In the matter of the adoption of JB [2025] ACTSC 253 (18 June 2025)

1. In this application an order is sought dispensing with the requirement for consent of a person to the adoption of a child pursuant to s 35 of the Adoption Act 1993 (ACT) (Adoption Act).

2. The application is brought by the Director-General, Community Services Directorate (Director-General) in the context of an application for adoption order filed by the prospective adoptive parents on 9 April 2025.

3. Although the application is framed as one in which an order is sought only in respect of the biological mother, it is appropriate that the situation of the unidentified biological father is also addressed.

4. The application is brought by the Director-General as the entity with overarching legal responsibility for the child.

5. In accordance with s 97 of the Adoption Act, that prohibits the publication of the name of the child, a parent or guardian of the child, I shall in these reasons refer to the child as JB, to the prospective adoptive mother as CJ and the prospective adoptive father as MS.

Background

6. JB was born at Calvary Public Hospital in Canberra in October 2022. His biological mother is a Fijian citizen, who was residing in Australia at the time of JB's birth whilst she attended to university studies. She advised the relevant authorities on the day of JB's birth that she wished to make an adoption plan for him, having formed the view that she was unable to provide for the child.

7. There were significant extenuating circumstances underpinning the biological mother’s decision to give up her child that are dealt with in some detail in the material before me, including in the form of a confidential report prepared on behalf of the Director-General.

8. On 18 November 2022 the biological mother purported to provide her consent to the adoption of JB in accordance with Division 3.3 of the Adoption Act and Part 3 of the Adoption Regulation 1993 (ACT). That document was completed 27 days from the date of JB's birth, apparently due to a miscalculation, and was therefore not compliant with s 34(3) of the Adoption Act, which requires such consent to be provided not less than 28 days after the day on which the child was born. The section provides that the court may treat the consent as effective in justifiable circumstances. As he was unable to be identified there was no prospect of securing consent from the biological father.

9. In August 2023, some nine months after providing her consent, the biological mother withdrew it in circumstances where she proposed a plan for the resumption of the care of JB, with financial and emotional support provided by her partner. The withdrawal or revocation of consent was not made in accordance with the provisions of s 31 of the Adoption Act. That section requires the filing of a notice of revocation in the Supreme Court within 28 days after the instrument of consent is signed. It is not apparent to me whether the defect in her original consent was ever communicated to the biological mother.

10. A notice of revocation was not filed by the biological mother within the 28-day time frame or at any subsequent time. However, following her withdrawal of consent the Director- General has proceeded as if there was an effective revocation, or alternatively on the basis that the original consent was defective in any event. In the ongoing dialogue with her, the biological mother has on a number of occasions affirmed her earlier consent to the adoption of JB, with the last such affirmation occurring in the course of a discussion between the biological mother and a team leader of the Adoption and Permanent Care Team on 8 July 2024.

11. It is a matter of some relevance that in circumstances where consent to adoption was initially provided very shortly after the birth of JB, albeit a consent that was defective, the biological mother was then afforded the opportunity to participate in the process of selection of suitable prospective adoptive parents. After giving due consideration to the shortlisted candidates, she expressed support for CJ and MS as prospective adoptive parents.

12. As this adoption process initially proceeded as if it were a consent matter, CJ and MS formally accepted JB's placement with them on 3 January 2025. JB then commenced to live with them on 11 January 2023 and he has remained in their constant care since that time. JB is now approaching 3 years of age, and the reality is that the only life he has known has been as a member of the family he has formed with CJ and MS.

13. There has been some contact with the biological mother over the time of JB's placement with his prospective adoptive parents. She had an opportunity to meet with CJ and MS at about the time of JB's initial placement. Regular updates about JB's situation and his progress were prepared by CJ and MS until August 2024, although there were at times difficulties experienced in providing them to the biological mother, either because her address was not known or she proved unresponsive to attempted contact. In August 2023 the purported withdrawal of consent to adoption occurred and, thereafter, contact with the biological mother has proved difficult in the sense that there have been a number of extended periods during which her whereabouts were entirely unknown.

14. The biological mother is aware of this application and has been personally served with the application and all of the supporting documents. When the application was listed before me on 11 June 2025 there was no appearance by the biological mother. There had been no further communication with her from the date of service of the application and supporting material on 13 May 2025, up to and including the date of the application hearing.

The application for dispensing with consent

15. Before orders for the adoption of a child can be made consent of each parent of the child, and each guardian of the child, is required: s 26 of the Adoption Act. Consent must be provided in the prescribed form: s 30 of the Adoption Act. Consent may be revoked within 28 days after the date on which it is given only by filing a notice of revocation in the Supreme Court. An additional 14-day period may be provided on application, but the period may not otherwise be extended: s 31 of the Adoption Act.

