JOSEPH & SADLER

[2010] FamCA 66

FAMILY COURT OF AUSTRALIA

JOSEPH & SADLER [2010] FamCA 66

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act – Leave Granted

Adoption Act 2009
Adoption of Children Act 1964
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS: Mr and Mrs Joseph

RESPONDENT: Mr Sadler

FILE NUMBER: BRC 482 of 2010

DATE DELIVERED: 27 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child J born … January 1999.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 482 of 2010

MR AND MRS JOSEPH

Applicants

And

MR SADLER

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 Act 1975 (“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 Act 1975 (“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. 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 for another five days by the Adoption of Children Act 1964. On 1 February 2010, the Adoption Act 2009 will apply.

6. A number of applications currently in train will, at that new Act’s commencement date, have new criteria within that Act applied to them. Critically, the Act will require prospective adopting stepparents to satisfy, in addition to existing 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, irrespective of whether the natural parents of the children were married. 

8. Section 60G of the Family Law Act 1975 (“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, in this State, after 1 February, will be 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 new 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 new 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 Act 1975 (Cwlth), 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 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.

23. In general terms, Division 12A of the Act applies, in my view, by reason of the fact that these are, “child-related proceedings” by reference to section 69ZM of the Act, being proceedings that are wholly within part VII of the Act.

24. On the hearing of the application for leave to commence adoption proceedings, Mr and Mrs Joseph, who are the applicants, appeared for themselves, as did Mr Sadler, who is the child, J’s, father. 

25. Mr Sadler applies orally, in effect, for an adjournment.  He says that he has an appointment with a solicitor tomorrow and seeks an adjournment so that he can discuss all issues with his solicitor with a view to some form of mediation or other such process taking place, with a view to him “getting to know his daughter” at some point in the future. 

26. Mr Sadler has not seen his daughter since she was six or seven months old.  That is, he has not seen his daughter for over 10 years, for virtually the whole of her life. 

27. During that time, he has made no contact, nor made any attempt to contact, the child’s mother with a view to checking on the child’s progress during her life including, significantly it might be thought, when the child started school, now some five years or so ago. 

28. The evidence reveals that Mr and Mrs Joseph have been residing together for over 10 years, since the year 2000.  They married in October 2002.  They have two children of their relationship, S, who is nine, and A, who is two. 

29. Directly relevant to the application for adjournment, as well as the facts already outlined, is, it seems to me, the fact that Ms Joseph deposes, in an affidavit filed on 19 January 2010, to a letter having been received from solicitors then acting for the father, Mr Sadler, in 2007.  The letter is said to be annexed to the affidavit, but it is not annexed to the court copy, nor, Mr Sadler advises, to the copy of the affidavit served upon him. 

30. However, paragraph 36 of the affidavit, deposes that Ms Joseph received a letter from the father’s then solicitors “suggesting that we take [the] course” of commencing adoption proceedings.  Ms Joseph goes on to depose “in that letter, the father’s solicitors wrote, ‘[The father] will respect and support such adoption and will not insist on a role in [J’s] life’”. 

31. Although the letter is annexed neither to the file copy nor to the copy served on Mr Sadler, Mr Sadler acknowledges that such a letter was sent in 2007 and submitted his then attitude was that he supported and respected the adoption and would not insist on a role in J’s life.  He says that that was two years ago and his position is different now; he says that he may want a role in his daughter’s life at some time in the future. 

32. Ms Joseph deposes to the fact that the application for adoption was made shortly after receiving that letter from the father on 1 August 2007. 

33. She deposes (hearsay) to the fact that the relevant adoption authority indicated that there was a two-year waiting period before they would be able to look at and properly process the application.  Ms Joseph deposes that she regularly contacted the relevant officials for updates on the progress of the matter and, in August 2009, approached the agency who told her that the application would be looked at approximately four to eight weeks from then. 

34. In December 2009, the relevant authorities forwarded a letter to Mr and Mrs Joseph. The court can take notice of the fact (s 141 Evidence Act 1995) that a similar letter has been sent to all prospective applicants for adoption, advising of what Ms Joseph describes in her affidavit as the “adoption laws having changed”.  That is a reference to the Adoption Act 2009, commencing in five days’ time on 1 February 2010.

