Jackson & Anor and Connor
[2012] FamCA 877
•23 October 2012
FAMILY COURT OF AUSTRALIA
| JACKSON AND ANOR & CONNOR | [2012] FamCA 877 |
| FAMILY LAW – CHILDREN – ADOPTION – By step-parent – application pursuant to s 60G of the Family Law Act – where it is in the child’s bests interests to permit adoption to proceed to a state court |
| Family Law Act 1975 (Cth) s 60 G Adoption Act 2009 (Qld) |
| Lowe and Anor & Clayton [2011] FamCA 1024 |
| APPLICANTS: | Ms T Jackson and Mr B Jackson |
| RESPONDENT: | M Connor |
| FILE NUMBER: | CSC | 246 | of | 2012 |
| DATE DELIVERED: | 23 October 2012 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 5 September 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Worsley |
| SOLICITOR FOR THE APPLICANT: | Bolt Burchill Tranter |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
Pursuant to s60G of the Family Law Act 1986 (Cmth) leave is granted to the applicants, Ms T Jackson and Mr B Jackson, to commence adoption proceedings for the children B born … July 2002 and C born … October 2004.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jackson and Anor & Connor 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 HOBART |
FILE NUMBER: CSC 246 of 2012
| Ms T Jackson and Mr B Jackson |
Applicants
And
| Mr Connor |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an application pursuant to section 60G(1) of the Family Law Act 1975 (Cth) (‘the Act’) by Ms T Jackson, and Mr B Jackson seeking leave to commence proceedings for the adoption of B, aged 10 and C aged eight. Mrs Jackson is B and C’s biological mother. Mr Jackson is her husband and the step-parent of the children. The children’s biological father is Mr Connor.
The proceedings were heard on an undefended basis.
Section 92(1)(d) of the Adoption Act 2009 (Qld) provides that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under s 60G(1) of the Commonwealth Act and other matters.
Adoption proceedings have not as yet commenced in the State Jurisdiction.
THE BACKGROUND
The background of this matter is set out in an affidavit of the mother filed 27 August 2012. The father, Mr Connor, is a citizen of the Country 1 and is presently aged 50.
The mother and father were in a relationship between March 1999 and 2007. The relationship commenced in the Country 2 but for much of the time the parties lived in Australia. The relationship began to falter in 2004 and between that time and 2007 the father spent more and more time in the Country 2.
Since December 2007 the father has lived in Country 2, only returning to Australia on one occasion in March 2008 to collect his personal belongings.
The father has paid no child support for the children since January 2008.
The mother visited the father in Country 2 in July 2008. Subsequent to December 2008 the father had not contacted the children and his permanent residence in Australia has lapsed.
The father has formed another relationship and has children, from that relationship, in Country 2.
The mother discussed adoption with the father in 2010. In March 2012 the father signed a consent order in relation to consent to adopt.[1]
[1] Annexure E to affidavit of the mother filed 24 August 2012.
In May 2008 the mother formed a relationship with Mr B Jackson (the co-applicant) and the mother and Mr Jackson married in 2009.
Mr Jackson has been involved in the lives of the children since that time. The mother and Mr Jackson have two children from their relationship D, aged three, and E, aged almost one.
In June 2010 the surnames of the subject children were changed from Connor to Jackson. The mother says this was done with the consent of the father.
The mother seeks the adoption of the children for a number of reasons, which include:-
·Her concerns that if she were to pass away the need to retain the family as a unit.
·The children are Australian children and settled in Australia with their siblings and Mr B Jackson who they treat as their father.
·The mother asserts that she has not prevented the children from contacting their father nor the father from contacting the children. The father has not contacted the children since December 2008.
·The father consents to the adoption.
The adoption of children in Queensland is governed by the Adoption Act 2009 (Qld) which provides that for adoption the children are to be at least five years old and not yet seventeen.
As I have said elsewhere adoption proceedings have not yet been commenced in the State Jurisdiction. To enable an application to be made in the State system the Family Court must grant leave to adopt.
Further, there is a requirement that the natural parent consent to the adoption which is the case in this application.
An application for adoption is under Part VII of the Act and the determination must be made in the bests interests of the child.
As I have said before, the effect of giving leave to adopt is that parental responsibility for the child, and the non-adopting parent ceases, as do other parenting orders.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
I have had regard to the comments made by Murphy J in Lowe and Anor & Clayton [2011] FamCA 1024 where His Honour said at paragraphs 14 to 23 the following:-
14.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. 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.
15.Moreover, the Court is required to apply a number of principles in the determination of child-related proceedings, all of which are directed towards focusing the Court upon the interests of children and the impact of proceedings on children. In my view, those matters apply no less so in proceedings of this type.
16.I note, in particular, 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.
17.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.