16. The consent provided by the biological mother on 18 November 2022 was given one day short of the requisite time period. It is quite apparent from the material before me that, although the consent was defective, the parties have proceeded as if it were a valid consent.

17. The purported consent on 18 November 2022 was not only treated as a valid consent by all parties, but the subsequent actions of the biological mother, other than for a brief period during which she considered assuming an active part in JB's life, have all been confirmatory of her consent to the adoption of JB by the prospective adoptive parents.

18. No notice of revocation of the purported consent was ever filed in accordance with s 31, nor was a proposal for revocation intimated at any time after 27 October 2023, when the biological mother again advised the Community Services Directorate (the Directorate) that she wished to progress adoption by the prospective adoptive parents. I am satisfied that in the circumstances described above it is justifiable and appropriate to treat the consent purportedly given on 18 November 2022 by the biological mother as an effective consent to the adoption of JB. I am therefore satisfied that there is no requirement for me to formally dispense with the requirement for her consent.

19. For the reasons set out below I am satisfied that if it had been necessary, it would otherwise have been appropriate to dispense with such consent. Notice

20. Rule 3171 of the Court Procedures Rules 2006 (ACT) provides that the application and any supporting affidavit must be served on each interested party not later than 28 days before the return date for the application.

21. I am satisfied in the case of the biological mother that the service requirement was complied with, having the benefit of two affidavits of service sworn by Mr Fahd, licensed process server.

Dispensing with consent

22. The court may make an order dispensing with the requirement for consent of a person to the adoption of a child in a number of circumstances: s 35(1) of the Adoption Act.

23. In respect of the biological father, the position of the Director-General is, in accordance with s 26(2) of the Adoption Act, that the unidentified father of the child does not meet the definition of a “parent” for the purposes of the section as he is not a person presumed to be the father under Division 2.2 of the Parentage Act 2004 (ACT) (Parentage Act). The circumstances giving rise to a presumption of parentage begin at s 7 of the Parentage Act. I am satisfied that none of the identified presumptions arise from the material before me. I am therefore satisfied that the biological father does not meet the definition of a person required to give consent to the adoption of the child within the meaning of s 26 of the Adoption Act. See In the matter of the adoption of CD [2019] ACTSC 256 at [7] and [15] to [16].

24. In respect of the biological mother, were consent required, I would have been satisfied that it was necessary to dispense with the requirement for consent, consistent with the best interests of the child: s 35(1)(c) of the Adoption Act.

25. Sections 5 and 6 of the Act deal with matters to which regard must be had in forming a view as to what is in the best interests of the child. Section 6 has no application here as JB is not an Aboriginal or Torres Strait Islander child. 5 Best interests of child or young person paramount consideration (1) A person making a decision under this Act in relation to a child or young person must regard the best interests of the child or young person as the paramount consideration. (2) In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following: (a) the likely effect of the decision on the life course of the child or young person taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging; (b) the child’s or young person’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances; (c) the child’s or young person’s cultural, physical, emotional, intellectual, and educational needs; (d) the views expressed by the child or young person in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision); (e) taking into account the benefit of maintaining meaningful relationships, the likely effect of the decision on the child’s or young person’s relationship with the following people: (i) the child’s or young person’s birth parents; (ii) the child’s or young person’s siblings (if any); (iii) (iii) the child’s or young person’s other relatives; (iv) (iv) carers or other significant people in the child’s or young person’s life; (f) the relationship the child or young person has with the adoptive parents; (g) the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs; (h) the alternatives to adoption for the child or young person to secure permanent family arrangements; (i) the continuity and sense of belonging that comes from a child or young person having stable emotional and physical living conditions; (j) the need to protect the child or young person from physical or psychological harm associated with exposure to abuse, neglect or family violence. The evidence

26. The evidence before me comprised: (a) The affidavit of Deborah Smith sworn on 20 March 2025. Ms Smith is a team leader of the Adoption and Permanent Care Team within the Children Youth and Families division of the Community Services Directorate. She is a delegate of the Director-General for the purposes of the Adoption Act. In that role she has primary carriage of JB's matter. It is apparent from her extensive affidavit evidence that she has a detailed knowledge of JB's circumstances, of the history of his involvement with the Directorate and of his particular family situation. (b) A confidential report, prepared on behalf of the Directorate by Nerida McCarthy Neilsen, an adoption practitioner within the Adoption and Permanent Care team. That report demonstrates an intimate knowledge of the particular sensitivities in JB's case and includes a careful and helpful analysis of the adoption plan, and the role of the prospective adoptive parents in JB's life. The affidavit and report addressed each of the mandatory considerations referred to in s 5 of the Adoption Act and they were thus of real assistance in assessing the best interests considerations. (c) The affidavit of MS, the prospective adoptive father, affirmed on 8 April 2025. Is adoption in the best interests of JB

