Brock & Brock

[2007] FamCA 1594

FAMILY COURT OF AUSTRALIA

BROCK & BROCK [2007] FamCA 1594

FAMILY LAW – ADOPTION – Leave to commence proceedings – By step-parent – application by step-father pursuant to s 60G of Family Law Act 1975 seeking leave to commence adoption proceedings – child aged 17 years – biological father passed away – child lived with step father for 12 years – leave granted pursuant to s 100B for child to swear affidavit and attend Court – effect of s 61E that if leave granted child ceases to be child of marriage and parental responsibility for child of any person ceases – application amended to seek order in favour of mother and step-father – definition of “prescribed adopting parent” – whether child’s best interests are paramount consideration under s 60G – consideration of child’s best interests pursuant to s 60CC – consideration of views of child – child’s decision to seek adoption – child’s wishes supported by mother, step- father and paternal grandparents – leave granted pursuant to s 60G.

Family Law Act 1975 (Cth)

Fogwell & Ashton (1993) FLC 92-429

APPLICANT: Mr Brock

RESPONDENT: Mrs Brock

FILE NUMBER: ADC 5276 of 2007

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 1 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Frost

SOLICITOR FOR THE APPLICANT: Treloar and Treloar

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That leave is granted pursuant to Section 100B of the Family Law Act 1975 for the affidavit of the child K born on … January 1990 to be sworn and filed this day.

2. That leave is granted pursuant to Section 100B of the Family Law Act 1975 for the said child to be present in Court this day.

3. That leave is granted to amend paragraph 1 of the orders sought in the Application for Final Orders filed by the applicant on 9 October 2007 to add the words “and [Mrs Brock]”.

4. That leave be granted pursuant to Section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of K born on … January 1990 by Mr Brock and Mrs Brock.

5. That all applications be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Brock & Brock is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5276 of 2007

MR BROCK  

Applicant

And

MRS BROCK  

Respondent

REASONS FOR JUDGMENT

1. I have before me an Initiating Application filed by Mr Brock seeking leave pursuant to Section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of the child K born in January 1990 by the applicant.

2. I have raised with counsel though the effect of Section 61E of the Family Law Act 1975 on an order ultimately being made for adoption in the way anticipated. That is, that upon that order being made my reading of Section 61E is that the mother's parental responsibility for the child would end. As discussed with counsel, prima facie that may not be of great concern given that parental responsibility would only continue in any event until the child turned 18 years of age - and that is not that far away - and on current indications there would be a very short period between the date of the adoption and the date of the child's 18th birthday.

3. However, Mr Frost has taken that on board and now seeks leave to amend the order sought in the initiating application to cover that particular difficulty; that is, in the order sought, adding the words “and [Mrs Brock]” at the end of paragraph 1.

4. I am satisfied to give that leave to amend. I do not require a formal amendment of the application and that will enable the matter to be finalised today. 

5. Mr Brock is the step-father of K and Mrs Brock is K's mother.  K's father Mr N died in September 1996.  I have before me an affidavit of Mr Frost annexing a certified copy of the death certificate of K’s father.

6. As I said, the application is made pursuant to Section 60G of the Act and that provides as follows:

   Section 60G

   (1)Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2)In proceedings for leave under subsection (1), 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) and of sections 61E and 65J.

   I also set out the paragraphs and sections of the Act referred to in sub-section 60G(2) as follows:

   Section 60F(4)(a)

   (4)The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

   (a)if a court granted leave under section 60G for the adoption proceedings to be commenced--the child ceases to be a child of the marriage for the purposes of this Act;

   Section 61E

   (1)      This section applies if:

   (a)    a child is adopted; and

   (b)immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.

   (2)The person's parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

   Section 65J

   (1)      This section applies if:

   (a)    a child is adopted; and

   (b)immediately before the adoption, a parenting order was in force in relation to the child.

   (2)The parenting order stops being in force on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

7. In support of the application I have a number of affidavits before me and they are, in turn, the affidavit of the applicant filed on 9 October 2007, the affidavit of Mrs Brock filed on 9 October 2007, an affidavit of Mr Frost filed on 9 October 2007 annexing a certified copy of the birth certificate of K, and an affidavit of Mr and Mrs N Snr filed on 26 October 2007.  They are the parents of Mr N, the father of K, and thus they are of course the grandparents of K. I have two other affidavits, which are in effect affidavits of service.  Obviously they are before me but I do not need to concern myself with those any more.

8. The next substantive affidavit is that of K herself, tendered to me today, and I have given leave for that affidavit to be sworn and to be filed and for K to be present in court. 

9. Finally, I have the affidavit that I have already referred to which is another affidavit of Mr Frost tendered today which annexes a certified copy of the death certificate of Mr N.

10. In determining this matter 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), Section 61E and Section 65J.

11. The effect of paragraph 60F(4)(a) if I grant leave, will be that K will cease to be a child of the marriage of her mother and her late father.  That flows not only from the granting of leave but then ultimately the adoption order.

12. The effect of Section 61E I have addressed in some detail with Mr Frost and that led to the application to amend the orders sought. To repeat though, the effect of Section 61E is that, if I grant leave and the adoption order is made, the parental responsibility of any person who had parental responsibility for K immediately before the adoption ceases. That applies specifically to Mrs Brock who is the mother of K. The effect of the amendment is that if the adoption order is made in favour of both Mr Brock and the mother, then they will thereafter have parental responsibility for K if there is the opportunity for that to apply, bearing in mind the closeness of her 18th birthday.

