Marchesi & Anor and Orton

[2014] FamCA 339

FAMILY COURT OF AUSTRALIA

MARCHESI AND ANOR & ORTON [2014] FamCA 339

FAMILY LAW – ADOPTION – Leave granted to commence adoption proceedings

FIRST APPLICANT: Mr Marchesi

SECOND APPLICANT: Ms Marchesi

RESPONDENT: Mr Orton

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 11216 of 2013

DATE DELIVERED: 28 April 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 28 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Honan
Michael Lynch Family Lawyers

RESPONDENT No appearance

Orders

IT IS ORDERED THAT

1. The Parenting Order in proceedings number BRC2812/2007 made by Federal Magistrate Spelleken on 3 October 2007 is discharged.

2. Pursuant to section 60G of the Family Law Act 1975, leave is granted to the First and Second Applicants to commence adoption proceedings in respect of the children, J born … 1999 and E born … 2005.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11216 of 2013

Mr Marchesi

First Applicant

Ms Marchesi

Second Applicant

And

Mr Orton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application filed 10 December 2013, the Applicants - the children’s mother and their stepfather- seek the following orders:

   a)that orders made in the Federal Magistrates Court of Australia (as that Court was then known) on 3 October 2007 between the mother and the Respondent - the children’s biological father- is discharged; and

   b)that they have leave to commence adoption proceedings for the children J, born in 1999, and E, born in 2005.

2. The children’s biological father, Mr Orton was born in 1974. As far as the Applicants are aware, he remains living in a suburb of Brisbane.  On 12 March 2014, Registrar Brooks made an order permitting service to occur by way of personal service on the Respondent’s sister, Ms Orton.  On 17 March 2014, Ms Orton was served with the Application and supporting documentation by hand.  She signed an Acknowledgment of Service which is relied upon in the proceedings before me.

3. The Applicants also rely upon an affidavit of Ms A filed 24 March 2014 (being an Affidavit of Service) and an affidavit of Ms Honan, their legal representative, filed on 23 April 2014. 

4. I am satisfied from reading the material and those affidavits that service has been effected in the manner prescribed by the Order made by the Registrar and I accept from Ms Honan’s affidavit that, in addition to those matters set out in the Affidavit of Service filed on 21 March 2014, she caused to be sent to Ms Orton correspondence advising of a change to the listing arrangements of this Application - this correspondence was forwarded by Ms Honan on 31 March 2014.

5. I also accept that, as at 23 April 2014 and as was confirmed to me orally by Ms Honan this morning, there has been no correspondence from Ms Orton in relation to the documentation served upon her nor has there been a response to Ms Honan’s correspondence.  It has not been returned to Ms Honan’s office under cover of any notification of “return to sender”.  It is clear on the material that there has been no contact by the Respondent with Ms Honan’s office following the service of the material to which I have already referred.

6. The Respondent is recorded as the children’s father on the Birth Certificates maintained pursuant to the relevant Queensland legislation.  However, on 1 March 2012, the children’s mother applied to change the children’s surname.  The Respondent did not appear at the hearing of the application which was listed for 10 April 2012.  The application was granted and following it, the children’s surnames were changed in early July 2012 to reflect the First Applicant’s surname.

7. The current Application falls to be considered in circumstances where the children’s mother and their biological father separated in or around October 2005.  At that time, J was six years of age and E less than twelve months of age.  After separation, the children’s biological parents agreed that J live with his biological father and E live with the mother.  The mother’s evidence, which I accept in circumstances where it is uncontested by other sworn evidence, is that she agreed to such an order against a background of domestic violence within the relationship.

8. After a contested hearing, a two year Protection Order was made by the relevant Court on about 17 December 2006.  In about September 2007, J’s teachers informed the mother of the view they held that it would be better for him to live with her.  As a result of receiving this information, the mother brought an application seeking a recovery order - on 3 October 2007, Federal Magistrate Spelleken, as her Honour then was, ordered, by way of interim order, that the children live with the mother.

