Howard And Anor and Horta

[2009] FamCA 919

FAMILY COURT OF AUSTRALIA

HOWARD AND ANOR & HORTA [2009] FamCA 919

FAMILY LAW – ADOPTION – by biological mother and step-father – biological father deceased

1st APPLICANT: Mr Howard

2nd APPLICANT: Ms Howard

RESPONDENT: Mr Horta (Deceased)

FILE NUMBER: ADC 2577 of 2009

DATE DELIVERED: 14 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 14 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That leave be granted pursuant to s 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of S born … February 1992 and L born … October 1997 by the applicants.

2. That all applications be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2577 of 2009

MR AND MRS HOWARD

Applicants

And

MR HORTA (DECEASED)

Respondent

EX TEMPORE REASONS

1. This matter commenced with an Application in a Case filed on 1 July 2009.  It came before me on 31 July 2009 when I adjourned it to 13 August 2009, and then I adjourned it to today. 

2. In the Application in a Case filed on 1 July the order sought was – and I quote:

   The formal adoption of (a) [the child S]; (b) [the child L] by [Mr Howard], husband of their biological mother, their biological father being deceased.

3. As I mentioned yesterday, but I now repeat for the purposes of my reasons today, that application was ill-founded, both in terms of the form that was used and the order sought. This Court is the court to which an application is made for leave to commence proceedings for adoption in the State courts. That is provided for in s 60G of the Family Law Act. Thus, the order sought in the Application was not an order that this court can make. In relation to the form, that has now been attended to and on 13 August 2009 an Initiating Application was filed by the applicants. However, in that application the applicants named are Mr Howard and Ms Horta. Unfortunately that is an incorrect name for the second applicant, her name is now her married name of Howard. Thus on the oral application of the applicants I am asked to formally amend that in the document and I do so and will have my associate attend to that, such that the second applicant becomes Mrs Howard. In any event, the order sought in the Application is for leave to be given to commence proceedings for adoption pursuant to s 60G of the Family Law Act, and thus that finally is now in order and I proceed on that application today. 

4. I also note just by the by that some of the items in the application have not been completed and I will pause to allow that to be attended to. 

5. I now have before me a completed Initiating Application, which is the appropriate form for this matter, seeking the appropriate order, and that was filed on 13 August 2009.  When the matter first came before me on 31 July, apart from what I have just referred to, which are really formalities and have been relatively easily overcome to allow this matter to proceed, I raised with the parties what I saw as a difficulty, namely, that there was no named respondent in the Application in a Case, which was the application before me.  Now, the situation in that regard is that in normal circumstances the respondent would either be the biological mother and/or the biological father.  In this case the biological mother is an applicant, along with Mr Howard, the stepfather of the subject children.  The biological father is deceased.

6. I adjourned the matter to 13 August 2009 to enable the applicants to obtain legal advice which might assist in overcoming the concerns that I had about that.  Unfortunately, the legal advice that the applicants obtained, and which they relayed to me yesterday, in my view was inadequate – or perhaps more to the point, incorrect advice.  Further I had anticipated the applicants instructing solicitors, not only to provide advice, but also to actually appear before me and provide a submission as to the basis on which I could proceed to hear this case.  Unfortunately, that did not happen either.  Thus at the end of the day I have no assistance whatsoever from the applicants in terms of this issue that I am raising.  I am still very concerned about it, but I have determined to proceed and make the best of the lack of submissions.

7. In any event, that is not necessarily unusual, I suppose, in this Court, or in any other court today.  Parties appear for themselves on a regular basis, and it is not unusual that I have no legal representatives, but, as I attempted to stress to the applicants, and I am sure they appreciate the importance of it, this was an issue which needed proper legal advice and fulsome submissions made to me. No assistance is provided to me in the legislation in relation to this issue and by that I mean not only in the Family Law Act under which this Court operates, but also in the Adoption Act of South Australia, which if I give leave will be the Act under which proceedings are commenced in the State Court by the applicants.

8. I am perhaps comforted though by some decisions which have emanated from other courts as to some relevant sections in – not the South Australian Adoption Act but the adoption Acts of other states which are in similar terms to the South Australian Adoption Act.  For example, there is a decision in the Australian Capital Territory of Re an Adoption of E, which is a decision of Refshauge J of the Supreme Court of the Australian Capital Territory. It is reported in (2008) ACTSC 46. Now, in that case, there was an application before his Honour to dispense with the consent of the birth father of the child, the subject of an application for an adoption order and the reason for that was that the birth father of the child was deceased. Under the ACT Adoption Act, as with the South Australian Adoption Act, an adoption order cannot be made in respect of a child under 18 years unless consent has been given by the parents of the child. Section 15 of the South Australian Adoption Act provides:

   An adoption order will not be made unless each person who is a parent or a guardian of the child has consented to the adoption, whether the parent or the guardian is present in Australia or not.

