Kautai and Lino

[2017] FamCA 493

FAMILY COURT OF AUSTRALIA

KAUTAI & LINO [2017] FamCA 493

FAMILY LAW – ADOPTION

Adoption Act 1993 (ACT)  ss 4, 9, 13, 14, 26, 34 & 39
Family Law Act 1975 (Cth)
Legislation Act 2001 (ACT) ss 138, 139 & 255

LK v Director-General, Department of Community Services (2009) 237 CLR 582

APPLICANT: Ms and Mr Kautai

RESPONDENT: Mr & Ms Lino

FILE NUMBER: CAC 1560 of 2014

DATE DELIVERED: 14 July 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 December 2016 and 15 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sean Kikkert

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Pursuant to s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (ACT) the Family Court of Australia has jurisdiction to hear the application for adoption filed 26 July 2016.

2. Pursuant to s 14 of the Adoption Act 1993 (ACT) I make an adoption Order in favour of the applicants, Ms Kautai & Mr Kautai in relation to the child, B, born … 2013.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kautai & Lino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1560 of 2014

Ms and Mr Kautai

Applicant

And

Mr & Ms Lino

Respondent

REASONS FOR JUDGMENT

1. This case concerns an application by Ms Kautai and Mr Kautai (‘the Kautais’) to adopt B, born in 2013.  the child’s parents are Ms Lino and Mr Lino (‘the Linos’).    Mr Lino is the third cousin of Mr Kautai.  They live in the United States of America (the USA), where the child was born.

2. The Kautais together have one other child, C, born in 2009.  They have not been able to have another child despite significant attempts to do so.  They have unfortunately suffered a number of miscarriages.  Following one of these, the Linos, who had fallen pregnant with the child B, contacted the Kautais saying that they wished the Kautais to be the parents of the child.  

3. The child was born prematurely and shortly after his birth Mrs Kautai travelled to the USA, spending time with the child before his release from hospital.  Following his release from hospital he travelled to Australia with Mrs Kautai and has lived here since.  The Linos are supportive of the adoption of the child by the Kautais.  The Kautais have already been granted parental responsibility by the Family Court of Australia.  Through use of the cross-vesting legislation they seek that this Court grant their application to adopt the child.  

Procedural history

1. On 12 November 2014 Deputy Chief Justice Faulks made orders in relation to the then pending proceedings for parental responsibility for the child.  Those orders were designed to place the Linos on notice that proceedings were on foot for parental responsibility that may ultimately lead to the adoption of the child.  Those orders were served upon the Linos who indicated at that stage that they understood that they were giving up all rights to parental responsibility for the child.  They then expressed that it was their understanding that from before the child was born he would become the child of the Kautais.  On 19 December 2014 Deputy Chief Justice Faulks made orders for equal joint shared parental responsibility for the child to be shared by the Kautais and that the child would live with them.  

2. On 16 July 2016 the Kautais made Application pursuant to the cross-vesting legislation for this Court to make orders regarding the adoption of the child pursuant to the Adoption Act (1993) (ACT) (‘the Adoption Act’).  Affidavit material was filed in support of that Application and the Director-General of the Community Services Directorate prepared and filed a report in relation to the Application for Adoption on 19 December 2016.  On 21 December 2016 leave was granted to the Kautais to file further material, which was done on 15 March 2017.  On that day further orders were made granting leave to file further material, submissions and for the Director-General to file any further material should the Director-General choose to do so.  The request for submissions was directed in particular to the question of the reputation of Mr Kautai and the admissibility of evidence.  

3. On 27 March 2017 submissions were filed along with further affidavit material on behalf of the Kautais.  On 7 April 2017, following the receipt of this further material, the Director-General advised that the Director-General would be filing no further evidence or submissions.  

