Hutchens & Franz

[2009] FamCA 414

FAMILY COURT OF AUSTRALIA

HUTCHENS & FRANZ [2009] FamCA 414

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – where there was a surrogacy arrangement between respondent and applicants – where previous consent orders providing for applicants to have sole parental responsibility for the child exist – leave granted as in child’s best interests and respondent fully aware of consequences of order and ultimate adoption order being made

Family Law Act 1975 (Cth), ss 60CB, 60CG, 60F, 60G, 60HA, 61E, 65J

APPLICANTS: Mr and Mrs Hutchens

RESPONDENT: Ms Franz

FILE NUMBER: ADC 4875 of 2008

DATE DELIVERED: 10 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 10 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Redman

SOLICITOR FOR THE APPLICANT: Redman Alderman Lawyers

COUNSEL FOR THE RESPONDENT: Ms Natt

SOLICITOR FOR THE RESPONDENT: Germein Reed Mildwaters

Orders

1. That pursuant to section 60G(1) of the Family Law Act 1975 leave be granted for proceedings to be commenced by MR HUTCHENS and MRS HUTCHENS for the adoption of the child … born … January 2002.

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

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4875 of 2008

MR AND MRS HUTCHENS

Applicants

And

MS FRANZ

Respondent

EX TEMPORE REASONS

1. I have before me an initiating application filed by Mr Hutchens and Mrs Hutchens, seeking an order pursuant to section 60G(1) of the Family Law Act.  The order sought is that leave be granted to the applicants for proceedings to be commenced for the adoption of a child who was born in January 2002.

2. The respondent to that application is Ms franz, who is the natural mother of the child.  Ms Franz is represented in these proceedings, and there is a notice of address for service that has been filed and also an affidavit of hers, which I have before me and which I have read.

3. Ms Franz has no difficulty with the orders being made; indeed, she has indicated that she is prepared to consent to such an order.  That consent though does not obviate the need for me to consider whether I will or will not make the order.  In other words, I have a discretion about it which is not overcome by the consent of the respondent, but it is significant that the respondent does consent to the order, bearing in mind the effect of, initially, the granting of the leave but, more significantly, if that then translates into an ultimate order for adoption.  I will come to those consequences in a moment, but, as I say, it is significant that Ms Franz is consenting to the order and she has no difficulty with it in the knowledge of those consequences.

4. This matter was listed before me last week, but neither Ms Franz nor her solicitor appeared.  I was concerned not only about that but also I was concerned to know that Ms Franz understood the consequences of this court making the order sought and particularly if it then translated into an adoption order subsequently.

5. Ms Natt has appeared for Ms Franz this morning, and Ms Franz has attended as well, both by telephone.  I have asked some pointed questions of Ms Natt and she has indicated that her client's instructions are that she fully understands the consequences of leave being granted initially by me and then, as I say, using that phraseology, that leave being translated into an actual order for adoption subsequently in the state courts.  Thus I am satisfied to proceed with the application on that basis.  As I say, though, that does not obviate the need for me to exercise my discretion in relation to the application.

6. In terms of the brief background facts of the matter, I will not repeat all of the factual background that is contained in the affidavits but I should first identify the affidavits that are before me.  There is an affidavit filed by Mr Hutchens on 9 December 2008, and an affidavit of Mrs Hutchens filed on the same date.  There is also an affidavit of Ms Franz, which was tendered to me on 6 February.

7. Briefly, Mr and Mrs Hutchens were married in April 1998.  They were unsuccessful in having a child themselves and ultimately they entered into what is described as an altruistic surrogacy agreement with the respondent Ms Franz.  As a result of that agreement, the subject child was born.  The child was born in January 2002.  Ms Franz is the biological mother and Mr Hutchens is the biological father.  The child has been in the care of Mr and Mrs Hutchens since he was two days' old.

