ADOPTION OF L

Supreme Court of the Northern Territory of Australia Rice J
20 and 21 May 1987 and 8 April 1988 at Darwin

Adoption of children - Whether Court should dispense with consent of mother and father of ex nuptial child - Mother and father have, for a period of not less than one year, failed, without reasonable cause, to discharge obligations of a parent.

Case considered:
Mace v Murray (1955) 92 CLR 370

Case disapproved but followed in part: ABA & Anor v EWF (1977) 3 Fam LR 11,487
Case followed:
Adoption of X (1984) 53 ACTR 21

Statutes:
Adoption of Children Act ss.12, 15, 21, 23, 27 Status of Children Act s.11

Counsel for the Plaintiffs: Solicitor for the Plaintiffs:
Counsel for 1st Defendant: Solicitor for 1st Defendant:

Counsel for 2nd & 3rd Defendants: Solicitor for 2nd & 3rd Defendants:

C Black
Cridland & Bauer
J Daniel-Yee Solicitor for the Northern Territory
M Jones A.L.A.O.

ric880005

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. ACl of 1985

IN THE MATTER of the Adoption of Children Act and an infant "L"

CORAM: Rice J.

REASONS FOR JUDGMENT
(delivered 8 April, 1988)

This is a joint application for the adoption of an ex nuptial child by the plaintiffs who are husband and wife.

The application is made pursuant to s.12 of the Adoption of Children Act, ("the Act").	Before an adoption order may be made, certain jurisdictional requirements must be satisfied, namely, that the applicants were resident or domiciled in the Northern Territory and the child was present in the Northern Territory at the time of the filing of the application, namely on 23 January 1985.	I find that this pre-condition has been satisfied.	I am also satisfied that notice of the application was properly given in accordance with s.15 of the Act.

Although the natural mother of the child swore an affidavit purporting to consent to the adoption of the child in the office of a Brisbane solicitor on 1 February 1983, I

find that the form of consent was not in accordance with Queensland law and hence does not qualify as a subsisting consent within the meaning of s.23 of the Act, and accordingly no consent to the proposed adoption has been given pursuant to s.21 of the Act.

The plaintiffs, for their part, however, have asked this Court to dispense with the consent of the natural mother and that of the putative father pursuant to s.27(l)(d) or (e).

This section provides:-

"27.(1)	The Court may, by order, dispense with the consent of a person (other than the child) to the adoption of a child where the Court is satisfied that:-
(a)
(b)
(c)

that person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent or guardian, as the case may be, of the child;	or
there are any other special circumstances by reason of which the consent may properly be dispensed with."

Although the facts and circumstances of the present case are distinguishable from those in Mace v Murray (1955) 92 C.L.R. 370 (where the natural mother had given her formal consent but later withdrew it after the adoptive parents had

assumed possession of the child before the adoption order had been made) the principles expounded have general application in matters of this sort.

In particular, at page 385 the High Court had this
to say:-

"It was submitted for the respondent [the natural mother] on this appeal that the dominant factor is not the welfare of the child but the wishes of the mother, and that even when considering the welfare of the child the court will not act as if it were a private person dealing with his own child.	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 feeling 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."

In the particular circumstances of that case, the High Court restored the order of McLelland J., the trial judge, and at page 387 said this:-

"The view which McLelland, J. took as to the welfare of the child was that moral and social considerations and considerations of welfare generally strongly suggested that the child's best interests would be served by the making of the order of adoption."

On the particular facts of the present case, I find that the child was born on 28 June 1982 at Brisbane and that at the time of her birth her mother, the second defendant, was aged fifteen years and two months, having been born on
25 April 1967, and that the putative father, the third defendant, on 27 June 1985, in separate but allied proceedings, was pronounced by this Court to be the father of the said child pursuant to s.11 of the Status of Children Act.

I accept the evidence of Margaret, the mother's elder sister who is some eleven or twelve years older than she is.	She said that the child remained with its mother until about November 1982 when her sister informed her that she was looking at the possibility of the child being adopted.		Subsequently Margaret told her sister that she had someone who was interested in adopting the child and that through such an adoption she would then know the child's whereabouts and generally how she was growing up, whereas if she were to go through the normal adoption channels she would know nothing about her child.

