1. On 15 April 2009, I made an adoption order under s 9 of the Adoption Act 1993 (ACT) (the Adoption Act) for the adoption by the applicants of a child, whom I shall call J, now more than six and a half years old.

2. An issue arose about the terms of the order and the formalities attendant upon its making, so it is appropriate that I give short reasons for doing what I did and to make a suggestion for procedural reform.

The facts

3. A few months after J was born he was placed in foster care, initially with other carers and then just over a month later with the applicants because his parents had difficulty in providing appropriate care for him. He has remained in the applicants’ care since then, for a little over six years. He did however have ongoing contact with his birth parents and his sister and half siblings.

4. The birth parents of J would not consent to his adoption, but, recently, his birth mother died and although his birth father was very attached to and had, and wished to continue, contact with J, he found it difficult to cope and accepted that it was in J’s interests for him to be adopted by his long-term foster carers. They, the applicants, were providing the ongoing care and responsibility for him effectively in the parental role.

5. One of the pre-conditions for the making of an adoption order is set out in s 19(1)(a) of the Adoption Act, namely that the Chief Executive, or the private agency that arranged the application, has ‘made a report in writing to the court concerning the circumstances of the child and the proposed adoption’. I have found these reports to be comprehensive, thoughtful and helpful in coming to the view that an adoption order, with the very significant consequences which it brings (see Application of A, Re D (2006) 36 Fam LR 142 at [52]; Re An Adoption of D (2008) 39 Fam LR 345 at [6]-[8]), is appropriate in each case I have had to consider.

6. This report is sent to the Court in a sealed envelope and a copy is not usually sent to the parties. Once opened and read by the judge, it is sealed again and left on the court file in that condition. That is consistent with s 60 of the Adoption Act which is in the following terms:

60 Confidentiality of records
(1) Except as provided in this part –
(a) records in the possession or under the control of the chief executive or a private adoption agency relating to an adoption; or
(b) the records of the court (other than an order or decision of the court) relating to proceedings on an application for an adoption order; or
(c) an entry in the register of births relating to the birth of an adopted child, or a copy of, or extract from, such an entry;
must not be made available to, or be open to inspection by, any person.
(2) Subsection (1) does not operate to prevent a person whose duties require it, from obtaining access to information if it is necessary to do so for the administration of the Act.

7. Clearly s 60(2) permits the judge hearing the application and relevant court staff to have access to the report and the documents on the court file, notwithstanding the wide blanket restriction imposed by s 60(1)(b).

8. Clearly, too, if there were a contested hearing where, for example, the views of the Chief Executive were contested or some factual matters on which the views expressed in the report were challenged, then the applicants at least should have access to the report and the file. This would appear to be encompassed within s 60(2). I note that s 66 of the Adoption of Children Act 1965 (NSW) (which, together with s 67 of that Act was the forerunner to what is now s 194 of the Adoption Act 2000 (NSW)) is a somewhat stronger confidentiality provision, expressly depriving parties to proceedings access to the court records, though with a power for the court to release such information. Nevertheless, Waddell J in Director-General of Youth and Community Services v B and Anor (1984) 9 Fam LR 837, quoted at length in his Honour’s judgment from just such a report, though substituting initials for the names of the people referred to in it.

9. While these reports are statutorily required to be made, they are simply reports, but appear from the reference in s 19(1)(c) of the Adoption Act to “the report and any other evidence” to be regarded by the legislature as having evidentiary value.

10. In the report in this case, however, the delegate recommended that the adoption order be subject to conditions relating to access to J by various relatives.

Conditional orders

11. Section 40 of the Adoption Act permits the court to make conditional adoption orders. It provides:

40 Adoption order subject to certain conditions
If the court is of the opinion that –
(a) circumstances exist that justify it doing so, whether because of the age of the child or otherwise; and
(b) the birth parents and the adoptive parents have, after the required consents were given, agreed that the adoption order should be subject to certain conditions;
the court may make the adoption order subject to either or both of the following conditions:
(c) a condition that such birth parents and such relatives of the child as are stated in the order have such right of access to the child as is stated in the order;
(d) a condition that the adoptive parents of the child provide information about the child to the chief executive or principal officer of a private adoption agency to be given to the birth parents at such periods and in accordance with such terms as are stated in the order.

