Crocker & Anor and Unknown

[2012] FamCA 829

FAMILY COURT OF AUSTRALIA

CROCKER AND ANOR & UNKNOWN [2012] FamCA 829

FAMILY LAW – CHILDREN –Adoption – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act – Dispense with service – Where Respondent is and has been unknown

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FLC 92-429

APPLICANTS: Ms Crocker and Mr Crocker

RESPONDENT: Unknown

FILE NUMBER: BRC 8267 of 2012

DATE DELIVERED: 28 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 September 2012

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: Unknown

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child M born … April 1995 (“the child”).

IT IS FURTHER ORDERED THAT

1. Leave is granted to the Applicants to dispense with the necessity for service.

NOTATION: In respect of the requirement to dispense with service, the child’s father is, and has, at all times been unknown.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8267 of 2012

Mr Crocker & Ms Crocker

Applicants

And

Unknown

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. M, was born in April 1995 (“the child”), and is therefore currently aged about 17½ years of age.  She was born of a brief union between her mother and person known to the mother only as “B”. 

2. M’s birth certificate does not record a father for her.  There has been no contact between the mother and M’s father since the night of conception. The mother does not know B’s surname or address nor has she ever known either of those things.

3. In about August 2007 the mother commenced living with her now husband, Mr Crocker. They married on 26 September 2008. Mr and Ms Crocker now apply for leave for Mr Crocker, as the child’s step-parent, to adopt her pursuant to s 60G of the Family Law Act1975 (“the Act”).

4. As Chisholm J remarked in Fogwell & Ashton (1993) FamCA 113:

   It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter court’s ordinary jurisdiction.  Nevertheless, that is the consequence of the provisions of the Family Law Act1975 (“the Act”).

5. His Honour went on to say:

   In these undefended proceedings, it is appropriate for this court to rely on the presumption that the relevant provisions of the Family Law Act are constitutionally valid.  I note, however, that for reasons developed by Dr Jessep in a jointly-authored article, their validity may well be arguable:  C.O. Jessep and R. Chisholm, “Step-parent adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179 at 182-185, discussing, in particular, Re LSH; ex parte RTF (1987) 75 ALR 469.

6. These proceedings, too, are, obviously enough undefended and the applicants represent themselves. Understandably enough, no argument is addressed in respect to the constitutional validity of the provisions of the Family Law Act. In this ex tempore judgment, I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings. 

7. Adoption of children in this state is governed by the Adoption Act2009 which came into force on 1 February 2010. 

8. That Act specifies criteria different to those in the previous State Act. Critically, the Act requires prospective adopting stepparents to satisfy, in addition to previous criteria, two new criteria, namely that the relevant child or children is or are at least five years old and not yet 17, and secondly, that this court has granted leave to adopt. Further, a natural parent must, absent an order of the court dispensing with same, obtain consent of the other parent, irrespective of whether the natural parents of the children were married.

9. Section 60G of the Family Law Act1975 (“the Act”) was inserted into the Act in 1995 after the decision in Fogwell & Ashton, to which I have earlier referred, in which his Honour Chisholm J considered whether the criterion of best interests applies to an application for leave to adopt. The Act now makes it plain that a decision whether to grant leave is governed by a determination of best interests (section 60G(2)). The note to that section makes it plain that familiar best interest considerations, contained in section 60CC of the Act, apply.

10. While, as has been observed, the failure to obtain leave now has consequences under the (new) State Act, it also has consequences under the Act. Section 61E of the Act provides:

    (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)[Parental responsibility ends on adoption of child] The person’s parental responsibility for the child ends of 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.

11. The expression “prescribed adopting parent” is defined in s 4(1) of the Act as follows:

    Prescribed adopting parent in relation to a child means:

    (a)     a parent of the child; or

    (b)the spouse of, or a person in a de facto relationship with, a parent of the child; or

    (c)a parent of the child and either his or her spouse, or a person in a de facto relationship with the parent.

12. Section 65J of the Act provides:

    1.     [Application of section] 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.[Effect of adoption on parenting order] The parenting order stops being in force on the adoption of the child, unless the adoption is via prescribed document parent, and leave was not granted under section 60G for the adoption proceedings to be commenced.

