Carter and Jackson

[2009] FamCA 60

FAMILY COURT OF AUSTRALIA

CARTER & JACKSON [2009] FamCA 60

FAMILY LAW – ADOPTION – By step-parent – Leave to commence proceedings – Child’s best interests

Family Law Act 1975 (Cth)

APPLICANTS: Mr and Mrs Carter

RESPONDENT: Mr Jackson

FILE NUMBER: MLC 9601 of 2008

DATE DELIVERED: 2 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 2 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr A.B.J. Combes

SOLICITOR FOR THE APPLICANT: Still & Co

COUNSEL FOR THE RESPONDENT: NA

SOLICITOR FOR THE RESPONDENT: NA

Orders

1. Pursuant to the provisions of s. 60G(1) of the Family Law Act 1975 Mrs Carter and Mr Carter be and are hereby granted leave to institute proceedings in a court of competent jurisdiction in the State of Victoria seeking the adoption of the child … born … December 1997.

2. The operation of paragraph 1 hereof be and is hereby suspended until 4:00pm on Monday 16^th March 2009 or further order of the Court.

3. The engrossment of this order be expedited forthwith.

4. The applicants cause a sealed copy of this order to be served on the respondent Mr Jackson personally within 7 days.

5. Liberty be reserved to the said Mr Jackson to apply to vary or set aside these orders, any such application to be filed and served no later than 4:00pm on Tuesday 10^th March 2009 and be supported by an affidavit or affidavits explaining his non appearance this day together with any other appropriate matter.

6. All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

7. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9601 of 2008

MR AND MRS CARTER

Applicants

And

MR JACKSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application by the biological mother and her husband for leave pursuant to section 60G(1) of the Family Law Act 1975 (“the Act”), to commence adoption proceedings in respect of the child of the wife and her former husband, the biological father. The child is a daughter who was born in December 1997 and is accordingly 11 years of age.

2. I am satisfied on all the material that the respondent to the application, Mr Jackson, the biological father, has notice of these proceedings.  I have read an affidavit of service filed on 30 January 2009 and sworn by Mr FI have also read an affidavit of Rohan David Murray, the solicitor for the applicants, filed on 30 January 2009 and particularly paragraphs 10 to 16 inclusive which detail a telephone conversation which took place between Mr Jackson and Mr Murray on 29 January 2009.

3. By virtue of Mr Jackson not participating in these proceedings and indicating to Mr Murray his general understanding of the nature of the relief which was being sought, the normal evidentiary practice would be that the Court would be more likely to accept the evidence in support of the applicants. I have read that material.  It is consistent, credible and in all the circumstances it is appropriate for me to accept it.  That satisfies me of the following matters. 

BACKGROUND FACTS

1. The applicants met in 1984 when they were at school together.  They commenced living together in March 2001 and married in March 2007.  They have accordingly been in a relationship for approximately eight years and describe that relationship as being stable.  They have two children by their relationship, both boys, one born in February 2002 and the other born in October 2004.

2. Mrs Carter was born in August 1971.  Her present husband, Mr Carter, was born in September 1968.  I have details of her childhood, her education and her previous employment, none of which raises any issue in this application.  Mrs Carter was previously married in April 1995 and that marriage broke up. 

3. Mrs Carter met Mr Jackson with whom she lived together for approximately six weeks in what she describe as a short-term casual relationship.  She had some difficulty in terminating that relationship.  There was a small amount of contact and communication between the child and Mr Jackson in her first 12 months.  He appears to have bought her a cot and a pram, a teddy, and paid some of Mrs Carter’s rent.

4. Mrs Carter and the child remained living near her family and then moved to regional Victoria in about July 1998 and then to Melbourne.  It would appear that from about that time, Mr Jackson has had extremely limited contact with the child.  He visited once in July 1998 following their return to Melbourne and in December, Mrs Carter and the child travelled to Sydney to enable him to spend some time with the child for her first birthday.  I accept that he did not appear to be interested in the child neither he nor his family have sought or had any contact with the child since December 1998. 

5. Mr Jackson has not made any contribution, either financial or non-financial, to the child or Mrs Carter since then.  In particular, that means no child support has been paid.  The Child Support Agency in 2006 contacted Mr Jackson who apparently denied paternity of the child.   He made contact with one of Mrs Carter’s uncles and left a message for her to contact him, which she did not do, in my view quite reasonably.  In 2006 the Child Support Agency informed her that they had located Mr Jackson but she told them that she did not want to collect the maintenance, as she and Mr Carter were planning to have the child adopted by themselves. 

