Drogan and Mallory

[2010] FamCA 124

FAMILY COURT OF AUSTRALIA

DROGAN & MALLORY [2010] FamCA 124

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act

Adoption Act 2009
Adoption of Children Act 1964
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT, 68ZM
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS: Mr and Mrs Drogan

RESPONDENT: Mr Mallory

FILE NUMBER: BRC 11359 of 2009

DATE DELIVERED: 27 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2010

REPRESENTATION

THE APPLICANTS: In Person

THE RESPONDENT: In Person

Orders

1. The Application in a Case filed on 11 December 2009 and the Amended Application in a Case filed on 22 January 2010 seeking leave to commence adoption proceedings are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 11359 of 2009

MR AND MRS DROGAN

Applicants

And

MR MALLORY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by a step-parent for leave to adopt pursuant to s 60G of the Family Law Act1975 (“the Act”).

2. 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”).

3. 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.

4. 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. 

5. Adoption of children in this state is governed for another five days by the Adoption of Children Act1964.  On 1 February 2010, the Adoption Act2009 will apply. 

6. A number of applications currently in train will, at that new Act’s commencement date, have new criteria within that Act applied to them. Critically, the Act will require prospective adopting stepparents to satisfy, in addition to existing 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.

7. Further, a natural parent must, absent an order of the court dispensing with same, obtain consent, irrespective of whether the natural parents of the children were married. 

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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. I note, 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.

16. 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.

17. 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, in this State, after 1 February, will be 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).

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

19. 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. 

20. 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 new 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;

21. 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 prerequisites.

22. The question then, in my view, can be expressed this way:  is it in the relevant child or children’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.

23. In general terms, Division 12A of the Act applies, in my view, by reason of the fact that these are, “child-related proceedings” by reference to section 69ZM of the Act, being proceedings that are wholly within part VII of the Act.

Background and decision

1. M was born in September 2000, and A was born in January 2002.  An application is made to this court for leave to adopt those children by their stepfather. 

2. Their natural father, Mr Mallory, appears in person as, indeed, do the applicants who, I should add, have prepared their own material.

3. An order was made by Registrar Coutts on 20 January 2010 requiring further documentation to be filed by the applicants.  Those procedural orders were made intentionally, within a very tight timeframe.  The reason for that is so that this application could be heard to this court, together with a number of other applications for leave to commence adoption proceedings, prior to the commencement of the Adoption Act 2009 on 1 February 2010, that is, in five days’ time.

4. There is a particular urgency attaching to that date because, in the event that this court does not grant leave, the application for adoption to the relevant adoption authorities in Queensland must, by reason of the transition provisions of the Adoption Act 2009, commence anew after 1 February 2010. 

5. The new Adoption Act specifies a number of requirements for adoption by a stepparent. In particular, it requires an application being made to the State Magistrates Court, and requires that court to be satisfied of a number of things, including that the relevant child or children are over the age of five and under the age of 17, and that the leave of this court has first been obtained prior to the application being heard.

6. A further requirement is that the birth parent provide consent in respect of the application, whether or not the parties were originally married, except in circumstances where the court orders that consent by dispensed with. The Act specifies, in turn, a number of different considerations relevant to the question of whether consent ought be dispensed with, including, (relevantly to this case) whether consent is unreasonably being withheld by the birth parent of the child or children.

7. As has been made clear, there is a distinction between proceedings for leave to commence adoption proceedings and the adoption proceedings themselves.  The former are heard by this court; the latter by the State Magistrates Court. 

8. It is not for me to second-guess whether a State Magistrates Court might provide a dispensation of consent by the birth parent, although the giving of consent, or the likelihood of the giving of consent and issues about the giving of consent, are, in my view, relevant to a determination of the best interests of the children which is central to the current proceedings.

9. Mr Mallory, who appears for himself, says that he wishes to obtain legal advice, and, in particular, advice as to the short and long term ramifications for an order for adoption.  Plainly enough, he is entitled to receive that legal advice in respect of a decision that, by its nature, has potential long-range ramifications. 

10. Mr Mallory was served with the material on 23 January 2010.  The proceedings are being heard on the 27^th, and, of course, yesterday, the 26^th, was a public holiday. 

11. In the normal course of events, a reasonable period of time would, of course, have been afforded to a respondent in the position of Mr Mallory to receive advice and respond, if considered appropriate, to the application.  The particularly tight timeframe has come about by reason of the circumstances earlier described.

12. Mr Mallory would obviously point, then, to his self-represented status, the limited timeframe and the understandable desire to obtain legal advice with respect to the application and its ramifications as being matters which would prejudice him if an order was made for leave to proceed today. 

13. As against that, it seems to me that this court can take judicial notice of the fact that applications for adoptions, by their nature, take a very long time to process to a conclusion. 

14. That arises because the number of applications far outstrips the resources available within the adoption authorities to deal with them.  Secondly, it arises because, understandably and appropriately, the legislation imposes upon those authorities a strict and comprehensive regime of assessment so as to satisfy itself that arrangements proposed in respect of the adoption are appropriate and in the children’s best interests.

