Deveraux & Anor and Mauss

[2017] FamCA 122

FAMILY COURT OF AUSTRALIA

DEVERAUX AND ANOR & MAUSS [2017] FamCA 122

FAMILY LAW – ADOPTION – Leave to commence proceedings – Where the children have had limited contact with their biological father – Where the biological father consents to the application – Application granted.

Family Law Act 175 (Cth)
Adoption Act 209 (Qld)

APPLICANTS: Mr Deveraux and Ms Deveraux

RESPONDENT: Mr Mauss

FILE NUMBER: BRC 12287 of 2016

DATE DELIVERED: 27 February 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Stockley, Stockley Furlong Solicitors

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the children, B born … 2002 and C born … 2007.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deveraux and Anor & Mauss 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 12287 of 2016

Mr Deveraux and Ms Deveraux

Applicants

And

MR MAUSS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have today an Initiating Application filed 7 December 2016 by which an order is sought pursuant to s 60G of the Family Law Act 1975 (Cth) granting leave to commence proceedings for the adoption of the children B, born in 2002, and C, born in 2007.

2. The children’s biological mother was born in 1979.  She and their biological father commenced a relationship in about 1998 and commenced cohabitation in about 2001.  They married in 2006 and subsequently divorced in 2010, following their separation in 2009.

3. The children have lived at all times with their mother.  Chronology clearly establishes that, at the time of their biological parents’ separation, B was about seven years of age and C was about two and a half years of age. 

4. The Applicants commenced cohabitation in about October 2010, at which time B was about eight and C was about three years of age respectively.  The Applicants married in 2011.  It is obvious, therefore, that the children have lived with Mr Deveraux and their mother as a family unit since about October 2010. 

5. They have been joined in that family unit by their brother, D, who was born in 2013. 

6. The evidence before the Court establishes that the children’s biological father, Mr Mauss, is aware of the Application and in fact, supports the children’s adoption, by Mr Deveraux. 

7. Of course, the decision for the Court today is not one granting adoption, but, rather, granting leave to commence proceedings seeking an order for adoption. 

8. Mr Mauss, who, it seems, has a residence in E Town in New South Wales, is engaged in what appears to be fly-in fly-out employment with, at least at present, a company located in Asia.

9. It appears on the evidence that he has established a life which is based in the Asia:  he has remarried and, it seems, has a child from that marriage.  His evidence is to the effect that he has no plans to return to Australia in the near future. 

10. On 2 July 2010, a parenting Order was made by consent between the children’s biological parents. That Order also appears to have finalised property settlement proceedings between those parties.  The Order provided for equal shared parental responsibility between the children’s parents, that the children live with their mother and spend time with their father as agreed and, in summary, in particular whenever he was in F Town on days off from employment then undertaken in the Northern Territory.

11. The evidence, although perhaps a little discordant vis-à-vis the mother and Mr Mauss, seems to me to establish that, despite the terms of the Order, the children have not had any real or meaningful contact with their biological father since no later than about 2010, that any time and interaction with him has been very limited, that their interactions appear to have diminished over time to the point where they have been non-existent; and that that circumstance, in essence, arose through the mutual acquiescence of both of the children’s biological parents.

12. Mr Mauss’s evidence is also to the effect that, having spoken with the children (although I am unclear as to when) about the adoption, he believes from that interaction that that is what they want.  His evidence in that regard is corroborative of the evidence otherwise before the Court in relation to the children’s wishes. 

13. Mr Mauss’s evidence is that he is aware of the consequences of an order for adoption, namely, that it will, in essence, extinguish his parental responsibility.  He will cease to have parental responsibility for the children, as otherwise accorded to him by law.  He says in his evidence that, having regard to the relevant sections of the Family Law Act 1975 (Cth), he agrees with and supports an order for adoption because he believes, having regard to the considerations particularised there, that the children’s best interests will be met by such an order.

14. It appears that the last occasion on which the children’s biological father spent any time with them: or at least with C – was for a period of about four days in January 2013.  It appears that, whilst B might have had some incidental interaction with him on that occasion, she did not spend any particular time with him - the last occasion on which she spent any time with him seems to have occurred in about December 2011.

