Family Law
Adoption, Can it Happen against a Parent's Will
On 9 November 2006, the Family Court of Western Australia released its decision in Director of Community Development and Statewide Services and A, [2006] FCWA 113. The case related to an application by the Director of Community Development for an order dispensing with the father's consent to the adoption of his child.
The case arose because s 17(1) of the Adoption Act 1994 (WA) provides that ordinarily both the child's mother and father must consent to the adoption. However, section 24(2) allows the court to dispense with the requirement of a parent's consent in certain circumstances, such as where the birth parent has neither the responsibility for the day-to-day care of the child nor a parent and child relationship with the child, and is unreasonably withholding his or her consent to the child's adoption.
In the present case, the child was born in May 2005. The child was placed in foster care at the time of her birth. The mother determined that it would be in the child's best interests to be adopted, and consented to the child's adoption in January 2006. At that time a letter was sent to the father, advising him that the mother had consented to the child's adoption and advising him that he could apply to the Family Court for a parenting order. The father was also advised that the Department for Community Development (DCD) would proceed with an application to dispense with his involvement in the adoption if he did not take any action within 21 days of receiving the letter. The father did not respond.
An application was filed in court seeking to dispense with the father's consent. The father filed an affidavit in response to that application, in which he strongly opposed the adoption. He stated that it was in the child's best interests to know her parents and be cared for by her biological parents. The father stated that he was available to care for the child on a full time basis and proposed that he would live with his own father and step-mother in order to care for his child. The father indicated that if he was not successful in obtaining full time care of his daughter, he wanted to have contact with her.
As a result of the father's expression of interest in caring for his daughter, the DCD sought an adjournment in order to investigate whether the father would be a suitable carer. Suitability was a significant issue because the father's affidavit also revealed that he had been in and out of gaol since 2000, and had a criminal record for breaches of violence restraining orders, assault and damage. The father also had two children from a previous relationship and the mother of those children currently had a violence restraining order against him.
Following its investigation, the DCD concluded it was in the child's best interests to be in a secure long-term placement as soon as possible, and that the father was unable to provide this for his daughter due to his chaotic lifestyle, lack of parenting capacity, the absence of an existing relationship between him and the child, and his apparent lack of understanding of and commitment to his daughter's welfare. The father had met the child twice through this adoption and court process, but had not sought any further contact with her since May 2006.
The court concluded that it should dispense with the father's consent to the adoption on the basis that the father did not have responsibility for the child's day to day care and did not have a parent-child relationship with her. The court found that although the father had clearly stated that he wanted to look after the child, his actions indicated that he was unable to make a commitment to her full-time care. The father had been subjected to high levels of domestic violence as a child, and had been in and out of gaol. There was a prospect that he could be imprisoned again for breach of an intensive supervision order. The court accepted evidence that the father was incapable of providing the calm, stable, supportive and predictable environment that a young child needs.
As a result, the court concluded that the father was unreasonable in withholding his consent to the adoption and that it was in the child's best interests that she be placed in a secure long-term placement as soon as possible. The court therefore dispensed with the father's consent to the adoption, but noted that his desire to have a role in the child's life could be taken into account with the development of an adoption plan.