13. Thus, an effect of adoption is that all parental responsibility for the child or children ceases, as do all other parenting orders. Parental responsibility is defined in the Act in section 61B:

    In this Part, parental responsibility in relation to a child, means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

14. Proceedings for leave to adopt pursuant to section 60G of the Act are, in my view “child-related proceedings” within the meaning of the Act and, specifically, within the meaning of Division 12A. That Division imposes duties upon the court included among which are to deal with as many aspects of the matter as possible on a single occasion. Moreover, the court is required to apply a number of principles in the determination of child-related proceedings, all of which are directed towards focusing the court upon the interests of children and the impact of proceedings on children. In my view, those matters apply no less so in proceedings of this type.

15. In particular, section 69ZN of the Act requires the court to consider the impact that the conduct of the proceedings may have upon the child, and the court is instructed to actively direct, control and manage the conduct of the proceedings and that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible. As if to underline the last mentioned principle (contained in section 69ZN(7)), section 69ZT makes specific provision with respect to the rules of evidence, and in particular, as it might apply to this case, the rules relating to the receipt of hearsay evidence.

16. It is important to understand that the decision facing this court is different to the decision which will face the court charged with the decision whether to permit the adoption (which, after 1 February 2010, is the State Magistrates Court).  The granting of leave does not have the consequences just described; only the order for adoption made by that State court has those consequences (see generally Fogwell at paras 23ff).

17. Having said that, it is important to observe that the State legislation does bear upon the decision to be made in these proceedings. 

18. First, the leave of this court is a precondition to the making of an order for adoption in favour of a step-parent by the State Magistrates Court.  Secondly, and importantly as it seems to me, the State court must consider (as well as the general requirement to consider the best interests of the relevant child or children) the matters enumerated at s 208 of the State Act. For example:

    208:    Requirements for making final adoption order

    The court may make a final adoption order only if it is satisfied of the following matters –

    …

    (e)an order for the child’s adoption by the step-parent would better promote the child’s well-being and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order;

19. In a similar vein, although neither consent, nor specified ages of the child or children, are specified as requirements of the application under the Act in this court, nevertheless they seem to me to be directly relevant to such an application, if for no other reason than that this court ought not grant leave to permit proceedings in the State court which are doomed to fail because of the absence of those mandatory (State) prerequisites.

20. The question then, in my view, can be expressed this way:  is it in the child’s best interests to permit adoption proceedings to proceed in the (State) Magistrates Court with the potential consequences that a parent shall (with the consent of the other parent or, absent consent, by court order) cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from orders being made in this court that might involve the parent and step-parent.

Background and Decision

1. Section 92 of the Adoption Act (Queensland) 2009 provides relevantly as follows:

   (1)A person may apply to the Chief Executive to arrange an adoption by the person of a stated child if:

   (a)      The person is the spouse of a parent of the child; and

   (b)      The person’s spouse and the child are living together.

   (c)Paragraphs (a) and (b) have applied for a continuous period of period of at least three years up to the time of the application; and

   (d)The person has been granted leave under the Family Law Act 1975 (Commonwealth) section 60G(1); and

   (e)The person is an adult; and

   (f)The person or the person’s spouse is an Australian citizen; and

   (g)The person is resident or domicile in Queensland; and

   (h)The person’s spouse is not the same gender as the person; and

   (i)The child is at least five years old and has not yet turned 17.

2. Reference to the terms of that section reveals some difficulties confronting the application for adoption and, at least inferentially, the application for leave to adopt before this court. 

3. First, the child has, as has been seen, turned 17.  As a result, the terms of section 92(1)(i) are not satisfied.  However, subsection (2) of that section provides as follows:

   (2)Despite subsection (1)(i) the Chief Executive may accept an application relating a child who has turned 17 if the Chief Executive considers:

   (a)There is a enough time to complete the adoption process before the child turns 18; and

   (b)The grounds for making an adoption order in favour of the applicant are likely to exist.

4. The matter just mentioned marks this case as unusual.  The case has other unusual features, including the apparent length of time that it has taken the step-parent to apply for leave to adopt. 

5. The affidavit material filed by Mr and Ms Crocker reveals plainly the reason why that has occurred.  In particular, Mr Crocker is a government employee.  As might be imagined with respect to that employment, it has involved him moving to different parts of Australia. Further, as is well known, the Australian Government has been involved in active operations overseas and the affidavit material reveals that Mr Crocker has worked at different times both in Western Asia and, more recently, Southern Asia.

6. Those circumstances, relevant to Mr and Ms Crocker satisfying the requirement that Mr Crocker is resident or domiciled in Queensland has created difficulties for their application.  Those difficulties are deposed to further in the affidavit material by reference to, for example, the need for Ms Crocker and the child to remain in Queensland so that the child could complete her schooling at her then school, whilst, unfortunately, Mr Crocker was required to be in Melbourne.  It can be seen, then, how those unusual circumstances have resulted in the delay. 