13. The effect of Section 65J is that, upon the adoption order being made and leave prior to that being granted for proceedings to be commenced, any parenting order that is in force in relation to the child ceases.  As I understand it, there is no parenting order that is currently in place, so I do not need to concern myself with the effect of Section 65J.

14. The other preliminary matter I should mention is the reference in the relevant paragraphs and sections to adoption of the child by a prescribed adopting parent.  The definition of "prescribed adopting parent" is in subsection (4)(1), and a prescribed adopting parent in relation to a child means (a) a parent of the child - and it is obviously Mrs Brock who is in that category - or (b) the spouse of or a person in a de facto relationship with a parent of the child.  That is obviously Mr Brock, given that he is the current partner of the mother.

15. Turning to the issue of whether granting leave would be in the best interests of K. Interestingly, Section 60G does not specifically provide that the child's best interests are to be the paramount consideration, unlike Section 60CA, which is relevant to most matters that are heard by this court in relation to children. Although I make that observation, I do not consider it has any specific import on whether I grant the leave today. It is just an observation by me as to why that is not the case and whether it means that there are other factors which the court should have regard to. Nothing else is identified in Section 60G, and there is also some authority in this court about this in relation to the section which preceded Section 60G - namely, Section 60AA - wherein there was no reference to "best interests" whatsoever.

16. In the case of Fogwell & Ashton (1993) FLC 92-429, it was held that in light of the fact that the child's welfare is paramount in connection with proceedings under the Family Law Act and also under the Adoption of Children Act - the relevant Act in that case was the New South Wales Act but, we are in South Australia and there is an Adoption of Children Act in South Australia - it is difficult to imagine that any significantly different principle would apply to applications for leave under Section 60AA.  In any event, I do not consider I need go outside what is in the best interests of K in determining this application.

17. Another interesting observation is that, in referring to "best interests", there is no reference in Section 60G(2) to the relevant section in the Family Law Act 1975, which is Section 60CC, which sets out what factors the court must consider in determining what is in the best interests of the child. Again, I do not know why that is but logically, in determining this issue of best interests, I should have regard to and consider the provisions of Section 60CC. If nothing else, it is a convenient guide to what factors bear upon a child's best interests.

18. Turning to Section 60CC of the Family Law Act 1975, I do not propose to deal with each subparagraph of sub-sections 60CC(2), (3) or (4), seriatim; I propose to deal with it in a global sense because it seems to me a number of matters referred to in Section 60CC are not relevant to this case.

19. I also note that this is a relatively straightforward issue for K.  Indeed she has raised the matter herself and she tells me in paragraph (3) of her affidavit that, “(t)he decision to seek a Court Order for my adoption by [Mr Brock] is entirely mine.  I made that decision after a great deal of thought and without any suggestion or prompting either by [Mr Brock] or my mother.”

20. K, although she is not yet 18, strikes me as a teenager who appears, prima facie at least, to have the maturity to make this important decision.  Obviously I take into account the strength of her views and the basis for them.  Her views and the basis for them are also confirmed in the other affidavit material that I have before me.

21. It is apparent from the affidavit material that K has an excellent relationship with Mr Brock and with her mother as well.  Indeed to go back a step - I did not mention it before but obviously in light of the amended order sought I need to consider the mother as much as Mr Brock in terms of these issues that I am now addressing - there is no suggestion that K would want anything other than, if it is necessary, for her mother to also adopt her. 

22. This wish of K is supported wholeheartedly by Mr Brock, Mrs Brock, and her grandparents, Mr and Mrs N Snr.  Referring to the affidavit of Mr and Mrs N Snr, in paragraph (4) they say they have no objection to the application.  They consider it is a very appropriate application and they support it.  They add that they believe K has been strongly a part of the family unit in which Mr Brock has been acting as the father for 12 years, and they believe that it is in her best interests that her wishes with respect to adoption by Mr Brock be acceded to by the court.  I add to that of course, I do not take it that they would have any objection to Mrs Brock being part of the adoption process and they would support that as well.

23. Significantly, there is paragraph (5) of the affidavit of Mr and Mrs N Snr where they say they understand at law K would cease to be their grand‑daughter.  They are not concerned about that and they will still treat her as part of their lives and as entitled to their estate.

24. On that note I also mention that in K's own affidavit she deposes to what advice she has been given by Mr Frost as to the effect of the adoption order upon issues such as succession and the like.

25. I am satisfied that K is going into this with her eyes wide open and having considered all relevant matters.

26. I am satisfied that both Mr Brock and Mrs Brock have the capacity to provide for the needs of K, prior to her turning 18 years of age and becoming an adult.  I am satisfied that they have demonstrated a proper attitude to K and to the responsibilities of parenthood.  K has lived with Mr Brock now for some 12 years, the relationship between Mr Brock and her mother commencing when she was approximately five.  There is nothing of any concern that has been put to me today, nor that is apparent in any affidavit material, about either the relationship or the attitude of the parents to K during that period of time.

27. I note that there is no issue of family violence and there are obviously therefore no family violence orders to take into account.

28. Finally, just to reiterate, this process will end in a significant change in K's circumstances and I am satisfied that that change is in her best interests.  In my view the evidence is overwhelmingly to the effect that granting the application would be in accordance with, and consistent with, K's best interests.  Therefore I make the orders sought.

I certify that the preceding 28 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

1 November 2007