In the matter of an adoption of D [2008] ACTSC 44 (15 May 2008)

Last Updated: 28 July 2008

HUMAN RIGHTS ACT

IN THE MATTER OF AN ADOPTION OF D

[2008] ACTSC 44 (15 May 2008)

ADOPTION - Dispensing with consent of birth father - whether reasonable inquiry made - whether failure to discharge parental obligations without reasonable cause - Adoption Act 1993 (ACT) s 35 - Human Rights Act 2004 (ACT) s 11.

Adoption Act 1993 (ACT) ss 35, 27, 6, 19

Human Rights Act 2004 (ACT) s 11

Adoption Act 1958 (UK), s 5

Adoption of Children Ordinance 1965 (ACT)

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 8

International Covenant on Civil and Political Rights, article 24

Convention on the Rights of the Child 1989

R Adoption of M (1995) 125 FLR 236

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

Hitchcock v WB [1952] 2 QB 561

Scozzari and Gunta v Italy (13 July 2000, Applications Nos 39221/98 and 41963/98)

Re Adoption of SS [2002] ACTSC 24; (2002) 167 FLR 238

B V G [2002] 3 NZLR 233

Re Application for the Adoption of X (1984) 71 FLR 162

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

Re K and the Adoption Act 2000 [2005] NSWSC 858

Re KN and the Adoption Act 2000 [2005] NSWSC 896

Waghorn v Waghorn [1942] HCA 1; (1942) 65 CLR 289

Watson v Nikolaisen [1955] 2 QB 286

In the matter of CB & Ors (No 2) [1982] VR 681

Re Adoption of S and Adoption Act 1993 (ACT) (2004) 31 Fam LR 68

The Director of Social Welfare v Black and Halse (Unreported, Jenkinson J 19 November 1973)

In the Adoption of JMH (1976) 1 SR (WA) 27

The King v M [1946] VLR 106

Re P (infant) [1962] 1 WLR 1296; [1962] 3 All ER 789

R and R v E [1974] VR 291

In the matter of C B and Ors (No 1) [1982] VR 657

ABA and Anor v EWF [1978] HCA 4; (1977) 3 Fam LR 11,487

In the adoption of BF (1977) 1 SR (WA) 43

Re an infant K and the Adoption of Children Act [1973] 1 NSWLR 311

In the Adoption of JM (1978) 1 SR (WA) 97

In the Adoption of ELS-JS (1980) 1 SR (WA) 218

Re S In the matter of an Adoption (1976) 9 ACTR 27

Re L (1988) 92 FLR 362

Re B and the Adoption of Children Act [1979] 2 NSWLR 915

Re Adoption Application A83/6507 [1984] 2 NSWLR 590

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Director-General of Social Welfare v Black and Ors (Unreported, Full Court of the Supreme Court of Victoria, 29 June 1965)

REASONS FOR JUDGMENT

No. AD 1 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 15 May 2008

1. On 16 April 2008 I made an order under s 35(1) of the Adoption Act 1993 (ACT) dispensing with the requirement for consent to be obtained of the birth father of the child, the subject of the adoption proceedings. These are my reasons for making that order.

2. On 7 July 2003 the child was born to the present "life" partner of the applicant for the adoption order in these proceedings.

3. The child was born, however, to the applicant's partner and another man who, the evidence shows, currently has no contact with either the mother or the child. It is clear from the decision of Higgins J (as he then was) in Re Adoption of M (1995) 125 FLR 236 that, in these circumstances, it is not necessary for the birth mother to be an applicant also.

4. The evidence before me discloses that the birth father had initially some sporadic contact with the child. He did not live with the birth mother of the child but would visit occasionally, it appears mostly unannounced, and often intoxicated. There is a suggestion of some violence on the occasion of his attendance, though the evidence does not suggest that there was violence either to the birth mother or to the child.

5. The applicant formed a relationship with the birth mother of the child within six months of the child's birth and the evidence before me showed that he has a strong and loving relationship both with the birth mother and the child. Indeed, in his affidavit in support of the application for an order of adoption, he indicated, confirmed by the birth mother, that they intended to marry later this year. The evidence also disclosed that the applicant has accepted financial responsibility for supporting the child. It is in these circumstances that the applicant seeks to adopt D and with D's birth mother to become D's parent.