15. In this particular case, the application for adoption was made only some three months ago, that is, in late September 2009.  On any view of it, it is in its early stages. 

16. In circumstances where the process is significantly advanced, there seems to me to be a strong argument for prejudice to applicants in respect of an application of this type where a lengthy process would need to start again in circumstances where an already lengthy process has already occurred.  That is significantly less so in a case such as the present when the application before the authorities is but four months’ old.

17. Absence of consent from a birth parent is relevant for this court’s decision because, if consent is neither given nor, on its face, clearly likely to be dispensed with in the particular circumstances of this case, then its absence becomes a matter this court ought take into account.

18. So, too, this court ought take account of the requirement under the state legislation, (s 92 of the Adoption Act 2009), that the child must be at least five years old, and has not yet turned 17 prior to the application being made. 

19. The essential question in this case is, of course, the best interests of these two young children in respect of the application currently before this court.  A number of matters directly relevant to their best interests are germane, not the least of which is that, from early in their lives, Mr Drogan has become the children’s primary father figure.

20. There has been a considerable period of time during which the father had little contact with the children.  However, as against that, in very recent times, the father has had some contact with the children, the circumstances of which are deposed to, for example, at paragraphs 8 and 9 of the affidavit of Mr Drogan. 

21. The father was first contacted on 27 October last year to arrange a meeting in respect of outlining the intentions for adoption.  That meeting occurred on 1 November when the father was notified in person of the proposal to adopt the children and a discussion was held as to what, at least as Mr Drogan perceived it, this meant for him.

22. Mr Drogan deposes, that, on that day, he was reintroduced to his daughters.  This was the first time since November 2003 that he had seen the children.  Thereafter, Mr Drogan goes on to depose that by agreement between the father and the children, they had spent time with him “at least once a month”. 

23. Mr Drogan makes it clear in that affidavit, and Mr and Mrs Drogan have made it clear in the proceedings before me today, that they would not seek to prevent Mr Mallory from seeing his children and, indeed, have made it clear during the proceedings today, that they wish for the girls to have an ongoing relationship with him.

24. Mr Drogan then deposes to the dates upon which the children have seen their father—five occasions between mid-November and mid-December last year, including Christmas dinner at the father’s parents’ place. 

25. I have little doubt that Mr and Mrs Drogan provide a loving and appropriate nurturing environment for these two girls.  I note their ages.  Some discussions have taken place, in what I regard as an age-appropriate way, with the children about the proposed adoption and (again, having regard to their ages) they have indicated that they are happy with the proposal.

26. It is important, I think, to underline that the proceedings before me, although governed by the children’s best interests, are not about whether Mr and Mrs Drogan should be permitted to adopt these children.  That is a matter for another day, consequent upon an assessment process that will take place by officers of the Department as statutorily required by the Adoption Act 2009. 

27. So too, it is for the state Magistrates Court to ultimately decide, having regard to that assessment report and all other data and information put before it by the adoption authorities, together by each of the parties, to decide whether it is in the children’s best interest that an order for adoption, with all of its ramifications, ought to be made.

28. The task before this court is a much narrower one, and that is to decide whether it is in the children’s best interests for permission to be granted pursuant to section 60G of the Act so as to permit those proceedings to commence before the state Magistrates Court.

29. It seems to me that where the prospect of another application having to be made in due course is balanced against the understandable need of the father to receive legal advice about the ramifications for adoption, acute issues of potential prejudice arise for each of the parties. 

30. That is made all the more acute in circumstances where after a long absence, the father of the girls has started seeing them again, albeit in a preliminary sort of way.  

31. It is, in my view, significant that, ultimately, the state Magistrates Court will need, among other things, to satisfy itself, before making a final Adoption order, that an order for the children’s adoption by Mr Drogan would better promote the children’s well-being and best interests.  

32. The Adoption Act provision is, in my view, a significant requirement as a pre-condition to a state magistrates Court order in circumstances where a birth parent is aware of the application available to the children, and where both parties, at least at the time of the application, are expressing a desire for that birth parent to play some role in the children’s lives in the future, (albeit that the nature and extent of that role has not properly yet been determined). 

33. I take into account in particular, the following matters:

    ·    that the adoption application was filed only in September 2009;

    ·    that before an adoption order is made by the state Magistrates Court, it will be necessary for the birth father to consent or, alternatively, for consent to be dispensed with by that court;

    · the ultimate need for the state to be satisfied of the matters set out in Part 2 in s 208 Adoption Act 2009  in circumstances where a birth parent is attempting to commence a relationship with the children;

    ·    that the father has had a very limited time in which to respond to the application; and

    ·    today the father appears for himself expressing a desire to receive legal advice

1. The appropriate course of action at this time is to dismiss the application for leave to commence proceedings. I so order. 

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  25 February 2010