Armstrong & Anor and Peters
[2013] FamCA 1011
•20 December 2013
FAMILY COURT OF AUSTRALIA
| ARMSTRONG AND ANOR & PETERS | [2013] FamCA 1011 |
| FAMILY LAW – ADOPTION – Adoption by step-parent of child – whether to grant leave to commence proceedings pursuant to section 60G of the Family Law Act 1975 |
| Adoption Act 1984 (Vic), s 15 | |
| APPLICANT: | Ms Armstrong |
SECOND APPLICANT: Mr Armstrong
| RESPONDENT: | Mr Peters |
| FILE NUMBER: | MLC | 3748 | of | 2012 |
| DATE DELIVERED: | 20 December 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 15 November 2013 |
REPRESENTATION
| FIRST APPLICANT: | In person |
| SECOND APPLICANT: | In person |
| RESPONDENT: | No appearance |
Orders
Pursuant to section 60G of the Family Law Act 1975 (Cth) leave is granted to the applicants to commence proceedings for the adoption of the child B born … 2005.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Armstrong and Anor & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3748 of 2012
| Ms Armstrong and Mr Armstrong |
Applicant
And
| Mr Peters |
Respondent
REASONS FOR JUDGMENT
introduction
B is eight years old and the subject of an application to this Court for leave to adopt under s 60G of the Family Law Act 1975 (Cth) (“the Act”).
Under s 60G of the Act, this Court may grant leave for proceedings to commence for the adoption of a child by a prescribed adopting parent. The decision whether to grant leave is governed by a consideration of whether it is in the child’s best interests.
The applicants are the child’s mother, Ms Armstrong (“the first applicant”) and her husband, Mr Armstrong (“the second applicant”). The applicants are defined as “prescribed adopting parents” under s 4(1) of the Act.
The respondent to the application is the child’s biological father Mr Peters. The family name which appears on the child’s birth certificate is the respondent’s family name, which is “Peters”.
The respondent did not attend the hearing.
The County Court of Victoria has jurisdiction under the Adoption Act 1984 (Vic) (“the Adoption Act”) to make an order for adoption.
Procedural fairness for the respondent
Bearing in mind that this is an application for leave to adopt rather than an adoption, I am satisfied on the basis of the following evidence that the respondent has been notified and has been aware of the intention of the applicants to commence the procedure for adoption since 2012:
(a)the sworn evidence of the mother as to the process she undertook in notifying the respondent;
(b)Exhibit B, which is a letter from the respondent to the mother enclosing a signed consent for adoption;
(c)Exhibit C, which is consent for adoption in relation to the child which is signed and dated by the respondent; and
(d)the mother’s sworn evidence that she is familiar with the signature of the respondent and that the signature appearing on the Exhibits B and C is his signature.
On 5 September 2013, Macmillan J ordered that the respondent be notified of these proceedings by forwarding a letter together with a copy of the orders to his last known residential address at Suburb C and his last known place of work at Suburb D.
I am satisfied that the respondent was notified of this hearing by the Family Court of Australia by letter dated 9 September 2013 which was mailed to both addresses together with a copy of the court order made on 5 September 2013.
I am satisfied that the applicants have made reasonable efforts to notify the child’s father for the purposes of obtaining the leave of this Court to the proposed adoption.
I am satisfied in all the circumstances that the respondent has been accorded procedural fairness and that it was appropriate for the hearing to proceed in his absence.
Background
This application was originally made by the applicants in the Federal Circuit Court where they were not legally represented.
The applicants have known each other since 1990. The mother is a secondary school teacher and her husband, the second applicant, is an investigator.
The child’s biological mother and father were married in 1997 and separated after her birth in 2005. The mother and the respondent were divorced in 2007 and the mother married the second applicant in 2011.
The mother deposed that she was granted sole parental responsibility for the child in the Federal Magistrates Court (as it then was) on 10 August 2011.
The respondent has not attended court on any previous occasions and has been served with all previous applications.
On 18 June 2012, Judge Hughes in the Federal Circuit Court granted sole parental responsibility for the child to both applicants and they were authorised to apply to have the child’s family name changed to Armstrong. It was noted by the Judge that the court was satisfied that the respondent had received copies of all documents filed which were served by registered post and collected by him.
Evidence in support of the application
The mother is aged 39 years and deposed that the respondent has not been an active participant in the child’s life at all and has never been a father figure to her. She also deposed that the child does not speak of the respondent and has not expressed any desire to see him. She deposed that the respondent has not made any contact arrangements to see the child since January 2011 but that she has contacted the respondent regarding the adoption and obtained his consent for this to occur.
The mother consents to the child being formally adopted by her husband, the second applicant. She deposed that the child is happy and openly expresses her love towards the second respondent and that the child recognises him as her “daddy” and he is recognised socially, amongst friends, family and work places as the child’s father.
The mother deposed that she has received sporadic child support from the respondent and that the second applicant assists in supporting the family.
The mother deposed that the child has expressed a wish to be adopted by the respondent and that the adoption would secure the child’s identity and her belonging to the family unit. She also pointed out that the child has chosen to adopt the family name of ‘Armstrong’, which gives effect to the court order previously made.
The second applicant is aged 41 and has known the mother for over 20 years. He deposed that he is aware that her marriage dissolved after she had endured a long history of family violence which coincided with the birth of the child on 25 February 2005.
He deposed that during 2010 he rekindled the relationship with the child’s mother and since that time they have lived together as one family.
