Lang & Anor and Runting

[2018] FamCA 870

FAMILY COURT OF AUSTRALIA

LANG AND ANOR & RUNTING [2018] FamCA 870

FAMILY LAW – ADOPTION – Section 60 G – where the father who has not had contact with 17 year old son seeks orders for family report before orders are made – where the court considers the best interests of the child are to refuse the delay – orders made giving leave to adopt.

Family Law Act 1975 (Cth)

APPLICANTS: Ms Lang and Mr Holding

RESPONDENT: Mr Runting

FILE NUMBER: MLC 6401 of 2018

DATE DELIVERED: 10 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 October 2018

REPRESENTATION

SOLICITOR-ADVOCATE FOR

THE APPLICANTS:

Mr Knight

SOLICITOR FOR THE APPLICANTS: Knight Family Lawyers

SOLICITOR-ADVOCATE FOR

THE RESPONDENT:

Ms Caruso

SOLICITOR FOR THE RESPONDENT: Koolik & Associates Lawyers

Orders

1. The application by the Respondent for an adjournment is refused. 

2. Pursuant to s 60G of the Family Law Act 1975 (Cth), MS LANG and MR HOLDING have leave to adopt X (born … 2001).

3. The reasons this day be transcribed and placed on the Court file.

4. The application initiating proceedings filed on 8 June 2018 is otherwise dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

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 Lang and Anor & Runting 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 MELBOURNE

FILE NUMBER: MLC 6401 of 2018

Ms Lang and Mr Holding

Applicants

And

Mr Runting

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. On 8 June 2018, Ms Lang and Mr Holding as applicants together filed an Initiating Application in which the Respondent was named as Mr Runting. The application sought an order under s 60G of the Family Law Act 1975 (Cth) (“the Act”) granting leave to them to commence adoption proceedings in the state courts in relation to the child X (“the child”), who is now 17 years of age. X is the child of Ms Lang and Mr Runting. The documents on the Court file show that various attempts were unsuccessfully made at service on Mr Runting, but ultimately, it does not matter, because it is conceded that he received the documents some weeks ago. Those documents included affidavit material supporting the order that the applicants wanted.

2. For reasons that he explains as being as the result of the death of his wife, Mr Runting did not seek legal advice until a couple of days ago through solicitors in Queensland.  Mr Runting’s solicitors sought to have the matter heard via telephone, which I rejected, having regard to the fact the matter is listed in a judicial duty list.  They have now briefed an agent to appear for them. 

3. The solicitor advocate for Mr Runting sought an adjournment based on the fact that Mr Runting wanted to file some responding material.  Mr Runting indicated that he wanted a family report and mediation.  In my view, it is too little, too late. This application has been around for some months, and indeed, Mr Runting had done nothing about it until now. 

4. However, the more significant issue is the fact that Mr Runting now says that he wants to put some material on the Court file and, effectively, speak to the child through that material.  That is strange, having regard to the fact that he concedes that he has not seen his son since March 2015.  Particularly, having regard to the child’s age of 17 now, it would seem pointless that Mr Runting sends the material to the Court.  It is more appropriate, that he speaks direct to the child, if indeed the child wants to speak to him.  Most people would use some common sense and realise that a 17-year-old is not too far away from being an adult. The child would make up his own mind about wanting to have a relationship.

5. Mr Runting blames Ms Lang for the dilemma, indicating that she has been stalling the relationship that he wanted to have and it was his genuine desire to have some affectionate relationship with the child, and indeed, if possible, for some re-unification.

6. Having regard to the child’s age, the evidence that I have read, and the submissions I have heard, it is not appropriate to adjourn this proceeding.  All that would be doing would be to delay what I suspect is the inevitable and make Mr Runting feel better.  If indeed he has something to say to the child, no doubt he can say it in another forum.  In my view, the application for the adjournment should be refused. 

7. I turn then to the Initiating Application. Section 60G of the Act provides that the Court may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent. In making any such order the Court must consider whether granting leave would be in the child’s best interest, having regard to a number of legislative provisions.

8. The adoption is actually not granted by this Court, but rather by a court of the state.  The significance of the application, therefore, is that without leave being granted, the adoption does not make the child a child of the marriage of Ms Lang and Mr Holding.  Secondly, parental responsibility for the child, currently held jointly by Ms Lang and Mr Runting, would continue, and therefore there would be a potential problem for a state court in endeavouring to remove all parental responsibility, if indeed the Commonwealth’s law still applied. 

9. It has been drawn to my attention, that there is an order made by the Family Court of Australia in Brisbane in May 2007 to which all parties who were then litigants consented.  That particular order provides that both Ms Lang and Mr Runting share equal responsibility for the long-term care, welfare and development of their children, who included more than the child at that stage. 

10. It would seem to be common ground that there has been no communication between the parties for over three years now. To that extent, neither of them has fulfilled their responsibilities in terms of making the co-operative decisions that are required under s 65DAC of the Act. As such, even though an adoption proceeding without leave would mean that that parental responsibility would continue, it would only continue for another 11 months.