9. No other order of a substantive nature has been made since the October 2007 Order.  The children’s biological father has not seen or spent time with them, save for a chance encounter at a local shopping centre, after the making of the October 2007 Order.  Whilst, initially, the respondent’s sister (that is, the children’s paternal aunt) and the children’s biological paternal grandmother visited the children a few times, the children have not spent time or seen them in the last four years or so. 

10. The mother met the First Applicant via the internet in about September 2007. At that time he was living in the United States of America.  By about January 2010, the parties’ relationship developed to a point whereby, via the exchange of email and telephone interaction, the children started to speak with and communicate with him.  He visited Australia for two weeks in about August 2010.  At that time, he stayed with the mother and the children at their residence and, at the conclusion of his visit, he asked the mother to marry him.  The parties married in November 2010. 

11. Before that, I think in about September 2010, the mother started to use the First Applicant’s surname.  Following their marriage, she undertook the appropriate steps to change relevant documents to reflect her married name, once she received documentation from the Registrar of Births, Deaths and Marriage.  The First Applicant moved to live with the mother and children in Australia in December 2010.  He was granted permanent residency in April 2013.

12. He intends to apply for dual citizenship when eligible to do so in or around February 2015.  The mother and the First Applicant have a child together: S, who was born in 2011. 

13. I accept the mother’s evidence that J told her and the First Applicant on occasion of his memories of the domestic violence perpetrated by his biological father toward her.  I also accept, given her age at the time of the separation of her biological parents and the absence of the Respondent from her life since that time, that E has no independent memory of him.

14. I accept the mother’s evidence that, in about December 2010, the mother, the First Applicant and the children saw the Respondent at local shops and that, save for a cursory salutation, he made no effort to speak with either of the children.  I also accept the mother’s evidence that it is likely the Respondent and members of his extended family have been aware of her address and telephone number since separation.  Of course, the chance meeting in December 2010 would, itself, have provided the Respondent with an opportunity to seek to obtain contact details from the mother had he held the intention of taking steps to spend time and/or communicate with the children.

15. I also accept the mother’s evidence that, save for being told by the biological paternal grandmother, in, I think, about March 2012 that the Respondent was living at Suburb B in Brisbane, she has no knowledge of his current address. 

16. The evidence clearly establishes that, since the Applicants commenced living together in about December 2010, the First Applicant has undertaken and participated in all of the duties of parenthood.  For example, he has been involved in playing and interacting with the children, transporting them to and from school and preparing meals for them.  He has been responsible for their financial support, paying school fees, sporting fees, and meeting all of their other day to day financial costs.  He has undertaken this financial support and demonstrated his financial commitment to the children and their support is circumstances where, whilst the Respondent has been assessed to pay child support for both children in an amount totalling $30.00 per month, there are currently arrears outstanding in relation to this modest assessment. 

17. Adoption proceedings pursuant to the relevant State legislation have not yet commenced. The Adoption Act 2009 provides, in s 92, that a person may apply to the Chief Executive to arrange an adoption of a stated child if a number of specified matters are satisfied. Included is that a person seeking an adoption has been granted leave pursuant to s 60G of the Family Law Act 1975 (Cth) and that the child, or children, in respect of which the adoption proceedings are commenced are at least five years of age and have not yet turned 17 years of age. Clearly the latter circumstance is satisfied in the case of each of the children.

18. Section 60G of the Family Law Act 1975 (Cth) is in the following terms:

    (1)Subject to subsection (2), the Family Court may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

    (2)In proceedings for leave under subsection (1) the Court must consider whether granting leave would be in the children’s best interests having regard to the effect of paragraph 60F(4)(a) or paragraph 60(HA)(3)(a) and of s 61E and s 65J.

