Mortland and Wheaton

[2011] FamCA 578

FAMILY COURT OF AUSTRALIA

MORTLAND & WHEATON [2011] FamCA 578

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act

Adoption Act 2009 (Qld)
Adoption of Children Act 1964 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton [1993] FamCA 113

APPLICANTS: Ms Mortland & Mr Mortland

RESPONDENT: Mr Wheaton

FILE NUMBER: BRC 2504 of 2011

DATE DELIVERED: 27 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 June 2011

REPRESENTATION

APPLICANTS: Mr & Ms Mortland in person

THE RESPONDENT: No appearance

Orders

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child L WHEATON born … April 2005.

2. The orders made by consent on 13 September 2005 at paragraph 6 be discharged.

3. The Court requests that the Australian Federal Police remove the name of the child L WHEATON born … April 2005 from the Airport Watch List at all points of international arrivals and departures in Australia.

IT IS NOTED that publication of this judgment under the pseudonym Mortland & Wheaton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2504 of 2011

Ms Mortland & Mr Mortland

Applicants

And

Mr Wheaton

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. L Wheaton was born in April 2005. He is currently aged six. He is the subject of an application to this Court for leave to adopt pursuant to section 60G of the Family Law Act1975 (“the Act”).  Adoption proceedings pursuant to State legislation have not yet commenced.  I note that L is a child who is five or over and who is under 17 within the meaning of the Adoption Act 2009 (Qld).

2. As Chisholm J remarked in Fogwell & Ashton [1993] FamCA 113:

   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 (“the Act”).

3. His Honour went on to say:

   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:  C.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) 75 ALR 469.

4. These proceedings, too, are undefended. No argument is addressed in respect to the constitutional validity of the provisions of the Family Law Act. In this ex tempore judgment I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings. 

5. Adoption of children in this state is governed by the Adoption Act2009 which came into force on 1 February 2010. 

6. The new Act specifies criteria different to those in the previous Act. Critically, the Act requires prospective adopting stepparents 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.

7. Further, a natural parent must, absent an order of the court dispensing with same, obtain consent of the other parent, irrespective of whether the natural parents of the children were married. 

8. Section 60G of the Family Law Act1975 (“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.

9. While, as has been observed, the failure to obtain leave now has consequences under the (new) State 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)[Parental responsibility ends on adoption of child] 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.

10. 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.

11. Section 65J of the Act provides:

    1.     [Application of section] 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.[Effect of adoption on parenting order] The parenting order stops being in force on the adoption of the child, unless the adoption is via prescribed document parent, and leave was not granted under section 60G for the adoption proceedings to be commenced.

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

13. 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.

14. 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. 

15. 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.

16. 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.

17. 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 paras 23ff).

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

19. 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. 

20. 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 State 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 well-being and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order;

21. 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, nevertheless they 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.

22. 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

1. L was born of a relatively short relationship between his father and mother.  L’s father currently lives in New Zealand.  The evidence reveals that he is a transgender person and is currently intending to undergo gender reassignment surgery.  The evidence also reveals that he has a history of gambling and alcohol abuse issues. 

2. I am satisfied by reason of the affidavits of service filed on behalf of the applicant, Ms Mortland, that the father has notice of these proceedings.  Also included among the material upon which Mr and Ms Mortland rely are Gmail communications between the parties and, included in those Gmail communications, is an indication that Mr Wheaton has, unfortunately, relapsed into difficulties with alcohol.

3. Ms Mortland and Mr Mortland put in place an agreement in respect of L’s care, which was formalised in consent orders on 13 September 2005.  It will be appreciated that those orders were put in place within a few months of L’s birth. 

4. The evidence reveals that there has been no contact whatsoever between L and his natural father in the intervening time.  That lack of contact extends to there being no communications via Christmas cards, birthday cards, gifts and the like.

5. Mr and Ms Mortland commenced their cohabitation in May 2006 and were married in November 2007.  It will be observed that, at the time Mr and Ms Mortland commenced their cohabitation, L was yet a baby, being only about 12 months old.  L has, then, resided with Mr and Ms Mortland for virtually the whole of his life. 

6. The evidence plainly reveals that Mr and Ms Mortland are loving, caring, thoughtful parents who are committed to L’s best interests and to seeing him develop in accordance with his expectations and hopes.

7. Mr and Ms Mortland have a child of their own – C – who was born in August 2008.  The affidavit material reveals – and I have no reason to doubt – that L and C have a very close relationship and love each other dearly.  They have, of course, grown up together and they are close in age. 

8. There is no doubt that Mr and Ms Mortland do not distinguish between L and C insofar as they treat each of those children as if they were both their natural children and there is no doubt at all that L’s day-to-day emotional, psychological and physical needs are appropriately and completely met. 

9. The same applies in respect of the financial support for L; the evidence reveals that there has been no financial support of him by his natural father and Mr Mortland has provided for L and C’s financial support since L was a very tiny baby. Each of Mr and Ms Mortland is employed.  Ms Mortland as a public servant.  Mr Mortland in the information technology field. 

10. The evidence reveals also that there is a close relationship between L and the members of his maternal family and I have no doubt that those relationships will continue to be fostered and will flourish. 

11. I have often said that the voices of children need to be heard in proceedings in this Court.  Proceedings of this type are no exception.  Of course, L is yet of an age where his views, strictly so-called, would not normally be sought, but children’s views can be expressed in a number of ways, not least by what flows overtly from being loved, cared for and nourished entirely appropriately. Those signs are undoubtedly present in this case.

12. The evidence before me plainly reveals that not only has L’s natural father had virtually no contact with him at all but he is also specifically in agreement with the adoption proposed by Mr and Ms Mortland. 

13. As will be plain, I think, from the outline of the legal principles applicable to this application, it seems to me that I ought be satisfied that the circumstances surrounding the proposed adoption can be seen to be in L’s best interests.  Those circumstances here include his natural father not availing himself of any time with his son for virtually the whole of his life, and Mr Mortland assuming all of the relevant parental responsibilities with respect to L as if he was his own child.

14. I am satisfied that, in all of the circumstances of this case, it is proper and in L’s best interests to grant leave to adopt within the meaning of the Act and I so order.

15. An additional issue for consideration is raised in the application.

16. Paragraph 6 of the minutes of consent subsequently formalised into a consent order on 13 September 2005 provides for a mutual restraint on the parties removing L from the Commonwealth of Australia and for his name to be placed on the PACE Alert system in force at all points of arrival and departure in the Commonwealth of Australia. 

17. The affidavit material deposes to a specific need for this order to be removed, namely that the maternal grandparents have organised a cruise to the South Pacific, which is to include L, C and Mr and Ms Mortland. Plainly, that cannot take place for so long as there is a PACE Alert current and the order restrains movement in the way to which it is directed.

18. It will, I think, be very clear from the facts and circumstances earlier referred to that the order restraining the removal of L from the Commonwealth of Australia and the PACE Alert are neither necessary nor indicated in L’s best interests. 

19. Indeed, it seems to me clear that Mr and Ms Mortland should be able to take each of the children out of Australia at such times as they might choose for so long as their relationship and co-parenting subsists. 

20. For those reasons, it is, in my view, plainly clear that paragraph 6 of the orders made on 13 September 2005 should be discharged and I will order to that effect.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 June 2011.

Associate: 

Date:  25 July 2007