6. To make an order for adoption and sever the family ties with a child's parent is, of course, a serious matter. Such is clear from the unanimous decision of a Full Court of the High Court of Australia in Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 especially when referring at 380 to "the grave responsibility which the application placed" on the judge hearing an adoption application, to the fact that "the natural ties between mother and child ought not to be lightly broken" and to the need for "powerful reasons ... [to] be shown before a court can properly deem it just and reasonable, notwithstanding a mother's objection, to sever the relationship between her child and herself and make the child for most purposes of the law ... the child of other persons." As was said to like effect in Hitchcock v WB [1952] 2 QB 561 at 568 "[a]n adoption order is an order of the most serious description."

7. This is re-inforced in this jurisdiction by s 11 of the Human Rights Act 2004 (ACT) which amounts to a right to family life. As was said by the European Court of Human Rights in considering art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (slightly differently worded but to the same effect) in Scozzari and Gunta v Italy (13 July 2000, Applications Nos 39221/98 and 41963/98) at [148]:

... it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child.

The seriousness is underlined by the consequences of an adoption order which has the effect of severing the existing legal parent/child relationship and substituting a new legal parent/child relationship: Re Adoption of SS [2002] ACTSC 24; (2002) 167 FLR 238 at [7].

8. Such an approach does not, of course, mean that adoption is inconsistent with the rights of children to have respected the right to protection including the protection of the family. Indeed, as the UN Human Rights Committee stated in its General Comment No 17 made in its Thirty-fifth session (1989) on art 24 of the International Covenant on Civil and Political Rights (which is the source of s 11(2) of the Human Rights Act 2004: see schedule 1 of that Act):

... in cases where the parents and the family seriously fail in their duties, ill-treat or neglect the child, the State should intervene to restrict parental authority and the child may be separated from his (sic) family when circumstances so require.

In this context, art 21 of the Convention on the Rights of the Child 1989 recognises that adoption is a means for appropriate protection of children in proper circumstances. It also sets standards against which adoption practice is appropriately assessed: B v G [2002] 3 NZLR 233 at [43].

9. Mace v Murray, supra, involved the opposition of the natural mother to the adoption, but in some ways the present case is not dissimilar since the birth father has not been served with the adoption application and therefore his attitude to the adoption cannot be ascertained. In these circumstances, the court must be careful to ensure that the interests of the birth father, recognised as important by the ordinary requirement for consent, are not ignored.

10. This requirement is made by s 27 of the Adoption Act 1993 (ACT), which provides that an adoption order may not be made in relation to a child who has not reached 18 years of age unless, relevantly, a consent has been given by each parent or guardian of the child (or, in the case of a child who has previously been adopted, each adoptive parent or guardian of the child). This provides the proper legislative respect for the natural ties between parent and child which, in the words of the High Court "ought not to be likely broken" (Mace v Murray, supra, at 380).

11. Nevertheless, s 35(1) of the Adoption Act 1993 (ACT) provides:

(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; or

(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; or

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

(d) the person has, for a period of not less than one 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.

12. Paragraphs (a), (c), (d) and (e) are potentially relevant to the present case. Unfortunately, the applicant did not specify on which ground or grounds he relied; it would be preferable if this were to be done.

13. Each of these grounds have been subjected to judicial consideration. For example, in Re Application for the Adoption of X (1984) 71 FLR 162, Blackburn CJ held at 164, in respect of a provision identical to par (a) (though on the predecessor legislation, the Adoption of Children Ordinance 1965 (ACT)) that the words do not mean "if reasonable inquiry were to be made, that person could not be found or identified". The words "after reasonable inquiry" in his Honour's opinion "clearly mean an inquiry which has in fact been made". The decision was the subject of appeal, which the Federal Court upheld in Re: X and the Adoption of Children Ordinance 1965 [1984] FCA 193; (1984) 2 FCR 533. The Court, received further evidence and while it (at 537) went "a considerable distance towards establishing that `reasonable inquiry' was made [the Court] preferred] not to rest [its] decision [on this ground]". It would appear that the Court did not disagree with the construction by Blackburn CJ of this ground.