19. It is clear, therefore, that s 60G requires that I consider whether granting leave would be in the children’s best interests, having regard to those sections and subsections referred to in s 60G(2) of the Act. Thus, I must have regard to and consider the familiar best interests considerations prescribed by s 60CC of the Act. It is relevant also to note that, if a child is adopted and immediately before the adoption a person had a right of parental responsibility for that child, that person’s parental responsibility ends on the adoption of a child, unless the adoption is by a prescribed adopting parent and leave was not granted pursuant to s 60G for the adoption proceedings to be commenced: s 61E of the Act.

20. The First Applicant comes within the necessary statutory definitions. 

21. Section 65J of the Act also provides that, if child is adopted and immediately before the adoption a parenting order was in force in relation to the child, the parenting order stops being in force on the adoption – again, unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced.

22. The consequence, then, of an adoption is that all parental responsibility for the child ceases as do all other parenting orders.  Parental responsibility is defined in s 61B of the Act to mean all the duties, powers, responsibilities and authority, which by law, parents have in relation to children. 

23. I consider that proceedings for leave to adopt pursuant to s 60G of the Act are child related proceedings within the meaning of the Act. They come within the meaning of division 12A. Further, s 69ZT of the Act makes specific provision with respect to the rules of evidence and in particular, as it might apply this case, rules relating to the receipt of hearsay evidence.

24. For the reasons I have already outlined, I have accepted the evidence contained within the affidavits of each of the Applicants, including that which falls within the category of hearsay evidence. 

25. The decision facing this Court differs to that which will face the Court charged with the decision whether to permit adoption.  The granting of leave to commence proceedings to adopt does not have the consequences described above.  Only the order for adoption made in the State Court has the consequences I have outlined.

26. It is, I think, relevant to note that s 208 of the Adoption Act2009 of Queensland provides, to the effect, that a Court may make a final adoption only if satisfied of a number of matters - included is that an order for adoption by a step-parent would better promote the children’s wellbeing and interests than an order under the Family Law Act 1975 (Cth), any other Court order or no Court order. I consider that this Court ought not grant leave to Applicants to permit proceedings in a State Court to commence if those proceedings were thought to be doomed to fail because of the absence of evidence addressing the mandatory State prerequisites.

27. It is clear in this case that the children’s biological father has taken no steps to seek or spend time with them since 2007.  I accept that the children have a close and well established relationship with the First Applicant.  I accept that he has included the children in all of the activities undertaken by members of his extended family – the children have been accepted as forming part of his family unit.  I consider that the First Applicant has been a constant in the children’s lives since the end of December 2010.

28. I have no hesitation in concluding, because of his presence in their lives and the financial support he has provided for their benefit, that he has supported both children financially and emotionally.  He has demonstrated his commitment to them over a number of years and I have no reason to suspect, or doubt, that he will do anything but continue to demonstrate his commitment to them into the future. 

29. Given the First Applicant’s involvement in the children’s lives and the discharge of the responsibilities inherent in the care he has provided to them since living with them in December 2010, I am well satisfied that it is in the children’s best interests that the First Applicant be placed in a position of being able to seek to formalise the view he has of the children as expressed by him – namely, that he considers both to be his “own”.

30. Given the absence of the children’s biological father from their lives and from any decision making in relation to issues covered by the term “parental responsibility”, I am unable to identify any detriment at all to the children of the impact of an order permitting the application for leave for adoption on the legal allocation of parental responsibility to the Respondent. 

31. There is nothing in the evidence, particularly in circumstances where the Respondent has been completely absent from the children’s lives since 2007 to suggest that he has discharged any of the obligations and responsibilities that parental responsibility imposes upon a parent.

32. I consider, for the reasons I have expressed, that it is in the children’s best interests to permit adoption proceedings to proceed in the State Court albeit that, if such proceedings are successful, the consequences will be that the children’s biological father shall cease to have parental responsibility for them. 

33. For the reasons outlined, I have little trouble concluding that the proposed adoption is in the children’s best interests.  I propose to make an Order in terms of the draft minute provided by the Applicant’s legal representative.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for Judgment of the Honourable Justice Hogan delivered on 28 April 2014.

Associate:     

Date:              28 April 2014