Lowe and Anor & Clayton

[2011] FamCA 1024

FAMILY COURT OF AUSTRALIA

LOWE AND ANOR & CLAYTON [2011] FamCA 1024

FAMILY LAW – ADOPTION – By step-parent – where no service upon respondent father – where location of respondent father unknown – where no contact with respondent father for 11 years – where history of family violence and mental illness – where service dispensed with – where Application pursuant to s 60G of the Family Law Act 1975 heard ex parte – whether to grant leave to commence proceedings pursuant to s 60G – where it is in the child’s best interests to permit adoption proceedings to proceed in the State court.

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)

Fogwell & Ashton (1993) FLC 92-429

APPLICANTS: Mr Lowe and Ms Lowe

RESPONDENT: Mr Clayton

FILE NUMBER: BRC 2267 of 2011

DATE DELIVERED: 22 December 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 October 2011

REPRESENTATION

FOR THE APPLICANTS: In person

FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT:

1. Pursuant to section 60G of the Family Law Act 1975 (Cth) leave is granted to the applicants to commence adoption proceedings of the child B LOWE born … August 1998.

2. Leave is granted to dispense with service upon the respondent of the Amended Initiating Application filed on 23 June 2011 and Affidavits filed by each of the applicants on 23 June 2011 and 3 August 2011.

3. The Amended Initiating Application filed 23 June 2011 be heard ex parte.

IT IS FURTHER ORDERED THAT:

1. No person is permitted to inspect the original court documents filed by the applicants in these proceedings without permission of a Judge.

IT IS DIRECTED THAT:

1. The Registry Manager place the original court documents filed by the applicants in these proceedings in an envelope sealed and marked “Not to be opened unless by order of a Judge” and replaced on the Court file.

2. The Registry Manager replace on the Court file a copy of each original court document filed by the applicants with all information identifying the address, workplace or location of the applicants or the child removed.

3. The address of the applicants not be disclosed on these Orders as issued.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lowe & Clayton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2267 of 2011  

Mr Lowe and Ms Lowe

Applicants

And

Mr Clayton

Respondent

REASONS FOR JUDGMENT

1. T Lowe (“the child”) was born in August 1998 and is currently 13 years of age. He is the subject of an Application to this Court by his mother and step-father for leave to adopt pursuant to section 60G of the Family Law Act1975 (Cth) (“the Act”).

2. Adoption proceedings pursuant to State legislation have not yet commenced.  I note that he is a child who is five or over and who is under 17 within the meaning of the Adoption Act 2009 (Qld) (“the Adoption Act”).

3. As Chisholm J remarked in Fogwell & Ashton (1993) FLC 92-429 at 80,390:

   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.

4. His Honour went on to say at 80,390:

   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:  see 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) FLC 91-843; 75 ALR 469.

5. These proceedings, too, are undefended. More will be said in relation to this shortly. No argument is addressed in respect to the constitutional validity of the provisions of the Act. I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings.

6. Adoption of children in this State is governed by the Adoption Act which came into force on 1 February 2010.

7. The new Adoption Act specifies criteria different to those in the previous Act. Critically, the Adoption Act requires prospective adopting step-parents 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.

8. Further, a natural parent must, absent an order of the Court dispensing with same, obtain the consent of the other parent, irrespective of whether the natural parents of the children were married. This requirement is particularly relevant to the present Application and will be addressed below. 

9. Section 60G of 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.

10. While, as has been observed, the failure to obtain leave now has consequences under the (new) Adoption 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)The person’s parental responsibility for the child ends on 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.

11. 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.

12. Section 65J of the Act provides:

    (1)    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)The parenting order stops being in force on 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.

13. 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 the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

14. 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.

15. 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. 

16. 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.

17. 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.

18. 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 80,391 onwards).

19. Having said that, it is important to observe that the State legislation does bear upon the decision to be made in these proceedings. 

20. 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. 

21. 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 Adoption 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 wellbeing and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order; …

22. 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, they nevertheless 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.

23. 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

Service upon the father

1. An Amended Initiating Application filed jointly by the self-represented parties on 23 June 2011 seeks an order that the matter “be heard ex parte”. No material has, it seems, been served on the father.  

2. As was said earlier, in proceedings of this type, a natural parent must, absent an order of the Court dispensing with same, obtain consent of the other parent.