35. Ms Joseph goes on to depose that, on 22 January 2010, she again spoke with the relevant authorities who informed her that she and her husband were at “eligibility status”. She was told that the agency would conduct history checks, would seek consent from the biological parent (that is Mr Sadler), would complete an assessment and would then make a final recommendation. 

36. As has previously been pointed out, by reason of the transitional provisions of the Adoption Act 2009 leave for adoption proceedings by this court is a precondition to the hearing of an application for adoption by the state Magistrates Court. So too is the consent of the biological parent as well as the age restrictions earlier referred to.

37. But, there is also some urgency attaching to this application; if leave is not obtained prior to 1 February 2010 (that is, in five days time) a process which has taken some years will need to commence anew.

38. As I have said, I consider that the consent of the biological parent is an important matter to be taken into account in the exercise of this court’s discretion as to whether to grant leave to permit the adoption proceedings to take place in the State Magistrates Court. 

39. Where one party seeks an adjournment of the application, in usual circumstances, the court would have little hesitation in granting that adjournment where the party seeking the adjournment represents him or herself and seeks the adjournment for the purposes of receiving legal advice.  That is all the more so where, as here, the material has been received in a short time prior to the hearing. 

40. However, as with all applications for an adjournment, the criterion the court needs to apply is the interests of justice.  Here there are competing interests relevant to the application to adjourn. 

41. On the one hand is the possible prejudice to the biological father if an adjournment is not granted and the application for leave is heard and determined.  On the other hand, there is possible prejudice to the applicants if an adjournment is granted. 

42. In this particular case, because of the commencement date of the legislation earlier referred to, in the event that leave is not granted prior to 1 February 2010, the applicant’s adoption application will become, as it were, null and void and the entire process, which has now taken over two and a half years, would need to commence afresh.  That seems to me to be a very significant prejudice to the applicants in this case. 

43. On the other hand, as I have earlier made clear, the granting of leave to adopt is not a decision about adoption itself.  That is a decision that needs to be made by the State Magistrates Court.  There are a number of preconditions to the State Magistrates Court making any such order after 1 February and consent of a biological parent is one. 

44. There exists the possibility that, if leave is granted by this court that a State Magistrates Court will nevertheless not proceed with the adoption by reason of the lack of consent of the biological parent. 

45. Be that as it may, the question in this application is, it seems to me, whether the additional precondition of the leave of this court should stand in the way of those proceedings if, otherwise, this court determines that it is in the best interests of J for the application for adoption of the child to proceed. 

46. I have already alluded to some of the matters that are relevant, in my view, to the question of whether it is in the child’s best interests for leave to be granted. 

47. J has been raised by Mr and Mrs Joseph for virtually the whole of her life.  The evidence reveals a volatile relationship between the mother and J’s natural father.  By his own admission, J’s father has not only not seen his child since she was six or seven months old, but has shown no interest in doing so, nor shown any interest in any of her activities, including her commencement of schooling, during that 10 year period. 

48. The evidence, none of which is challenged by Mr Sadler during the course of these proceedings, clearly establishes that J has been raised in a loving and caring manner by Mr and Mrs Joseph and that she is, in every respect, treated as Mr Joseph’s daughter.  She clearly has a good relationship with her siblings, S, aged nine, and A, aged two. 

49. In my view, there is a good case for leave to be granted to allow proceedings for adoption to continue in J’s best interests. 

50. That being so, the issue for me is whether I should grant leave on the basis that if the consent of Mr Sadler is not forthcoming, proceedings in the magistrates court for adoption will be nugatory, or whether I should grant leave and allow those events to take their course, as Mr Sadler might be advised, and thereby prevent the two and a half year process that has already taken place in this case from starting all over again. 

51. In my view, given my findings in respect of J’s best interests, the balance lies with permitting leave to be granted and I propose to order accordingly. 

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  9 February 2010