9. Now, what his Honour said in that case was that the Adoption Act itself did not seem to cater for the circumstance of a birth father being deceased and, in particular, the Act did not seem to deal with that situation in the section which provided for the ability of the court to dispense with such consent.  In other words, perhaps to be simplistic about it, there was not a subsection which said, for example, that consent can be dispensed with if a birth parent is deceased.  Thus, his Honour, in the end, relied on a catchall in the relevant section providing for dispensation with consent which is in similar terms to the relevant section in the Adoption Act of South Australia, namely s 18. Section 18(1)(e) provides that the court may dispense with the consent of a person to an adoption where it appears to the court that there are other circumstances by reason of which the consent may properly be dispensed with. 

10. His Honour expressed serious reservations about whether the equivalent of that sub-section could be interpreted to apply to the circumstances confronting his Honour but his Honour determined to adopt that course in the end result and, in doing so, he referred to other decisions which I will not repeat in these reasons for judgment. 

11. Now, of course, that case is not on all fours with this. That case deals with the next stage of this matter, namely, if I grant leave in this case, the parties will commence their proceedings in the State Court and before that State Court they will need to make an application for an order to dispense with the consent of the birth father.  Thus, whichever judicial officer hears the matter in the State Court will be confronted with the scenario that arose in this case that I am referring to.  However, the point of it all is that, in that case, there was clearly no respondent, or rather, more pointedly, the birth father was not a respondent because he was deceased, yet that did not prevent his Honour dealing with the matter.

12. Now, as I say, and I hasten to add, it is certainly not a case on all fours.  It is in a different court and it is at a different stage of the proceedings but, in my view, I can take some comfort from that being the approach at the next stage which will inevitably occur in this case if I give leave.  And if perhaps one reflects on what is sought to be achieved here, the application before me is for leave to commence proceedings for adoption of two children whose natural father is deceased.  As I will come to in a moment, in the end result, whether I grant leave or not, will be determined by what I consider is in the bests interests of these children.

13. Where a birth father is alive, then clearly the birth father needs to be involved, if at all possible, in the proceedings at this stage of the matter, and obviously at the next stage of the matter if leave is given, for the reason that an adoption order if ultimately made will significantly affect the position of the birth father vis-à-vis his children.  Here, of course, the birth father is deceased and he is not in a position to exercise any rights that flow from the relationship between natural father and children.  Now, that is not the sole consideration in the matter, but if one looks at it from that point of view, and I am not meaning to decry or belittle the fact that the children the subject of these proceedings have a natural father, but the fact of the matter is that he is deceased, and he is not in a position to take any part in these proceedings or in the proceedings ultimately that will take place if I grant leave.

14. Thus, in my view, approaching the matter in that way and, as I say, taking comfort from the decision that I have referred to and other decisions of a like nature where the matter was allowed to proceed despite the fact that the birth father was deceased, I propose to do the same in this case. 

15. Now, the application is made pursuant to s 60G of the Family Law Act and importantly sub-s 60G(2) provides as follows:

    (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.

    Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

    I need to turn to those paragraphs and sections to see how, if at all, they impact upon the application currently before me.

16. Firstly, s 60F(4)(a) provides:

    (4)  The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

    (a) if a court granted leave under section 60G for the adoption proceedings to be commenced--the child ceases to be a child of the marriage for the purposes of this Act;

17. Now, I suppose fortuitously or otherwise, the fact of the birth father’s death means that that paragraph has no effect on the application that is before me because it is no longer of any consequence that the children would cease to be children of the marriage for the purposes of this Act. 

18. Next there is paragraph 60HA3(a) which clearly does not apply because that section deals with children of de facto partners, which is not the case here. 

19. Next, there is s 61E which provides:

    Effect of adoption on parental responsibility

    (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.

20. What has happened here, though, and deliberately so, is that that section would impact upon Mrs Howard who is the natural mother of the children, but rather than she being a respondent, she is an applicant, and thus seeks an order from me that not only her current husband but she herself be granted leave to commence proceedings for adoption. Thus, although her parental responsibility for the children will end upon the adoption of the children, the effect of the adoption will be to replace that.  Now, that is putting it in very simplistic and layman’s terminology, but the long and the short of it is that there really will be no change to the relationship between mother and children as a result whereas it might have been otherwise if she was a respondent to these proceedings and thus did not take part in the adoption application, if leave is granted.

21. Next, there is s 65J.  This section provides that, again, if leave is granted and an adoption order is made, any parenting order that is in force in relation to the children stops being in force.  Now, as I understand it, there is no parenting order in force in relation to these children, and thus it does not apply here. 