12. This is in identical terms to s 59A of the Adoption Act 1984 (Vic). I have been unable to find any authority on either provision.

13. It can be seen that the conditions contemplated by the Adoption Act relate to access to, or information about, the adopted child for provision to the child’s birth parents and other relatives. This would otherwise be limited to any access or information permitted by the adoptive parents or under Pt 5 of the Adoption Act.

14. It appears, however, that the Family Court of Australia may also have jurisdiction to grant access by a birth parent to an adopted child: In the Marriage of Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974. See Bates F, “The Children of Mansoul – Adopted Children and Natural Parents: Some Comparative Developments” (1989) 63 ALJ 314.

15. The considerations that the legislature had in mind which a court would need to take into account, within the circumstances required to justify the imposition of such a condition (s 40(a) of the Adoption Act), are not clear. There is nothing in the Explanatory Statement that assists in ascertaining this. In his presentation speech of 18 November 1992, the then Minister for Housing and Community Services, Mr T Connolly MLA said:

Consistent with the thrust to open up the adoption process, to provide adopted persons with a sense of their biological identity and to recognise the rights of birth parents, the Bill also provides for the granting of open or conditional adoption orders. This will allow the court to make orders which allow for right of access and/or the provision of information by adoptive parents to birth parents as agreed by all parties to the adoption process. The notion of open adoption is consistent with the openness and honesty preferred in modern adoption and ultimately benefits all parties to the process. It is also consistent with developments in most of the other Australian jurisdictions. Another fundamental reform is the principle, supported by legislation, that it is preferable for a child’s relationships with step-parents or natural relatives not to be altered by reason of an adoption order.

16. This was, no doubt, influenced by the then recently released Report of the New South Wales Law Reform Commission, Review of the Adoption Information Act 1990 (NSWLRC, 1992) Report No 69, where Ch 5 set out the impact of the legislation in permitting contact between, in particular, adoptees and birth parents. The Commission found that, on the whole, the majority of adoptees (pars 5.105 to 5.109) and of birth parents, especially mothers (pars 5.70 to 5.71), welcome the information availability that the Act had provided. It did find that issues of contact and reunion were more complex (par 5.161) though accepted that the potential gains were undoubted, and that those who were worse off as a result were in the minority (par 5.169).

17. It is perhaps a little odd that the orders are prescribed to be “conditional orders”. While the access arrangements will, by virtue of fidelity to the legislation, become conditions of the order, they are not true conditions. That is to say, there is no apparent sanction for their breach. It would be at least odd to think that the significant step of adoption (and the relationships it creates and severs) would be undone because an access “condition” was breached. There is certainly nothing in the legislation to suggest that this was intended. It may be better to call such arrangements by the term used by the Minister, an “open adoption”, and to make what were conditions simply orders to be made by the court, the enforcement of which can then be achieved in the usual way.

18. While age is an expressed consideration in s 40(a) of the Adoption Act, it is not entirely clear how that should be taken into account. There is much to be said for early acknowledgement of adoption. For example, in Re C and V (1983) 9 Fam LR 31; the Full Court of the Family Court of Australia noted (at 33) of a 15 year old boy who had not been told of his adopted status, that “[a]ll the expert witnesses agreed that D ought by now to have been told the truth” and commented (at 36):

In our view it would have been desirable, indeed almost essential, in this child’s interests to tell him the truth years ago. In our view it would also be proper for the mother to take this step very soon, voluntarily, and at a time which seems most appropriate to her.

19. As can be seen, while information at an early age was preferably given, the court also held that the adolescence of the child was not a barrier to him being told the truth.

