Evans & Evans
[2022] FedCFamC2F 752
•6 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Evans & Evans [2022] FedCFamC2F 752
File number(s): SYC 1355 of 2022 Judgment of: JUDGE BECKHOUSE Date of judgment: 6 June 2022 Catchwords: FAMILY LAW – PARENTING – Undefended hearing –Where the child wishes to be adopted by her stepmother – Where the child and biological parents consent to the adoption – Participation of child – Leave granted pursuant to s 60G to commence adoption proceedings Legislation: Adoption Act 2000 (NSW) s 9
Family Law Act 1975 (Cth) ss 60CC, 60G
Cases cited: Poulter and Anor & Lenton (2012) 46 Fam LR 623 Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 6 June 2022 Place: Sydney Solicitor for the Applicants: Christopher Mackay Lawyer Solicitor for the Respondent: no appearance by the Respondent ORDERS
SYC 1355 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EVANS
First Applicant
MS BRADLEY
Second Applicant
AND: MS EVANS
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
6 JUNE 2022
ON AN UNDEFENDED AND FINAL BASIS THE COURT ORDERS THAT:
1.Leave is granted to the First Applicant Father Mr Evans and to his wife the Second Applicant Ms Bradley, as prescribed adopting parents under s.60G of the Family Law Act 1975 (Cth), to commence adoption proceedings in the Supreme Court of New South Wales for X born in 2005.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Evans & Evans has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BECKHOUSE:
These are settled reasons for judgment that were delivered ex tempore on 6 June 2022. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references have been included.
These proceedings concern 16 year old X, who I will call X. X was born in 2005.
At X’s request, her father, Mr Evans (“Mr Evans”), supported by her stepmother, Ms Bradley (“Ms Bradley”), made an application seeking that leave be granted under s 60G of the Family Law Act 1975 (Cth) (“the Act”) to commence adoption proceedings in the Supreme Court of New South Wales. Ms Bradley has since been joined as the Second Applicant in the proceedings.
The respondent to the application is X’s mother, Ms Evans (“Ms Evans”). She has not participated in these proceedings since they were commenced on 3 March 2022. There is, however, evidence before the Court of her consent to the proposed adoption.
I have had regard to the material filed in support of this application. The father filed a Case Outline document setting out that he relied upon the following documents:
(a)Initiating Application filed 3 March 2022;
(b)Affidavit of Mr Evans filed 3 March 2022;
(c)Affidavit of Ms Bradley filed 3 March 2022;
(d)Affidavits of Service of Christopher Mackay filed 9 March 2022, 26 April 2022, 3 May 2022 and 3 June 2022;
(e)Affidavit of Dr G filed 27 May 2022.
By way of background, I note the following:
(a)Mr Evans and Ms Evans were married in 2004 before separating on a final basis in 2008. They were divorced on 6 June 2009.
(b)There are two children of their union, Y, who was born in 2004 and is 17, and X who is the subject of these proceedings.
(c)On 28 May 2012, orders were made by Altobelli FM, (as he then was), for the children to live with their father, and for him to exercise sole parental responsibility for the long-term decisions about them. Orders were made for the mother to spend supervised time with the children. In his Judgment, Altobelli FM observed that the mother abused drugs and was involved in a drug culture.
(d)In 2013, the father married Ms Bradley. She brought into the household her son, E, who was born in 2007 and is now 15. E’s father had died just before he was born. In 2014, Ms Bradley gave birth to F, who is almost eight years old.
(e)The parties depose – and this is supported by psychologist, Dr G – that they have successfully lived as a blended family in their home in Suburb H since the marriage.
(f)While the orders of Altobelli FM allowed their mother to see them on a supervised basis fortnightly, the children have rarely done so. Y has not seen Ms Evans since 2017. X has seen Ms Evans on approximately two occasions each year since then. She does, however, speak to her on the telephone from time to time.
(g)In 2020, X enquired of her stepmother Ms Bradley about the possibility of being adopted by her. Mr Evans and Ms Bradley made inquiries about the process, which led to the family’s referral to Dr G, a clinical psychologist.
(h)Dr G affirmed an affidavit in these proceedings on 27 May 2022. In her affidavit, she provides a summary of the information gathered over the course of the four meetings with X and three meetings with Ms Evans. Dr G deposes that at the conclusion of their sessions Ms Evans gave her consent to the adoption. She observed that:
Ms Evans was visibly tearful and distressed during all three of the appointments that she attended to discuss the adoption and give consent. Although it was clearly a heartbreaking wrench for Ms Evans to sign the adoption papers, Ms Evans was nevertheless adamant that she wanted to go ahead to consent to the adoption because she knew it was what X wanted, and she loved her enough to give her that. Ms Evans was able to talk about the pride she held for X and the young woman she has become, and for the bravery that X displayed in asking for the adoption she wanted.[1]
(i)In her report, Dr G records that she provided written information to Ms Evans about the new integrated birth certificate, which maintains the birth parents’ details. Having done so, Ms Evans said that she was willing to consent to the adoption. At the last appointment on 9 November 2021, Ms Evans signed the consent to adoption paperwork in the presence of another clinical psychologist, Ms J.
(j)Annexed to Dr G’s report are the consents signed for the adoption of X, and the completed statement of the counsellor, as required under the New South Wales Adoption Act 2000 (NSW) (“Adoption Act”).
(k)On 3 April 2022, the father filed an Initiating Application. The matter was first listed before me on 5 May 2022, and set down for hearing today.
[1] Affidavit of Dr G filed 27 May 2022, p.8.
SHOULD ORDERS BE MADE ON AN UNDEFENDED BASIS?
The hearing proceeded in person. The mother was called outside the Court, and she did not appear. Nor did she join the telephone link as I delivered this judgment.
