Brooks and Sloan

[2009] FamCA 880

FAMILY COURT OF AUSTRALIA

BROOKS & SLOAN [2009] FamCA 880

FAMILY LAW – CHILDREN – Leave to commence adoption proceedings

Family Law Act 1975 (Cth) ss 4, 61C, 60CC, 61E, 60F(4)(a), 60G, 65J

Adoption Act 2000 (NSW)

APPLICANTS: Mrs and Mr Brooks

RESPONDENT: Mr Sloan

FILE NUMBER: NCC 1055 Of 2009

DATE DELIVERED: 1 September 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Austin

HEARING DATE: 1 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Ms Olsen (agent)

Bowen-Thomas & Barlow

RESPONDENT:

No appearance

Orders

1. Leave is granted pursuant to s 60G of the Family Law Act 1975 (Cth) for proceedings to be commenced for the adoption of the child …, born … May 2002, by Mrs and Mr Brooks.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC1055 OF 2009

MRS AND MR BROOKS

Applicants

And

MR SLOAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court for consideration is an Application for Final Orders filed on 30 April 2009. The Application seeks the Court’s grant of leave pursuant to s.60G of the Family Law Act 1975 (Cth) (“the Act") for proceedings to be commenced for the adoption by the applicants of the child …, born … May 2002.

2. The applicants are Mrs Brooks, the biological mother of the child, and Mr Brooks, the step-father of the child.

3. The respondent to the application is Mr Sloan, who is the biological father of the child.

Documents to be relied upon

1. In support of their application, the applicants relied upon the following documents:

   a)Affidavit of the mother filed on 30 April 2009.

   b)Affidavit of the step-father, filed in court on 1 September 2009, in fulfilment of Order 2 made by Her Honour Justice Ryan on 24 August 2009.

   c)Family Report dated 17 July 2009 authored by the Family Consultant, Ms L.

Non-appearance by the respondent

1. The respondent father did not appear before the court at the hearing of these proceedings on Tuesday, 1 September 2009, either in person or via a legal representative.  He has not appeared on any previous return date of the pending application.

2. It is nonetheless apparent that the father is aware of the plans for adoption of the child by the mother and step-father.  Annexed to the mother’s affidavit is a document entitled “Specific Consent to Adoption of a Child”, which appears to bear the signature of the father, witnessed by a registered counsellor who has apparently afforded the father the counselling envisaged by the Adoption Act 2000 (NSW).

3. When the application came before the Court on 9 June 2009, the matter was listed for hearing on 24 August 2009, and Her Honour Justice Ryan ordered that the mother file an Affidavit of Service, noting that the Application shall proceed to hearing on an undefended basis on that date in the event that the father fails to file a Response to the Application in the interim.

4. In compliance with those orders, the applicants filed an Affidavit of Service on 16 June 2009.  That document proves service of the pending Application and the affidavit of the mother upon the father in Tasmania on 4 June 2009. The father has not filed any Response or other documentation in the proceedings since the time of his service. 

5. The respondent did not appear before the Court on 24 August 2009 when the matter was originally listed for hearing. On that date the matter was adjourned to 1 September 2009.

6. I am satisfied on the evidence that the father has been properly served with the Application, that he is aware of the nature of the application being pressed, and that he has decided to voluntarily absent himself from the hearing.

7. In the circumstances, the Court will determine the application in his absence, as was envisaged by Her Honour Justice Ryan when she made Order 4 on 9 June 2009.

Background History

1. The mother was born in 1974.  She is presently aged 35 years.

2. The step-father was born in 1981 and is presently aged 28 years.

3. The respondent father was born in 1979 and is presently aged 30 years.

4. The mother and father commenced cohabitation in July 2001.  They initially lived in Newcastle before relocating to Tasmania.  The subject child was the only child born to their relationship.  She was born in May 2002 in Tasmania, and is presently aged seven years and three months.

5. The mother and father separated in May 2004, following which the mother and child returned to regional New South Wales, from Tasmania.  The father remained in Tasmania.

6. In October 2004, the mother commenced a relationship with the step-father.  They commenced cohabitation in April 2005 and were married in 2007.

7. The mother and step-father have since had a child together, being a daughter, born in November 2007.

8. The mother, step-father, their daughter and the child form a family unit and intend to continue so doing.

9. The mother and step-father now wish to adopt the child as their own and to formally change the child’s surname to “Brooks” for the purposes of consistency within their household.

Legislative framework

1. For the purposes of determination of the application brought pursuant to s 60G of the Act, the Court must consider whether granting leave for proceedings to be commenced for the adoption of the child would be in the child’s best interests.

2. The child’s best interests are determined by analysis of the criteria set out within s 60CC of the Act.

3. As the spouse of the biological mother of the child, the step-father is a “prescribed adopting parent” within the meaning of that phrase as defined in the Act (s.4).

4. Should leave be granted pursuant to s.60G of the Act for adoption proceedings to be commenced in respect of the child, the child will cease to be a child of the marriage between the mother and father (s.60F(4)(a)).

5. If leave to proceed with the adoption by the mother and step-father is granted pursuant to s 60G of the Act, and the adoption of the child subsequently proceeds, then the father’s parental responsibility for the child will terminate (s 61E).

