In the matter of an application for adoption of S and in the matter of the Adoption Act 1993 [2003] ACTSC 111 (17 December 2003)

Last Updated: 22 January 2004

IN THE MATTER OF AN APPLICATION FOR ADOPTION OF S

AND IN THE MATTER OF THE ADOPTION ACT 1993

[2003] ACTSC 111 (17 December 2003)

ADOPTION - Dispensing with consent of natural parents - consent of guardian to adoption - child residing with proposed adoptive parent for six years - best interests of child.

Adoption Act 1993, s 6, s 35

In the Matter of an Application for the Adoption of "B" [1995] ACTSC 6

Re An Application for the Adoption of X (1984) 53 ACTR 21

Mace v Murray [1955] HCA 2; (1954-1955) 92 CLR 370

Re: X and the Adoption of Children Ordinance 1965 [1984] FCA 193; (1984) 2 FCR 533

Application for the Adoption of R [1993] ACTSC 17

Re Adoption of L (1988) 92 FLR 362

ABA v EWF (1977-78) 3 Fam LR 11, 487

No AD 21 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 17 December 2003

IN THE SUPREME COURT OF THE )

) No AD 21 of 2003

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER of an application for adoption of S

AND IN THE MATTER of the Adoption Act 1993

ORDER

Judge: Connolly J

Date of order: 11 December 2003

Date of judgment: 17 December 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The consent of the natural parents be dispensed with in the adoption of S.

1. This is an application to dispense with the consent of the natural parents of a young person, who I will refer to as "S", to his adoption by his proposed adoptive mother. The application is made pursuant to s 35 of the Adoption Act 1993 (the Adoption Act). The young person is presently aged nearly 15, having been born in late 1988. He first came to the attention of ACT Family Services in 1994 following notifications of neglect and domestic violence. In 1997 he was permanently removed from his birth mother following police intervention. The matter was brought before the appropriate court, and findings were made that the child was severely neglected, and the child was committed to the care of the Chief Executive of Family Services until he attained the age of 18. The child has since 1997 been living in a foster care placement with his proposed adoptive mother, and has, I am satisfied, formed a strong attachment to her and her extended family. He is attending a local high school. As the young person is nearly 15 years of age, I took the opportunity of speaking with him, and he has confirmed that it is his strong wish that the adoption should proceed.

2. The Chief Executive of Family Services is his legal guardian and consents to the proposed adoption.

3. The Adoption Act requires that the consent of each natural parent and any guardian be obtained before an adoption is approved, unless an order is made to dispense with their consent. Although in this case the guardian, being the Chief Executive, has consented, the natural parents' consent is still required (see Higgins J, In the Matter of an Application for the Adoption of "B" [1995] ACTSC 6 [24]-[26]). Social workers from the Adoption Unit of ACT Family Services have contacted the child's natural mother and father, both of whom live in the Canberra district. The mother is reported in an affidavit of the social worker to have refused to sign the adoption papers, saying "I cannot sign because, if I signed an adoption consent I would have to admit to myself that he is better off somewhere else". It is stated that the mother was told that an application would be brought to dispense with her consent, and she is reported to have said "I will not fight against it. I know that [S] wants to be adopted by [the proposed adoptive mother]".

4. The natural father was also contacted, and indicated that he would oppose the order. He made representations, and attended two hearings in chambers, accompanied by his father, the child's grandfather. I was provided with a letter setting out their concerns, and I have considered this in coming to my conclusions.

5. As the natural parents have not consented, an application has been brought pursuant to s 35 for the dispensation of consent. The Adoption Act provides, in s 35, that consent may be dispensed with -

35. Dispensing with Consent

(1) On application, the Court may, by order, dispense with the requirement for consent of a person to the adoption of a child if the Court is satisfied that -

(a) the person cannot, after reasonable inquiry, be identified or located;

(b) the physical or mental condition of the person is such that he or she is not capable of considering properly the question whether consent should be given;

(c) the person has abandoned or deserted, or has neglected or ill-treated, the child;

(d) the person has, for a period of not less than 1 year, failed, without reasonable excuse, to discharge the obligations of a parent or guardian, as the case may be, of the child; or

(e) there are any other circumstances that justify the requirement for the consent being dispensed with.

