Monroe and Applegate

[2018] FamCA 227

FAMILY COURT OF AUSTRALIA

MONROE & APPLEGATE [2018] FamCA 227

FAMILY LAW – ADOPTION – Leave to commence proceedings – Where the biological mother and step-father seek leave to commence adoption proceedings in the Supreme Court of their state – Where the biological father has not seen the children in ten years ­­and has recently ceased paying child support – Where the Court is satisfied that it is in the best interests of the children for leave to be granted – Where leave is granted.

Family Law Act 1975 (Cth) ss 60CC, 60G
Family Law Rules 2004 (Cth) rr. 7.18

Poulter and Anor & Lenton [2012] Fam LR 623

APPLICANT: Ms Monroe

RESPONDENT: Mr Applegate

FILE NUMBER: SYC 821 of 2018

DATE DELIVERED: 29 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 29 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ford

SOLICITOR FOR THE APPLICANT: Kells The Lawyers

Orders

1. Pursuant to rule 7.18(1)(b) of the Family Law Rules I dispense with the service of the documents in these proceedings, being the initiating application and the affidavits of the applicants, on the respondent.

2. Pursuant to section 60G of the Family Law Act 1975 (Cth) that leave be granted to the applicant mother and the proposed adoptive step-parent, the second applicant, to commence adoption proceedings in the Supreme Court of New South Wales with respect to B, born … 2000, and C, born … 2006.

3. To the extent that it is necessary, the provisions of section 121 that would restrict publication of this decision do not apply in respect to any application that is made by the applicants for the adoption of the children the subject of these proceedings.

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 Monroe & Applegate 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 SYDNEY

FILE NUMBER: SYC 821 of 2018

Ms Monroe

Applicant

And

Mr Applegate

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant mother and the applicant stepfather make a joint application for leave to be granted under section 60G of the Family Law Act1975 (Cth) (“the Act”) to commence adoption proceedings in the Supreme Court of New South Wales. The application is made in respect to B born in 2000 and C born in 2006.

2. At the commencement of these proceedings, despite the matter being called, there was no appearance by the biological father. I gave short reasons as to why I dispensed with the need for service of documents on the biological father in the circumstances where the parties have taken all reasonably available steps to notify him of these proceedings. 

3. I have had regard to the material filed in support of the application, including the affidavit of Ms Monroe sworn on 4 February 2018 and also the affidavit of Mr Monroe sworn on 4 February 2018. Both of those affidavits were filed on 9 February 2018. I have also had regard to the very helpful submissions of Mr Ford, counsel appearing for the parties. Mr Ford’s submissions have been marked as exhibit 1 in these proceedings.

4. By way of background, the first applicant, Ms Monroe, is the natural mother of B who is now 17 years old, and also C who is now 11 years old. 

5. The respondent biological father is known only by the name of Mr Applegate. He has not seen the children since approximately June 2008. In August 2017 the respondent ceased paying child support in respect to the children.

6. The second applicant, Mr Monroe, was born in 1975. The applicants commenced a relationship on 6 November 2007 and they were married in 2013. Ms and Mr Monroe have two children by their relationship;

   (a)D born in 2011, currently aged six; and;

   (b)E born in 2013, currently aged five.

7. Mr Monroe also has two children from a previous marriage;

   (a)F born in 2001, currently aged 17; and

   (b)G born in 2006, currently aged 12. 

8. The application is made under section 60G of the Act which relevantly provides;

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

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

   Note: to the section, that is, sections 60CB and  deal with how a court determines a child’s best interests.

9. In Poulter and Anor & Lenton [2012] Fam LR 623 (Poulter) at [15] and [16], Murphy J stated;

   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.

   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 in proceedings of this type.

10. In having regard to the best interests of the child, as referred to in section 60G(2), it is appropriate for the Court in these proceedings, to have regard to those matters set out in section 60CC of the Act. Having considered all of the matters set out in section 60CC, I will address those matters that I regard as being of greatest relevance to my decision.

11. Firstly, in terms of section 60CC(2), there are no risk factors involved in these proceedings. Unlike many of the issues that come before this Court, the children are living in a supportive, loving and happy family environment.

12. In terms of section 60CC(3)(a) I am satisfied that the topic of adoption has been the subject of discussion in the household for some years, and I am satisfied that the children are supportive of this process.

13. In terms of section 60CC(3)(c), I have noted that the father last saw the children 10 years ago and has not taken the opportunity to spend time with them and to be involved in decisions affecting their long term interests.

14. In terms of subsection 60CC(3)(ca), I note that the biological father paid child support in respect to the children for a period of time up until August 2017, however he has not paid any child support since that time.

15. In terms of section 60CC(3)(g), I note that B is now 17 years of age, and C is now 11. They both have both sufficient maturity to express their views, and it is appropriate for the Court to have regard to those views.

16. In terms of section 60CC(3)(i), I accept and agree with the submission of Mr Ford that the applicants, in looking after and caring for the children of the respective relationships, have done a remarkable job. They have created a vibrant, happy and loving family environment in what is truly a blended family.

17. In terms of other relevant matters, Mr Ford, appropriately referred to issues relating to identity for the children. In that respect, Mr Ford referred to the sense of self-worth associated with being recognised by law as belonging to the same family equally with their siblings, including blended siblings, and their biological parent and step-parent. I accept that is also a relevant consideration.

18. In having regard to all of those considerations that I have referred to, I also note the decision of Murphy J in Poulter where his honour said, at paragraph 24:

    The question then, in my view, can be expressed in 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?

19. Applying that test, and having regard to the section 60CC considerations to which I have referred, as required by section 60G, I am satisfied that it is in the best interests of the children for the Court to make orders as sought by the applicants.

20. Before concluding, I note the submission by Mr Ford, which had considerable merit, that the State and Commonwealth Governments might consider appointing appropriate officers to explore means of resolving what is an important, but a cumbersome, two-step process for seeking leave to proceed with an application for adoption in a state court. That process involves the time and expense of applying in this Court under section 60G of the Act, and then making a further application, in this case, to the New South Wales Supreme Court.

21. Mr Ford has raised the possibility of two alternatives to address this situation. One is that the State Legislature considers a reference of power to the Commonwealth, enabling this Court to deal with adoptions in circumstances involving an application by a step-parent where the requirements of section 60G apply. The other potential option, and they are not mutually exclusive, is that the Commonwealth might consider an amendment to section 60G(1) such that the words “a Supreme Court of a state” are inserted after the words “the Family Court, the Supreme Court of the Northern Territory or the Family Court of a state.”

22. Having noted the merit of Mr Ford’s submission I recognise that these matters are obviously matters for the legislature, and not this Court.

23. In summary and conclusion, having regard to the material presented to the Court by the parties and having regard to the very helpful submissions of Mr Ford, I make the orders as stated at the beginning of these reasons for judgment.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 29 March 2018.

Associate:

Date:  13 April 2018