8. Mr and Mrs Franz live in M in South Australia where they run a business with Mr Hutchen’s parents.  Ms Franz resides in D, which is approximately 10 or 15 minutes away.  The family unit that Mr and Mrs Hutchens now have is of course themselves, the subject child, and they have adopted another child, a daughter.  That occurred in about 2005.

9. Ms Franz has a child as well, a son.  As I say, Ms Franz and her son live at D.  

10. Mrs Hutchens is indeed Ms Franz’s cousin.  As such, they already have, obviously, a family relationship.  I am told in the affidavits that there is a good relationship between Mr and Mrs Hutchens and their family, and Ms Franz and her child, and they see each other on a regular basis. Ms Franz sees the subject child every fortnight or so and it is proposed that that continue, albeit that there are these proceedings now, and ultimately there may be an adoption order.

11. I should also mention at this stage of my judgment that there have been proceedings previously in this court.  On 28 July 2002 Mr and Mrs Hutchens filed an application, to which Ms Franz was the respondent, seeking orders in relation to the child, and specifically final orders that the applicants have the sole parental responsibility for the child, that the applicants have residence and long‑term and day-to-day care, welfare and development of the child and, significantly, that the respondent Ms Franz have contact with the child as is agreed between the parties.

12. Those proceedings were resolved by consent, and a consent order was made on 28 August 2002.  I note it was amended subsequently, but that was only in relation to a typographical error with the child’s name.  In any event, the consent order made on 28 August 2002 was that the applicants - that is, Mr and Mrs Hutchens - have the sole parental responsibility of the child, that they have the residence and long-term and day-to-day care, welfare and development of the child and, as I said, importantly and significantly, that the respondent Ms Franz have contact with the child as is agreed between the parties.

13. Since then the parties have been able to agree when Ms Franz sees the child, and that, I am told, has all been on an amicable basis, and I accept that.  It is anticipated and hoped that that will continue.

14. Turning to the law, the section under which this application is brought is section 60G of the Family Law Act 1975, which provides:

    (1)  Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State 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.

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

15. Thus I am charged with determining whether the granting of leave would be in the child's best interests, and I will come back to that.

16. In relation to the paragraphs and the sections referred to, I just need to briefly mention those. Paragraph 60F(4)(a) in effect provides that, if a court grants leave for the adoption proceedings to be commenced, then the child ceases to be a child of the marriage for the purposes of the Family Law Act, and that is of course if the adoption ultimately occurs as a result of the leave that is granted.  That does not apply here, so I do not need to consider that paragraph further.

17. I am also required to have regard to the following:

    Paragraph 60HA(3)(a), which provides:

    (3)The following provisions apply in relation to a child of current or former de facto partners 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 those partners for the purposes of this Act;

    Section 61E, which 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) 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.

    Section 65J, which provides:

    (1)  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)  The parenting order stops being in force 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.

18. In relation to paragraph 60HA(3)(a), that relates to children of de facto partners and that is not relevant to the application that is before me today.

19. Turning to section 61E, that is a section that applies if a child is adopted and immediately before the adoption a person had parental responsibility for the child. In that event, subsection (2) provides that 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. Thus if I do grant the leave, this section applies, and what will occur is, upon the adoption, if that occurs, the parental responsibility that Mr and Mrs Hutchens each have would end.  Whether Ms Franz still has any parental responsibility as a result of the order made in 2002, I am not certain about.  In any event, let us assume for the moment that she does have, as Ms Redman has termed it, some residual responsibility, then that responsibility would also end upon the adoption.

21. Just harking back to what I said at the start of these reasons, it is that consequence, for example, that I wanted to be certain that Ms Franz understood and accepted would happen.  I am now satisfied that she does understand that significant consequence.

22. With the last section referred to in section 60G - that is, section 65J - that section provides again that if immediately before that adoption a parenting order was in force in relation to the child then that parenting order stops being in force on the adoption of the child, unless the adoption is by a prescribed adopting parent, and leave was not granted under section 60G. Now this is important here because there were parenting orders made in 2002; and those orders would cease on the adoption occurring.