15. As Mr Mauss acknowledges in his own evidence, in essence, the paucity of time he has spent with his biological children since separating from their mother is such that it could not be concluded that the children have a meaningful relationship with him.  It also could not be concluded that he has participated meaningfully in their lives at any time since the September 2009 separation.  Save for discussions in relation to the issue of their adoption by Mr Deveraux, it could not be thought that Mr Mauss has communicated with his children in any particularly meaningful way.  He does not seem, on the evidence before me, to have participated in decision-making in relation to issues relating to their care, welfare and development generally.

16. There also appears to be issues in relation to the payment by Mr Mauss of child support.  Whilst there have been payments on occasions in amounts as assessed by the Child Support Agency, the evidence before the Court is to the effect that, at least at present, the last payment was received in about September 2016.  The assessed amount, it seems, was in the sum of about $119.00 per week. 

17. All of the matters outlined make it clear, on the evidence before me, that the only logical conclusion can be that the children’s support (in a financial sense) has been significantly met by the combined efforts of their biological mother and Mr Deveraux, who for all intents and purposes has fulfilled the role of their father since coming into their lives - and certainly since no later than October 2010.

18. Section 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of a stated child only if a number of matters are satisfied. Included within these matters, in particular at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth) and that a child or children the subject of the proposed adoption are at least five years of age and have not yet turned 17 years of age. Clearly, both B and C fall within that age bracket.

19. In determining whether to grant leave for parties to commence adoption proceedings, the Court must be satisfied of a number of things.  One is that the proceedings are by a prescribed adopting parent.  This condition is clearly satisfied in this case. 

20. The Court must also consider whether granting leave will be in the children’s best interests having regard to the effects of s  60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth), where those sections are applicable.

21. It is clear, as I hope I have already conveyed, that the decision facing this Court is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of any particular child or not. 

22. The granting of leave to commence proceedings does not have the consequences outlined in the sections particularised in s 60G of the Family Law Act 1975 (Cth). Only the order for adoption, if made by the appropriate State Court, has that effect. However, s 208 of the Adoption Act 2009 (Cth) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters, included within which are that an order for adoption by a step-parent would better promote children’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any other Court order, or no order at all.

23. It is obvious, therefore, that this Court ought not make an order granting leave to Applicants to permit proceedings in the State Court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.  In this case, it is clear, in my view, that the prerequisites are established on the evidence before me. 

24. In determining, as I must under s 60G(2) of the Family Law Act 1975 (Cth), whether granting leave to commence proceedings is in the children’s best interests, I must give broad consideration to the familiar best interests considerations, where relevant, as those considerations are prescribed under s 60CC of the Family Law Act 1975 (Cth).

25. Failure, specifically, to mention any particular consideration, in these Reasons, does not mean that it has not been the subject of consideration during my assessment of the evidence relied upon the by Applicants. 

26. Given the length of time and, therefore, his participation in their lives, I have no hesitation at all in concluding that, together with their mother, Mr Deveraux has likely fulfilled all of the duties and responsibilities associated with the parenting of the children.  Given the time since which Mr Deveraux has been a no doubt integral part of their lives, it is highly likely that he will have undertaken many, many aspects of the children’s day-to-day care.  It could only be thought, in my view, as a consequence of that interaction with them, that he has formed a relationship with them which is close and loving. It is clear on his evidence that he loves them in the same manner as he does their brother.

27. I accept as more likely than not that, given his involvement in their lives, both children have a strong and developed relationship with Mr Deveraux.  I also accept, as more likely than not, that he has no doubt joined with and supported the children’s mother in meeting the children’s emotional, financial and practical needs since the time the two adults have lived together with the children. 

28. I accept and conclude that the children are likely to be supportive of the process the parties are seeking to undertake if leave is granted.  I accept as likely that all of the family unit (as it is constituted) will feel, in essence, that proceedings for adoption will be a further positive, outward demonstration and manifestation of the bonds between them and the adoption by Mr Deveraux, voluntarily, of the responsibilities for the children which are associated with an order for adoption, if that is ultimately made.

29. I accept as more likely than not that the Applicants and the children together will likely gain an additional emotional satisfaction if, after proper consideration by the relevant State authorities, an adoption order is ultimately made.  This seems to me, on the material before me, to be something which can only be thought to be in the children’s best interests. 

30. Therefore, I have no hesitation at all in concluding that the commencement of proceedings seeking adoption is something that is likely to be in the children’s best interests. 

31. For these reasons, delivered orally, I make an order that, pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants have leave to commence proceedings for the adoption of the children.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 February 2017.

Associate:     

Date:              27 February 2017