WERE THERE ERRORS IN THE JUDGMENT?
36 Mr. Anderson relied on the numerous grounds of appeal which I have set out; but I will focus on the matters which in my opinion raised questions requiring consideration.
37 Mr. Anderson submitted that ss.8(2)(k) and 90(3) of the Act meant that all alternatives had to be considered; and that while the primary judge did consider the possibility of interim arrangements as an alternative to an adoption order, he did not consider either the possibility of an adjournment for a period of about two months with interim orders in place, or the possibility of final orders being made under s.92 giving custody and parental responsibility to Mr. and Mrs. F. He submitted that the drastic nature of an adoption order was emphasised by s.93(4) of the Act, which had the effect that an adoption order could be discharged only if the order had been obtained by fraud, duress, or other improper means, or there was some other exceptional reason why the order should be discharged.
38 Next, Mr. Anderson submitted that the primary judge made errors in deciding to dispense with D's consent. First, the judge decided that an adoption order should be made and that therefore D's consent should be dispensed with; whereas what was required was a decision first whether the consent should be dispensed with: see In Re B at 156. Next, he submitted that the judge erred in finding that the consent could be dispensed with pursuant to s.67(1)(b), because for that purpose it had to be shown that the incapability was long-term and not merely temporary: In Re B at 151. Next, he submitted that the primary judge erred in finding that s.67(1)(c) applied, because the "serious cause for concern" referred to there must relate to the available alternatives, and the primary judge did not find that there was serious cause for concern operating as between the alternatives of orders falling short of adoption and full adoption orders.
39 Next, Mr. Anderson submitted that the primary judge failed to take into account factors which he was required to take into account by s.8 and s.90 of the Act. He submitted that the primary judge was required to specify the factors taken into account, and did not do so: see Marriage of Smith (1994) FLC 92-488. In any event, he submitted, the primary judge had not considered factors referred to in s.8(1)(a) and (e), s.8(2)(e) and s.90(1)(h). He did not identify cultural ties or consider their preservation, as required by s.8(1)(e); and he did not consider the interests of the child in later life, as required by s.8(1)(a), in relation to these cultural issues. He did not take into account the wishes of the mother under s.8(2)(e). He did not reach satisfaction that the culture of the child and the child's cultural and religious ties had been taken into account in the making of any adoption plan, as required by s.90(1)(h).
40 In my opinion, the primary judge did consider the alternatives referred to by Mr. Anderson. When he rejected the making of interim orders, it is clear that he had in mind the possibility of orders made under s.92 lasting until the child was 18 as being in the category loosely described as interim orders. Furthermore, having regard to the adjournment application that had been rejected shortly before the hearing, and the terms of the judgment as a whole, I think it is clear that the primary judge also had in mind the possibility of an adjournment for two months with interim orders operating in the meantime.
41 Turning to the question of dispensing with consent under s.67, in my opinion the present availability of a particular adoption, and the circumstance that the child had already been in the care of the proposed adoptive parents for more than a year, were relevant to the best interests of the child, and could be taken into account in determining whether consent should be dispensed with. I do not read In Re B as excluding that approach. In those circumstances, I see no error in the primary judge having decided that this adoption would be in the best interests of the child, and, subject to satisfaction of the other requirements of s.67, dispensing with consent essentially for that reason.
42 As regards s.67(1)(b), I would read that provision as requiring that the question of capability of properly considering whether or not the parent should give consent be approached on the basis that the present physical or mental condition should be such that the person will not be capable of considering this question within a reasonable time, rather than at the moment of the Court's dealing with the question. If the evidence showed what was plainly a temporary incapacity, which would be resolved within a week or so, I do not think s.67(1)(b) could justify the dispensing with consent. However, in my opinion, the primary judge did approach the question on that basis, and was satisfied that the condition of D which made her incapable of properly considering the question was not a mere temporary condition but could continue indefinitely, and that accordingly the paragraph applied. I do not think the primary judge has been shown to be in error in that conclusion.
43 As regards s.67(1)(c), in my opinion it is not necessary that the "serious cause for concern" be closely linked to the alternatives available to the Court. The other requirement of s.67(1)(c), that it be in the best interests of the child to override the wishes of the parent or guardian, is plainly directed to the alternatives available; but the requirement of "serious cause for concern" is not explicitly linked to the alternatives and in my opinion can be approached more generally. In this case, there had been past violence to the mother from a member of her family, there was evidence of risk to the child from the mother's family, and there was serious cause for concern due to the mother's mental health. In my opinion, these factors were sufficient.
44 As regards the factors to be taken into account, it is not in my opinion necessary for a judge to go through a checklist of every item in s.8 and s.90(1). However, where the circumstances of the case indicate that there is an issue about one or more of these factors, then one would expect that the reasons would address those factors which are in issue in the case.
45 In my opinion, a fair reading of the whole judgment indicates that the primary judge did have regard to the wishes of the mother, as required by s.2(e); and in my opinion did give consideration to a proposed adoption plan having in mind provision for the child's cultural and religious ties. As to whether the judge identified the child's cultural ties and considered their preservation, and considered the interests of the child in later life, in the light of these matters, as required by s.8(1)(a) and (e), there is room for some doubt. D's culture and community was referred to, but in the context of it being extremely hostile to a mother and child in the position of D and E, and the potentially adverse consequences of that. It does not appear that there was before the primary judge evidence of substantial beneficial consequences to the child through D's culture and community, if an adoption order was refused. In those circumstances, it does not seem to me that there was material error in the judge not referring to these items. Of course, the further evidence, to which I will refer, puts the matter in a different light; but that was not before the primary judge, and cannot be relied on to show error by the primary judge.