The statutory scheme

1. The application is brought pursuant to the Adoption Act.  Section 4 of that Act sets out the objects and principles of the Act.  Of particular relevance to this case they provide:

   The main objects of this Act include:

   (a)Ensuring that the best interests of the child or young person are the paramount consideration in the adoption of a child or a young person;

   (b)Providing an adoption process that promotes the wellbeing and care of children and young people in a way that recognises the child’s or young person’s right-

   (i)To grow in a safe and stable environment; and

   (ii)To be cared for by a suitable family and to establish enduring relationships; and

   (iii)To know about family background and culture and have the opportunity to maintain or develop cultural identity;

2. Section 9 enables adoption to occur where a child is under the age of 18 and present in the Australian Capital Territory (ACT).  the child fulfils both of those conditions.  Section 13 provides that an order may only be made in favour of a person who is ordinarily resident in the ACT.  The Kautais meet this requirement.  

3. Section 14 imposes further requirements which, relevantly to this case, include that the parents be on the register of suitable people prepared by the Director-General. They are on that register.

4. If the application is made jointly, as in this case, there is a requirement that the applicants be part of a domestic partnership for at least three years and demonstrate stability and commitment to that domestic partnership.  The Kautais met in May of 2004 and were married in 2007.  It is a long term marriage characterised by a sharing of interest.  They have supported each other through difficult circumstances and remain committed to each other.  The circumstances of their relationship are set out in a report prepared by the Director-General.  They meet this requirement. 

5. A further aspect of the requirements of s 14 is that where the adoption is by a relative (as here) the family circumstances must mean that is beneficial to the child for the relationships within the family to be redefined rather than dealt with merely by means of a custody or guardianship order. In this case, in a practical sense, the family relationships have already been redefined by the actions of the parties, such that the Kautais function as the parents of the child and the Linos do not. Should it otherwise be appropriate for an order for adoption to be made then this criteria is also met.

6. Section 26 requires consent to be given by each of the parents.  Section 30 provides that the consent must be given by means of the prescribed instrument.  Provision has been made for a prescribed instrument, Approved Form AF2002-56 being Form 1 of the Adoption Regulations 1993  – “General consent of parent or guardian to adoption”.  

7. Annexed to the affidavit of the lawyer for the Kautais, Sean Kikkert, of 21 December 2016 are two executed documents that generally follow the form set out in the regulations.  However, the forms themselves stipulate matters necessary for the execution and completion of such documents.  Specifically reference is made to Regulation 7 of the Adoption Regulation 1993 which deals with witnessing of the documents. It provides that where the instrument is signed in a foreign country, as is the case here, then the primary and secondary witness must be either an Australian diplomatic officer, or an Australian consular officer, or a judge of a court of that country, or a magistrate or justice of the peace for that country, or a notary public. While there is a primary and secondary witness to each of the forms, there is nothing to indicate that they fall into any of these categories.

8. Regulations 8 and 9 further set out the functions of the primary witness and secondary witness in the execution of the documents.  Relevantly to this case they require that the secondary witness attest to the primary witness having fulfilled the obligations set out in the Regulations.  The attestation of the document is such that the secondary witness has not attested to compliance with those obligations.

9. The Legislation Act 2001 (ACT) deals with compliance with forms and execution of forms at s 255. Section 255 requires that substantial compliance with the form is sufficient. However, at subsection 5 it establishes that a form is only properly completed if obligations in respect of the completion of a form in a particular way are complied with. That has not occurred in this instance and the form cannot be considered to be properly completed.

10. However, s 34 of the Adoption Act 1993 deals with defective consents. The provision is expressed in a manner such that the Court has the discretion to refuse an adoption where consents are defective. That is, it is a matter for the Court whether to make or not make an order for adoption in the exercise of its discretion even in the case where the consent is technically defective.

11. In this case, the nature of the consents that have been given on the approved forms, combined with the material annexed to the affidavit of Mr Kikkert of 19 December 2016 wherein the Linos confirm their understanding and agreement to the adoption, along the material previously referred to in which the Linos expressed to DCJ Faulks in the fullest terms their understanding of the effect of adoption and their consent to such a course, the defective consents are not such as to cause me to exercise a discretion to refuse to make an adoption order if it is otherwise both in the interests of the child and able to be made.  

