Javier and Tickner

[2010] FamCA 886

FAMILY COURT OF AUSTRALIA

JAVIER & TICKNER [2010] FamCA 886

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

APPLICANT: Mr and Mrs Javier

RESPONDENT: Mr Tickner

FILE NUMBER: BRC 6375 of 2010

DATE DELIVERED: 6 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 6 September 2010

REPRESENTATION

THE APPLICANTS: In person by telephone

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants MR JAVIER and MRS JAVIER to commence adoption proceedings of the child T born … February 2000.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6375 of 2010

MR and MRS JAVIER

Applicants

And

MR TICKNER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by a step-parent for leave to adopt pursuant to s 60G of the Family Law Act1975 (“the Act”).

2. 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 Act1975 (“the Act”).

3. 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 reasons developed by Dr Jessep in a jointly-authored article, their validity may well be arguable:  C.O. Jessep and R. Chisholm, “Step-parent adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179 at 182-185, discussing, in particular, Re LSH; ex parte RTF (1987) 75 ALR 469.

4. These proceedings, too, are undefended.  No argument is addressed in respect to 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. 

5. Adoption of children in this state is governed by the Adoption Act2009 which came into force on 1 February 2010. 

6. The new Act specifies criteria different to those in the previous Act. Critically, the Act requires prospective adopting stepparents to satisfy, in addition to previous criteria, two new criteria, namely that the relevant child or children is or are at least five years old and not yet 17, and secondly, that this court has granted leave to adopt.

7. Further, a natural parent must, absent an order of the court dispensing with same, obtain consent of the other parent, irrespective of whether the natural parents of the children were married. 

8. Section 60G of the Family Law Act1975 (“the Act”) was inserted into the Act in 1995 after the decision in Fogwell & Ashton, to which I have earlier referred, in which his Honour 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.

9. While, as has been observed, the failure to obtain leave now has consequences under the (new) State Act, 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.

10. 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.

11. 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.

12. Thus, an effect of adoption is that all parental responsibility for the child or 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.

13. 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.

14. 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. 

15. 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.

16. 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.

17. 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 paras 23ff).

18. Having said that, it is important to observe that the State legislation does bear upon the decision to be made in these proceedings. 

19. 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. 

20. 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 State 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 well-being and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order;

21. 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, nevertheless they 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.

22. 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.

THE PRESENT APPLICATION

1. Mr Tickner and Ms Javier together have a child, T, born in February 2000. However, the relationship between Mr Tickner and Ms Javier concluded in about August 1999 before the child was born. Mr Tickner has not had any relationship with him in any form.

2. It seems to me in the circumstances of this case entirely appropriate to grant leave to allow an application for adoption to take place.

3. Mr Tickner does not appear today. I note that in an affidavit filed by him on 10 August 2010 and sworn by him on 28 July 2010 that he says as follows:

   As stated by [the mother], I have had no contact with [the child] over the last 10 years. It would seem that [the child] is well settled with [the mother] and [Mr Javier] and their three children. I confirm that I am happy for the adoption to go ahead as requested.

4. In about January 2001, Ms Javier met her current husband. They commenced cohabitation in that year and subsequently married in 2003. Mr and Mrs Javier have, then, been in a relationship for about 9 ½ years.

5. For the whole of that time and obviously, then, since T was a tiny baby, Mr Javier has been the sole father figure in his life. Mr Tickner has had, as I have said, no form of relationship with the child at all, but I note that child support payments are made as assessed by the Agency in respect of him.

6. In the time since T came in to the care of Mr Javier, Mr and Mrs Javier have had three children of their own, C who is now eight, B who is seven and A who is almost three. The affidavit material before the court reveals a close sibling relationship between those three children and T.

7. “Normalising”, as it were, the legal position for all four children is, it seems, an important component of the application for adoption made in this case.

8. The affidavit material speaks of a warm and loving relationship, not only between T and his brothers but between T and Mr Javier.

9. It seems clear on the material before me that T and Mr Javier have a close and loving bond that has been in existence for the whole of the time that the child has been living with Mr Javier.

10. Mr and Mrs Javier each depose to the manifestations of that close and loving relationship including the activities that Mr Javier engages in with T.

11. I note also that the material refers to a close and loving relationship between T and Mr Javier’s extended family, including a particularly close relationship with Mr Javier’s mother.

12. The application is made, then, in circumstances where the material reveals that no doubts that Mr and Mrs Javier provide for all necessities for T and the other three children. There equally can be no doubt that each of them, and in particular Mr Javier, provides appropriately and lovingly for the emotional and psychological needs of T and the other three children.

13. It seems to me, then, in all the circumstances of this case that it is appropriate to grant leave to the adoption application proceeding under state law in the courts of this state and I so order.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 September 2010.

Associate: 

Date:  4 October 2010