In the Matter of An Application for the Adoption of “M”

[2011] ACTSC 107

IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF “M”
[2011] ACTSC 107 (21 JUNE 2011)

ADOPTION – application to dispense with consent of biological parents – biological father unable to be located – circumstances justifying biological mother’s consent being dispensed with – requirement for consent dispensed with.

REASONS FOR DECISION

No. AD 7 of 2011

Judge:             Gray J
Supreme Court of the ACT

Date:              21 June 2011

IN THE SUPREME COURT OF THE     )
  )          No. AD 7 of 2011
AUSTRALIAN CAPITAL TERRITORY )          

IN THE MATTER OF AN APPLICATION FOR THE ADOPTION OF “M”

ORDER

Judge:  Gray J
Date:  21 June 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The requirement for the consent of the biological father of the child, M, to the adoption is dispensed with in accordance with section 35(1)(a) of the Adoption Act 1993.

1. The requirement for the consent of the biological mother of the child, M, to the adoption is dispensed with in accordance with section 35(1)(e) of the Adoption Act 1993.

1. The Chief Executive (now the Director General of Justice and Community Safety) has made an application under s 35 of the Adoption Act 1993 for the dispensation of the requirement for the consent of the mother of M to adoption. Section 35 provides:

(1)   On application, the court may, by order, dispense with the requirement for consent of a person to the adoption of a child or young person 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 young person; or

(d)the person has, for a period of not less than 1 year, failed, without reasonable excuse, to discharge the obligations of a parent or guardian, as the case may be, of the child or young person; or

(e)there are any other circumstances that justify the requirement for the consent being dispensed with.

(2)   On an application for an order under subsection (1), the court may require the chief executive to investigate the matter and to provide a written report to the court.

(3)   To facilitate the making of arrangements for the adoption of a child or young person, on the application of the chief executive or the principal officer of a private adoption agency, the court may make an order under subsection (1) before an application for an adoption order has been made, and the first order has effect for the purpose of any subsequent application for an adoption order.

(4)   On the application of the chief executive or of the person the requirement for whose consent was dispensed with, the court may revoke an order made because of subsection (3) at any time before making an adoption order.

1. M is a young person.  She is 16 years of age.  Her biological mother married Mr R (who was not M’s father) and consented to Mr R’s name being added as M’s father on M’s birth certificate.  M’s biological father has had no contact with her and the present contact details of M’s biological father are unknown despite searches by care and protection case workers.  There were two other children from the relationship between M’s biological mother and Mr R.  When that relationship ended those children remained with Mr R who is now in a relationship with Ms J with whom he has had a further child.

1. M’s biological mother has mental health and substance abuse issues.  As a consequence a care and protection order was granted and is in force until M turns 18 years.

1. M’s birth mother has been served with this application. In order to oppose the application Rule 3172 of the Court Procedures Rules 2006 requires a notice of opposition to be filed not later than 10 days after service. No notice has been filed.

1. M has resided with Mr R and his partner since 2004.  The other two children and Mr R and his partner’s child comprise that family.

1. M wishes to be adopted by Mr R and his partner.  She has written to her biological mother and told her of this wish.

1. My concern in this matter is the fact that the appellant advised that M’s biological mother does not consent to the adoption.  In that circumstance I considered that I should have the benefit of a report from the Director General of the Office for Children Youth and Family Services.

1. That report has been provided.  It provides me with information that satisfies me that there are circumstances which justify the requirement that the consent of the biological mother to the adoption of the young person should be dispensed with.

1. Accordingly, as far as the biological father is concerned, I dispense with this requirement for his consent on being satisfied that after reasonable inquiry he cannot be located (s 35(a)).

1. As far as the biological mother is concerned, I am satisfied that there are circumstances that justify the requirements for her consent being dispensed with (s 35 (1)(e)).

1. Upon reading the affidavits of Mr R affirmed on 19 April 2011, Patricia Anne Johns of 11 Moore Street Canberra City affirmed on 19 April 2011, Kevin John Small of 4 Traynor Court Melba sworn on 18 May 2011 and the affidavit of Laeticia Anne Holley of 12 Moore Street Canberra City affirmed on 17 June 2011,  I make the orders sought.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date:    21 June 2011