He deposed that the child does not refer to the respondent, and has not requested to see him. He regards it as both insulting and degrading to the family unit that the child is not recognised as his dependent child when in fact he has been supporting her as his own daughter. He confirmed that the mother has had contact with the respondent and has obtained the respondent’s consent for the adoption process.
The second applicant also confirmed that it is the child’s wish to be adopted by him and acknowledged as his daughter.
Relevant law and findings
Under s 60G(2) of the Act, in considering whether to grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent, the Court must consider whether granting leave would be in the child’s best interests.
This subsection provides that “the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.” How a court determines a child’s best interests is governed by ss 60CB to 60CG of the Act.
Proceedings for leave to adopt under s 60G of the Act are “child-related proceedings” within the meaning of the Act and specifically within the meaning of Division 12A. That Division requires, amongst other things, that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible (s 69ZN(7)).
Having regard to the preliminary nature of this application, the history of this matter and the child’s age, it would be inappropriate to extend these proceedings by the appointment of an Independent Children’s Lawyer.
The leave of this Court is a precondition to the making of an order for adoption in favour of the applicants.
It is the state court which ultimately will be required, pursuant to s 15 of the Adoption Act, to consider the general requirements relating to the best interests of the child for the making of a final adoption order.
Whilst the decision before this Court is different from the decision of the court which will ultimately determine the adoption application, it is appropriate to consider the question of whether it is in the child’s best interests to permit adoption proceedings to proceed in the state court with the potential consequence that her biological father, the respondent, will cease to have any of the duties powers, responsibilities and authority in respect of her as his child.
The effect of adoption is that all parental responsibility for the child ceases, as do all other parenting orders. Parental responsibility is defined in s 61B of the Act as meaning “all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children.”
The granting of leave does not end the respondent’s responsibility because this does not occur until the adoption is finalised. However the Court must consider whether the grant of leave would be in the child’s best interests under s 60G(2) of the Act.
I have taken into account the primary and additional considerations pursuant to s 60CC(2) and (3) of the Act to the extent that they are relevant to the specific circumstances of this matter.
Primary considerations
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
I am satisfied on the basis of the evidence before me that the respondent has not developed a meaningful relationship with the child and that in fact she has a good “father daughter” relationship with the second applicant, her stepfather. I am also satisfied that this relationship has been of some duration in that the child has been living with the second applicant for almost three years.
It is open of course, for the child to contact the respondent at any time in the future and the order sought by the applicants would not preclude her from doing so.
Additional considerations
Turning to the additional considerations pursuant to section 60CC(3) of the Act.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is eight years of age. I am satisfied that she is of an age to express her views in this matter. However, the weight to be given to those views must be mitigated by her relatively young age. Both the mother and the second applicant deposed that the child has expressed her wish that the adoption proceed.
The evidence before me is that the child has adopted the use of the second applicant’s family name and that she calls the second applicant “Daddy”.
I am satisfied on the evidence of the applicants that the child has a positive attitude towards the proposed adoption.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The child has lived with her mother all her life. It is the mother’s evidence that the respondent has made no contact arrangements to see the child since January 2011. Further, the mother deposed that the child does not speak of the respondent and has expressed no desire to see him. It is also noted that the respondent has not participated in any of the court proceedings relating to the child.
The second applicant deposed that he loves the child as his own daughter and that he has supported her in the way of a “normal daddy-daughter relationship”. He deposed that he enjoys a number of activities in common with the child and that he participates in sports and school activities with her. He deposed that family, friends and the wider community regard him as the child’s father and that he is the only real father that the child has known and, as noted above, that she calls him “Daddy”.
Section 60CC(3)(c) the extent to which each of the child’s parent has taken, or failed to take the opportunity:
(i) to participate in making decisions about the major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child
The mother and the second applicant have been granted sole parental responsibility for the child pursuant to the orders made on 18 June 2012 by Judge Hughes in the Federal Circuit Court.
I am satisfied that the second applicant is actively involved in the child’s life. He deposed to participating in extracurricular activities with her and assists in taking her to and from school by bus. He deposed that he spends “daddy-daughter” time with the child and that she specifically requests to spend this time with him.
I am satisfied on the evidence before me that the respondent has not participated in the making of decisions about the major long-term issues affecting her. the child’s mother deposed that the respondent “has not been an active participant in the child’s life at all.” As noted above, the respondent has been absent from any of the court proceedings relating to the child.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child):
to provide for the needs of the child, including emotional and intellectual needs
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The second applicant deposed that he ensures that he spends time with the child as a father and that they have lots of fun together and love each other very much. It is his evidence that he schedules his work commitments around her needs. Additionally the second applicant deposed that he has taken on responsibility for “all of the child’s affairs” including her financial security and the financial security of their family unit. It is his evidence that he seeks to ensure that he provides the child with a “positive role model” and strives to create a loving home for her and his wife.
The evidence before me is that the respondent has made no contact arrangements to see the child since January 2011. Additionally I am satisfied that the respondent’s contact with the child prior to January 2011 was, at best, sporadic.
Conclusion
In this case, as noted above, final parenting orders have already been made in favour of the mother and the second applicant. In June 2012, the applicants were granted equal shared parental responsibility for the child.
For these reasons and for the reasons stated above, I am satisfied that the child is now part of a stable family unit with her stepfather and mother and that it is in her best interests for leave to be granted to the applicants to commence adoption proceedings pursuant to s 60G of the Act.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 20 December 2013
Associate:
Date: 20 December 2013
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Statutory Construction
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