In the matter of an adoption of E [2008] ACTSC 46 (21 May 2008)

Last Updated: 28 July 2008

IN THE MATTER OF AN ADOPTION OF E

[2008] ACTSC 46 (21 May 2008)

ADOPTION - Dispensing with consent of birth father - death of birth father - law reform.

Adoption Act 1993 (ACT) ss 27, 35

Legislation Act 2001 (ACT) s 139

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

Re Adoption of M (1995) 125 FLR 236

In the matter of an adoption of D [2008] ACTSC 44

R and R v E [1974] VR 291

Air Force Association (Victorian Division) v White Manufacturing Co (Aust) Pty Ltd [1951] VLR 85

In Re Norman (1886) 16 QBD 673

Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94

In the matter of CB (No 1) [1982] VR 657

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

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

No. AD 7 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 21 May 2008

IN THE SUPREME COURT OF THE )

) No AD 7 of 2008

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN ADOPTION OF E

ORDER

Judge: Refshauge J

Date: 21 May 2008

Place: Canberra

THE COURT ORDERS THAT:

Under s 35(1)(e) of the Adoption Act 1993 (ACT) the requirement for the birth father, P, to consent to the adoption of E be dispensed with for the purposes of an application by Q for the adoption of that child.

[This order has been anonymised for reasons of privacy].

1. Before me today is an application for dispensing with the consent of the birth father of the child the subject of an application for an adoption order. Because of a special feature of the application, I have decided to make some remarks about the application with the hope that the authorities may give some attention to what seems to me some unsatisfactory features of it that had to be confronted by the applicant and his family.

2. The birth mother of the child the subject of the adoption application is now married to the applicant. As Higgins J (as he then was) decided in Re Adoption of M (1995) 125 FLR 236, it is not necessary for the birth mother to be an applicant also for the adoption order.

3. Section 27 of the Adoption Act requires that an adoption order shall not be made in respect of a child under 18 years who has not been previously adopted unless consent has been given by each parent of the child or the guardian of the child.

4. The birth father of the child is now deceased. This makes it self-evident that he cannot give consent to the adoption. Under the Adoption Act 1993 (ACT), ("Adoption Act"), however, there does not seem to be any recognition of this and no provision is made for this circumstance to be integrated appropriately into the procedure for adoption.

5. Section 35(1) permits the court to dispense with such consent. It 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.

6. Rule 3170 of the Court Procedures Rules 2006 (ACT) requires an application to be made for an order dispensing with consent ("a dispensing order") and r 3171 requires such an application to be served on "each person interested in the adoption proceeding to which the application for a dispensing order relates" not later than 28 days prior to the return date for the application.

7. It is clear to me that there can be no service on the deceased birth father in this case.

8. One would expect, given the requirement for consent and the requirement for service of an application for a dispensing order in the context of an adoption application, the purpose of these provisions is to ensure that a birth parent has the opportunity to consent to the adoption or to oppose it and to make submissions to the court as to why the important relationship of parent and child should not be severed. See Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 at 380. The court can then decide whether or not to make the order.

9 Where one or both of the birth parents is deceased, neither of the options available to a birth parent can be relevant so far as the deceased parent is concerned.

10. Nevertheless, a plain reading of the Adoption Act requires that where a consent has not been given, an adoption can only proceed if there has been dispensation with the consent.

11. I did give consideration as to whether this purpose could be read into the Adoption Act so that I could construe s 27 of the Act to be limited to the birth parents who were alive; see s 139 of the Legislation Act 2001 (ACT). While this had some attraction to it, I did not consider it appropriate. The implication of this would be that a court considering an adoption order would then need to be satisfied that the birth parent had died. That may often be easily proved where, as in this case, a death certificate is produced, but there may be more complicated situations and this should be integrated into the process by making appropriate express provisions.

12. I am also aware that at least one other judge in this court, though without written reasons, has expressly taken a different view.