18.It is 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, after 1 February 2010, is the State Magistrates Court). The granting of leave does not have the consequences just described; only the order for adoption made by that State court has those consequences (see generally Fogwell at 80,391 onwards).
19.Having said that, it is important to observe that the State legislation does bear upon the decision to be made in these proceedings.
20.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.
21.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 child or children) the matters enumerated at s 208 of the Adoption Act. 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 wellbeing and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order; …
22.In a similar vein, although neither consent, nor specified ages of the child or 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 (State) prerequisites.
23.The question then, in my view, can be expressed 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?
I endorse that approach.
THE FATHER’S INVOLVEMENT IN THESE PROCEEDINGS
The mother relied upon an affidavit of service by Mr F filed 18 July 2012. Mr F deposes that he forwarded to the father the initiating application, a copy of an affidavit of the mother sworn 27 March 2012 and affidavit of Mr B Jackson sworn 27 March 2012 together with the terms of consent order by electronic means on 1 May 2012.
Those documents were forwarded to the father’s email address and an acknowledgment was returned dated 7 June 2012. The father did not appear in Court today. The mother deposed in her affidavit of proof of signature filed 18 July 2012 that the signature on the acknowledgement of service was that of the father.
In this determination I have had regard to:-
(a)the initiating application filed 23 April 2012;
(b)the affidavits of the mother filed 23 April 2012 and 27 August 2012;
(c)the affidavit of Mr B Jackson filed 23 April 2012,
(d)the affidavit of service filed 18 July 2012; and
(e)an affidavit of proof of signature filed 18 July 2012.
I accept the evidence contained in those affidavits. The affidavit of service included the acknowledgement of service dated 7 June 2012.
I find that the mother, the children and Mr Jackson are resident in Queensland. Mr Jackson has lived with the mother and since 2008 and they married in April 2009. Mr Jackson has lived with the mother and children for at least three years. He was born in Australia in October 1973. The children’s ages are between five and seventeen years.
In terms of determining whether to grant leave to adopt is in the bests interests of the children, I have considered the factors under s 60CC including:-
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;
The children have not had any meaningful relationship with the father for many years. The father has not seen the children since December 2008 and has established a family in the Country 2. He has not visited the children nor has he provided for their financial support.
The father has consented to the adoption.
The father has not sought a meaningful relationship with the children.
Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is not a case where there are any issues of neglect, violence or abuse. On the evidence there is nothing to show that the children are at risk in the care of either of the applicants.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
I do not have the views of the children before me. They are clearly in a close relationship with the mother and the step-parent. In terms of their views it will be a matter for the State Magistrates Court to consider those when considering the provisions of s 208 of the Adoption Act 2009 (Qld).
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children’s major attachment is to the applicants. There is no evidence that the children have any attachment to the father. They have not known him for about four years.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
The father has not been engaged in the children’s lives since at least December 2008 and the parenting of the children has been primarily undertaken by the mother throughout their lives and jointly with Mr Jackson since 2008.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligation to maintain the child;
Since the father’s departure from Australia in June 2007 he has provided one child support payment of $800 to the mother, in 2008. The applicants have and continue to financially support the children.
Section 60CC(3)(d) the effect of any change in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other person (including any grandparent or other relative of the child);
There are to be no changes in the children’s circumstances.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The father has started a new life in Country 2 and has shown little interest in spending time with the children since that time.
Section 60CC(3)(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no issue as to the father’s capacity or otherwise. He has not engaged in the lives of the children.
Both the mother and step-parent, Mr Jackson, have cared for the children and it appears that they are doing well at school and are involved in a broad range of age appropriate activities.
From the evidence it is clear that the mother has displayed a long term capacity to provide for the needs of children as she has been their primary carer since their birth and they appear to be thriving in her care.
In the mother’s case summary she says Mr Jackson is ‘an integral part of the children’s lives providing financial stability, guidance and nurturing’.[2]
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
[2] Filed 5 September 2012 at page 10.
The applicants have given evidence that they have adopted sensible and child focused parenting arrangements and the children are thriving in that environment.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Not applicable.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
The father has consented to the adoption order.
The home provided by the mother and Mr Jackson meets the best interests of the children by providing for their physical, psychological and emotional needs.
CONCLUSION
In all of the circumstances in these child related proceedings, the leave to adopt will not change this long established status quo. The children are being well looked after. The order for the children’s adoption by their mother and step-parent is likely to promote the children’s wellbeing and their best interests.
I have considered the impact that these proceedings may have upon the children in particular their need for consistency and stability.
This decision is different to the actual application to adopt, however it is clearly a precursor to such an application. However, if the adoption application was likely to fail, leave would not have been given.
I am satisfied that in the circumstances of these proceeding it is in the interests of these children that leave be granted to commence proceedings for adoption pursuant to s 60G of the Act, in the State Jurisdiction.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 October 2012.
Associate:
Date: 23 October 2012
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Statutory Construction
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