 'G' was in fact the child's father.

36. A note dated 16 October 1992 on FSB files, recorded a contact by 'G' and quoted him as denying that he was the father of the child and requesting that blood tests be taken to prove that fact.

37. The mother attended Family Services Branch (FSB) on 26 October 1992 with 'G'. She then expressly denied that there had been any "violent rape". 'G' confirmed that he and the natural mother would care for the child and there was, accordingly, no further need for FSB concern. He did not, however, state that he was the child's father.

38. 'G' left the Territory the next day. This followed a complaint by the natural mother that he had stolen a photograph of the child and some of the latter's clothes. Police did not regard this allegation as any more credible than any other of the 27 previous complaints the natural mother had made since August 1989. Accordingly, nothing was done to confirm or deny this allegation.

39. On 30 October 1992, the natural mother alleged she was then cohabiting with her husband. This again appears to have been stated for the purpose of avoiding care proceedings being taken by the Director. However, on 30 November 1992 'P' is recorded as having denied the truth of that allegation. It is possible that 'P' had lived with the natural mother for some periods of time before and after the child's birth. There is, however, no information on FSB files supporting that hypothesis or fixing the date or dates of any such cohabitation.

40. The natural mother has, however, consistently claimed that 'G' is the father of the child and that her husband, 'P', is not the father of the child.

41. It is obvious that no clear chronology emerges, even if the allegations of which there is a record are regarded as prima facie evidence of the truth of the matters stated in them. There is no indication as to the timing of the alleged "violent rape" or as to the occasions before the child's birth when, if at all, in the preceding nine months or thereabouts, the natural mother had, or could have had, sexual intercourse with her husband. There is no reliable chronology of the natural mother's cohabitation with either 'G' or 'P'. I have no information as to whether either 'G' or 'P' has been entered in the register of births as the father of the child. There has been no evidence given or reference made to any finding of any court as to paternity. It does not appear that either 'P' or 'G' has acknowledged paternity of the child.

42. The only information as to paternity has come from the natural mother whose statements, even if admissible, are inconsistent and unreliable.

43. It follows that I can make no finding on the balance of probabilities as to whether 'P' or 'G' is a parent of the child.

44. Accordingly, I cannot be satisfied that either of them is a person whose consent to the adoption proposed is legally required.

45. Of course, each is a person I have directed to be notified of the present application. It may be that further evidence will elucidate the matter so as to alter the conclusion, which I have expressed concerning the necessity for the consent of any of them to be obtained or dispensed with in relation to the proposed adoption.

46. At this stage, therefore, I declare that the Director and the natural mother are each persons whose consent to the proposed adoption is required pursuant to s27 of the Adoption Act unless that consent is dispensed with pursuant to s35 of that Act.