7. A second aspect of the unusual circumstances arise, as has been referred to by reason of the child’s age. Whilst the provisions of section 92(1)(i) are one thing, a further issue arises as to why, in fact, an application would be made in respect of a child who is on the brink of adulthood.  Again, that issue is addressed in the affidavit material filed on behalf of each of Mr and Ms Crocker.

8. In particular, the parties now have two children of their own, J, born in August 2010, who is now two, and S, born in June 2012, who is just three months old.  The relationship between the child and her two younger siblings is, on the affidavit material before me, a very close and loving one.  Indeed, the affidavit material reveals genuine excitement on the child’s part at both the thought and fact of having two younger siblings.  A consequence, though, of the different parentage of, on the one hand, J and S, and on the other hand, the child, is, as the child herself knows, that she is not listed as a sibling on their respective birth certificates.  The material reveals that she is somewhat distressed by this and it seems to me perfectly understandable that she would feel that way.

9. The material before me clearly reveals that, effectively from the moment that Mr and Ms Crocker commenced living together in August 2007, the child has been embraced by Mr Crocker as his own daughter and has been provided with the sort of love, nurture and support that one might hope and expect in that circumstance.  The affidavit material plainly reveals that Mr Crocker and the child enjoy a close and loving relationship and have done so during the whole of the five years that Mr and Ms Crocker have resided together. 

10. During that time the evidence reveals, again understandably enough given the circumstances of her birth, that the child has been enthusiastic about Mr Crocker being known as, and treated as, her father.  In a similar vein, Mr Crocker makes it very clear in his affidavit material that he has embraced the child into his life and treated her in all respects as if she is his natural daughter.

11. I have already referred to the fact that governing this application is a decision about the child’s best interests.  The Family Law Act provides a number of specific criteria by which the best interests of the child is to be determined for the purposes of parenting proceedings. 

12. However, there are not proceedings in which a decision has to be made in respect of with whom the child should live or spend time.  The questions in respect of best interests are, then, broader questions, but are no less important.  It seems to me that a very significant consideration in this case are the benefits of a meaningful relationship between the child and Ms Crocker if he is to be, legally, her father and the views of a 17½ year old young woman.  Those views should be heard by the court and, given the child’s age, and given the loving environment in which she is and has been for the last five years co-nurtured, those views should be given overwhelming weight.

13. This is a case, in my view, of a child who, for perfectly understandable reasons, wants formality to attend that which is for her a reality, namely that she is the sibling of the two younger children to whom I have referred and the daughter of Mr Crocker.  As I have said, I consider that her position in that respect is understandable. The circumstances surrounding the application make it clear that the application is in her best interests. 

14. It is not for this court to determine whether the provisions in section 92(2)(a) can be met, but the affidavit material before me suggests that if this court was to grant leave, the Department would at least use their very best endeavours to ensure that the completion of the adoption process might take place prior to the child turning 18.  Again, I consider that that process undertaken by the Department is likely to be somewhat easier by reason of the child’s age and level of maturity and her capacity, as a result, to express mature views.

15. One of the matters that the State authorities will need to consider pursuant to section 208(d) of the Queensland Adoption Act is whether the step-parent (that is Mr Crocker) is “Suitable, having regard to the matter started in part 6, comdivision (5) of the Act.”

16. Again, it is not for this court to make that determination, but, plainly enough, Mr Crocker’s suitability is a significant issue in respect of the granting of leave to adopt in circumstances where the governing criteria in respect of the application is the best interests of the child. I have already referred to the fact that on the affidavit material before me there is not the slightest reason to doubt that Mr Crocker is a suitable person as referred to within the Act.

17. More particularly, in terms of the criteria which this court needs to apply under the Family Law Act, I have little doubt that the best interests of the child would be served by granting leave to adopt and I so order. 

18. An application is also made dispensing with service upon the father.  There is, of course, an irony attached to an order that dispenses with service upon a person who isn’t known to the person initiating the application.  Nevertheless, it might be considered that the requirements of the legislation must be met unless and until a court orders otherwise and I will formally order that service be dispensed with. 

19. I will include a notation in the order to the effect that, in respect of the requirement to dispense with service, the child’s father is, and at all times has been, unknown.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 September 2012.

Associate: 

Date:  2 October 2012