20. More generally, some assistance may also be gleaned from what fell from Waddell J, an experienced judge in this area, who said in Re Adoption Application A83/6507 [1984] 2 NSWLR 590 at 595:

In the past courts have taken the view that it is inconsistent with the nature of adoption that a child should continue to have contact with a natural parent after an order for adoption is made. Thus in some cases an application for adoption by grandparents has been refused because the child would continue to see a natural parent. However, the view is now taken by many professional people engaged in child welfare and adoption work that there are circumstances in which the interests of a child may best be promoted by providing for adoption by the persons who have become the psychological parents and also providing for continued contact with a natural parent. Evidence has not been given in this case of such views but they are now well-known and I think I am entitled to take judicial notice of them. Earlier this year I heard at a seminar striking personal accounts of how beneficial to a child such a situation may be. It is said that the child’s sense of security with the adoptive parents is increased by he or she being aware that they do not object to contact with a natural parent. In such circumstances the child’s natural curiosity about his or her origins is satisfied and acceptance of the fact of adoption is made much easier. It is important, of course, that the natural parent should not attempt to assume the role of a psychological parent and should accept the continued relationship of the child with the adoptive parents. I think that it is clear that in some circumstances an adopted child can derive great comfort and support from an affectionate relationship with a natural parent who recognises that the child is now a member of another family.

21. His Honour repeated these views in Director-General of Youth and Community Services v B and Anor at 842.

22. Ultimately, the court will be guided by the best interests and the welfare of the child (s 6 of the Adoption Act) and in determining this will have regard to all the relevant material placed before it.

23. In this case, J’s birth parents had ongoing but “sporadic” contact with J while he was in foster care. Further, J was aware of why he was placed in foster care and that he has a birth family. He has enjoyed regular contact with his sister and birth parents.

24. While the reality is that his foster parents are his psychological parents, it is clear why the delegate of the Chief Executive in her report opined that J’s best interests would be served by an open adoption, whereby he would become a permanent member of the family of the applicants yet maintain ongoing contact with members of his birth family. This is a view with which I concurred.

25. Accordingly, I am satisfied that circumstances exist which justify making a conditional order.

Consent

26. The other issue of which I must be satisfied before I can make a conditional order is that the birth parents and adoptive parents have both consented to the order being “subject to certain conditions” (s 40(b) of the Adoption Act).

27. While it could have been clearer, I am prepared to hold that s 40(b) of the Adoption Act requires that both the birth and proposed adoptive parents to know of and consent to the actual conditions that are to be made, though perhaps not necessarily its precise terms. It is unlikely that either sets of parents would consent to a conditional order when they did not know of at least its general nature. A birth parent would feel quite reasonably aggrieved if he or she – or they – expected regular contact only to find that the condition was that there would be contact for an hour every five years. Conversely, the proposed adoptive parents might not have consented if they had known that the condition being made was for contact each weekend for the whole of the weekend.

28. It has been suggested that “insufficient information” does not amount to a factor vitiating consent: see Young P W, The Law of Consent (Law Book Company, 1986) Ch 7, especially at 86. The law, especially in relation to medical procedures, has, however, developed since then and insufficient information will in that area, at least, vitiate consent: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. It would appear to me that in this area a true consent must include an understanding of what is proposed in at least general terms.

29. If it is not necessary to know the precise terms of the conditions to be made, it seems to me that at the very least a general understanding of what is proposed is necessary. It would, however, be preferable if the precise terms of the proposed conditions were to be articulated and then express consent given to them.

30. This could conveniently be done if it was required that, where an order under s 40 of the Adoption Act was to be sought, the proponent of the condition to be proposed were directed to file and serve a document setting out that condition. The birth parents and adoptive parents could then set out in an affidavit (or perhaps a statement would be enough) their consent, or perhaps any modifications to the conditions to which they would consent.

