Helman and Anor and Hurst

[2014] FamCA 1066

FAMILY COURT OF AUSTRALIA

HELMAN & ANOR & HURST [2014] FamCA 1066

FAMILY LAW – ADOPTION – Leave to commence proceedings by step-parent – Whether it is in the child’s best interests to permit adoption proceedings – Where the biological father initially objected to leave being granted then withdrew his objection – Order that leave be granted

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)

FIRST APPLICANT: Mr Helman

SECOND APPLICANT: Ms Helman

RESPONDENT: Mr Hurst

FILE NUMBER: BRC 3486 of 2014

DATE DELIVERED: 21 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 17 November 2014

REPRESENTATION

SOLICITOR FOR THE FIRST AND SECOND APPLICANTS:

Ms Catton
Schultz Toomey O'Brien

Lawyers

COUNSEL FOR THE RESPONDENT: Mr Creamer of Counsel

SOLICITOR FOR THE RESPONDENT: Michael Lynch Family Law

Orders

1. Pursuant to section 60G of the Family Law Act 1975 (Cth), the Applicants, Mr Helman and Ms Helman, are granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, B born … 1999, by his step-father, Mr Helman.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helman and Anor & Hurst 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 3486 of 2014

Mr Helman

First Applicant

And

Ms Helman

Second Applicant

And

Mr Hurst

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. By application filed in April this year, Mr Helman and his wife Ms Helman seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth), they be granted leave to commence adoption proceedings for adoption of the child, B (the child), born in 1999, by his step-parent, Mr Helman. Ms Helman is the boy’s mother.

1. The respondent to the application, Mr Hurst, is the child’s father.  Although he initially opposed the application, he no longer does.  He and Ms Helman were once married and B is a child of their marriage.

1. In Queensland, adoption of children is governed by the Adoption Act 2009 (Qld). Under that legislation a step-parent of a child may apply to the Chief Executive of the Department of Communities, Child Safety and Disability Services to arrange an adoption of his or her step-child if the step-parent is a spouse of the parent of the child and the parent, the step-parent applicant and the child live together and the adults have been spouses and both living together with the subject child for a continuous period of at least 3 years up to the time of the application. The step-parent applicant must also be an adult and an Australian citizen or the spouse must be an Australian citizen. They must also reside in Queensland and not be the same gender as their spouse. The child must be at least 5 years old and not yet 17 and, finally, the step-parent must have been granted leave to proceed with the adoption application pursuant to s 60G(1) of the Family Law Act.

1. Section 60G of the Family Law Act provides as follows:

(1)Subject to subsection 2 the Family Court may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

(2)In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

1. The definition of prescribed adopting parent is contained in section 4 of the Family Law Act and includes “the spouse of a parent of the child”. Therefore, Mr Helman is a prescribed adopting parent within the definition contained in section 4.

1. Section 60F(4)(a) of the Family Law Act says that if a prescribed adopting parent adopts a child of a marriage and this Court had granted leave under section 60G for the adoption proceedings to be commenced , the child ceases to be a child of the marriage. Accordingly, if I accede to the application in this matter and grant leave for the adoption proceedings to be commenced, and that adoption is ultimately approved, B then ceases to be a child of the marriage of Mr Hurst and Ms Helman.

1. Section 61E of the Family Law Act provides as follows:

(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)The person’s parental responsibility for the child ends on 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.

1. Section 65J is in very similar terms to section 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to section 60G. A current parenting order stops being in force if the child is adopted.

1. In this particular case, there is no parenting order currently in place. There has never been a parenting order in place. Accordingly, Mr Hurst and Ms Helman each currently has parental responsibility for the child pursuant to section 61C (1) of the Family Law Act, but Mr Hurst’s parental responsibility in respect of the child would end if Mr Helman lawfully adopts the child.

1. Accordingly, I must consider whether it is in the child’s best interests for leave to be granted for his step-father, Mr Helman, to commence an adoption application for him with the consequence that if the adoption is granted (with Mr Hurst’s consent or, absent that consent, by an order of a Queensland Children’s Court dispensing with the need for that consent), the child’s father, Mr Hurst will cease to have any parental responsibility in respect of the child.

1. In the process of considering that question, I must have regard to, relevantly, the provisions of sections 60CC and 60CD of the Family Law Act.

1. One of those matters that I must consider is, of course, the benefit to the child of having a meaningful relationship with both of the child’s parents. In this case, that requires me particularly to consider the benefit to the child of having a meaningful relationship with his father, Mr Hurst, and his mother, Ms Helman. It also requires me to consider all of the matters set out in section 60CC (3), which list includes any views expressed by the child and any factors (such as his maturity or level of understanding) that the Court thinks are relevant to the weight to be given to the child’s views.