23. Again, harking back to what I said at the commencement of these reasons, that is another issue which I wanted to be satisfied that Ms Franz understood; namely, that that order insofar as it applied to her would cease.  As I say, and to repeat, I am satisfied that she understands that that would be the effect, ultimately, of an adoption order if I grant leave.

24. Thus it seems that in considering this matter and in determining what is in the child's best interests, I have to have regard to the effect of sections 61E and 65J, namely, that parental responsibility and the parenting orders will cease upon the adoption order being made.

25. In terms of how this court should determine what is in the child's best interests, sections 60CB to 60CG of the Act deal that. However, I do not propose in these reasons to go through those sections seriatim.

26. There has been some authority on what is the correct approach in these matters.  For my part, I consider that the question is, if adoption proceedings are brought and if those proceedings are successful, would the child's best interests be better served by the adoption having the wider consequences under the Family Law Act 1975 which the granting of permission for the adoption application would give it?  Those wider consequences are what I have just referred to in particular, namely, the effect on any parental responsibility, and the effect on any parenting order.

27. I should say that that decision is made easier in this case by the input of Ms Franz.  Sometimes the respondent does not even attend or does not take part in the proceedings, but here she is consenting to the order.

28. It is apparent from the affidavit material that there is a good relationship between the child and all relevant parties, and particularly Mr and Mrs Hutchens.  I am satisfied that Mr and Mrs Hutchens have the capacity to provide for the needs of the child.  I am satisfied that they have demonstrated a proper attitude to the child and to the responsibilities of parenthood.  The child has lived with them from two days after the child's birth.  There is nothing of any concern that has been put to me today, nor that is apparent in any of the affidavit material before me, about either the relationship or the attitude of the applicants to the child during the time that the child has lived with them.

29. In the reasons put forward by the applicants for this application - and obviously they have looked ahead and put their position on the basis that ultimately there will be an adoption order made in their favour - they have raised issues about the birth certificate of the child.  They submit that the granting of leave and the ultimate adoption would promote the welfare of the child.  It will also, and I paraphrase from their affidavits, further recognise the integration of the child into their family and, having adopted their other child, they believe, and I accept, that it is very important to also adopt the subject child.

30. They have taken a sensible and logical approach to the future.  By that I mean they both say in their affidavits that they propose to inform the child, and using their words, of the special way that he came into the world and they will seek psychological assistance if he should indicate that this is ever an issue for him.  I accept that they will do this.  The history of the assistance they have sought, including psychological assistance, in getting to this point, and indeed in having the child, is testament to that.

31. In addition, I am pleased that both of the applicants have indicated that they wish to maintain the involvement of Ms Franz in the child’s life.  I have touched on that already.  It is important that they have said that, although the order for contact if the adoption proceeds will end, they propose to continue providing for the child to see Ms Franz.  As I said at the start of these proceedings, that is something that can always change, but importantly, Ms Franz appreciates that and she has taken that into account in forming her attitude to this application.

32. I also note that the child has been registered at birth as … Hutchens, having taken his father's name from birth, as obviously one would expect, and thus there is no issue of change of name or change of circumstances in that regard.

33. The child of course is now seven years of age.  He is still obviously too young to appreciate what is happening here.  There is nothing in the affidavits about his wishes, and obviously so, because he has not been informed of the circumstances of his birth and what is happening now in this court, and that does not surprise me, of course, given his young age.

34. That is all to come.  I am satisfied that the applicants have, at this stage at least, taken a proper attitude to that circumstance and they will deal with that appropriately when the time comes.

35. That said, I am satisfied that it is in the child’s best interests for this application to be granted, given the wider consequences under the Family Law Act that will flow from that granting of permission. As I say, and to repeat, but importantly I am able to reach that decision not only after a consideration of the factual material before me in determining what is in the child's best interests but in the knowledge that Ms Franz is fully apprised of the facts and the consequences and effects of granting leave today, and then ultimately an adoption order being made.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 February 2009.

Associate