Jones and Blake

[2010] FamCA 161

FAMILY COURT OF AUSTRALIA

JONES & BLAKE [2010] FamCA 161

FAMILY LAW – Adoption – Leave to commence proceedings

Family Law Act 1975 (Cth)

FIRST APPLICANT: Mr Jones

SECOND APPLICANT: Ms Jones

RESPONDENT: Blake

FILE NUMBER: BRC 352 of 2010

DATE DELIVERED: 18 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cronin J

HEARING DATE: 18 February 2010

REPRESENTATION

THE APPLICANT: In person

THE SECOND APPLICANT: In person

Orders

1. That Ms Jones and Mr Jones are granted leave under section 60G of the Family Law Act 1975 to commence adoption proceedings in the state of Queensland pursuant to the Adoption Act 2009.

2. That the application can proceed forthwith in the absence of service upon the biological father of the child T, born … August 1998.

3. I otherwise dismiss all outstanding proceedings and remove them from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC 352 of 2010

MR JONES

First Applicant

MS JONES

Second Applicant

and

BLAKE

Respondent

REASONS FOR JUDGMENT

1. On 14 January 2010, Ms Jones and Mr Jones filed an application in this court seeking orders that they be granted leave to undertake adoption proceedings in the state of Queensland, and in respect of the service of this application, the requirements be waived.  In support of that application, Mrs Jones relies upon two affidavits which I have read, the first of which was filed on 14 January 2010 and the second on 15 February 2010.  She also relies on an affidavit of her husband Mr Jones, also filed on 14 January.

2. In November 1997, Mrs Jones had a brief relationship with a man, whose only name to her and therefore to the court is Blake.  After that incident, she found she was pregnant and through a mutual friend, endeavoured to contact Blake to inform him of her situation.  The mutual friend indicated that Blake denied paternity and did not want anything to do with her.  Subsequently, the mutual friend informed Mrs Jones that Blake was married and was expecting his second child.  In other words, Blake had had an affair with Mrs Jones during the life of his own marriage.

3. Mrs Jones endeavoured to contact Blake again through the mutual friend during her pregnancy and that was unsuccessful.  The result of the relationship and the pregnancy was that T was born in August 1998.  T is therefore going to be 12 years of age in August this year.  Subsequent to the birth of T, Mrs Jones again tried to contact Blake to let him know that he was the father, but the response through the mutual acquaintance was much the same as it had been in the past.  Not only did Blake deny paternity, he insisted that Mrs Jones stop bothering him.

4. Mrs Jones said that she had been unable to obtain from the mutual friend, or anyone else, just what Blake’s surname was or where he lives.  Today, she has confirmed what she said in the affidavit, that she has not had any contact with the mutual friend for over two years.  

5. On 15 February 2010, Mrs Jones filed her second affidavit, annexed to which is a certificate by Magistrate Taylor.  In that certificate, the learned magistrate dispensed with the consent of Blake in respect of Mrs Jones’ application to proceed with an adoption.  That dispensation was granted on 14 January 2010.

6. It is important to note that in the certificate, the learned magistrate said that he was satisfied that reasonable inquiry of Blake had been made and that he could not be found.  He then went on to say that he was satisfied that the welfare and interests of T would be promoted if the order dispensing with the consent was made.  I see no reason in the circumstances why I should not accept and adopt those findings.  I point out, however, that it is conceivable that Blake could have documents delivered to him by substituted service, but there are two reasons why I will not make an order along those lines today.

7. The first is the certificate to which I have just referred, and the second is that Mrs Jones has indicated that she has not had any contact with the mutual acquaintance now for over two years. 

8. This is an application which fits within the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Division 12A is in Part VII of the Act, and it requires the court, wherever possible, to try and deal with matters relating to children expeditiously, and if possible, in one hearing. Having regard to the provisions of Division 12A, it seems logical and sensible to adopt and accept the findings of the magistrate and waive the requirements that Blake be served with any further documents.

9. In her first affidavit filed on 14 January, Mrs Jones said that she was living with the other applicant, and in their marriage, which occurred in November 2003, they have a child, J.J was born in April 2006.  It is clear from the affidavit of Mrs Jones that T is very much a part of the Jones family.  Mr Jones’ affidavit, filed on 14 January, says much the same thing.  He said that T has been calling him “Dad” since he has been a part of the family, and I note that that began when T was four years of age. 

10. Mr Jones said that he made an application to adopt T in 2006 and he was made aware of the various options available and did not proceed.  The adoption process is now what he desires to see happen, and he believes, on what I think is probably good ground, that T wants that as well. Importantly, Mr Jones said in his affidavit that he sees T as his daughter and he loves her dearly.  He says that T is fully aware that she is not his biological daughter, but she is hoping that he can be her adopted father.  Because T is very much a part of that household and treats Mr Jones as her father, it is logical for me not to disturb the equilibrium in the household.

11. I am satisfied in the circumstance that the unnamed biological father of T has not had any contact with her since birth, which I note is coming up to 12 years in August this year.  Blake has been made aware of the opportunities to be a part of T’s life, and he has not fulfilled any parenting responsibility. 

12. From the legal perspective, this is an application by the biological parent and a step-parent for leave to adopt under s 60G of the Act.

