In the matter of an application for the adoption of Tl [2005] ACTSC 49 (1 July 2005)

Last Updated: 26 July 2005

IN THE MATTER of an application for the adoption of TL

[2005] ACTSC 49 (1 July 2005)

ADOPTION - whether adoption order should be made in favour of step parent.

Adoption Act 1993, s 4, s 6, , s 11, s 18

Human Rights Act 2004, s 30

Re S (1976) 9 ACTR 27

No AD 10 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 1 July 2005

IN THE SUPREME COURT OF THE )

) No AD 10 of 2005

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER of an application for the

adoption of TL

AND IN THE MATTER of the Adoption Act 1993

REASONS FOR JUDGMENT

Judge: Connolly J

Date: 1 July 2005

Place: Canberra

1. This was an application in chambers to adopt a child pursuant to the Adoption Act 1993 (the Adoption Act). The application was brought by Mr H, who is married to the biological mother of the child, TL, who is now 15 years of age.

2. The delegate of the Chief Executive of the Department of Disability, Housing and Community Services has provided the Court with a confidential report dated 20 June 2005 concerning the proposed adoptive parent (the stepfather). The report has been prepared in the normal comprehensive manner.

3. It is apparent from the report that the material circumstances of the stepfather and his wife, the mother of the proposed adopted child, are more than adequate to appropriately provide for the child as she completes her secondary education. The Delegate has indicated that she is not of the view that the welfare and interest of the child would be promoted by the adoption because of s 18(5) of the Adoption Act which provides -

(5) An adoption order shall not be made in favour of a relative of the child unless -

(a) the instrument of consent discloses consent to adoption by that particular relative; and

(b) the Court is of the opinion that -

(i) there are circumstances why the relationships within the family of the child should be redefined as such an order would do; and

(ii) it would not be preferable to make an order relating to guardianship or custody of the child.

4. The Delegate further reports, and it was acknowledged by the stepfather and the mother, that there is in place an order of the Family Court dated 15 December 2001 giving them the responsibility for the day to day care, welfare and development of the child.

5. The Act clearly indicates that a Court should not make an adoption order in favour of a relative, which for these purposes the Delegate has taken to include the stepfather of a child, unless there are circumstances which satisfy the Court that such an order should be made. At the outset it seems to me that the Department's view that this provision acts as a prima facie barrier to an adoption by a step parent may not be correct, as the Adoption Act defines relative in s 4 in the following manner -

"relative", in relation to a child, means a grandparent, brother, sister, uncle or aunt of the child.

6. It seems to me that this is an exhaustive definition of relative, in that it provides that relative for the purposes of the Act means, rather than includes, grandparent, brother, sister, uncle or aunt of the child. It would follow that s 18(5) does not, in truth, provide any additional barrier to the adoption process for a step parent.

7. The policy of caution taken by the Department towards adoptions by step parents does, however, find some support in s 18(1) to (4) of the Adoption Act.

8. These provide -

18 Persons in whose favour adoption orders may be made

(1) Except as provided in this section, an adoption order shall not be made otherwise than in favour of 2 people jointly, being a couple -

(a) neither of whom is a parent of the child; and

(b) who, whether married or not, have lived together in a domestic partnership for a period of not less than 3 years; and

(c) who, in the opinion of the Court, have demonstrated the stability of, and a commitment to, that relationship.

(2) An adoption order shall not be made in favour of a person who is not a parent of the child but has a relationship of the kind described in subsection (1) with the parent of the child unless -

(a) the instrument of consent discloses consent to adoption by that particular person; and

(b) the Court considers that it would not be preferable to make an order relating to guardianship or custody of the child.

(3) Subject to subsection (2), the Court may make an adoption order in favour of 1 person only after having regard to the wishes of the birth parents of the child.

(4) Except in circumstances described in subsection (2) an adoption order shall not be made in favour of 1 person if that person is -

(a) married and is not living separately and apart from his or her spouse; or

(b) in a domestic partnership.

9. The effect of these provisions is, it seems to me, that where a step parent wishes to adopt a child, that child being the biological child of their spouse with whom they are still in a domestic partnership, the adoption order shall not be made unless the Court considers that it would not be preferable to make an order relating to guardianship and custody of the child.

10. All provisions of the Adoption Act must of course be read subject to s 6 which provides that -

For this Act, the welfare and interests of the child concerned shall be regarded as the paramount consideration.

11. That the construction of an Adoption statute should be guided by the welfare and best interests of the child was an approach adopted under the former Adoption Act 1933 (per Blackburn J in Re S (1976) 9 ACTR 27 at 29), and it is clearly now mandated by the Act itself. Moreover, the Human Rights Act 2004, which provides in s 30(1) that "in working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred", requires the Court to take account of the rights set out in s 11 of the Adoption Act, which provides -

11 Protection of the family and children

(1) The family is the natural and basic group unit of society and is entitled to be protected by society.

(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.

12. In this case, the stepfather, who was himself an adopted child, has told me that he feels that the adoption order will give greater strength and stability to the family unit. The child's natural father died in 2004, but she has lived with her mother and stepfather since 2001, when the relationship between her mother and stepfather began. They were married in December 2001 and, according to the Delegate's report, are in a stable relationship.

13. The adoptive child has told the Delegate of the Department, and she told me, that she has sought this order, and that she did so before her natural father passed away. She told me that one reason she would like the additional security of an adoption order in her stepfather's favour is because of concerns that, should anything happen to her mother, she may find herself subject to some form of application to live with a former husband of her mother, who has the custody of two step siblings. She does not like and is fearful of her mother's former husband. I formed the view that the child is an intelligent and articulate young person, and that her concerns are understandable, and that, although it may be unlikely that, should anything happen to her mother (who is in good health), the Family Court would make an order placing her with her mother's former husband rather than her stepfather, this is a cause of genuine anxiety to her, and that the adoption order would provide her with additional emotional security.

14. It seems to me that this is a sound reason why an adoption order in the proposed form, which will provide that the young person will be the natural child of her mother and the adopted child of her stepfather, is in her best interests, and in the best interests of the family unit. It seems to me that the additional emotional security and permanence provided by an irrevocable adoption order makes such an order preferable, in the circumstances of this case, to the ongoing care and custody order of the Family Court. It seems to me that in exercising my discretion under s 18 of the Adoption Act I must also be mindful of the requirement of the Human Rights Act to consider the family as the basic group unit of society which is entitled to be protected by society. In the matter before me the family seeks an adoption order so as to further consolidate the position of the child, and to provide her with the highest level of legal protection as the child in law and fact of both her biological mother and her stepfather.

15. I therefore made the order on 29 June 2005 in chambers. The Delegate of the Chief Executive requested that I set my reasons out in writing, for the guidance of the Department and the community generally, and this I now do.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 1 July 2005

Counsel for the applicant: Applicant in person

Solicitor for the applicant: -

Counsel for the respondent: Officers of the Department of Disability, Housing and Community Services

Solicitor for the respondent: -

Date of hearing: 29 June 2005 in Chambers

Date of judgment: 1 July 2005