Church & Anor and Baxter

[2018] FamCA 105

FAMILY COURT OF AUSTRALIA

CHURCH AND ANOR & BAXTER [2018] Fam 105

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the whereabouts of the biological father is unknown – Order that leave be granted

Family Law Act 1975 (Cth) s 60G, s 61E
Adoption Act 2009 (Qld)
Family Law Rules 2004 (Cth)

FIRST APPLICANT: Mr Church

SECOND APPLICANT: Ms Baxter

RESPONDENT: Mr Baxter

FILE NUMBER: BRC 13089 of 2017

DATE DELIVERED: 26 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 February 2018

REPRESENTATION

THE APPLICANTS: Self- represented

THE RESPONDENT: No appearance

Orders

1. That pursuant to rule 7.18 of the Family Law Rules, service of the Application of the applicants and their supporting affidavit material upon the respondent, is dispensed with.

2. That leave is granted pursuant to s 60G of the Family Law Act the Applicants, Mr Church and Ms Baxter, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child B born … 2006, by her stepfather, Mr Church.

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 Church and Anor & Baxter 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 13089 of 2017

Mr Church

First Applicant

And

Ms Baxter

Second Applicant

And

Mr Baxter

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application filed in December of last year and a further amended Initiating Application filed 26 January this year, Ms Baxter and her husband, Mr Church, both seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth), they be granted leave to commence adoption proceedings for the adoption of Ms Baxter’s child, B born 2006, by her stepfather and the husband of Ms Baxter, Mr Church, who is one of the applicants. The child is now 12 years of age.

2. The person named as the respondent to the application is Mr Baxter, who Ms Baxter deposes is the child’s biological father. The applicants also seek an order that the requirement for service of the Application and the supporting affidavits upon Mr Baxter be dispensed with as Ms Baxter has deposed in her affidavit evidence that the whereabouts of Mr Baxter is unknown.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act 2009. It is a piece of Queensland legislation, not Commonwealth. Under that legislation, a stepparent of a child may apply to the Chief Executive of the Queensland Department of Child Safety, Youth and Women to arrange an adoption of his or her stepchild, provided that a number of preconditions are met. Those include that the stepparent is a spouse of a parent of the child; that the parent, the stepparent and the child all live together; that the adults have been spouses and both living together with the subject child for a continuous period of at least three years up to the time of the application.

2. They also include the requirement that the stepparent applicant be an adult and an Australian citizen, or at least the spouse of the applicant must be an Australian citizen. They must also reside in Queensland and, interestingly, not be of the same gender as their spouse. The child must be at least 5 years of age and not yet 17. Finally, the stepparent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act.

3. Section 60G of the Family Law Act is as follows:

   (1)Subject to subsection 2 the Family Court 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.

4. Section 61E of the Act provides as follows:

   (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.

5. If this court grants leave to proceed to commence adoption proceedings pursuant to s 60G and then an adoption order is made in favour of Mr Church and Ms Baxter by a State court under the Adoption Act, any parental responsibility that pre-existed the adoption order in accordance with the provisions of the Family Law Act, immediately ceases. That is, the biological parents of the child, in this case particularly Mr Baxter, will no longer have parental responsibility in respect of the child pursuant to the Act and any orders that were already in place in respect of parenting matters would automatically cease.

6. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to s 60G. A current parenting order stops being in force if the child is adopted.

7. I consider it sufficient to say that in proceedings for leave for proceedings to be commenced in the State court by a stepparent seeking the adoption of a child, that this Court must consider whether the granting of that leave would be in the child’s best interests, having regard to the effect of a number of other important sections of the Family Law Act.

8. Essentially, the effect of those critical sections of the Family Law Act to which regard must be had when considering the child’s best interests is that on the granting of an adoption order pursuant to State legislation, any pre-existing parental responsibility rights or rights in respect of the child spending time with or living with the other parent, immediately cease.

9. However, in the circumstances of this case, that will not matter insofar as parental responsibility is concerned for Mr Baxter, because Ms Baxter already has sole parental responsibility for the child under orders made pursuant to s 61C(1) of the Act. Interestingly, since the parties separated, Mr Baxter has been assessed as having a child support liability and an obligation to pay child support for the child to the Child Support Agency. Ms Baxter’s evidence, which I accept, is that she has never received any financial support from Mr Baxter for the child.

10. Mr Church is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Act, a person within the definition contained. 

Some history of the matter

1. Ms Baxter has given evidence that in 2000 she married Mr Baxter in New Zealand. Ms Baxter alleges that both she and the child suffered severe family violence at the hands of Mr Baxter both before the child was born, and for the duration of the relationship. Ms Baxter obtained a divorce from Mr Baxter on 21 April 2008.

2. The evidence, which I accept, is that the child has not seen her father since December 2006 when she was just under one year of age. This is now over 11 years ago. I also accept that it is most likely that she would have absolutely no memory of Mr Baxter as a consequence.

3. Ms Baxter last had contact with Mr Baxter, she said, when he left Australia sometime in 2009. Despite there being an existing departure prohibition order put in place by the Child Support Agency (“CSA”), somehow Mr Baxter left Australia and did so without leaving a forwarding address and without informing Ms Baxter or the child. Since then, Mr Baxter’s location has been unknown despite the best efforts of the CSA to locate him. The applicants are limited in what information they can put before the court by way of evidence supporting that proposition, however, Ms Baxter asserts that in or about late 2013, Mr D, of the Departure Prohibition section of the CSA said that the Departure Prohibition Department of the Non-Compliance Department of the CSA had “exhausted their efforts” to try and find Mr Baxter.

4. Apparently as at 19 September 2016, Mr Baxter was recorded as owing the sum of $55,745.14 to the CSA by way of unpaid child support that he was liable to pay in respect of the child B.  Ms Baxter has not received any child support since that time either.