31. Here, the conditions were simply included in the report of the delegate of the Chief Executive. As noted above, this is by practice and convention not provided to the parties. It is, therefore, quite difficult to ascertain to the requisite degree whether consent has been given to the actual condition sought. In so describing the situation, I am not seeking to blame or criticise any party; that is simply how it has apparently always been done. The court itself could address these issues through Rules and I commend the issue to the advisory committee established under s 11 of the Court Procedures Act 2004 (ACT).

32. In this case, the applicants’ deposed:

In relation to conditions under the Adoption Act which may apply in respect to relationships with the natural parents of [J], we do propose a continuing relationship with the natural father and would facilitate a continuing relationship with [J’s sister].

33. Although uncontested adoption applications are heard in private chambers, the applicants were present and in this case were aware of the conditions.

34. There was, however, no express material from the birth father. As J’s birth mother is dead, it was only his consent that needed to be before me. My attention was drawn to the following passage in the report of the delegate of the Chief Executive:

[J’s birth father] noted at the time of signing his consent that he wished for a contact arrangement to ensure that [J] grew with an open knowledge of his birth family and in particular he felt it was imperative that [J] continued to develop a relationship with his full biological sister... This view is supported by all adult parties involved and is strongly supported by the Chief Executive. The details of the contact arrangement are referred to later in this report.

35. The question is whether this is sufficient for me to form the opinion that the Adoption Act requires me to form before making a conditional order.

36. A preliminary question is whether the report of the delegate of the Chief Executive is evidence and, if so, whether the hearsay in it can be used for the purpose of forming the relevant opinion. These are not easy questions and I did not hear extensive submissions on the issues so my views are somewhat tentative. Hopefully, if the procedural proposals suggested above are adopted, the issue will not need to be revisited.

37. Section 6 of the Adoption Act provides:

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

38. Such a provision has been held to permit a court to modify the rules of evidence. Thus, in Hutchings v Clarke [1993] FamCA 22; (1993) 16 Fam LR 452, the Full Court of the Family Court of Australia held (at 456) that such a principle permitted it to override the “without prejudice” privilege asserted in respect of certain statements made by the father of a child whose custody was in issue.

39. The Court relied on a statement of the High Court to the effect that proceedings for custody and access are not ordinary inter partes disputes but are about orders which will best promote and protect the interests of the child (M V M [1988] HCA 68; (1988) 166 CLR 69 at 76) and on a statement by Gibbs J in Re Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 where legal professional privilege was at issue. His Honour there said (at 146):

The privilege is inapplicable, in the case of wardship, because the case goes beyond “mere questions of civil right” and because the privilege, if given effect, might frustrate the efforts of the court to secure the benefit of the child and might have the result that the child remained in conditions detrimental to his or her welfare.

It has to be said that while Murphy J agreed with this approach (at 159), the three other members of the Court based their decision to override legal professional privilege on reliance upon the so called “illegality exception”.

40. Nevertheless, the paramount interests and welfare of the child was the basis for the Full Court of the Family Court of Australia in also admitting hearsay evidence: In the Marriage of S and P (1990) 14 Fam LR 251 at 256-261. There, considerable reliance was placed on the well-known statement of Lord Devlin in Official Solicitor to the Supreme Court v K & Anor [1965] AC 201 at 242 that in the wardship jurisdiction of the High Court of England, hearsay had always been admitted. See Re W (Minors) (Wardship Evidence) [1990] 1 Fam LR (UK) 203. Thus, in the wardship jurisdiction of the Supreme Court of New South Wales, Hodgson J in Roberts v Balancio (1987) 8 NSWLR 436 admitted reports made by a counsellor of the Family Court of Australia.

41. These cases were all decided prior to the enactment of the Evidence Act 1995 (Cth), however, where s 56(1) would appear to render Ch 3 a code for the rules relating to the admissibility of evidence. See McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198 at [60]- [62].

42. In the area of family law, where most of the welfare and custody of children matters, other than those relating to adoption and child protection, are now dealt with, s 69ZT(1) of the Family Law Act 1975 (Cth) excludes the operation of many parts of the Evidence Act 1995 (Cth). This, of course, does not apply to matters under the Adoption Act and the principle that the interests and welfare of the child are paramount cannot override legislation: Northern Territory of Australia v GPAO and Ors [1999] HCA 8; (1999) 196 CLR 553 at 584-6.