At that stage, Margaret agreed to take the child for a fortnight, but after a week or so she found she could not cope with her.	In the meantime the mother went to Tara, in Western Queensland, as a jilleroo, and did not return to Brisbane until some time in January 1983.

4

Until then the child was cared for on a sharing basis, first, by her grandmother for a week or so, and then by Margaret, her business partner's sister-in-law, Lyn, and her husband Gordon who, incidentally, is the second plaintiff's brother.

Upon the mother's return to Brisbane, Margaret took her to a solicitor's office on 1 February 1983 where, after the implications of adoption had been explained to her by the solicitor, left the office for half an hour or so and then returned and swore an affidavit which, so far as is material, contained the following paragraphs:-

"I am aged only fifteen (15) years being born on 25th April, 1967 and I have found that the care and responsibility of the maintenance and looking after the child is too much for me.	I find that I am temperamentally and emotionally unable to cope with the baby and feel that the child's interest would be better served if the child were in the custody of older persons who have a sincere interest in the child.
There is no possibility of marriage between me and the child's father who did not sign the Birth Certificate and although he did pay something initially towards the child's maintenance, he has not contributed in any way for the last two to three months.	I wish to relinquish care and custody of the child absolutely and permanently and do not wish to have any access rights at all, and I am quite prepared for [the named plaintiffs] to have custody of the child."

A few days later the mother asked to see the child but her sister dissuaded her from doing so as, according to her, it was too soon after she had signed the "adoption"

papers.	In the meantime the second plaintiff had flown from Darwin and the child had been presented to her by Margaret at the Brisbane airport and it was then that, through Margaret, arrangements had been made for the solicitor to make application for the adoption of the child.

In May or June 1983 the mother approached her sister and arranged for her to send a birthday present to the child for her first birthday, which she did.

Subsequently the child's father, who was accompanied by her mother, saw Margaret at their mother's home and enquired about the whereabouts of the child and what documents had been signed relating to the child.
Margaret told him about the "adoption" papers but appears not to have revealed the child's whereabouts.	At the very first discussion that Margaret had had with the child's mother, she had told her that the proposed adoptive parents lived in Toowoomba, Queensland, but I find, on the evidence, that that was not so.	In fact, at all material times the proposed adoptive parents lived in Darwin, a fact which was disclosed neither to the mother nor to the father.	I find that from that time onwards neither the mother nor the father made any further enquiries of Margaret or of anyone else to determine the whereabouts of the child.

The proposed adoptive parents had been approved generally by the Department of Community Development in Darwin as adoptive parents and when the opportunity presented itself for them to adopt the child, they, through Margaret, enlisted the aid of the Brisbane solicitor to attend to legal formalities.	For whatever reason, the solicitor did not proceed with the application and about twelve months after the mother had "agreed to" the proposed adoption it was discovered by the second plaintiff that nothing had been done in that regard.	She and her husband therefore instructed her present solicitors to make an application for adoption in this Court.

When the matter was eventually called on for hearing the mother, who had been notified of the date of hearing a month or so before, failed to appear.	An opportunity was given to her to explain her absence and after she had been contacted by telephone, her solicitor announced that she did not propose attending the hearing due to her impecunious circumstances, but she nevertheless maintained her stand that she opposed the dispensation of her consent.

As for the father, he elected not to attend the hearing, and it is clear to me that after ceasing his relationship with the mother who subsequently bore him another female child, born on 26 May 1984, he no longer

lives with her and is no longer interested in the proceedings,	The mother has taken up with someone else and at the time of the hearing was engaged to be married to that person.

Apart from the grounds for dispensing with the consent of the mother or the putative father under paragraphs (a), (b), (c) and (d) of s.27(1) of the Act, are there "any other special circumstances by reason of which the consent may properly be dispensed with" under s.27(l)(e)?

If I follow the decision of Connor J. in ABA & Anor v EWF (1977) 3 Fam LR 11,487, the Court may look to the evidence of the prospective adoptive parents coupled with the evidence of a psychiatrist, and that of a person who has had the day-care of the child since she was ten months old; whereas, if I follow the approach of Blackburn C.J. in
Re an application for the adoption of X (1984) 53 ACTR 21, I am precluded from doing so unless I first hold that "special circumstances" exist irrespective of the child's upbringing by the plaintiffs.	With the utmost respect for the decision of Connor J., I am persuaded by the compelling logic of the reasoning of Blackburn C.J. to determine, first of all, whether "special circumstances" exist separately and distinct from the requirements of s.10 of the Act which provides "For all purposes of this Part, the welfare and

interests of the child concerned shall be regarded as the paramount consideration".

