Director-General, Department of Child Safety v A [2007] QSC 187

1 SUPREME COURT OF QUEENSLAND [2007] QSC 187 CIVIL JURISDICTION FRYBERG J No 4700 of 2007 DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY Applicant and A Respondent BRISBANE ..DATE 20/07/2007 ORDER -- 1 of 5 -- 20072007 T(2)08-10/VC(BNE) M/T BRIS05 (Fryberg J) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application by the Director-General of the Department of Child Safety for an order dispensing with the consent of the father to the adoption of a child. I shall refer to the child as "R". R is now 11 months old or so and has been in the care of pre- adoptive foster carers for a number of months. The department now wishes to have her adopted. There is no certainty as to the identity of the father. The mother has been less than cooperative with the department. She has provided only limited information about the father. A name has been provided to the department but the person in question, who has only been able to be contacted by telephone, denies any involvement and denies any interest in these proceedings. Indeed he has, it seems, been quite aggressive toward departmental officers attempting to contact him. More recently, as recently as the day before yesterday, the mother informed the department that there was an alternative possible father, being a man with whom she had a one night stand. She refused or was unable to provide any identification details about that man and it is, to say the least, very dubious to my mind that he exists at all. There is no evidence in the hands of the department, or available to it, to confirm the mother's information that the man originally named by her is the father. In other words -- 2 of 5 -- 20072007 T(2)08-10/VC(BNE) M/T BRIS05 (Fryberg J) 3 ORDER 1 10 20 30 40 50 60 there has been no DNA testing and there is no other evidence of his parental status. The order sought is one dispensing with the consent of the father to the adoption. The process of adoption is covered by the Adoption of Children Act. That Act makes provision for the making of adoption orders by the Chief Executive pursuant to section 7 of the Act. The power to make such an order requires that the order be made "under the Act" and the Act requires that the Chief Executive not make an order for the adoption of a child unless consent to the adoption has been given by the appropriate person - section 19. That section sets out who is the appropriate person in various situations. In the case of a child whose parents were not married to each other at the time of the child's conception and have not since married each other and who has not been previously adopted the appropriate person is every person who is the mother or guardian of the child. R has no guardian - except perhaps the Director - and the mother has given her consent. Consequently there is no obstacle created by section 19 to the making of the adoption order. Despite that the Director now applies to the Court to dispense with the consent of the father. The reason that the Director makes that application, I was told, is to bring the case within the ambit of section 39B of the Act. That section provides that an adopted person is entitled to have the Chief Executive disclose to the adopted person the name of the -- 3 of 5 -- 20072007 T(2)08-10/VC(BNE) M/T BRIS05 (Fryberg J) 4 ORDER 1 10 20 30 40 50 60 adopted person's birth parent as at the date consent to the adoption of the adopted person was given or dispensed with. The view has been taken that unless that person's consent was given or dispensed with the department is not able to tell the child - or more accurately the child has no entitlement to - the name of the father. As a matter of policy the department takes the view that adopted children ought to be able to find out the names of their natural parents. That is a question on which differing people have differing opinions. My own opinion might or might not accord with that of the department, but my own opinion does not matter. The question is what is permitted by the Act. The power to dispense with consent is conferred by section 25 of the Act which provides that this Court may, on the application of the Chief Executive by order, dispense with the consent of any person to the adoption of a child where the Court is satisfied that there are special circumstances which, in its opinion, make it desirable that an order be made. The power however is a power to dispense with consent. Where no consent is needed there is nothing to dispense with. The present is a case where no consent of the father is needed. In my judgment section 25(1) does not confer a power to make an order dispensing with the consent of the father. That is a conclusion which I reach not because I am not satisfied that there are special circumstances under paragraph (i) but because one cannot dispense with something which is not -- 4 of 5 -- 20072007 T(2)08-10/VC(BNE) M/T BRIS05 (Fryberg J) 5 ORDER 1 10 20 30 40 50 60 required. The section simply does not confer power to make the order which the department seeks. I would add, however, that it seems to me dubious that the fact that the departmental policy is as I have enunciated, coupled with the fact that there is some uncertainty as to the identity of the father and he is reluctant to become involved, amount to special circumstances as submitted on the Chief Executive's behalf. I need not resolve that question. In reaching my conclusion I have taken into account both section 10 of the Act which makes the welfare and interests of the child of paramount consideration and section 5A of the Act which records the objective of the Act as being to facilitate securing for children who are available for adoption the best possible placements having regard to the welfare and interests of the children and to protect the rights and to provide for servicing the needs of all parties to the adoption process. It does not seem to me that those sections can operate to confer a power which is not conferred by the Act. It is quite arguable that the structure of the Act envisages that the rights created by section 39B will not extend to a child born in the circumstances set out in section 19(3). For those reasons the application must be dismissed. ----- -- 5 of 5 --