12. At s 39B of the Adoption Act there is a requirement for notice to the parents in the absence of consent being given.  In this case both notice and consent have been given.  

13. Pursuant to s 39D there is a requirement for a written report from the Director-General.  This has been provided.  

14. Pursuant to s 39E where it is reasonable to do so there is a requirement to consult with the child the subject of the adoption proceedings.  In this instance the child is too young to consult.  

15. Section 39F deals with deciding an application.  I will return to the terms of s 39F as they will be pivotal in determining whether or not the adoption is to take place.  

16. Section 39H of the Adoption Act deals with the adoption of a non-citizen. the child is not a citizen of Australia and so the provision applies to him. There is a requirement to comply with Part 4A of the Adoption Act.  The possible provisions that bring that part into play only have application where the child is habitually resident either in a Convention country or in a country listed in the Commonwealth Bilateral Arrangements Regulations Schedule 1.  

17. The question of the meaning of ‘habitual residence’ is dealt with in the High Court case of LK v Director-General, Department of Community Services (2009) 237 CLR 582. At [23] the Court said

    First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual.

18. Importantly, the Court also stated as follows:

    When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.

19. In this case the child has been resident in Australia all of his life, save for his hospitalisation following birth. The persons who have the parental responsibility for him have been resident in Australia since well before that time, having long-standing links to Australia. Under those circumstances the child may be considered to be habitually resident in Australia and not habitually resident otherwise. Accordingly, the provisions containing Part 4A of the Act, in this case, require nothing additional despite the child being a non-citizen.

Section 39F - deciding on application

1. The matters outlined above are such that the application falls to be determined in accordance with s39F.

2. Section 39F sets out a number of criteria that must be met before an order for adoption may be made. The section requires that consents be given and not revoked, which is the case here.

3. The section further requires that:

   1(c)… the Court considers that-

   (i)     each applicant is of good reputation and able to fulfil the responsibility of the parent of a child or young person (including protecting a child's or young person's physical and emotional well being); and

   (ii)each applicant is suitable to adopt the particular child or young person having regard to –

   Athe applicant's age, education and attitude to adoption; and

   Bthe applicant's physical, mental and emotional health, particularly as it impacts on capacity to nurture the child or young person; and

   Cany other relevant consideration; and

   (iii)the adoption is in the best interests of the child or young person.

4. The applicants are aged 46 years old and 41 years old. One of them has achieved Year 11 education while the other has partly completed tertiary education.  They have provided for the child to attend preschool.  They are each multilingual, that is speaking English and the language of Country D, a matter of education that is important given their and the child’s combined cultural heritage from Country D.  Their education is appropriate for the purposes of the adoption.

5. As to their attitude to the adoption, the Kautais are highly motivated to adopt the child.  They have taken significant steps in order to be able to do so including Mrs Kautai travelling to the USA and making their various applications before this Court.  They explained their high motivation is that they wish the child to feel a part of the family.

6. There is no physical, mental or emotional health issue that acts as a barrier to their good parenting of the child.

7. Most importantly, the Kautais love the child. He has a secure attachment to them.  They demonstrate insight as to the requirements of parenting (as demonstrated in the Director-General’s report).  They are committed to him.  They support his education and look after him medically.  He is an intrinsic part of their family and has a close sibling relationship with C.

8. The Kautais have demonstrated their capacity to parent the child.  They have functioned in that role for all his life.  Through this they have shown that they are able to fulfil the responsibilities that go with parenting.  They are suitable to do so.  

9. In every practical respect they function as the child’s parents and family and are providing good parenting to him giving him every prospect of growing up well.  It is in his best interests for legal recognition of what is already practically in place. Further, specific to his background, they are instilling him with an appropriate understanding of his and their combined Country D heritage.

