Kaiser and O’Regan

[2010] FamCA 79

FAMILY COURT OF AUSTRALIA

KAISER & O’REGAN [2010] FamCA 79

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

Family Law Act 1975 (Cth) s 12 A
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS: Mr and Mrs Kaiser

RESPONDENT: Mr O’Regan

FILE NUMBER: BRC 481 of 2010

DATE DELIVERED: 27 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2010

REPRESENTATION

APPLICANTS: In person

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The Application in a Case filed on 19 January 2010 seeking leave to commence adoption proceedings is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 481 of 2010

MR AND MRS KAISER

Applicants

And

MR O’REGAN

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 for another five days by the Adoption of Children Act1964.  On 1 February 2010, the Adoption Act2009 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 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, 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.

Background and decision

1. On 19 January 2010, Registrar Kane made a number of procedural orders in chambers in contemplation of the hearing by me of the application for leave to adopt today.  The orders required the filing of an amended application in a case by 25 January 2010 that included the biological mother and father as applicant and respondent respectively, and specifying the names and date of birth of the child, the subject of the application.  Other procedural orders were made, including a requirement that an affidavit of the biological mother be filed, and matters in relation to the household in which the mother and step-father currently reside, and otherwise addressing the best interests of the child.

2. The order further required the filing of a birth certificate for the child, the subject of the proceedings.  This case, in common with the numerous other applications for leave to adopt heard by me today, confronts the difficulty that the Adoption Act 2009 will commence in five days’ time.  A consequence of the requirements of that legislation, which will come into effect on 1 February 2010, is that if leave to adopt is not obtained by that date, then the applicant or applicants will need to commence the whole of the application again.

3. The timeframe required by Registrar Kane’s orders was a narrow one occasioned by the desire to have the applications heard and determined by this court prior to the commencement of the state legislation on 1 February 2010.  That timeframe has resulted in considerable difficulties for Mr and Mrs Kaiser, and Mrs Kaiser frankly admits to the court this morning that she and her husband have been unable to comply with those requirements.  Ms Kaiser indicates that she realises that a consequence of that inability might be that the process of adoption commenced in about the middle of last year, may need to start afresh.

4. I note in that respect that the process which the court, it seems to me, can take notice of, as a notorious fact, will, as a result of the delays inherent in the number of applications versus the resources available to deal with them, likely take in the region of a couple of years.  Other applications dealt with by the court reveal a process that has already taken a lengthy period of time, and is close to completion.  In this case, however, the application, although now some six months’ old, is in fact in its early stages, and is likely to take a considerable period of time yet because of the department’s lack of resources to which I have just referred.

5. Mrs Kaiser acknowledges this during her discussions with the court on the hearing of the application this morning. It seems to me that the provisions of Division 12A of the Act apply to this application because these are “child-related proceedings,” within the meaning of the Act. As a result, an obligation is placed upon the court to deal with all such applications in an expeditious way, and the court is obliged to comply with a number of principles set forth in the legislation and has a number of duties cast upon it as a result.

6. One of those is to bring proceedings to the most expeditious end consistent with the child’s best interests and to deal with the proceedings with that in mind, and to forgo legal form and technicality as a result.  I have, with those matters in mind, attempted to glean from Mrs Kaiser - albeit in an unsworn way over the telephone – sufficient details by which the court could be satisfied that it is in the best interests of the child that the proceedings continue today.  However, reference to the material reveals that it is significantly deficient in terms of those matters about which the court would need to be satisfied if it is to come to a conclusion that it is in best interests of the child for the proceedings to conclude.

7. I mean no criticism of Mr and Mrs Kaiser when I say that.  They represent themselves and have clearly prepared the material themselves.  But the orders made by Registrar Kane were designed, as it seems to me, to outline those matters which Mr and Mrs Kaiser might address in satisfying the court of the matters necessary to be addressed prior to making a decision of this type.

8. Unfortunately, it seems to me that the material in its current form is deficient in respect of those matters about which I need to be satisfied before making the order sought.  I am aware that this will result in the application for adoption to start afresh, and whilst I can understand there would be some frustration flowing as a result, it seems to me that in this particular case, the prejudice occasioned thereby, is not sufficient to overcome the deficiencies that I otherwise perceive in the material.

9. With some regret then, I dismiss the application in a case filed on 19 January 2010.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy  

Associate: 

Date:  11 February 2010