14. The ground was, however, considered by a decision of White J in the Supreme Court of New South Wales, Re K and the Adoption Act 2000 [2005] NSWSC 858, where his Honour said at [22]:

Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made ... In the present case, the application is made by the prospective adoptive parents with the consent of DOCS. They have no capacity to make any inquiry in Korea to identify the child's mother or father. It is possible that DOCS might be prepared to make an inquiry on their behalf by contacting [the Korean Adoption Agency] and asking it to reveal the contact details of the mother, and possibly, through her, of the father. In my view, it is not reasonable to require the plaintiffs to embark upon such an inquiry. Nor would such an inquiry be reasonable from the perspective of the child's parents. It would involve the violation of the privacy of the mother in circumstances where Korean public records confer anonymity on her. An inquiry which attempts to circumvent privacy measures of a foreign state and which, in effect, would amount to a trespass on issues which the Korean agency could properly consider to be within its exclusive province, is not `reasonable'...

15. That approach was followed by Campbell J in Re KN and the Adoption Act 2000 [2005] NSWSC 896 where his Honour said:

[14] In deciding whether the natural parents cannot after reasonable inquiry be found, the reasonableness of an inquiry from the perspective of the applicant has a different role to play than the reasonableness of the inquiry from the perspective of the natural parent. It is for the purpose of deciding whether, on the basis of information which the applicants have presented to it, the Court ought act without the consent of the natural parents, that the question of whether there has been "reasonable inquiry" comes to be asked in the first place. The Court is, in effect, deciding whether it has a sufficient basis for action presented to it, notwithstanding that the natural parents have not consented. The seriousness of the action in question, involving as it does a severing of one set of parental ties and the creation of another, needs to be taken in to account in that exercise.

[15] So far as the perspective of the applicants is concerned the primary focus of the inquiry, it seems to me, is on asking what else it was reasonably open to the applicants to do. So far as the natural parents are concerned, the focus of the inquiry includes matters such as what reason there is to believe that either of the parents would wish to express his or her views about the proposed adoption, and on whether there is any legitimate reason why the parent ought not to be asked to express those views. In Re K, the factual situation appears to have been that, if the NSW Department made some further inquiries in Korea, it might conceivably have ascertained the identity and whereabouts of the parents of the child in question. In that situation, I agree that the fact that the parents were accorded privacy under Korean law was an appropriate matter to take into account in deciding that it would not be reasonable to require those inquiries to be made. If there were a situation where there was reason to believe that a loving parent had been separated from his or her child through some misfortune like war, the court might expect that even inquiries which were long shots but not clearly futile should be made before it was satisfied that the natural parents could not, after reasonable inquiry, be found, while in a situation where the natural parents had clearly abandoned the child such inquiries might not be expected to be made.

[16] In the present case, in light of the extremely sparse information known about the parents of KN, and the long time over which those parents have shown no interest in the welfare of KN, there is no reason to believe that any other inquiries are reasonably open, either to the applicants or the NSW Department, which might ascertain the identity or whereabouts of KN's natural parents. As well, KN's natural parents seem to have abandoned her long ago, and the strong likelihood seems today that they would have no interest in reclaiming her or preventing her adoption.

16. It would appear that these cases can be reconciled with Re Application for the Adoption of X, supra, because in the latter, no inquiry at all seems to have been made at first instance (later rectified on appeal) on the basis of a belief that an inquiry would be fruitless rather than that conclusion being reached after evidence was adduced, as in Re K and the Adoption Act 2000, supra, and Re KN and the Adoption Act 2000, supra, on which evidence the Court could hold that any further inquiry would be fruitless or inappropriate. That is to say to make no inquiry cannot satisfy the ground but inquiry which shows that there is no reason to believe that the parents could be found or would wish to express views about the adoption could be sufficient.

17. The ground set out in par (c) has been construed as requiring an element of "morally reprehensible conduct". See Waghorn v Waghorn [1942] HCA 1; (1942) 65 CLR 289 at 295-6; Watson v Nikolaisen [1955] 2 QB 286 at 295; Re Application for the Adoption of X , supra.