Blackburn C.J. encapsulates the problem at page 24 when dealing with s.30(e) of the Australian Capital Territory Adoption of Children Ordinance 1965 which is in identical terms to s.27(1)(e) of the Northern Territory Adoption of Children Act:-

"That leaves ground (e).	I have carefully considered counsel's submissions, but I must conclude that there are no special circumstances in this case justifying my dispensing with consent.	In Rand R v E (1973) 3 ALR
293 at 300, Harris J, of the Supreme Court of Victoria, applied to a provision in the Adoption of Children Act 1964 (Vic), which is in exactly the same terms as
s 29(e) (sic. This should be s.30(1)(e)) of the Ordinance,) passages from a judgment of Smith Jin	an earlier Victorian case which bear upon the construction of the expression 'special circumstances'.	Harris J adopted these passages as applicable to the words in the Victorian Act.	One of the passages he adopted was this:	'In the light of these authorities it is clear that it would be wrong for me to attempt to formulate a definition of the expression 'special circumstances' or to lay down in advance what classes of matters will amount to special circumstance and what will not.'
Notwithstanding the great respect which I have for any opinion of Harris J, I do not entirely agree with this dictum in regard to para (e).	No doubt para (e) is intended to give the court a wide discretion, but in my opinion it would be an abuse of such discretion to make the order sought on grounds which have nothing to do with the substantive facts, as known, of the child's relationship to the herson whose consent is material, but relate onl	tote a	licants and to the events
w ic	ave occurre	since t e apt icants came into contact with the child.	Counse 's argument on this
oint amounted to submittin	that, in the li ht of the events w ic	occurre, it wou		e o	ressive tote ap! icants an	contrary tote interests o	t e c id	to re use the order sought.	Stress was put on the worthiness of the a	licants (which is undoubted) and
t e unusua	circumstances in w ic	they took control of

I must mention specially counsel's reliance ons	15 of the Ordinance:	'For all purposes of this Part, the welfare and interests of the child concerned shall be regarded as the paramount consideration.'
In Re S (1976) 9 ACTR 27 at 28 I said this:	'In my opinions 15 has no special relevance to para (e) of
s 30(1).		It would be wrong, for example, to hold that a particular set of facts almost amounted to 'special circumstances' justifying an order dispensing with consent, and then to apply the principle of s 15 so as to conclude that 'the welfare and interests of the child' tipped the balance in favour of making such an order.	In m	o inion, the	oint at which the	rinci le of s 15 has to		e app ie		to a	ecision un		()	is at the word 'ma' in the		hrase 'The			In ot er wor s, once one o	t e
power, the principle of s 15 is to be applied. 1	
What I there said was partly disapproved by Connor J of the Western Australian Family Court in ABA v EWF (1977) 3 Fam LR 11,487.	I have carefully considered the views expressed in that case by that learned judge, but, with respect for him, I am not persuaded that the view I expressed in Re S should be modified.	It would be, in my opinion, incorrect to treat this section as meaning that where it appears that the making of an adoption order in favour of the applicants would be in the interests of the child, it is desirable to dispense with a parent's consent if not to do so would be an obstacle in the way of making such an adoption order.	If   that is the meaning of s 15, then s 30 must be construed as if there were added to it the words 'but if the welfare and interests of the child would be advanced by the making of an adoption order in favour of the applicants, this section may be disregarded'.	It should alwats be remembered that the welfare and interests of the c ild, which s 15 re uires the court to re ard as	aramount,

eman	strict corn iance wit	t e provisions o Ordinance.	An a o tion order is a ·udicial
etermination o	t e permanent status o	the child and of its ado tive	arents.	It would be contrar	to the interests	ot		t e c i		tea  o tive		to

idit	either

country, might possibly be called in question." emphasis throughout.)

(My

Applying this approach, I am unable to hold that special circumstances exist irrespective of the child's upbringing by the plaintiffs, to justify'me in dispensing with the respective consents under s.27(l)(e).

