Drogan and Mallory (No 2)

[2010] FamCA 951

FAMILY COURT OF AUSTRALIA

DROGAN & MALLORY (NO. 2) [2010] FamCA 951

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

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

APPLICANTS: Mr and Mrs Drogan

RESPONDENT: Mr Mallory

FILE NUMBER: BRC 11359 of 2009

DATE DELIVERED: 27 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 September 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: In person

Orders

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the children M born … September 2000 and A born … January 2002.

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 for leave to adopt pursuant to section 60G of the Family Law Act. On 27 January 2010 I dismissed an application for leave to commence adoption proceedings by reason of the natural father of the two children the subject of the proceedings appearing on that occasion and expressing a desire to receive legal advice. 

2. A new application has been filed by the applicants which also now seeks leave to commence adoption proceedings.  The two children the subject of the application are M born in September 2000 who is currently aged 10 and A born in January 2002, currently aged eight.  Their natural mother is now married to Mr Drogan born in 1979. 

3. Those parties commenced cohabitation in July 2007 and were married approximately a month after that.  Ms Drogan is expecting a child shortly.  Mr Drogan was known to the children for some time prior to the commencement of the relationship between the parties.

4. Mr Mallory is the biological father of the two children.  The evidence reveals, and Mr Mallory confirms today, that there was no contact of any type between the children and their father between approximately 2003 and November of last year, when contact was initiated by Mr and Mrs Drogan in the context of their proposal for Mr Drogan to adopt these children. 

5. Mr Mallory confirms today that there was no contact between he and his children for that period of about six years.  The children were, then, aged about one and three on the last occasion when they had anything whatsoever to do with their father. 

6. The affidavit evidence before me reveals that in the period between 10 November 2009 and August of this year, there have been a number of contacts between the children and their father consequent upon the re-instigation of contact between them by Mr and Mrs Drogan.

7. Mr Drogan deposes that he and Mrs Drogan initially contacted the father in October 2009 by telephone to arrange a meeting to discuss intentions with respect to adoption.  That meeting occurred on 1 November 2009 when the father was notified in person of their intentions to adopt the children. On that occasion there were also discussions with him about the ramifications of the adoption for him. 

8. On that day Mr and Mrs Drogan offered to reintroduce the girls to the father and that subsequently occurred.  The affidavit material also reveals that, since November 2009 there has been what is described in the material as a “personal agreement” with the biological father for him to see the children at least once a month and for them to get to know him. 

9. The affidavit also deposes that:

   We have also made it clear that should adoption go through, we would not prevent him from seeing the children and we are happy to keep any current arrangements regarding this active.

10. Mr Mallory appears by telephone today and confirms all of the matters to which I have just made reference that are deposed to, primarily, by Mr Drogan. 

11. Mr Mallory says that he received legal advice from a firm of solicitors approximately four to six weeks ago and received advice about the ramifications of adoption for him and the children.  His position today is that he does not consent to the process of adoption.  That seems to be tied, as it were, to some position with respect to facilitating contact or a relationship between he and the children, although the exact relationship between the two events is not entirely clear to me. 

12. Mr Mallory says that he has taken no steps in the time between November 2003 and now to affect any legal process with respect to arrangements between he and the children.

13. In saying that, I do not for one moment suggested that any agreement, whether formal or informal, with respect to the biological father seeing the children should be made the subject of court proceedings.  Indeed the processes of this Court with respect to children emphasise - in the legislation, in the Rules of Court and in the processes of this Court that all those who are concerned with care, welfare and development of children should seek to arrive at an agreement about arrangements that are in their best interests.  Whilst agreement is to be encouraged, there are of course a number of ways in which any such agreement can be formalised if that is deemed necessary by all of the parties concerned. 

14. In any event whatever might be the underlying motivating reasons for the biological father’s position, he confirms today that he does not consent to the adoption process.

15. I satisfied myself during the course of the proceedings today that each of the self represented parties understood that the process in this Court is distinct from the process which must take place in a State Court pursuant to state legislation in respect of the adoption. The process in this Court is confined to that specified in section 60G of the Family Law Act and provides for an initial requirement that must be met prior to the proceedings in the State Court continuing.  Thus, the biological father’s consent is not a pre-condition to the granting of leave.

16. The distinction between proceedings for leave to commence adoption proceedings and the adoption proceedings themselves, also means that it is not for me to second guess whether a State Magistrates Court might provide a dispensation to the requirement of consent by the birth parent. 

17. The giving of consent, the likelihood of the giving of consent, and the issues about the giving of consent are though, in my view, relevant to a determination of the best interests of the children which is central to the current proceedings. 

18. Whilst that factor is one of the factors which the Court should take into account in granting leave to adopt, it is, in my view, by no means the only factor that should be taken into account, nor is it determinative of the issue.

19. In this case I consider it particularly important that there has been no contact between the children and their father from when they were respectively, about three years of age and approximately 12 months and that Mr and Mrs Drogan have, in all respects, provided a stable environment which provided for the physical necessaries of life for the children. 

20. The evidence plainly reveals that Mr and Mrs Drogan have also provided a stable environment which has provided for the psychological and emotional needs of the children.  Each of them is employed and plainly take care of the children in every financial way. 

21. The evidence reveals that the two children are doing well in the care of Mr and Mrs Drogan.  Mr and Mrs Drogan, on the evidence, appear to have a happy, stable and committed relationship.  I note in that respect that, in a short space of time they are to have their own child, who will be a sibling of the children the subject of these proceedings. Accordingly, the relationship between that child and the two children the subject of these proceedings is an important consideration.

22. Taking account of all of those circumstances it seems to me that I should grant leave to the parties to commence adoption proceedings pursuant to state legislation in the State Court and I will so order.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 September 2010.

Associate: 

Date:  27 October 2010