18. In Re X and the Adoption of Children Ordinance 1965, supra, the Court, on appeal, followed the above cases but at 537 noted that "`abandoned' implies a more serious failure of the part of [a parent who leaves a child] than does `deserted'. See also, to the same effect, In the matter of CB and Ors (No 2) [1982] VR 681 at 692. In Re Adoption of S and Adoption Act 1993 (ACT) (2004) 31 Fam LR 68, Connolly J held at [10]-[11] that where a child was removed from the birth parents because of substance abuse, domestic violence and neglect until age 18, in determining whether this ground was made out, the Court could take into account other circumstances, such as the length of time since the child has been living with the applicants, the child's age and the expressed views of the child. It is not clear what those would add to the ground, though clearly supporting the Court's decision.

19. O'Bryan J in In the matter of CB and Ors (No 2), supra, defined the terms used in this ground. At 692, his Honour followed a decision of Jenkinson J in The Director of Social Welfare v Black and Halse (Unreported 19 November 1973) in defining "abandoned" as denoting "a morally culpable leaving of a child without anyone to provide physical care for him or her".

20. At 692-3, his Honour defined "deserted" as denoting "leaving a child for whom one is legally and morally responsible without good cause or excuse." His Honour expressly opined "deserting a child is less serious than abandoning it".

21. At 693, his Honour again followed Jenkinson J in holding that ill-treating a child meant "[k]nowingly and without moral justification causing physical pain or mental suffering" to the child.

22. As to this ground, see also In the Adoption of JMH (1976) 1 SR (WA) 27 at 32 and The King v M [1946] VLR 106.

23. The ground set out in par (d) has also received some consideration. In Re P (infant) [1962] 1 WLR 1296; [1962] 3 All ER 789, Pennyuick J said of s 5(2) of the Adoption Act 1958 (UK), which is relevantly in identical terms, at (WLR) pp1301-2 (and in All ER at 793-4 although repeated in slightly different words):

Sub-section (2) refers in general terms to the obligations of a parent with no qualifications; and it seems to me that in this sub-section the expression `obligations of a parent' must include first the natural and moral duty of a parent to show affection, care and interest towards his child; and second as well as the common law statutory duty of a parent to maintain his child in the financial or economic sense.

These words were adopted by Harris J in the Supreme Court of Victoria in R and R v E [1974] VR 291 at 297.

24. The same approach was taken in In the matter of C B and Ors (No 1) [1982] VR 657 at 663-4 and ABA and Anor v EWF [1978] HCA 4; (1977) 3 Fam LR 11,487 at 11,489 (also reported as In the adoption of BF (1977) 1 SR (WA) 43 at 45).

25. The issue of whether there is a reasonable excuse has also been considered. Thus, it has been that the fact that a child is made a ward of the State and the parents seek the return of the child to them, the refusal by the Minister cannot result in a finding of a failure to support the child without reasonable cause: Re an infant K and the Adoption of Children Act [1973] 1 NSWLR 311 at 345-6. Similarly in ABA V EWF, supra, the Court held at 11,489-11490 that where the father did not know where the child was for the relevant period, despite making efforts to locate the child and where the mother had prevented the father from discharging his obligations, this was a reasonable excuse.

26. In Re Application for the Adoption of X, supra, Blackburn CJ held at 165 that where a birth mother handed the child over to a religious community which not only undertook to care for the child but was better able to do so, the mother had not failed to discharge her parental obligations without reasonable cause. The Federal Court, on appeal, did not address this ground.

27. Where the child is left in satisfactory care and the relevant parent has been absent and, therefore, unable to make contact, this may provide a reasonable excuse, though the Court will consider what attempts were or could have been made to make contact. See In the Adoption of JM (1978) 1 SR (WA) 97 at 99-100; In the Adoption of ELS-JS (1980) 1 SR (WA) 218 at 220.

28. O'Bryan J in In the matter of CB and Ors (No 1), supra, carefully considered the question of whether the reasonable cause had to be assessed as an objective or subjective standard. At 666, his Honour held:

I would state the test as requiring the court to ask this question - would a reasonable person judging the conduct of the parent be satisfied that the parent had reasonable cause not to discharge the obligations of a parent on the occasion under consideration? Such a test would bring into consideration the particular circumstances of the parent prevailing at the time and require the court to make an objective assessment of the situation in the light of those circumstances.