Nevertheless, in dealing with the Western Australian equivalent of s.27(l)(d) of the Northern Territory Adoption of Children Act, Connor J. in
ABA & ANOR v EWF (supra) succinctly stated the principles to
be applied in the interpretation of that paragraph which I

respectfully adopt. 11,489:-

In particular, his Honour said at page

"Section 4G(l)(d) of the Act provides in essence that a judge may by order dispense with the consent of a father where he is satisfied that the father'... has for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent ... of the child'.	The key words in this subsection are the words 'the obligations of a parent'. The first question for determination is what in fact are the obligations of a parent.			To my mind these obligations may in fact be many and varied and cover a wide range of duties.		The meaning of these words were discussed by Pennycuick Jin		Re P (Infants) 1962 1 WLR 1296 at pp 1301 and 1302.	He said, 'It seems to me that in this subsection 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 the common law or statutory duty of a parent to maintain his child in the financial or economic sense'.	This case was cited with approval by Harris Jin	R & R v E [1974] VLR 291 at p.297.	With these decisions I entirely agree."

On the evidence before me neither the second nor the third defendant has evinced any real display of the natural and moral duty of a parent "to show affection, care and interest" towards this child except on the part of the mother for a relatively short period after the birth of the child when she herself cared for it, and then subsequently when she made requests of her sister for some photographs after she believed the child had been adopted and, as well, arranging for her sister to pass on a present for her.	In short, there has been an almost total lack of any expression of natural love or affection since then and certainly no support, financial or otherwise, by either the mother or the father.	Indeed it was virtually conceded by counsel for them that the father's "role in these proceedings has become irrelevant".	This concession was undoubtedly inspired by the fact that the second and third defendants have long since separated and at the date of the hearing the mother was engaged to be married to another man.

So far as the mother is concerned, while in the early stages she was under the mistaken belief that the child had been legally adopted following her visit to the solicitor's office, I find that she has at all material times known that her sister and her parents have known with whom and where the child has been residing yet appears to have made no real effort to pursue enquiries of them so that in some way or other she might demonstrate her natural love

and affection for the child, let alone attempt to have the child restored to her by legal process.	I find that this state of affairs has existed, without reasonable cause, for a period of well over a year before proceedings were connnenced in this Court on 23 January 1985.	In fact, the plaintiffs have had the child in their custody since as long ago as January 1983.	In these circumstances I am satisfied that the mother and the father have, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child.

Accordingly, bearing in mind that I must be satisfied that weighty and convincing reasons must be shown to justify me, notwithstanding the natural mother's and father's objection, to severe the relationship between their child and themselves, in the exercise of my discretion, I dispense with their respective consents pursuant to s.27(l)(d).

On this basis, applying the approach of
Blackburn C.J. in the case to which I have already referred, the final question to be determined pursuant to s.10 is the welfare and interests of the child concerned being the paramount consideration.

The evidence of both plaintiffs satisfies me that they are loving and caring persons, are well established

both financially and with security of employment.	It is also clear that a strong family tie exists and that the child regards the plaintiffs as her proper parents and has known no others.

These views are fortified both by the report of the first defendant required to be given under s.14 of the Act, who expressly supports the application for adoption and, more particularly, I am reinforced by the view of a consultant psychiatrist who testified before me.	According to her evidence, which I accept in its entirety, the child regards the plaintiffs as her first remembered parents and that they have been consistent and caring parents throughout her babyhood until the time of the hearing.	The child appears to be spontaneous and open and natural in her relationships.	If she were returned to her mother she would find herself in a totally new and strange situation and her mother would be a total stranger to her.	She would not remember her in any way.	She would be uprooted from all that she has known and this would have a very considerable adverse effect upon her.	The child has demonstrated evidence of good bonding and good security with the plaintiffs.

As well, I heard evidence from the proprietor of a child-minding centre registered with the Department of Community Welfare.	Her centre has operated since January

1983 and the child has been enrolled there since April 1983 when she was about ten months old.	She described the. daily routine at the child minding centre and described the child as being well balanced, very mature, very obedient, and joins in and plays with other children and, in the company of her parents, acts like any other normal child would do.

In short, I am satisfied as to all matters required by s.14.	The application for adoption will be granted and pursuant to s.32 I declare that the name of the child will hereinafter be ................•...