10. In terms of s 39F I consider that the Kautais are able to fulfil their responsibilities as parents and are suitable to adopt the child. Adoption is in his best interests, a matter also asserted by the Director General.  There remains one outstanding issue in respect of the operation of s 39F which is whether each of the Kautais is of good reputation.

11. It may immediately be said that Ms Kautai is of good reputation.  There is nothing in the material that indicates otherwise.

12. An issue arises as to whether Mr Kautai is of good reputation.  The report from the Director-General, and material filed by Mr Kautai, indicates that he has had some issues with the criminal law.  In 2003 he was charged with assault.  In 2005 he was charged with low range driving under the influence.  The age of these matters and their extent has no appreciable bearing on the question of whether or not Mr Kautai is of good reputation. However, in 2015 Mr Kautai was arrested and charged with blackmail, a charge to which he pleaded guilty.  This resulted in him spending a period on remand in custody.

13. The question that arises is whether this conviction means that Mr Kautai cannot be considered as a person of ‘good reputation’ as required by s 39.  

14. It must immediately be recognised that blackmail is a serious criminal offence.  It is a relevant matter to consider when determining whether the ‘good reputation’ requirement is met.

15. In determining this issue it is necessary to consider the statutory context of the requirement in s 39F that the person is of ‘good reputation,’ that is, to work out the meaning of the Act in accordance with the Legislation Act 2001 (ACT).

16. “Working out the meaning of an Act” includes, pursuant to s 138 of the Legislation Act 2001 (ACT)

    confirming or displacing the apparent meaning of the Act.

17. Section 139 of the Legislation Act 2001 (ACT) provides:

    1.In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

18. Section 140 of the Legislation Act 2001 (ACT) further provides:

    In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.

19. In this case I am assisted in ascertaining the purpose of the AdoptionAct, and the context of the Act as a whole, by the objects of the Act set out at s 4.  Relevantly that section provides Objects as follows:  

    (a)ensuring that the best interests of the child or young person are the paramount consideration in the adoption of a child or young person; and

    (b)providing an adoption process that promotes the wellbeing and care of children and young people in  a way that recognises the child’s or young person’s right-

    (i) to grow in a safe and stable environment; and

    (ii) to be cared for by a suitable family and to establish enduring relationships; and

    (iii)to know about family background and culture and have the opportunity to maintain or develop cultural identity

    …

    (d)ensuring that adoption is centred on the needs of the child or young person rather than an adult wanting to care for a child or young person,

20. The meaning and context prioritise the best interests of the child the subject of the adoption proceedings, in particular by providing a safe and stable environment, a suitable family and a child centred approach.  While s 39F means that the discretion to make an adoption order is not at large, the considerations and requirements of that Section are coloured by and have their meaning shaped by this meaning and context.

21. Section 39F was inserted into the Adoption Act by the Adoption (Amendment) Act 2009.  The Explanatory Statement relevantly provided that:

    The Bill also provides the direction that in deciding an application for an adoption order the Court must consider the suitability of the applicants.

1. Accordingly, the understanding of the use of ‘good reputation’ must be grounded within this understanding of the purposes of the legislation.  That is, what is, or is not good reputation, is to be considered in the light of making a determination that is in the best interests of the child to grow in a safe and stable environment, to be cared for by a suitable family in a child centred manner.

2. Where reputation is of such a quality that it impinges upon the child’s well-being, prejudices the growing up in a safe or stable environment, renders a family unsuitable to care for and provide enduring relationships and otherwise prejudices the child, then that reputation will relevantly be not good.

3. The question of fact to then be determined is whether the criminal history of Mr Kautai means that his reputation is relevantly not good, when considered in the light of all of the evidence in the case.