29. The ground in par (e) has also been considered a number of times. It was considered extensively in R & R v E, supra, at 297-8; Re S In the matter of an Adoption (1976) 9 ACTR 27 at 28; ABA v EWF, supra, at 11,489 (44-45); Re: X and the Adoption of Children Ordinance 1965, supra, at 537-8 (modifying, on appeal, the decision in Re Applicant for the Adoption of X, supra, at 165-6) and Re L (1988) 92 FLR 362 at 366-8.

30. This ground is, perhaps, the most important though it has not been shown on the decided cases to be by any means the most common ground on which applications for the dispensation of consent rely. By its very nature, it is a ground that is of wide import and cannot properly be circumscribed, though it has to be considered judicially.

31. In Re X and the Adoption of Children Ordinance 1965, supra, the Federal Court held at 533-8 in relation to this ground that

(a) it should be given equal value to the other grounds; and

(b) the word "other" does not mean that the special circumstances must be exclusive of or unrelated to the subject matters of the other grounds.

32. The Federal Court went on at 538 to hold that, while the facts of the child's relationship to the person whose consent is material are relevant, so, too, are, contrary to the opinion of Blackburn CJ, facts which have occurred since the applicants came into contact with the child, such as the circumstances in that case in which the child came into Australia, the intention of the applicants and the government agencies concerned and the consequences for the child if no adoption order was made.

33. This is consistent with the approach in R and R v E, supra, at 301 and ABA V EWF, supra, at 11,491 (46).

34. It should, perhaps, be noted that Rice J in Re L, supra, at 366-7 adopted what Blackburn CJ had decided in relation to this ground, though it appears his Honour's attention was not directed to the decision of the Federal Court on appeal from the decision of Blackburn CJ.

35. An issue in relation to this ground is whether the obligation in s6 of the Adoption Act 1993 (ACT) that the welfare and interests of the child shall be the paramount consideration has any role. That can, perhaps, be shortly answered. Blackburn CJ held that it did not; his Honour held that the Court had first to find whether there was a ground for dispensing with the consent among the enumerated grounds and then decide whether actually dispense with the consent at which point the paramount consideration had a role to play: 166. The Federal Court held otherwise: 538. That now, therefore, appears to be the position in the Territory. See Re Adoption of S, supra, at [11].

36. Finally, it has been suggested that the welfare and interests of the child, because of s6 of the Adoption Act 1993 (ACT) and similar provisions in other States and Territories, are decisive: In the Adoption of JMH, supra, at 33.

37. The majority of cases, however, have decided that while the paramount consideration, it "is not the overriding consideration nor is it the only consideration": ABA v EWF, supra, at 11,492 (47). To like effect, see Re B and the Adoption of Children Act [1979] 2 NSWLR 915 at 924, Re Adoption Application A836507 [1984] 2 NSWLR 590 at 596; In the matter of CB and Ors (No 2), supra, 695.

38. I turn, then, to the facts of this case. I have generally described the circumstances above.

39. The evidence before me about the circumstances of the birth father was that his mother was studying at the Australian National University and living in a suburb in Canberra at the time of the birth. It is not known what she was studying nor where her husband was working at the time. The birth mother met the birth father while both were working at a shop in the southern suburbs of Canberra. The birth father's family were from Papua New Guinea and the birth father did not become an Australian citizen and could not enrol to vote. He did not tell the birth mother where he lived in Papua New Guinea or where his extended family lived.

40. When the child was born, the birth father was still in Canberra and did see the child at The Canberra Hospital. He signed as father on the birth certificate and knew the address of the mother of the birth mother, where she still lives.

41. As noted above, the birth father saw the child on an irregular basis when he would "drop around" to the birth mother's house without prior notice. This apparently continued for only a few months but the birth father at no time actually cared for the child by himself and did not "pay any child support, or offer to assist in any way with money or baby items, clothes or toys".

42. The birth mother notes that she frequently required police assistance when the birth father attended at her house intoxicated and on one occasion punched the birth mother's sister.

43. The birth mother commenced her relationship with the applicant in late 2003. At that stage, she deposed, the birth father "seemed to disappear. He did not try and contact my mother or sister and I assumed that he and his family returned to Papua New Guinea".

44. The birth mother recounted attempts she had made to contact the birth father. She reported that no one at their former workplace had heard from him. She went to his former address but the house had been demolished and six units had been built on it.

45. She reported that there were no phone numbers listed for any of the family in the Canberra phone book and she had not seen or heard from the birth father or any of his family since 2003.