6. According to the evidence, there are presently no parenting orders in existence in relation to the child, and so the father presently continues to have parental responsibility in respect of the child (s 61C). In the absence of parenting orders, s 65J of the Act will have no effect upon the child or the father following upon the completion of her intended adoption.

7. On 24 August 2009, Her Honour Justice Ryan made a request that the solicitor for the applicants make inquiry and later inform the Court whether the NSW Department of Community Services (now the Department of Human Services) ordinarily prepares a pre-adoption report in respect of a family prior to an application for adoption being made in the Supreme Court of NSW. The Court was informed by the applicants’ solicitor that a pre-adoption report is prepared by the Department at or about the time that adoption proceedings are commenced in the Supreme Court, but not at the preliminary stage of the applicants seeking a grant of leave pursuant to s.60G of the Family Law Act in the Family Court of Australia.

Child’s best interests – primary considerations

1. The child has a meaningful relationship with the mother.  At the time of the separation between the mother and father in May 2004, the child was aged two years.  Since then the child has lived exclusively with the mother within the regional district of New South Wales.

2. The father has continued living in Tasmania since the time of separation in May 2004.  The evidence discloses that the father and the child have spent no, or perhaps very little, time together since the time of that separation, and that any communication between them by telephone has been rare and not recent.

3. The child has informed the Family Consultant that she did not remember the father and that she has no recollection of living anywhere else other than with her mother (and then later also with the step-father) and at her grandmothers’.  She has no recollection of her time in Tasmania whilst she was an infant.

4. The evidence dictates a conclusion that the child does not have a meaningful relationship with the father.

5. There is no evidence that the child requires protection from physical or psychological harm.  She is not subjected to, and has not been exposed to, abuse, neglect or family violence.  Those observations apply equally to her treatment at the hands of the mother, step-father and father.

Child’s best interests – additional considerations

1. The child is barely seven years of age.  She appears to have matured within normal parameters.

2. The child has not expressed any view about the proposed adoption.  She is not apparently cognisant of it.  She has recently been informed that the step-father is not her biological father.  She appeared to the Family Consultant to have some awareness of that fact when it was discussed with her.  Nevertheless, she identifies herself as a member of the Brooks family and clearly expects that she will continue to reside as part of that family.

3. The child has reported to the Family Consultant that she enjoys a very close relationship with her mother, step-father, sister, maternal grandmother, and step-paternal grandparents, all of whom live within the district.

4. The Court was informed that, although the child is formally enrolled at school in the surname “Sloan”, she is otherwise unofficially known by the surname of “Brooks” so as to maintain consistency within the applicants’ household. Given the child’s ignorance of her biological father, there is no evidence to suggest, and little reason to believe, that her sense of identity or self has been disturbed by that circumstance. However, it is vital as she grows older that the child is known consistently by the one name.

5. The father appears to be a relatively enthusiastic supporter of the proposal for the child’s adoption by the mother and step-father.  He was interviewed by the Family Consultant by telephone and informed her that he supported the application, as he would prefer not to have to pay child support and that he believed that the child is happy and well cared for by both the mother and step-father.

6. The father remains living in Tasmania in another domestic relationship, to which he has other children. I draw the only available inference that the father has focussed his attention on his new family unit, and would prefer to distance himself from the child, whom he regards as forming part of another family unit. He does not intend that there be any intermingling between those family units.

7. On 16 September 2008, the father attended to the completion of a document entitled “Specific Consent to Adoption of a Child”.  In that document the father recorded his consent to the child’s adoption by the mother and step-father and verified that he had received counselling in respect of the application as required under the Adoption Act 2000 (NSW). He furthermore verified his understanding of the effects of adoption, and confirmed his consent to the adoption proceeding.

8. I conclude that the father willingly encourages a close and continuing relationship between the child and the mother, which also necessarily involves the child’s closeness to other important persons in the mother’s life. His encouragement of that relationship is so willing that he excludes himself from it.

9. The mother and step-father clearly have the capacity to provide for all of the child’s physical, intellectual and emotional needs.  The child is warmly supported in a close and loving family network within the same local community. The mother and that supportive family network have demonstrated a positive attitude towards the child and the maintenance of her welfare.

10. But for some historical and irregular telephone communication between the father and the child, there has been no meaningful contact between them.  The child does not even really remember the father.  Completion of the proposed adoption process will therefore have no practical effect on the day-to-day life of the child.

CONCLUSION

1. The significance of the application now brought pursuant to s 60G of the Act is really the proposed severance of the biological connection between a parent and a child, and the usurpation of the rights, duties and responsibilities that attend such a relationship pursuant to law.

2. If leave is granted pursuant to s 60G of the Act for proceedings to be commenced for the child’s adoption by the mother and step-father then subsequent completion of the adoption process will expunge the father from the life of the child. That can conceivably have emotional repercussions for the child later in her life.

3. I am satisfied on the evidence adduced that adverse repercussions for the child are unlikely.  She is apparently thriving in her current family network. The evidence establishes that the child’s best interests are served by the Court granting leave for proceedings to be commenced for her adoption. I will so order.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Austin

Associate: 

Date:  1 September 2009