1. B is nearly 16 years old. When the matter was first before me, a few months ago, Mr Hurst opposed the application. The evidence persuaded me to make an order pursuant to section 11F of the Family Law Act for a Family Consultant to undertake a Child Inclusive Conference and prepare a memorandum to the Court so that, most particularly, any views expressed by the child would be independently heard, expertly assessed and reported on to the Court. That happened and the child’s views, expressed to the Family Consultant and conveyed by her to the Court, have been a major factor in my determination of the outcome of this application. I will return to them a little further on.

Some history of the matter

1. Mr Hurst is 49 years old. Ms Helman is 43 years old and so is Mr Helman.

1. Mr Hurst and Ms Helman commenced a relationship in 1997 and married in 1998.  The child was born in 1999.  Mr Hurst and Ms Helman separated when the child was still an infant and they were divorced in 2002.

1. Ms Helman and Mr Helman commenced their relationship in 2001 and began to live together in early 2002 when the child was only about 3 years of age. They have three children of their own, half-sisters to the child, who were born in 2002 and 2006 (twins).  Mr and Ms Helman married in 2008.  The family lives in Region C and Mr Helman is the owner/manager of a retail business.

1. Mr Hurst is a public servant. When he and the mother were married, they initially lived in Brisbane and in 2000, Mr Hurst was based in Sydney. The mother and the child moved in with her mother in D Town and the father would travel to D Town to spend time with the mother and baby the child on weekends.

1. After their 2001 separation, the mother and the child moved out and into their own unit.  Mr Hurst continued to travel to D Town on weekends to spend time with the child.  In 2002, the mother and the child moved to Brisbane with Mr Helman. The father was posted overseas for six months. He travelled back to Australia a couple of times during that period and spent a few days at a time with the child.

1. On his return to Australia in 2003, the father spent some more time with the child in Brisbane when he had leave.  He would stay in Brisbane and spend one or two nights with the child. On one occasion, he took the child with him to Adelaide for a few days to visit his own parents and family.

1. In 2004, the mother and Mr Helman moved to the Region C and the father continued to travel, during his leave, to the Region C to spend a few days at a time with the child.

1. In September 2004, at the request of the mother and Mr Helman, Mr Hurst agreed that they could change the child’s family name to Helman.

1. In 2005, the father was again posted overseas for six months.  He says he tried to arrange to spend a week’s leave with the child during that period, but asserts the mother was not co-operative with him about that and it did not happen. The same year, the mother and Mr Helman and the family moved to live in E Town.

1. The father had an overnight stay with the child in E Town in 2006 and also took the child to Adelaide again for four days.

1. In 2007, the father organised a transfer to E Town and started spending a bit more regular time with the child. He started spending time with the child once per month, but things, by all accounts, did not progress too well and, in 2008, the child only spent a few weekends with his father. The father says that he reluctantly agreed with the mother to reduce his time with the child for the child’s sake.  He says he then discovered that the mother and Mr Helman had again moved the family back to the Region C (where they have continued to live ever since).  At around this time, Mr Hurst was posted back to be based in Sydney.

1. It is common ground that the father has not spent any time with the child since then and, according to the mother, the child and his father have only spoken by telephone two to three times in that period of about 8 years. The father agrees that he stopped the phone calls in 2009 after a conversation with the child during which he says the child told him he did not want to see him. The father asserts that although he tried hard to maintain a relationship with the child that it was effectively the mother’s actions that interfered with and prevented their relationship from being able to be maintained. The mother, in essence, asserts that the father did not show enough interest in maintaining the relationship.

1. I now do not consider it to be critical in the determination of this application to decide which parent is correct about this. What has happened in the past is behind the parties now and there is no dispute that the father has not seen the child at all for seven to eight years and has had very little communication with him in that time. What is also clear is that the father did not commence any proceedings for parenting orders pursuant to the Family Law Act in that time.   There is no dispute that the mother and Mr Helman have lived with their family in Region C now for six years and the father did not disagree with the mother’s assertion that she has had the same mobile telephone number for 15 years on which he could have contacted her at any time.

1. The mother and Mr Helman say that the child asked them why Mr Helman has not adopted him and that he has made it clear to them that he wants Mr Helman to lawfully adopt him. They say that the child says that although he is part of the family and already considers Mr Helman to be his father, even though he knows that Mr Hurst is his biological father, he still wants the stronger bond of being lawfully adopted by Mr Helman.

1. The mother asserts that when her solicitor first raised the issue of adoption with the father that the father had indicated that if adoption is something the child wanted that he would go along with that.  It is asserted that he then changed his mind and opposed adoption.  It seems as if the father thought that not opposing the application would send a message to the child that he did not care about him.

