Broydon and Broydon and Anor

[2019] FamCA 1016

FAMILY COURT OF AUSTRALIA

BROYDON & BROYDON AND ANOR [2019] FamCA 1016

FAMILY LAW – ADOPTION – leave to make an application pursuant to the Adoption Act 2009 (Qld)

Family Law Act 1975 (Cth) s 60G
APPLICANT:	Mr Broydon

FIRST RESPONDENT: Ms Broydon

SECOND RESPONDENT: Mr Rose

FILE NUMBER: BRC 3690 of 2019

DATE DELIVERED: 28 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 28 November 2019

REPRESENTATION

THE APPLICANT: Self-represented

THE FIRST RESPONDENT: Self-represented

THE SECOND RESPONDENT: Self-represented

Orders

1. That pursuant to Section 60G of the Family Law Act 1975 the Applicant, Mr Broydon be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the children, Y ROSE born … 2009 and Z ROSE born … 2010.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Broydon & Broydon & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3690 of 2019

Mr Broydon

Applicant

And

Ms Broydon

First Respondent

And

Mr Rose

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. Y, born … 2009, and Z, born … 2010, (collectively “the children”) are two children conceived in a relationship of sorts, between the Second Respondent biological father, Mr Rose (born … 1962, soon to turn 57 years of age) and the First Respondent biological mother Ms Broydon (born … 1983, now aged 36 years).  The history of this matter does not require complete summary.  Suffice it to say that the children were conceived at a time when the biological father was, and had been for some years, in the role as a stepfather of the mother.  The circumstances of that relationship have been found by a criminal Court, as being unlawful.  In that, on or about … 2019, the Second Respondent Mr Rose was convicted of sexual offences against the mother and her sister, Ms B, and sentenced to a head sentence term by the District Court of New South Wales, to imprisonment for 12 years.  He is currently in a prison, and appears from prison today without representation.

2. The Second Respondent says he is eligible for parole after serving eight or so years of his sentence. He acknowledges on that basis that he could not reasonably expect to be released from incarceration much before the end of 2027. At that time, Y will be an adult over the age of 18 years, and Z will be 17 and a half years of age. The Application before me today is an Application by Mr Broydon, who seeks leave pursuant to section 60G of the Family Law Act1975 (“the Act”), to commence adoption proceedings in the Queensland jurisdiction, in respect of Y and Z.  Mr Broydon, who appears himself today, unrepresented, has been the husband of the mother since their marriage in 2015.

3. He says, and I accept, that he commenced cohabitation with the mother approximately 12 months earlier.  Mr Broydon, who works for himself in a small business, is currently 46 years of age.  I am satisfied from the evidence I have before me that the Department of Child Safety in Queensland placed the children Y and Z (who until that stage had been the subject of child protection and welfare orders in both New South Wales and Queensland, it seems) in the care of the mother on 11 May 2018.  At that stage, of course, the Applicant in these proceedings, Mr Broydon, was a member of the household.  The children have continued to live in the household with the mother and her husband since that date.

4. For completeness, there has been no physical or other communication between the children and the biological father, the Second Respondent, for some years, the circumstances for which have already been explained.  In parenting applications before this Court, which resulted in orders made by the Court on a final basis on 16 September 2019, the Court had then – and the Court refers to now in respect of this Application – an  Affidavit by Child Safety Officer, Ms C that had been filed on 11 March 2019, and sets out a detailed history of some of the challenges the mother personally had earlier in her parenting journey, and why, after significant therapy, investigation, home visits and assessment, the Child Welfare Department found it in the best interests of the children that the children live with their mother.

5. Consequent upon that decision and ultimately, child welfare orders were terminated which enlivened the Family Court of Australia’s jurisdiction to make a parenting order.  The parenting Orders that were made on 16 September 2019 were in the following form:

   “1. All previous orders be discharged.

   2. That the children Y ROSE born … 2009 and Z ROSE born … 2010 (“the children”) live with the mother.

   3. That the mother shall have sole parental responsibility in respect of all major long term issues of the children.

   4. That the children spend no time with and shall not communicate with the father unless agreed in writing by the mother or by an Order of the Court.

   5. That the Independent Children’s Lawyer be discharged.”

6. And contained the following notation:

   “A. That these Orders have been shaped by:

   a.the Respondent not seeking any orders from the Court;

   b.the Respondent being incarcerated;

   c.the evidence before the Court, particularly the Affidavit of Ms C on behalf of the Department which provides a history and recommendations with respect of the children.”

7. Despite directions made by this Court on 8 August 2019 for the parties to file material, no further material was filed by the Applicant, Mr Broydon.  No material, including a Response, has been filed by the Second Respondent, Mr Rose.  In these unusual circumstances therefore, the transcript will show that I caused both Mr Broydon and Mr Rose to be sworn or affirmed, and I asked them questions about the current situation and the best interests of the children.  I am satisfied that Mr Broydon has been a member of the household at least since the children have been living there in May 2018.  I have no reason to doubt that he has a good relationship with the children, although probably stronger with Y because of their shared interest in things like fishing, boating and soccer.  He says, and I accept, that Z is more of a “mummy’s girl,” and prefers to do female pursuits with her mother.  As a result of seeking to meet the best interests of the children, noting that Y has been diagnosed as being on the spectrum, and Z has been assessed as having some intellectual impairment, they have changed the children’s schools, and in Z’s case, have changed it twice.  Mr Broydon indicates that the change for Z was a result of a concern that she was being bullied at the first school selected.  As a result of the changes, Y, who is in grade five now, and Z, who is in grade four, go to different schools.

8. Mr Broydon says, and I accept, that this has possibly been a positive for the children’s relationship as they can, I infer, speak about their school with their sibling more freely. Mr Broydon says that his relationship with the children is such that he would like to adopt the children. I have indicated to him today that although he is accompanied today by the biological mother of the children, that it is not in the Court’s power to order that he can adopt the children. It is clear under Section 60G of the Act that it is a two stage process for adoption, and that I am merely being asked to consider whether the application can proceed.

9. Section 60G of the Act states:

   “60G  Family Court may grant leave for adoption proceedings by prescribed adopting parent

   (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), or paragraph 60HA(3)(a), and of sections 61E and 65J.

10. The biological father opposes leave being given.  He says, under oath, that:

    “The kids are mine.  I love them, and I don’t want them to change their name”.

11. When he made a suggestion during his evidence that he may have been wrongly or unfairly convicted of sexual offences against the mother, notwithstanding the conviction, he said that he is appealing his conviction in relation to the mother’s sister Ms B, but is not appealing the conviction in relation to the mother.  The Second Respondent says also that the children were “born Rose.” and he wants them to be comfortable with that surname.  He seems to have no understanding that the children’s biological mother and primary carer under orders that the Court made, now chooses, perhaps understandably, to use her married name of Broydon.

12. I am not satisfied from the limited evidence I have that the father has demonstrated any level of insight into what might be the best interests of the children, but rather he seems to see it more from his perspective of him being their biological father, and having rights. Of course, if leave is granted today, and it will be, the biological father will still be engaged in the application in the State jurisdiction, about adoption being granted. There a number of tests that have to be satisfied. That is a matter for the State Court. However, I am satisfied it is in the best interests of Y and Z that Mr Broydon have leave, pursuant to Section 60G of the Act, to pursue in the Queensland jurisdiction, adoption of the children. I make that order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 November 2019.

Associate:

Date:  30 January 2020