43. Of course, the Evidence Act 1995 (Cth) has considerably relaxed the prohibition against hearsay evidence, though subject to matters such as the giving of notice to other parties. Here, there were no other parties than the applicants, unless the Chief Executive could in the particular circumstances be so described. In any event, there is provision for a court to permit such evidence even though notice has not been given.

44. That would have provided a basis for admitting the hearsay evidence in the report, depending on the information I could be given about the availability of the birth father and any difficulty in securing his attendance.

45. The approach referred to above (at [40]), however, is perhaps reflected in s 19(4) of the Adoption Act which provides:

Criteria for court’s discretion

(4) For ascertaining the wishes of the child under subsection (2)(a), or any other relevant consideration in relation to the welfare and interests of the child, the court may inform itself in any way it thinks fit.

46. Section 19(2)(a), referred to there, is the provision which requires a court, before making an adoption order, to have regard to the wishes of the child where it is appropriate to the age and understanding of the child.

47. Section 19(4) is a curious provision. In itself, it appears directed simply to the statements of the child’s wishes. This echoes In the Marriage of S and P where what was at issue were out of court statements alleging sexual abuse made by a child to various witnesses.

48. Certainly, the Family Court has held on a number of occasions that out of court statements by children can be admitted because of their significance, especially to determine the child’s best interests and welfare: In the Marriage of E, EL & PMP, Interveners (1978) 4 Fam LR 1 at 11-12; In the Marriage of Barnett and Hocking (1983) 8 Fam LR 1042 at 1047.

49. Section 19(4) has the capacity, however, to abrogate the rules of evidence more widely since the welfare and interests of the child are, under s 6 of the Adoption Act, the paramount consideration and must be borne in mind throughout the whole of the consideration of the proceedings. The sub-section is not, in terms, limited to statements made by the child who is the subject of the proceedings. I do not need to determine, however, whether this provision abrogates the rules of evidence entirely in adoption proceedings.

50. The making of a conditional order is expressed in terms of a right of access by the birth parents and relatives (s 40(c) of the Adoption Act), but must be considered in the light of the obligation under s 6 of that Act. Indeed, s 40(a) makes it clear that other circumstances are important and must justify it. These would be subject to the paramount considerations expressed in s 6. Indeed, the reference to the age of the child further focuses the issue on the interests and welfare of the child.

51. The passage I have cited from Re Adoption Application A83/6507 above (at [20]) shows how such an order would be for the welfare and in the interests of the child.

52. Accordingly, I am satisfied that, either as an exception to the hearsay rule or through s 19(4) of the Adoption Act, I can rely on the report of the delegate of the Chief Executive for a finding as to the consent of the birth father.

53. While it is in general terms, I was satisfied that the consent there expressed was sufficient to meet the requirement in relation to the proposed condition for ongoing contact with J’s father and sister. Such a condition was also satisfactorily consented to in the relevant, cited paragraph of the applicant’s affidavit.

54. Part of the proposed conditions also referred to ongoing contact with other relatives of J. None of the evidence really evinced a consent by either the applicants or the birth father to such a wider order. I declined to make the order, therefore, with a wider condition in that form.

55. Of course the applicants, now as the adoptive parents of J, are able to make such decisions about access to anyone, including such relatives, as they consider are appropriate for J.

56. Accordingly, I made an adoption order conditional upon certain rights of access to and contact with J’s birth father and sister.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 6 May 2009

Counsel for the applicants: Mr D Nimmo

Solicitor for the applicants: Capon & Hubert Lawyers & Mediators

Counsel for the Chief Executive: Ms L Shihoff

Solicitor for the Chief Executive ACT Government Solicitor

Date of hearing: 15 April 2009

Date of judgment: 6 May 2009

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