13. The only alternative, then, is for the applicant to seek a dispensing order. This the applicant has done in this case.

14. The grounds for dispensing with consent, set out in s 35(1) of the Adoption Act, quoted above, are, in my view, not apt to this situation either.

15. In a quite bizarre way, grounds (a), (b), (c) and (d) could be construed to apply in a literal way, but that would be totally inappropriate. That then leaves ground (e).

16. Ground (e) has been considered on a number of occasions. I have made some remarks in In the matter of an adoption of D [2008] ACTSC 44 at [29] to [37] on its interpretation. I did not, however, consider the meaning of "special circumstances" in any detail.

17. In R and R v E [1974] VR 291 at 297-8, Harris J adopted the construction of the phrase that had been considered by Smith J in Air Force Association (Victoria Division) v White Manufacturing Co (Aust) Pty Ltd [1951] VLR 85 at 95-6 (not an adoption case). Smith J had reviewed a number of authorities in analysing the meaning of the term. Harris J particularly adopted what Lopes J had said in In Re Norman [1886] 16 QBD 673 at 677, namely that the words "are wide, comprehensive and flexible" and what Barry J had said in Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94 at 100-1, namely "whether there are special circumstances by reason of which an order ... should ...be made must be considered in the light of the facts of each case". This approach was approved and applied in In the matter of CB (No 1) [1982] VR 657 at 666.

18. In ABA and Anor v EWF [1978] HCA 4; (1977) 3 Fam LR 11,487, Connor J held at 11,491

"[i]n looking for special circumstances, one must look for facts peculiar to a particular case which set the case apart from other cases."

This construction of the phrase was adopted by the Federal Court in Re X and the Adoption of Children Ordinance 1965 [1984] FCA 193; (1984) 2 FCR 533 at 538. I am, of course, bound by this decision as the Federal Court was, at the time, the court of appeal from this court.

19. The wide, comprehensive, flexible approach, considering the facts of the case leaves little doubt that the death of the birth father would ordinarily justify a dispensing order under ground (e). The other approach is a little more problematic, since the circumstance does not perhaps set the case apart from other cases where one or both of the birth parents have died.

20. I am surprised that I can find no decision on this point; indeed no case could I find addressing the issue of the death of a birth parent.

21. The situation does seem to me to be bizarre. I cannot conceive of a situation where a court would not dispense with the consent of a deceased birth parent. What I find also odd is that this is what is required. Whether it would make an adoption order is, of course, quite another matter, depending on all sorts of factors, including, as the paramount consideration, the best interests if the child.

22. While it is perhaps of marginal significance, it also seems to me inappropriate that this procedure is used where grounds (a) to (d) all contain an element of impropriety or inappropriateness or inadequacy in the parent with whose consent it is sought to dispense. In the case of the death of such a parent, there may well be no such deficiency.

23. Indeed, in this case, the child, her mother and the applicant all celebrate the life of the deceased birth father and his memory and his family play a large part in the life of the child. While the grounds are not to be construed ejiusdem generis, there is an unfortunate flavour about this kind of application which the applicant is forced to make.

24. I have looked at the adoption legislation in the States and the Northern Territory. Although not uniform, they have a close similarity to the provisions of the Adoption Act and none make any provision for this circumstance.

25. With some hesitation in the light of the construction of the phrase "special circumstances" that I am required to apply, I will dispense with the consent of the deceased birth father. It seems to me to be clearly in the interest of justice and to accord with the best interests of the child to do so.

26. I commend, however, some consideration of appropriate reform of the legislation so that this situation, which is perhaps not common but cannot be unusual, can be dealt with in a way that is more respectful of the deceased birth parent and of the child.

I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge

Associate:

Date: 21 May 2008

Counsel for the applicant: Self-represented

Solicitor for the applicant: Self-represented

Date of hearing: 21 May 2008

Date of judgment: 21 May 2008