5. On 25 February 2014 the Magistrates Court of Queensland made an order on the application of Ms Baxter that the child’s surname be changed to the mother’s maiden name. On 28 November 2016 Judge Howard of the Federal Circuit Court here in Brisbane awarded Ms Baxter sole parental responsibility for the child. On both those occasions there was no appearance by Mr Baxter before the Court.

6. When making the final orders for sole parental responsibility in Mr Baxter’s absence, Judge Howard was satisfied, he said, that Mr Baxter could not be located. To prevent Mr Baxter applying to have those orders Judge Howard made set aside pursuant to r 16.05 of the Family Court Rules, Judge Howard required the Mother to serve a copy of the Initiating Application, that Affidavit and his Order on Mr Baxter via Facebook and then to file and serve an Affidavit confirming that such service had taken place. In respect of the evidence about that, I accept and find, to the extent that it is necessary, that despite having found an old Facebook page that belonged to Mr Baxter and attempting to upload the documents that she was required to by the Court, Ms Baxter was not able to do so because she could not access the Facebook site due to it having been shut down because of the prolonged period of time since Mr Baxter had apparently accessed or used that page.

7. In respect to other relevant matters, Ms Baxter met Mr Church in early 2014 when the child was just eight years of age. Their story is a good news story.  Good news stories like this are relatively infrequent in this court. Indeed, the affidavit evidence of the parties establishes that Mr Church’s relationship with the child began a couple of months later in March 2014.

8. In or about April 2014 Mr Church started living together with Ms Baxter and the child at their property in C Town and on or about 20 July 2014 they all moved into a property together at a different location in C Town. During this time, on 12 July 2014, Mr Church and Ms Baxter married each other.

Best interests

1. The test for me to consider this morning is whether it is in the child’s best interests for leave to be granted for her stepfather, Mr Church, to commence an adoption application. In the process of considering that question, I must have regard to, relevantly, the provisions of s 60CC and s 60CD of the Family Law Act as well.

2. Section 60CC (3) includes a list of many things that must be considered by the court in determining what is in the best interest of the child. It includes, importantly, any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that go to the weight that should be given to any of those views expressed by the child that the Court thinks are relevant.

3. The evidence that I have read, being two affidavits of Ms Baxter and an affidavit of Mr Church, convinces me without a doubt that the child relates to Mr Church in what can only be described as a father and daughter style relationship.  That has to be considered to be a normal, healthy, happy, father and daughter relationship from what I have read.

4. The child has been living with her mother since she was born, and now also with Mr Church since she was about eight years of age. Apparently, according to the evidence which I accept, the child calls Mr Church “Dad” and has asked him if he would adopt her. Ms Baxter says that the child “Loves him dearly and wants to be part of a ‘real’ family”.  She also says what a wonderful and respectful father Mr Church is to the child and how Mr Church involves himself in the child’s educational and extracurricular life. In particular, he drives her to and from school and attends all of her concert, school event and parent/teacher meetings to support her.  Importantly, Ms Baxter says that the child struggles with the idea that Mr Church is not ‘officially’ her father.  She says that this is particularly difficult for her in social interactions at school.

5. It is notable also in the evidence that the child intends to pursue a firm relationship with Mr Church’s mother who she has written to.

6. Mr Church has also sworn an affidavit in which he deposes to his love and commitment to his partner Ms Baxter and to the child who he now regards as his daughter.

7. Fortunately for the child, she has had, and continues to have, as I read the material, a very loving, caring father in Mr Church who has played and continues to play a very active and important role in her life.

8. I was particularly impressed with the affidavit evidence that said that Mr Church drives the child to school and that he particularly chose a work office nearby to her school. That certainly demonstrates not only a loving, caring relationship, but one that exudes thoughtfulness, patience and a total commitment to being the child’s father on Mr Church’s part. 

9. I was also impressed in this case with Ms Baxter’s evidence that the child’s relationship with Mr Church is such that she considers Mr Church to be her father and feels comfortable to talk to him on many subjects.

10. Ms Baxter asserts that it is even more important that leave should be granted for Mr Church to become the child’s stepfather in case anything happens to Ms Baxter, as the child’s only biological relative otherwise living is her maternal grandmother who currently resides in Israel.

11. Indeed, I also read a letter that was attached to one of the affidavits that was written by the child, its sentiment seemed heartfelt and genuinely considered and demonstrated that this twelve year old girl seemingly desperately wants a situation put in place where Mr Church becomes her adopted father and she can become part of what she regards as a “real” family.

Conclusion

1. In conclusion, having considered all of the matters that I have just referred to and considering all the principles that I have referred to, namely the fact that I must be satisfied that the granting of leave is in the best interests of the subject child, I am more than happy to say in this case that I am completely satisfied that it is in the child’s best interests for Ms Baxter and Mr Church to be given leave to be able to commence, as soon as they possibly can, proceedings in the State courts of this State for an order granting the adoption of the child. 

2. I am also satisfied having regard to the provisions of rule 7.18 that service of the application and the supporting affidavit material upon Mr Baxter should be dispensed with and I will so order.

3. In deciding that, I have had consideration to the matters set out in rule 7.18(2). In particular, I am satisfied that the subject matter, that is the nature of this particular application, being an application for the parties to be able to proceed with an adoption application, is such that when combined with all of the evidence about the lack of involvement of Mr Baxter in the child’s life for the last ten years and his apparent disappearance and unwillingness to have any involvement in her life, particularly demonstrated by his failure to pay any child support at all in the past, and his demonstrated failure to have any contact with her, the dispensation of service is entirely appropriate.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 February 2018.

Associate: 

Date:  27 February 2018