Kaiser and O’Regan (No 2)

[2010] FamCA 472

FAMILY COURT OF AUSTRALIA

KAISER & O’REGAN (NO. 2) [2010] FamCA 472

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

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

Fogwell & Ashton (1993) FLC 92-429

APPLICANTS: Mr and Mrs Kaiser

RESPONDENT: Mr O’Regan

FILE NUMBER: BRC 481 of 2010

DATE DELIVERED: 2 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 2 June 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No apprearance

Orders

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child E O’REGAN now known as E KAISER born … March 2002.

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) FLC 92-429:

   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.

Background and Decision

1. E was born of a relatively short relationship between her father and mother which ended after approximately four years.  At that time E was a small baby, being only about 10 months old.  In the ensuing three or four years until E was three, there was very little time spent between the father and E, and contact was spasmodic at best. 

2. In about 2004 E’s mother commenced cohabitation with her current husband.  They were married in January 2007 and have lived together since.  Subsequent to their marriage, two children have been born to them:  S, who was born in August 2008, and M, who was born in December 2009. 

3. Mr and Mrs Kaiser, S and M have, then, formed a family unit within which E has lived and, on all of the evidence thrived, for some years.  From the time E was three, her father has had no contact with her at all. 

4. It is plain, on the evidence before me, that E relates to Mr Kaiser as her father, and he has, together with her mother, provided for her all of her day-to-day necessities.

5. The affidavit material before me reveals E, who is, it should be noted, still only eight, expressing a view which, despite her young age and consequent level of maturity, I nevertheless consider I should take into account; the voices of children ought be heard in proceedings of this type or, indeed, in any proceedings in this court, even if appropriate weight needs to be attached to those views by reason of the children’s age and lack of maturity.

6. Ms Kaiser deposes to E saying that:

   She would like [Mr Kaiser] to be her dad because he is a good person, and he teaches her things. 

   In his affidavit, Mr Kaiser deposes:

   [E] is enthusiastic about the adoption process and has asked me about it on several occasions.  I feel that [E] loves and respects me the same as if I had been her biological father.  She calls me dad, and I love and respect her in the same way as our other children.

7. It is plain on the evidence before me that one of the primary reasons for Mr Kaiser seeking to adopt E is that it will formalise a family relationship that has existed for some time and will, in effect, give the recognition of legal status to what occurs within the family in any event; that is that all children are treated equally and as if Mr and Mrs Kaiser were their natural parents.

8. I should indicate that proceedings were originally commenced by Mr Kaiser in January 2010.  Those proceedings were, like many other proceedings of a similar type, commenced in this jurisdiction in contemplation of what were then mooted changes in the adoption processes enshrined in the Adoption Act 2009 (Qld) which came into effect on 1 February 2010. Unfortunately, the material before the court in respect of that application was at that time deficient and for reasons given on 27 January 2010, I dismissed the then application.

9. The effect of that dismissal under the state legislation was that the application for adoption needed to start again. That process has occurred and the proceedings before me today are as a result of that, as it were, renewed application.

10. The affidavit of service might have been seen on its face to be deficient. For example, the document indicates in the relevant check box that an affidavit of Mr Kaiser and Mrs Kaiser was served but the affidavit is not identified by either a swearing date or a filing date. It seems to me, for reasons earlier given, that I am entitled to accept hearsay evidence with respect to this issue by reference to Division 12A of the Act.

11. I questioned Mr and Mrs Kaiser about the circumstances of service in the proceedings before me this morning, and I accept their evidence (albeit given in an informal way from the bar table – again relying on Division 12A) that the father has, in fact, via the agency of his mother, received all documents filed in respect of these proceedings.

12. The father acknowledges receipt of the “documents listed above” in an Acknowledgement of Service signed by him and dated 12 May 2010.  That document refers to affidavits of Mr and Mrs Kaiser referenced by a date 1 May 2010.  The relevant “sworn/affirmed” part of the document has not been appropriately deleted but I note that the affidavits of each of Mr Kaiser and Mrs Kaiser filed on 4 May 2010 were each sworn on 1 May 2010. I am satisfied that these affidavits, which contain all of the matters necessary to be considered by me - and, indeed, the father - with respect to the prospective adoption were, in fact, received by the father as his Acknowledgement of Service on its face indicates.

13. I am therefore tolerably satisfied that service of the father has been effected in a manner that appraises him fully of the nature of the orders sought in the application and the material relied upon by Mr and Mrs Kaiser in support of it. 

14. I have had the father’s name called three times today, and there is no appearance by him. 

15. As will be plain from the outline of the legal principles applicable to this application, it seems to me that I ought be satisfied that the circumstances surrounding the proposed adoption can be seen to be in E’s best interests in circumstances where her natural father has not availed himself of any time with his daughter for five years or more, and where a person has taken on all of the relevant parental responsibilities with respect to E as if she was his own child over a considerable period.

16. I have no doubts that E has been cared for in an entirely appropriate way within a loving family who all seek to treat her as if she were a natural child of the mother and father. 

17. In that respect, E now has two young siblings.  The affidavit material reveals that she dotes on them, and I have no doubt that she is made to feel that those siblings are an important part of her life and are likely to be an important part of her life in the future. 

18. The affidavit material also reveals that, pending the adoption, Mr and Mrs Kaiser have “frozen” the father’s child support payments, because they don’t consider it to be “fair” that the father should continue to pay child support in circumstances where their adoption process is in train. It is plain on the material that Mr Kaiser proposes to financially support E in an entirely appropriate way as a member of the family constituted by him, his wife, and the two siblings. 

19. I am satisfied in all of the circumstances of this case that it is proper and in E’s best interests to grant leave to adopt within the meaning of the Act.

20. I so order.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  15 June 2010