11. A third significance of such an order here is that, if not made, the parenting order to which I have just referred would continue, even if an adoption order was made. That arises as a result of s 65J of the Act. If leave is granted, then the adoption makes the child a child of the marriage of Ms Lang and Mr Holding, and that thereby ends any existing parental responsibility as well as any parenting order as a matter of law. There is therefore significance in the fact that the application seeks to, effectively, bring all of those matters to an end and then to formalise what is being sought under state law.

12. Ms Lang and Mr Holding rely on affidavits they have filed, but specifically Ms Lang observes that it was the child, who approached them and expressed his desire to be adopted. The child told them that that Mr Holding was in fact his father by virtue of his actions and that having it formalised would accurately reflect the nature of their relationship.  Whilst Mr Holding expressed some pleasure at that, the reality is the Court still has to look at whether or not that is in the best interests of the child.  Therein lies something of a dilemma as well, as to whether or not the yardstick that the Court uses in parenting proceedings by reference to ss 60CA and 60CC is the appropriate approach.  In my view, it cannot do any harm hereto contemplate those matters. 

13. In addition to wanting to be adopted, the child has also indicated that he wants to change his name.  In my view, that is a relatively insignificant issue, because he can change his name in any event in a very short space of time.  Importantly, all of the factual material shows that there is a good relationship between the child and Ms Lang and Mr Holding.  He is doing extremely well at school.  He is in year 12 this year and quite active.  He has already travelled internationally. To that extent he has very much formed a part of the household of Ms Lang and Mr Holding. He has some medical conditions, all of which although challenging, have been dealt with, and both Ms Lang and Mr Holding were there to assist. 

14. What the affidavit, remarkably, exposes is a lack of involvement by Mr Runting.  For whatever reason, he has not taken an active part in the child’s life, and on that basis one must presume that he has not taken up the options that he might have had, had he followed through with the orders that were made in 2007. 

15. The primary considerations in s 60CC of the Act are the benefit to the child of having a meaningful relationship with both parents. There is no meaningful relationship between the child and Mr Runting, and it would appear, that the child sees Mr Holding as the father figure in his life. There is no suggestion here of any physical or psychological harm arising out of his relationship with either Ms Lang, Mr Holding or Mr Runting.

16. In terms of the additional considerations, s 60CC(3)(A) of the Act requires the Court consider any views expressed by a child and any factors, such as the child’s maturity or level of understanding, that are relevant to the weight that those views should be given. In my view, that section really is addressing children of a much younger age than the child. Prior to the amendments in 2006, it was not the views of a child, that the Court had to consider, but their wishes, and wishes of a child over 14 were almost sacrosanct. The alterations in 2006 took that responsibility of the children away.

17. Any parenting order which is underpinned by the best-interest principles can only be made, if the Court considers under s 65D of the Act that an order is proper. In my view, it would not be proper, to make an order which ignored the wishes of a child, let alone his views, now that he is 17 years and one month of age.

18. Another consideration is the nature of the relationship that the child has with not only each of his parents but other persons who are significant in his life.  The evidence is, remarkably, silent on the question of where Mr Runting fits, and no doubt that might have been the basis upon which he desired to file some material.  However, doing the best I can with what has been a valiant submission by his solicitor-advocate on his behalf, Mr Runting effectively wants to tell the child why what has occurred over the last few years.  In my view, that indicates the nature of his relationship is not good.  On the other hand, the relationship between the child and Ms Lang and Mr Holding is good. 

19. A third consideration, which is relevant here, is the extent to which each of the parents has taken an opportunity to participate in making decisions about long-term issues of substance concerning the child.  Here is a case where all of decisions have, undoubtedly, been made by Ms Lang, and it would seem, that while she could be criticised for having failed to comply with her obligations under the 2007 orders, it is insignificant by comparison with the fact that Mr Runting has done nothing about his entitlements and obligations under the orders of 2007. 

20. Section 60CC of the Act also goes on to look at the capacity of each of the parents and other persons who provide for the needs of the child. Nothing I have read indicates that Mr Runting has contributed anything of any substance to the support of the child in recent years, where the bulk of the responsibilities for his care have fallen upon Ms Lang and Mr Holding.

21. One of the other considerations in s 60CC of the Act which is important, is the attitude to the child and the responsibilities of parenthood demonstrated by each of those parents. There is little point, in saying any more about the lack of responsibility by Mr Runting in terms of supporting the child in what he wants to do.

22. A significant issue is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.  There will, undoubtedly, be further proceedings involving the child, because an application for adoption has to be made under the state law.  Mr Runting, if he so desires, can make an application at that stage to resist the adoption. It may be, that he has some better argument than those that have been put by his solicitor-advocate on his behalf.  In my view, this is a case that is needs a permanent resolution and the conclusion of parental responsibility and parenting orders so that the reality becomes the norm for the child. 

23. In my view, the application should succeed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 October 2018.

Acting Associate:

Date:  29 October 2018