3. At the commencement of the hearing, I had both of the parties sworn. During the hearing, the parties, in particular the mother, elaborated upon the behaviour of the child’s father that had led to the request that the Application be heard ex parte. The mother’s oral evidence and affidavit reveals incidents of significant family violence perpetrated by the father upon the mother and the child and witnessed by the mother’s two elder sons. The mother also describes the father as suffering from a “personality disorder”.

4. The mother deposed to the father setting up a “sleeping area in the roof” of her house post-separation. I asked the mother about this incident during the hearing. The mother, who suffers from bipolar disorder, but who has been consistently medicated and “well” for five to six years, described a time, following her separation from the father, when she was particularly unwell and the child had been taken into crisis care; the father had moved into the mother’s roof and had been coming in and out of the roof through a manhole in the laundry.

5. The mother stated that the father had been told by police to leave Queensland after he had been caught stealing. The mother did not seem to think the father had been charged. According to the mother, neither she nor the child has had any contact (excluding child support) with the father since he was told by the police to leave the State in 2000. The mother stated that she does not know where the father lives.

6. I asked the mother and Mr Lowe if it was their intention for the adoption process to occur without the child’s father knowing about it. The mother responded “I don’t care if he knows but I am pretty scared of him. He does have a right to know. We have looked everywhere”. Mr Lowe said “he is still technically [the child’s] biological father so we discussed that. Even with what he has done in the past…he has a right to know”.

7. In light of these answers, I asked both the mother and Mr Lowe if it was correct to say that “it is not so much that you don’t want [the child’s father] to know about it. Rather, you want these proceedings to happen without you having to contact him”. Both parties confirmed this to be an accurate summary of their position.

8. To further clarify the parties’ position, I asked them whether, had they known where the father currently lives, they would have served him. Both parties responded unhesitatingly in the affirmative. The mother did state that she would want to “run and hide and protect my children”, however Mr Lowe stated that, notwithstanding the mother’s fear, “[the child’s father] still would have been served”.

9. In light of the mother’s evidence, which I accept, regarding the father’s psychiatric illness, his previous violent behaviour, and his behaviour post-separation, in particular that he took up residence in the mother’s roof, I am satisfied that the nature of this case warrants an order that service of the father be dispensed with (Rule 7.18, Family Law Rules 2004) and that the Application be heard ex parte.

10. I am also satisfied that orders which remove identifying details (including, for instance, residential addresses) are, in light of the history of this matter, necessary.

Is it in the child’s best interests to permit adoption proceedings to proceed?

1. The mother and Mr Lowe married in 2001 when the child was a toddler. In 2003, the child’s birth certificate was amended such that he now shares a last name with his step-father. Mr Lowe deposes to the child viewing him as “his only father”. I have no doubt this is the case. 

2. The applicants have five children from previous relationships (including the child) and one child together. Five of those six children (including the child) currently live at home with the applicants. The mother receives a disability pension (Mr Lowe is her carer) and Mr Lowe works 8 hours per week as a paid employee.

3. As has already been said, the mother suffers from bipolar disorder. The mother stated during the hearing that she “has not been sick in five years”. When I asked the mother if she had been on the same or similar medication for that period she replied “oh yes”. The mother also stated that she has “a case manager and I see a psychiatrist regularly”. There is nothing to suggest that the mother’s mental illness is not being properly treated and monitored.

4. Mr Lowe describes the child as an “independent” teenager who “enjoys after school activities…” and who has “responsibilities at [an organisation we attend] [involving various duties]”.

5. The mother deposes to the child “having a bad reaction to men” after the mother and father separated; the child, according to the mother, “would scream when a man he did not know came into his space”. The mother states that when the child first met Mr Lowe, “for the first time I saw my son happy to be held by a man and he was playing with [Mr Lowe]”.

6. The affidavit material of both of the parties, in conjunction with their oral evidence, reveals, by reference to section 60CC, and the other matters that need to be taken into account under the Act when considering the best interests of children, that the home provided for the child by the applicants meets his best interests by providing for his physical, emotional and psychological nurture.

7. In all of the circumstances of this case, I am satisfied that it is in the best interests of the child that leave be granted to commence proceedings for adoption pursuant to section 60G of the Act, and I so order.

I certify that the preceding forty (40) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 22 December 2011.

Associate: 

Date:  22 December 2011.