The legal representative for the father deposed that the mother was personally served with the documents commencing these proceedings in accordance with Part 2.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) on 4 March 2022. He has also filed affidavits of service confirming electronic service of all the orders made in these proceedings.
I also place weight on the affidavit of Dr G, who sets out the sessions that took place with the mother Ms Evans before she gave her consent to the adoption process. It is quite likely that after signing those papers, the mother felt her role in the legal process was at an end.
I am therefore satisfied on the basis of the law and the facts of this matter that it should proceed on an undefended basis.
DOES THIS COURT HAVE POWER TO MAKE THE ORDERS SOUGHT?
The next question I have to consider is whether I have the power to make the orders sought.
Section 60G of the Act was recently amended and jurisdiction to grant leave to commence adoption proceedings now vests in the Federal Circuit and Family Court of Australia (Division 2).
An application to this Court for leave to commence adoption proceedings may only be made by a prescribed adopting parent. The phrase “prescribed adopting parent” is defined in section 4(1) of the Act as being “the spouse of, or a person in a de facto relationship with, a parent of the child” who is subject to the application. It also includes a parent of the child and either his or her spouse.
Mr Evans, as X’s father, is a prescribed adopting parent. I am also satisfied that the Court has jurisdiction to grant leave to Ms Bradley, because as the wife of Mr Evans, she falls within the definition of prescribed adopting parent for the purposes of the Act.
In exercising jurisdiction, the Court must find that permitting the adoption proceedings to be initiated by the prescribed adopting parent would be in the child’s best interests. As observed by Murphy J in Poulter and Anor & Lenton (2012) 46 Fam LR 623 at [24]:
The question then, in my view, can be expressed in 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?
IS THE ORDER IN X’S BEST INTERESTS?
Having regard to the best interests of X, as referred to in s 60G(2), it is appropriate for the Court to have regard to those matters set out in s 60CC of the Act.
These factors will be considered through the lens of X.
X did not take part in the hearing. It was unnecessary for an Independent Children’s Lawyer to be appointed to act on her behalf, because Dr G has provided a comprehensive report following four appointments with X and other family members.
X is attending today electronically for the handing down of the Court’s decision, and she does so at the Court’s invitation. There are several reasons for this. Most importantly the application comes before the Court today at X’s request. Decisions about the adoption of a child have a significant impact on the life of the child. For this reason, under the relevant State legislation[2], X is required to provide “informed consent” to her adoption. However, there is also an obligation under state legislation for the decision-maker to provide X with adequate information concerning the outcome of the decisions made. Whilst I am not bound by it, I observe that s 9 of the Adoption Act requires the court exercising jurisdiction under it to ensure that a child is able to participate in any decisions made under that Act and decision makers are required to provide the child with (amongst other things):
[2] Adoption Act (NSW) 2000
9 Participation of child in decisions
(1)…
(a) adequate information, in a manner and language that the child can understand, concerning the decision,
(b) the opportunity to express his or her views freely, according to his or her abilities,
(c) information about the outcome of the decision and an explanation of the reasons for the decision,
…
By attending today, X will have the opportunity to hear firsthand the decision made by this Court. This is not only consistent with the requirements of the state legislation but more relevantly with the objects and principles of the Act.[3]
[3] Which specifically gives effect to the United Nations Convention on the Rights of the Child.
Dr G observed that X presented a clear outline of her views and opinions about the decision to be adopted by her stepmother, and a mature understanding of the facts related to adoption. She attends Court with the encouragement of her father and stepmother who attended the hearing in person but are now sitting beside her to receive the decision.
X
X is in year 11 at K School. It is the same school attended by her older brother, Y, and stepbrother, E. The family plan for their younger brother, F, to attend when he is old enough.
She is a budding musician who plays various instruments, and is a member of a local music ensemble.
X is progressing well at school and balances this with a part-time job at Employer L. She would like to be an educator or health care worker when she finishes school. She is described as a sensitive and caring young woman by her stepmother. She has clearly thrived in the care of her father and stepmother.
Dr G observed that her relationship with her stepmother is an authentic and mutually loving one. X feels that her stepmother, Ms Bradley, has acted in the role of her mother. X reported to Dr G that she saw the adoption process as affecting her sense of completeness in having a mother.
She meets her biological mother for six hourly supervised visits on two or three occasions each year, and the last visit was in October 2021. She also speaks to her mother regularly on the telephone. Even though her time with her mother is supervised, she reported sometimes feeling unsafe, like when her mother falls asleep for a moment, or has an unusual body twitch, or has scabs on her arms. Because of her mother’s dysfunction, X has seen a psychologist in the past to help her understand the relationship better.
X requested that the adoption process be undertaken. It was X who made the request to her mother directly, with coaching provided by Dr G.
An important issue for the Court to consider is that by granting this application, all existing orders are brought to an end, in accordance with s 61E of the Act. Dr G reports that X understands this well. She said:
I concluded that X has a mature understanding of facts surrounding her decision to be adopted by Ms Bradley, and was able to weigh up the facts, options and consequences and communicate her decision clearly and with maturity…[4]
[4] Affidavit of Dr G filed 27 May 2022, p.8.
X has reported she will continue to keep in contact with her mother. Her father and stepmother have given assurances they will maintain all the levels of contact that Ms Evans had under the Court orders. Due to X’s age and circumstances, there is no plan to change her name, and Ms Evans will still appear on the integrated birth certificate.
CONCLUSION
Having regard to all of the evidence before the Court, and the matters that I am required to have regard to in contemplating the application, I am satisfied that the orders sought are going to be in the best interests of X. And therefore, I make the order sought.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 4 July 2022
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