4. In order to deal with this issue of good reputation a number of affidavits were filed dealing with the reputation of Mr Kautai.  They are as follows:

   a)Ms Kautai.  She testifies to his extensive involvement in the community.  He is said to provide financial, spiritual and emotional support to others.  He gives his time, energy and financial help to different organisations.  He assists charities, rugby clubs, his town in Country D, church groups and his community group in the ACT.  He also assist the less fortunate and widows in different villages in Country D.  He supports school-age children in Country D through raising funds through a local organisation in Canberra.  He has made extensive efforts since being convicted to become a “better husband, father, son, brother, friend and neighbour”.  

   b)Mr E deposes that Mr Kautai is goodhearted, kind and caring.  He has carried out fundraising events for students in Country D, to support the Country D community following natural disaster.  He assisted the “fatherless, the poor, the hungry and the elderly” in Country D when visiting.

   c)Mr F, who is the president of the Country D Association of Canberra, describes Mr Kautai as being an “energetic participant in our community events.  He actively contributes wholeheartedly both financially and in kind to various charitable events that the Association and other community groups host”.  He leads a group of younger men from social groups that “provides financial, social and moral support to our community”.  He has assisted in the financial support of the Country D Association, with aid following a natural disaster in Country D, supported Country D students studying in Australia and various other charity events.  He helps at community funerals and assists “to foster a collaborative and peaceful community”.  He sees Mr Kautai as a “strong and dedicated family man”.  Further, and bearing upon his criminal history Mr F attests that he is “loving and compassionate, generous and committed, supportive and sincere and one who use the lessons learnt from his experiences to avoid repeating the mistakes made.  He is genuinely remorseful for what he has done wrong and is always willing to make reparations if given the opportunity”.

   d)Ms G testifies of her awareness of Mr Kautai’s criminal history.  She testifies to him being “goodhearted, kind and caring’.  She corroborates his support for less fortunate people in Country D, including providing food hampers to disadvantaged persons in Country D when visiting.

   e)Ms H testifies that from the perspective of being Mr Kautai’s stepdaughter.  She regards the conviction as out of character for him.  She comments upon Mr Kautai’s religious devotion and how that impacts upon his conduct.

   f)Mr J testifies as to Mr Kautai’s involvement in their church functions.  Noting the criminal convictions of Mr Kautai he still testifies to him being a “hardworking individual that is totally committed to his family”.  Mr J testifies as having been a bishop of the local ward of the church that is attended by Mr Kautai.  What is notable about this particular testimony is that it is given in the context of somebody within the community within which Mr Kautai functions and lives.  That is, whatever might be the other consequences of the criminal convictions, the reputation carried by Mr Kautai into the community in which he functions is not such as to prejudice his parenting of the child.

   g)Mr K likewise testifies to Mr Kautai’s place within his community despite the criminal convictions.

   h)Mr L testifies as to Mr Kautai’s reputation within the community within which he functions.  Again, this reputation is not such as to prejudice his ability to parent and care for the child.

   i)Mr M, also a senior cleric of Mr Kautai’s church and a person aware of the convictions, testifies to Mr Kautai’s good character.  He says “I know he has encouraged others in our congregation to improve their lives and put off activities that might lead to problems within the community and more particularly within families.  I believe over the last three or more years he has come to a greater understanding on what is important in life and as a consequence has made choices that have improved his character”.  As well as testifying to the positive activities engaged in by Mr Kautai, again this testimony bears upon Mr Kautai’s reputation within the community within which he functions.  It is this aspect of his reputation that is most important in assessing whether or not the reputation is good or otherwise for the purposes of s 39F.

5. The community within which the Kautais and the child live regards Mr Kautai, despite his criminal history, as being a person of good reputation. 

6. Given that a proper understanding of good reputation within its statutory context, is directed to the impact upon the child’s well-being, whether it prejudices the growing up in a safe or stable environment, whether it renders a family unsuitable to care for and provide enduring relationships or otherwise means that the best interests of the child are not being promoted, I conclude that Mr Kautai is, for the purposes of this Act, a person of good reputation.

7. Given the conclusion already reached regarding the child’s best interest, and the other matters contained in s 39F, it is appropriate to make the adoption order.

I certify that the preceding fifty-three (53) s are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 July 2017.

Associate: 

Date:  14 July 2017