46. She confirmed that her mother was still resident in the same house she occupied when the child was born and noted that the birth father could have written to or visited that address if he wished to contact the child, but had not done so.

47. She further noted that the birth father has never paid any child support.

48. In the light of these facts, and having regard to the construction of s 35 of the Adoption Act 1993 (ACT), I formed the view that an order should be made dispensing with the consent of the birth father and I so ordered.

49. Whilst some inquiries have clearly been made as to the whereabouts of the birth father, I am not entirely clear that it would amount to "reasonable inquiry" as required under s 35(1)(a) of the Adoption Act 1993 (ACT). As White J said in Re K & the Adoption Act 2000, supra, at [22], whether an inquiry is reasonable must be evaluated from the perspective both of the person making the application and the perspective of the person about whom the inquiry is to be made. While the inquiries made may appear to be reasonable from the perspective of the applicant, I am not convinced that they would fully comply with what is reasonable from the perspective of the birth father. For example, no attempt was made to see whether the Australian National University, where the birth father's mother was studying, had any address and no inquiries at all were made in Papua New Guinea.

50. Similarly, whilst the birth father had no relevant contact with the child for over four years, he was, at least presumably on the evidence available to me, aware that the child was with the birth mother and from his brief contact would have been aware that she was a good mother and was attending to the needs of the child. Accordingly, there was, in the context, no element of "morally reprehensible conduct" in the birth father's behaviour: Re: X and the Adoption of Children Ordinance 1965, supra, at 537 to bring s 35(1)(c) into play.

51. It was clear, however, that within the meaning of s 35(1)(d) as noted above, the birth father had clearly failed for not less than a year to discharge the obligations of a parent of the child.

52. For now over four years, the birth father has failed to discharge those obligations. Indeed, the evidence showed that the birth father has had no contact with the child at all during that period and had paid no maintenance or support for the upbringing of the child at all and had contributed nothing to the child's personal development.

53. The only question, then, is whether there is a reasonable excuse for that. In absence of any material from the birth father, this question might appear to be a difficult one to answer. One can conceive of circumstances which might explain on some basis why the birth father has had no contact and failed to discharge his obligations as a parent to the child.

54. I do not believe, however, that it is necessary to exclude every conceivable excuse or explanation that might be put forward. The applicant has only to show on the balance of probabilities that the ground is made out. That, of course, needs to be balanced by the application of the standard required by the principles enunciated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 given the seriousness of the decision to be made and its consequences.

55. In my view, the quite unsatisfactory behaviour of the birth father during the few months he did maintain contact with the birth mother and the child and the complete absence of contact for over four years, including a complete failure to provide any material support to the child, notwithstanding that he had reasonable knowledge of how he could contact the child if he had wanted to do so and had apparently been able to work at least in the past and earn an income, leads me to be satisfied to the requisite degree that the birth father has no reasonable excuse for failing to discharge his obligations as a parent.

56. Accordingly, I decided, as noted above, to dispense with the consent of the birth father and I so ordered.

57. I note that in this case I have made the order dispensing with the consent of the birth father independently of the consideration of the adoption order. The latter consideration has been adjourned because the report required under s 19 of the Adoption Act 1993 (ACT) had not been completed. I am conscious of the salutary comments of O'Bryan J in In the matter of CB and Ors (No 1), supra, at 662 that warnings have been expressed by the courts at considering an application to dispense with consent apart from the consideration of the adoption order itself. He quotes what Gillard and Murphy JJ said in Director-General of Social Welfare v Black and Ors (Unreported, Full Court of the Supreme Court of Victoria, 29 June 1965) that

The court's power [to consider dispensing with consent separately] in our opinion, ought to be exercised very sparingly, for it can only be in an exceptional case that the court would be able to conclude that, regardless of whom the adopting parents might be, the consent of the child's mother, if refused, should be dispensed with.

I respectfully agree. Nevertheless, in this case the application for adoption is pending and, in all the circumstances, I considered that it did not conflict with these sound principles to proceed in this case.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 15 May 2008

Counsel for the applicant: Fiona Bowden

Solicitor for the applicant: Elrington Boardman Allport

Date of hearing: 16 April 2008

Date of judgment: 16 April 2008