22. In terms of the evidence before me, initially there were two affidavits filed, one by Mr Howard and one by Mrs Howard.  They were both filed on 1 July 2009.  They are still before me for the purposes of this application but more recently two further affidavits have been filed, again, one by each applicant, on 10 August 2009.  Perhaps I should say a little bit about these affidavits.  When the matter first came before me, I indicated to the applicants that I did not consider that there was sufficient in their affidavits to enable me to properly address the issue of what would be in the best interests of these children, and that was another reason why the matter was adjourned, namely, to enable the applicants to file further affidavits, which they have done and which I have read and which assist me in this matter.

23. Mr Howard’s affidavit annexes a number of letters from various third parties.  The proper way for those letters to be put before this court is for the authors of those letters to file their own affidavits, because otherwise it is totally hearsay.  In this case, though, I am prepared to overlook that, if you like, and treat those documents as before me. 

24. There is one document, though, that I will not have any regard to, and that is a letter from one of the children.  It is not open without leave of this Court, and I do not propose to grant that leave, to put an affidavit before this court or an annexure to an affidavit authored by a child. 

25. Next, as I have already referred to, but it bears repeating, in this case I am to consider whether granting leave would be in the children’s best interests. In this Court s 60CC of the Family Law Act sets out the factors to be taken into account in determining what is in a child’s best interests. Although s 60G does not in itself refer to s 60CC, there is a notation to s 60G which identifies not only s 60CC, but some other relevant sections as well, as being the sections guiding how this court determines a child’s best interests.

26. Now, I need to identify what the question is that needs to be answered in these proceedings. I have said in other cases where applications like this have been made to this Court, that the question to be answered in an application under s 60G is if the applicants bring adoption proceedings and if those proceedings are successful would the children’s best interests be better served by the adoption having the wider consequences under the Family Law Act which the granting of permission for the adoption application would give it.

27. To answer that question, having considered the evidence before me, I am satisfied that the children’s best interests would be better served by the adoption having the wider consequences under the Family Law Act, which the granting of permission for the adoption application would give it.

28. Turning then though to s 60CC of the Family Law Act, I do not propose to deal with each subparagraph of sub-s (2), (3) or (4) seriatim.  I simply propose to refer in a general way to some of the matters which I consider to be relevant in this case. 

29. Firstly, there are the primary considerations in sub-s (2) of s 60CC, namely, the benefits of the children of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

30. Now, perhaps I can just leave those primary considerations for the moment because I do not necessarily consider that they are directly relevant to the issue that I have to determine here and the additional consideration set out in sub-s (3) of s 60CC or rather some of the factors in there are more relevant. Thus, for example, sub-paragraph (a), any views expressed by the children. In this case I am satisfied that the children have expressed views to the effect that they want these proceedings to be successful and ultimately for there to be an adoption order made.

31. Next, there is the nature of the relationship of the children with the applicants in this case and, again, I am satisfied on the evidence contained in the affidavit material that there is an excellent relationship between the children and the applicants.  Obviously with Mrs Howard we are talking about the children’s natural mother.  There needs obviously to be more concentration on the position with Mr Howard as the stepfather but as I say, I am satisfied that there is an excellent relationship between the children and both applicants.

32. Next, sub-paragraph (f), the capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs.  Again, I have no difficulty in finding that both applicants have the capacity and in fact exercise that capacity to provide for all of the needs of the children.

33. Next, to highlight sub-paragraph (i), the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.  In this case, again, on the basis of the affidavit material that is before me, I am satisfied that both applicants have demonstrated an appropriate attitude to the children and to the responsibilities of parenthood.

34. Now, there are no issues of family violence and I do not need to consider sub-paragraphs (j) or (k), for example, and nor is there any reason to consider sub-paragraph (l). 

35. It bears commenting on that both children have suffered as a result of, and naturally so, their natural father’s death.  I have read of the consequences of that, not only from the children but, for example, Mrs Howard herself, and it can only be to the credit of Mr and Mrs Howard that the children have developed in the way that they have and I refer in a general way to the letters that are annexed to the affidavit of Mr Howard.

36. Mr and Mrs Howard have obviously provided a safe and secure home for the children, and put their interests ahead of all else.

37. In summary, there is nothing of any concern that arises from the affidavit material, or that has been put to me, or that has arisen in any submission, as to either the relationship that exists between the children and the applicants, or the attitude of the applicants to the children, for that matter. 

38. I note particularly that the application has the support of the godmother of both children, Ms G; the older sister of both children, Ms C, and the children’s maternal grandmother, Mrs H.  To be perfectly frank, if there was ever a case where it was in the best interests of these children that this application be granted, this is it, and I have no hesitation making that finding, namely, that it is in the best interests of these children for leave to be granted to commence proceedings for adoption. 

I certify that the preceding 39 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 14 August 2009.

Associate