6. I accept that the child, together with Mr and Mrs Carter and their children, B and T, are a family which is mutually supportive and very close.  I accept that the child has a strong and loving relationship with Mr Carter and with the rest of the family, particularly the two younger boys.  The child is aware that Mr Carter is not her father in the same way as he is to B and T.  She feels differently towards what are described as her step-siblings despite all that she and Mr Carter say and do to reassure her.  She is aware that Mr Jackson is her biological father but she feels insecure in relation to her position in the Carter family.  The family is close to Mr Carter’s parents.  Mrs Carter has known them since she was 13 or 14 years of age.  They are supportive and appropriately so, as caring grandparents. 

EXPERT EVIDENCE

1. As part of the material, I have two statements of expert opinion with regard to this matter.  The first is a report by Ms S, dated 26 September 2006.  It would appear that the child-

   tends to struggle academically and presents as lacking in confidence, both in herself as a person and as a learner.  She does show signs of considerable anxiety and insecurity.  She can be reluctant to attend school.

   …

   In working with [the child], it was noted that she tends to see herself as different from her siblings, commenting on the fact they have a surname which is different from her.  [The child] appears to enjoy a good relationship with her stepfather who for all practical purposes is the only father she has known.  Recently, Mrs [Carter] asked my opinion about the proposal for her partner to formally adopt [the child].  It is my professional opinion that this would have significant benefits for [the child].  The need to belong is a basic human need and being officially recognised as the same as her siblings with the same surname should enable [the child] to have this sense of belonging.  It could go a long way towards developing greater confidence, self-esteem and thus reduce her level of anxiety which is currently impinging on her personal and educational development.

2. The second expert report dated 7 August 2008 is from Ms P who is team leader and senior mental health clinician at the Child and Adolescent Mental Health Service in the local area.  She has assessed the child as presenting -

   with some moderate depressive disorder, along with anxiety and attachment difficulties. Her emotional and behavioural affect dysregulation appears to be reactive to her perception of herself and in the context of her family.  She clearly is struggling with a sense of belonging and her distorted cognitive beliefs in regard to not being part of a family since the arrival of her younger siblings.  I would therefore support any directions made by the family in order to formalise a family environment that reinforces her special place as a family member.

   Ms P supports the present application.

DISCUSSION

1. I now turn to a consideration of the legislation and the exercise of discretion. I find that for the purposes of section 4(1) of the Act, Mr Carter is a prescribed person in accordance with the definition contained therein.

2. I am required to consider whether granting leave pursuant to section 60G(1) "would be in the child's best interests, having regard to the effects of section 60F(4)(a) and of section 61E and 65J".

3. I turn now to section 60F of the Act. In particular, the provisions relating to a child of a marriage who is adopted by a prescribed adopting parent has the consequence of the child ceasing "to be a child of the marriage for the purposes of this Act". It is therefore to be emphasised that while I am not actually making an order for adoption, the making of the order which is sought before me in effect informs the Court of competent jurisdiction, that is the County Court of Victoria, that in the view of this Court, it would be in the interests of the child for that application to proceed. It does not mean that this Court is asking the County Court of Victoria to make such an order.

4. Pursuant to section 61E of the Act, in the event that adoption is granted, the rights and responsibilities of Mr Jackson pursuant to the Act with regard to parental responsibility are then immediately nullified. That illustrates the seriousness of the relief presently sought. In that respect, I also refer to the provisions of section 65J which has the effect of extinguishing any parenting orders.

5. I must then consider the child’s best interests in determining this application.  To that extent I must take into account the various primary and additional factors which are relevant to the child’s best interests.  The relevant factors to my mind start with the proposition that there is a lengthy status quo of parenting of the child for most of her life, not just by her biological mother but by Mr Carter, her social father.  It would appear that on the basis of all the expert evidence and on the basis of the material to which I have referred, the child does not have the sense of identity which she would acquire were she to be adopted by Mr and Mrs Carter together.  While this is not necessarily applicable to all children, it is clear that it applies in this particular case.  She would appear to have some developmental difficulties, although hopefully at this stage not too advanced, and all of the evidence points towards the proposition that adoption is a realistic possibility for enabling her to improve those difficulties and to live a happy and fulfilled life.

6. In those circumstances, it appears to me to be overwhelmingly in the child’s best interests that the order should be made and I will order accordingly.

7. I should also mention that the initiating application in this matter sought parenting orders on behalf of Mr Carter as well as Mrs Carter.  I think the abandonment of that suggestion is an entirely appropriate one.  Mr Jackson does not seek to exercise any of the rights which he has pursuant to law with regard to parenting of the child and in those circumstances, particularly given that the adoption application will be made as soon as practical, there is no need for those orders to be made. 

8. Before I make the orders, I should also note that by virtue of his absence today and his rights of natural justice, I propose suspending the operation of this order for a period of six weeks to require service on him of the orders which I will make and reserving to him liberty to apply to vary or set them aside.  There will not be any need for the applicants to make further application to the Court.  It is only possible that they may have to respond to an application by Mr Jackson.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  6 February 2009