1. Ms F, Family Consultant, saw the mother and Mr Helman, the child and Mr Hurst for interviews on 29 October 2014.  Ms F’s Memorandum to Court became Exhibit 1 in the proceedings before me on 17 November 2014.

1. Ms F’s report began with the observation that after she informed the father of the child’s views (after she had met with the child) the father stated to Ms F that he would not oppose the adoption application as he wanted to respect the child’s wishes and did not want to make the process any harder for the child than he considered it already was.  She reported that the father told her to relay his view to the child that he did not want the child to think he was giving up on him but to tell the child that he would not oppose the application and nor would he be upset with the child for asking the Helmans to make the application. Ms F said that she passed that information on to the child.

1. However, at the hearing of the application on 17 November, the Court was informed by counsel for the father that the father did oppose the application and had instructed that there must have been a misunderstanding between him and Ms F about that issue.  Consequently, I required Ms F to give oral evidence before me and to answer some questions from me and to be cross-examined by counsel for the father.

1. In what I considered to be a very respectful, professional and credible manner, Ms F rebuffed any suggestion that she was wrong in what she had reported in the first paragraphs of her Memorandum to Court about the father’s position. She did not accept that the father had not said those things to her.

1. The father had filed no further affidavit in which he deposed to his version of what he was asserting was a misunderstanding between him and Ms F. I had no evidence from him on the point. He was, through his counsel, asking me to accept that he had not changed his mind about the application but had consistently been opposing the application without any actual evidence contrary to the position stated in Ms F’s report.

1. With respect to the husband and his legal representatives, I could see absolutely no grounds at all for not accepting Ms F’s written and oral evidence.  She impressed me as a professional witness trying hard to give her honest recollection of what had transpired between her and the father. As such, I was satisfied that the father had told her that he would not oppose the application as he wanted to respect the child’s wishes and that she passed that on to the child accordingly.

1. Of course, the father was not estopped from changing his position and he was perfectly entitled to come to the Court, as he did, opposing the application.

2. Very importantly though, Ms F reported on her meeting with 15 year old the child.  She said he presented as “a thoughtful, articulate, friendly, reflective and very mature teenager.” She reported that the child got a bit emotional when talking to her, displaying the effects of emotional strain on him caused by this process. He is reported as having told Ms F that he enjoys school, absolutely loves sport and trains every day at his chosen sport of triathlon, with Mr Helman taking him to training every day. the child, apparently, has worthy ambitions of representing his country in that sport when he is a little older.

1. Ms F reports that the child told her that ever since he was as young as 4 years old, he had felt left out of his family when he had to spend time with his biological father who, according to Ms F, the child called by his Christian name.  He told her that his reason for wanting to be adopted was that he wanted to belong to the family and described feelings of not feeling like he belonged anywhere. Adoption, he said, would “make it official and make him feel like he belonged.” the child is reported to have described Mr Helman as a best friend who was always there for him and he said that they are very close.

1. Sadly, the child is reported to have described his father as a “Disney dad”, saying that he would see him and they would have fun and then he would not see him again. He is reported to have said that he wanted to see him more and he described feelings of sadness and anger at not knowing why he did not see him more.  He said he felt “bad for [Mr Hurst]” and did not want him to hate him, saying also that he felt like he should tell his father why he wanted the adoption to happen but was concerned that it would be too hard for him to tell him. Ms F determined, ultimately, after discussion with the child that he was not feeling comfortable enough about meeting and speaking with his father and she decided not to force that issue.

1. Ms F reported that the child said that he would like to be able to have contact with his father in the future and to see him but only if his father was able to be consistent with being in contact with him. He is reported to have said that he would like the opportunity to be able to email or text his father and for his father to make contact with him, but not for his father to have his (B’s) mobile telephone number. He said that he was very busy with all of his training currently and might like to re-establish contact with his father when he is not so busy.

1. Ms F expressed the opinion, in the written Memorandum, that it will be important for the child and his father to have avenues and opportunities to be able to communicate with each other into the future so that the child can have the opportunity to re-establish a relationship with his father and understand the reasons why his contact with him has not been consistent.

1. In her oral evidence, Ms F also expressed the opinion that, given the fact that the child wants the adoption of him by his step-father to proceed, it would be far more likely that the child would accept contact from his father and initiate contact with his father in the future, if the adoption is permitted to go through than it would be if the adoption application is not permitted to proceed. I accept that opinion and consider it is very likely to be correct.