13. The adoption of children in Queensland is now governed by legislation which is only a few days old.  The Adoption Act 2009 (Qld) came into operation on 1 February 2010. An application for adoption in Queensland is now dealt with in the State Magistrates Court. The leave of this court is a precondition to the making of an order for adoption in favour of a step-parent. The state court has to be satisfied that the best interests of the child are in fact being fulfilled. Section 208 of the State Act says, however, that when making a final adoption order, the court can only do so if it is satisfied of a number of matters.

14. One of those matters is that the order for the child’s adoption by the step-parent would better promote the child’s well-being and best interests rather than an order under the Act or any other court order or, for that matter, no court order at all. I had inferred that the reference in s 208 is to a parenting order as it would be known under the Family Law Act. A parenting order is described in s 64B of the Family Law Act as being an order that may deal with a variety of things.  A parenting order can involve questions of with whom a child is to live, with whom a child is to spend time, and things such as the allocation of parenting responsibility.

15. The last consideration is any other aspect of the care, welfare or development of the child or any aspect of parenting responsibility for a child.  The state court, therefore, still has to consider whether it makes a parenting order of the nature that I have just described rather than an adoption order.  My function is to determine whether the precondition has been met to then enable the adoption or some other form of order to be made.  The legislative pathway from the Commonwealth’s perspective is rather interesting and unusual. 

16. Section 60G of the Family Law Act requires that a decision whether to grant leave must be governed by the determination of the best interests of the child. The only reference to best interest considerations are those set out in s 60CC of the Act. Section 61E of the Family Law Act provides that if a child is adopted, and immediately before the adoption, a person had parental responsibility for the child, then that parental responsibility ends upon the adoption of the child unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced.

17. Parental responsibility is defined as meaning all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.  It is therefore clear that this application has to be considered carefully and then for the state court when considering an adoption application to follow the same sort of exercise. 

18. This is a case involving a prescribed adopting parent. Section 4 of the Family Law Act describes a prescribed adopting parent as a person who is a parent of the child or the spouse of – in this case, that is the only relevant definition of a parent of the child.

19. Division 12A of the Family Law Act, requires the court to focus on the interests of the child and, importantly, the impact of the proceedings upon the child. That is one of the reasons why I have chosen not to press the question of whether or not further inquiries should be made about the biological parent of T.

20. What the court in this case has to consider is whether it is satisfied that it is in T’s best interest for leave to be granted. If that is then ordered, it becomes a matter for the state court to decide what, if any, order should be made. I turn then to the provisions of s 60CC of the Family Law Act. Section 60CC is divided into primary considerations and additional considerations.

21. It is beyond doubt now that one of the most important primary considerations is the benefit of the child having a meaningful relationship with both of the child’s parents.  As I said earlier, it is unfortunate that the biological father of T has chosen not to have anything to do with her and as such is not fulfilling his parental responsibilities, but on the other hand T is not going to have any meaningful relationship with her parent.

22. I take into account that Mr Jones has fulfilled the parenting role in an admirable way.  There is no evidence in any of the material I have read that would concern me as a second primary consideration about needing to make an order that might protect T from any harm. There is evidence provided by Mrs Jones that she ceased pursuing the biological father of T because of threats.  If there was a possibility of T being exposed to that it would not be in her best interests. 

23. The second part of s 60CC relates to the additional considerations. I will deal with those sequentially.

24. I have taken into account that T is 11 and a half years of age and on what I have read appears to be an intelligent and articulate child who understands her biological background and wants Mr Jones to play the role of her father.  Those are views which are clearly set out in the material and, I think, having regard to her age, I can give them significant weight.  I have taken into account the nature of the relationship between T and not only her mother but also Mr Jones as another significant adult in her life.

25. It is also important to consider the willingness and ability of each of the parents to continue to facilitate a relationship between T and the other parent.  I am satisfied that Mrs Jones has made endeavours to create an environment in which T could have a relationship with her father, but she has been rebuffed.  It is clear, therefore, that I can make an adverse finding against the biological father in relation to his willingness and ability to facilitate the relationship between T and her mother.  I can conclude, I think, that he would not be a positive influence in T’s life.

26. There is no question in this case of any changes being likely to occur in T’s life in the foreseeable future.  She seems settled and happy and I see no reason to disturb that. 

27. I am obliged to take into account the capacity of each of the child’s parents to provide for the needs of T, including her emotional and intellectual needs.  In this case, it is obvious that Mrs Jones, admirably supported by her husband, is fulfilling all of those needs.  Again the biological father is not fulfilling those responsibilities, and I doubt whether he has the capacity to do so, having regard to the 12 years that has now passed by.

28. One of the other significant considerations is the attitude to the child and to the responsibilities of the parent were demonstrated by each of the child’s parents.  I make two comments about that.  Again the biological father has shown no responsibility in relation to his obligations as a parent.  Mrs Jones, to her credit, made the effort on a number of occasions to see whether some form of relationship could be established and was rebuffed. 

29. There are no family violence issues here that I have detected in any of the material, so I am satisfied that there is no prospect at this stage that T would be at risk in any way.

30. A significant factor in this case is that s 60CC requires the court to, if possible, make an order that would be least likely to lead to the institution of further proceedings in relation to T. It seems sensible in this case that if I make this order, the biological father of T fades out of her life from a legal point of view. As such, it means that if he ever decided that he wanted to take some steps, he would have considerable barriers put in his way from a legal perspective. He will no longer be treated as the parent of T.

31. In those circumstances, considering all of the matters that are relevant in s 60CC, I am satisfied that this is an order that I can make in the best interests of T.

I certify that the preceding Thirty One (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 March 2010