6. When the matter was first brought before me, I indicated to the proposed adoptive parent, the natural father, and the Chief Executive of Family Services, that I would benefit from additional submissions going to my powers to make an order dispensing with consent in circumstances where the natural father was present and actively opposing consent. I was mindful of the decision of Blackburn CJ in Re An Application for the Adoption of X (1984) 53 ACTR 21 where his Honour took an apparently restrictive view of the provisions of the then Adoption of Children Ordinance 1965, where a discretion was available in "other special circumstances".

7. A Court must approach an application to dispense with the consent of a parent to an adoption with great care. In a joint judgment in Mace v Murray [1955] HCA 2; (1954-1955) 92 CLR 370 the Full Court (Dixon CJ, Webb, Fullager, Kitto and Taylor JJ) said at 385 -

It must be conceded at once that in the ordinary case the mother's moral right to insist that her child shall remain her child is too deeply grounded in human feelings to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child. It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another's, and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child.

8. Section 6 of the Adoption Act provides "For the purposes of this Act, the welfare and interests of the child concerned shall be regarded as the paramount consideration". Despite this provision, it seems to me that the proposition from Mace v Murray cited above must be kept in mind, and a Court should be reluctant to form the view that a natural parent's consent can be overridden merely because it is, on the evidence of social workers' reports before the Court, in the best interests of the child that the child live as part of another family. Australia is still coming to grips with the consequences of this approach in regard to the stolen generation.

9. The evidence here does go to show that it is in the child's best interests that the adoption proceed, but it seems to me that this is not of itself enough to amount to the "other circumstances" provided for in s 35.

10. In written submissions counsel for the proposed adoptive mother, Mr Williams, said -

[S] was declared a child in need of care and removed from the care and custody of his natural parents. The adoptive mother is unaware precisely when that occurred but orders were in place in 1996 when [S] was placed in her care. Those orders were presumably made pursuant to section 83 of the Children's Services Act 1986.

The need for such orders arose from his parent's substance abuse, domestic violence and neglect. The gravity of the parents conduct was such that the orders have been extended until [S] reaches 18.

11. It seems to me that the history of this matter, confirmed in the confidential report to the Court from the Chief Executive of Family Services, establishes that the grounds in s 35(1)(c), that the person has abandoned or deserted, or has neglected or ill treated, the child, have been made out. This can be taken together with other circumstances in this case, being the length of time, now some six years, that the child has been living with the proposed adoptive parent, the young person's age and the clearly expressed wishes of the young person. I note that, although Blackburn CJ expressed the view in Re An Application for the Adoption of X that the overriding best interests of the child were not to be considered in determining whether the criteria for the dispensation of consent had been complied with, a different view was taken by the Full Federal Court on Appeal. In Re: X and the Adoption of Children Ordinance 1965 [1984] FCA 193; (1984) 2 FCR 533, the Full Court (McGregor, Gallop and Neaves JJ) took the view that the overriding best interests of the child test, then contained in s 15, had to be taken into account in considering an application to dispense with consent. They said (at 538) -

In our view "special circumstances" are satisfied by these factors quite apart from any consideration as to the welfare of the child. However, when that factor is considered - as in our view it must be by reason of s 15 - there is strong argument for exercising the ... discretion.

12. I note that the best interests of the child have been expressly taken into account in similar applications: see Application for the Adoption of R [1993] ACTSC 17; Re Adoption of L (1988) 92 FLR 362; ABA v EWF (1977-78) 3 Fam LR 11, 487.

13. In all of the circumstances of this case, I am satisfied that the consent of the natural parents be dispensed with, and I so ordered on 11 December 2003.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 17 December 2003

Counsel for the applicant: Mr T Williams

Solicitor for the applicant: Snedden Hall & Gallop

Respondent: In person

Solicitor for the Chief Executive: ACT Government Solicitor

(Submissions in writing)

Date of hearing: 11 December 2003

Date of order: 11 December 2003

Date of judgment: 17 December 2003