27. The immediate question for determination is whether it is in the best interests of the child to dispense with the requirement for consent of the person. In answering that question, it is entirely appropriate to have regard to the mandatory best interests criteria set out in s 5 of the Adoption Act that apply to consideration of the application for adoption itself.

The likely effect of the decision on JB’s life course, taking into account the need to preserve his cultural inheritance, personal identity and sense of belonging: s 5(2)(a)

28. I am satisfied that adoption will for JB be a very positive step in his life's trajectory. Life with CJ and MS is the only life he has known. The evidence of MS is to the effect that the three of them have bonded as a family and that the child has settled into a stable routine “including childcare, extracurricular activities and quality family time”. The Directorate’s observation of the family arrangement is entirely consistent with the statement of MS.

29. JB has had no contact with his biological father and little or no contact with his biological mother. He has had no contact with the broader biological family. The evidence indicates that JB’s existence was not even known to his biological grandparents on the mother's side until some considerable time after his birth. Accepting that there is a lack of clarity as to the grandparent’s level of knowledge of JB's circumstances there is no evidence of any attempt by them to have contact with him.

30. I am mindful that at least on his biological mother's side JB is of Fijian heritage and neither of the prospective adoptive parents purport to have any direct connection of significance with Fijian culture. They do have extended family with Fijian heritage in the ACT and they have committed to ensuring that JB develops a good understanding of his cultural inheritance. The affidavit of MS addresses in some detail a plan for ensuring that JB is supported in learning about his Fijian cultural background and history.

31. In terms of personal identity, JB is not at an age where he would be expected to have any understanding beyond the family unit of which he is an intrinsic component. He will not at this point in time have any real understanding of what adoption means. However, his prospective adoptive parents have expressed a commitment to open adoption, and I note and accept the opinion of Ms Smith that they are likely to continue to encourage and facilitate the relationship between JB and his biological mother as well as other maternal family members that may present. Accepting the clearly expressed intention of CJ and MS to assist JB in gaining and developing an understanding of, and a connection with, his cultural background I consider that an adoption order is unlikely to have any negative impact on the preservation of his cultural inheritance or on the development of his personal sense of identity.

Age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances of JB: s 5(2)(b)

32. I accept the opinion of Ms Smith that JB, at the age of 2 and having spent effectively his entire life in the care of CJ and MS, who have in turn provided him with a loving and nurturing environment as they would a biological child, does not perceive himself In any other way.

33. There are undoubtedly some difficult aspects to JB’s life story that will need to be disclosed to him sensitively and at an appropriate time when he is better able to understand them.

34. I do not consider those aspects of JB's life are likely to be negatively impacted by the adoption process. On the contrary the stability of his current home situation is likely to be enhanced and to provide an appropriately supportive environment for JB as his understanding of his life story unfolds.

Cultural, physical, emotional, intellectual, and educational needs of JB: s 5(2)(c)

35. It is the opinion of the Directorate that JB has received a high level of holistic care from his prospective adoptive parents.

36. He is observed to be an active and happy infant, who is in good health. JB is regularly monitored by his general practitioner and his immunizations are up to date. He continues to meet all of his developmental milestones.

37. In July 2024 JB commenced a slow transition into childcare. Through that process he has enjoyed the company of other children, and he has settled into a good routine.

38. JB has a love for music and is encouraged to sing and dance and to play a range of musical instruments. He has commenced swimming lessons and enjoys activities such as attending the National Museum.

39. MS attests to the financial and emotional stability of the home, with both MS and CJ in stable public service employment and living in their own home in the ACT.

40. I am satisfied on the basis of the material before me that JB has throughout his short life to date received a high level of care and support across the entire range of his present life needs. There is a sound basis to support the conclusion that the level of care he has enjoyed thus far is likely to continue whilst he remains in the family provided for him by CJ and MS. JB’s views: s 5(2)(d)

41. I accept that JB is too young to express a view about adoption.

42. However, the strong attachment he has formed with his prospective adoptive parents and the evident stability of the family arrangement indicate that at the level of his present understanding he is in a situation that he would wish to see continue.