1. As I have said, the child is nearly 16 years of age. Though, at law, he is still a child, as a matter of reality he is an adolescent man. I accept that he is thoughtful, reflective and very mature as described by Ms F. I consider it in his best interests to give great weight to his views in determining this matter. I consider it in his best interests to make an order that will be most conducive to his desiring, in the future, to communicate with and to have a relationship with his father, not to make one that might lead to him rejecting his father completely, blaming him for an outcome where his step-father, who he clearly loves as a father, is not able to adopt him.

1. In the circumstances, I had determined it in the child’s best interests to grant leave to proceed with the adoption application and had prepared reasons and notified the parties of my intention to deliver judgment this morning. Soon thereafter, the Court received notice from the father’s solicitors that the father no longer opposed the application. In the circumstances, I consider that an insightful and timely change of position by the father which demonstrates that he has given the matter a great deal of thought and has, having regard for his love of his son,  put his son’s interests first and is respecting his wishes.  

1. I will order that pursuant to section 60G of the Family Law Act,  the Applicants, Ms Helman and Mr Helman, are granted leave to make application pursuant to the Adoption Act (Qld) 2009 for the adoption of the child B born in 1999 by his step-father, Mr Helman.

1. Mr Hurst is, of course, still at liberty, to attempt to make contact with the child and, in this regard, I am quite satisfied that he has the residential address of the Helman family at which he can write to the child should he wish. I am also quite satisfied that he has the mother’s mobile telephone number should he wish to speak with her and have her pass on a message to the child for him, including as to his own postal address, email address and telephone number for the child to contact him should he wish. There is, in my view, no need for a parenting order to be made in respect of this and it is not in the boy’s interests for the Court to do so.

1. The father has, in his Amended Response to the application of the mother and Mr Helman sought final orders that include the conferral of equal shared parental responsibility upon the mother and the father. Of course, that is different to the parental responsibility that each currently has pursuant to section 61C of the Family Law Act as that current parental responsibility is not “equally shared” and, thus, does not attract the statutory obligations imposed by section 65DAC of the Family Law Act for decisions about a major long-term issue in relation to the child (as that term major long-term issue is defined in section 4 of the Family Law Act) to be made jointly by the persons who “share” parental responsibility after consultation with each other and genuine effort to come to that joint decision. 

1. As the father is legally represented by experienced family lawyers, I can only assume that he is aware or has been made aware of the difference. I do not know, in circumstances where I have rejected his application for interim parenting orders and determined to grant the mother and Mr Helman leave to proceed with the adoption application, whether the father will now want to proceed with his application for a final parenting order that parental responsibility for the child be equally shared between him and the child’s mother.  That also includes provision for the child to live with the mother and spend time with him in accordance with the recommendations of a family therapist.

1. As the father opposed the granting of leave for the adoption application to be made by Mr Helman and the mother, one would expect that it is possible that he may not, despite leave having been granted, give his actual consent to the adoption going ahead. Although, as I have indicated, his timely change of position prior to today suggests he might now provide his consent to the adoption going ahead.  If he does not, an order dispensing with such consent will have to be made by the Children’s Court for the adoption to proceed and that is, ultimately, a matter for the discretionary determination by that Court. 

2. The exercise of that Court’s discretion to dispense with consent will necessarily involve consideration of any applications then current under the Family Law Act by the father for a parenting order for that child, whether it is in the child’s best interests for arrangements for the child’s adoption to continue to be made as well as any views about the father that the child himself expresses (see section 39 of the Adoption Act (Qld) 2009). In my view, though, that the father might still have a parenting orders application current in this Court at the time is not, on its own, determinative of the exercise of discretion to refuse or accede to an application to dispense with his consent, but is only one of the matters to be considered.

1. Whilst I currently consider that it is likely to be difficult for the father to persuade a Judge of this Court that parenting orders such as those sought by him on a final basis would be in the child’s best interests to be made if his adoption by Mr Helman has been effected in the meantime, it is my view, at least, that the granting of leave pursuant to section 60G for the adoption application to be made does not, as a matter of law, dispense with the substantive parenting orders application of the father. As such, I do not consider that I can dismiss it at this time.

1. However, it is to be hoped that the father might, particularly having regard to the opinion evidence of Ms F that I have referred to and accepted in these reasons in relation to the likelihood or otherwise of the child, at his age and maturity and with his clearly expressed views, accepting or initiating contact with his father in the future in the event that his (B’s) feelings and wishes are not respected and acted upon by his father, give serious consideration to whether he discontinues his application for final orders and concentrates his attention on simply trying to re-commence communication with the child and to re-establish his relationship with him rather than pressing on with an application for final orders that might be subjectively well-intentioned but currently objectively appears to have little merit.

1. However, whilst the matter is not discontinued or withdrawn it remains in the list and I anticipate it will come before a Registrar for further management in due course.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 November 2014.

Associate:

Date:  24 November 2014