Holden & Britten

FAMILY COURT OF AUSTRALIA

HOWARD & BRIAN

[2010] FamCA 197

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)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS:

Mr and Mrs Howard

RESPONDENT:

Mr Brian

FILE NUMBER:

BRC

252

2010

DATE DELIVERED:

2 March 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

2 March 2010

REPRESENTATION

THE APPLICANTS:

In person

THE RESPONDENT:

No appearance

Orders

Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the children E born … March 1997 and Y born … March 1997.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 252 of 2010

MR AND MRS HOWARD

Applicants

And

MR BRIAN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application by a step-parent for leave to adopt, pursuant to section 60G of the Family Law Act 1975 (“the Act”).
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 Act 1975.
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 the reasons developed by Dr Jessep in a jointly authored article, their validity may well be arguable: see O. Jessep and R. Chisholm, “Step Parent Adoptions and the Family Law Act” (1992) 6 Australian Journal Family Law 179, at 182-185, discussing, in particular, re LSH; ex parte RTF (1987) 75 ALR 469.
These proceedings, too, are undefended, and Mr and Mrs Howard represent themselves.
No argument is addressed in respect of 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.
Adoption of children in this State was governed, until 1 February 2010, by the Adoption of Children Act (Qld) 1964. Now, those proceedings are governed by the Adoption Act (Qld) 2009.
Under that new legislation, new criteria apply to applications for adoption. Critically, the Act requires prospective adopting step-parents to satisfy, in addition to the pre-existing criteria, two new criteria, namely that the relevant children are at least five years old and not yet 17, and secondly, that this court has granted leave to adopt. Further, a natural parent must, absent an order of the court dispensing with same, give consent (irrespective of whether the natural parents of the children were married).
Section 60G of the Act was inserted into the Act in 1995 after the decision in Fogwell & Ashton, to which I have earlier referred, in which 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. While, as has been observed, the failure to obtain leave now has consequences under state legislation, 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.
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.
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.
Thus, an effect of adoption is that all parental responsibility for the 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.
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. 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.
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. Moreover, the court is required to apply a number of principles in the determination of child-related proceedings, all of which are directed towards focussing the court upon the best interests of children and the impact of proceedings on children.
In my view, those matters apply no less in proceedings of this type.
I note, in particular, that 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.
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.
It is vitally 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, 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 has those consequences (see generally Fogwell, above at paragraphs 23 and following).
Having said that, it is important to observe that the new State legislation does bear upon the decision to be made in these proceedings.
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.
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 children) the matters enumerated at section 208 of the Adoption Act (Qld) 2009. 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;
In a similar vein, although neither consent nor specified ages of the children are specified as requirements of the application under the Act in this court, they nevertheless 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.
The question then, in my view, can be expressed this way. Is it in the relevant 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 parenting orders being made in this court that might involve the parent and step-parent?

Background and Decision

On 18 December 2003 an order was made in the Federal Magistrates Court at Brisbane, by consent, whereby the children, Y and E, then aged about six, were to live with their mother. The father was to have contact with the children as agreed and, absent other agreement, each alternate weekend and on other special occasions and the like. Telephone contact and holiday contact during the gazetted school holidays was also provided for.
In the lead up to the making of those orders the mother had entered a new relationship with Mr Howard. The children, at the time the orders were made, were about six, but they were considerably younger when Mr Howard came into their lives. The material in this case includes letters from each of the twin girls.
Each of the girls express a desire for Mr Howard to adopt them and include among the reasons, for example, “He is an awesome dad,” and, “He’s caring,” and, “He’s really nice.” E says, as part of her reasons, “I love having a dad around the house. It makes me feel safer.”
It will be appreciated that the girls are now nearly 13 and have thus had Mr Howard as a father figure in their lives for many years, including, for example, effectively the whole of their primary school education. The material filed in support of the application includes an affidavit that deposes to the living circumstances of the family.
I have no reason whatsoever to suggest that the environment provided for the children by Mr and Mrs Howard is anything other than an entirely appropriate, caring, and loving environment for these two young children. Certainly, on the evidence before me, the girls seem to think so.
The evidence also reveals that the girls are doing very well. They are currently in Year 8 at High School and last year, at the end of their primary school education at the local State School, they were school captain and vice-captain as well as holding other positions on the school council.
As well as those matters, all of which are directly relevant to the best interests of these two girls (who are now probably more accurately described as young women) is an affidavit from their father, Mr Brian. Mr Brian says in his affidavit that he has “...no objections to [Mr Howard] adopting my daughters.” He also indicates in that affidavit that “I’m also aware that when the adoption is granted I no longer have to pay maintenance for the children.”
Mr Howard deposes in his affidavit that the current relationship between the girls and their biological father is spasmodic at best. He deposes that, other than one telephone call and one visit at a park for an hour at Christmas and around the girls’ birthdays, time between the father and the girls has otherwise been non-existent.
Mr Howard deposes that the most recent time spent by the father with the girls was a telephone call and a one-hour visit on Sunday, 20 December 2009. The visit prior to that was in March 2009.
It seems to me, in all of the circumstances of this case, that it is plainly in the girls’ best interests for leave to adopt to be granted to the applicant.
I order accordingly.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 16 March 2010

[2010] FamCA 197

2 March 2010

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Statutory Construction