The likely effect of the decision on JB’s relationship with his birth parents, siblings, other relatives and carers or other significant people in their lives s 5(2)(e)

43. JB has no known siblings, accepting that his biological father has not been identified.

44. His biological mother has no other children of which the Directorate is aware. JB has had no direct contact with his biological mother since shortly after his birth and none that would be within his memory.

45. It is a matter of some relevance that this adoption process is one that was initially commenced voluntarily by the biological mother and for the most part is a process that she has supported. She initiated the adoption process shortly after JB's birth. She was actively involved in selecting the prospective adoptive parents. She last affirmed her support for the continuation of the adoption process on 8 July 2024.

46. Notwithstanding the lack of direct contact with her, CJ and MS having endeavoured to communicate with the biological mother via other means to ensure that she is provided with some ongoing insight into JB's life and his development. I am satisfied that there is a willingness to continue to foster such communication and that the limiting factor in the past has been principally a lack of awareness of the biological mother's whereabouts.

47. No other members of the wider family have at any time attempted, or expressed a desire to foster, further connection with JB. Consistent with their commitment to open adoption I accept that CJ and MS remain open to the establishment of such a connection between JB and the wider biological family.

48. JB is currently in a situation where there is no contact with any members of his biological family. The question then is whether adoption will in any way hinder the prospect of the development of such a connection in future years. I am satisfied, given the stability of the current family arrangement and the commitment of the prospective adoptive parents to open adoption, the progression of the adoption process is unlikely to negatively impact the prospect of development of wider family connections in future years. JB’s relationship with the adoptive parents: s 5(2)(f)

49. The evidence before me points to the existence of a warm loving and stable relationship between JB and his prospective adoptive parents. He knows no other life than the one he enjoys with them. He identifies with them as his mummy and daddy as would be natural for any 2-year-old child having spent all of his living memory in the family home.

50. Ms Smith attests to having had the opportunity, together with other staff at CYF, to observe JB in the care of CJ and MS.

51. I have also relied on the detailed and helpful observations expressed by Ms McCarthy- Nielsen in the confidential report as to the strength of the relationship, between CJ and MS and as between them and JB.

52. It is apparent from the material before me that in terms of the wider adoptive family there is strong support for the continuation of the adoption process. I am satisfied that JB has already commenced to form positive relationships with wider family members that are likely to assist in creating an environment of stability and belonging for him.

53. I consider it likely that the adoption process will only enhance and strengthen the development of these relationships.

The suitability and capacity of the adoptive parents to meet the child's needs: s5(2)(g)

54. The Directorate undertook an extensive selection process that resulted in the opportunity for adoption being offered to CJ and MS. The biological mother considered them to be the most suitable option for JB's adoption.

55. I am satisfied with reference to the detailed background material in the confidential report that CJ and MS have been and will continue to provide for JB's needs at a high level.

The alternatives to adoption for JB to secure permanent family arrangements: s 5(2)(h)

56. I have carefully considered the alternatives to adoption. I am satisfied that there is no realistic prospect of either biological parent taking on a permanent parenting role. No other wider biological family member has been identified who may present as a suitable alternative.

57. Consideration has been given to the option of an enduring parental responsibility order. In oral submissions counsel for the Directorate confirmed that the critical disadvantage of such an arrangement is that the legal relationship ends when JB attains the age of 18 years. Although in some family arrangements that may not present as a practical difficulty, I am satisfied that in JB's case there is very real attraction to the provision of an arrangement that is permanent in the legal and emotional sense. The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions: s5(2)(i)

58. For the reasons set out elsewhere an adoption order will only enhance JB's stable living environment by providing the present arrangement with legal permanency.

The need to protect JB from physical or psychological harm associated with exposure to abuse, neglect or family violence: s5(2)(j)

59. This is not a relevant factor in JB's case.

Conclusion

60. The best interests of the child is the paramount consideration in the assessment of this application and in respect of the application for adoption.

61. After consideration of each of the mandatory matters in the context of the evidence before me I have formed the view that adoption is in the best interests of the child.

Orders

62. For those reasons, the following orders are made: (a) Pursuant to s 34(3)(a) of the Adoption Act 1993 (ACT), the instrument of consent executed by the birth mother on 18 November 2022 is treated as an effective consent for the adoption of the child who is the subject of this application. (b) Proceeding AD 1 of 2025 is listed on 2 July 2025 at 9:30 am before me for the hearing of the application for adoption orders to be made in relation to the child pursuant to Div 3.6 of the Adoption Act 1993. (c) There is no order as to costs.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller Associate: Date: 18 June 2025