Mortland and Wheaton (No 2)

[2011] FamCA 950

FAMILY COURT OF AUSTRALIA

MORTLAND & WHEATON (NO 2) [2011] FamCA 950

FAMILY LAW – CHILDREN – Parental responsibility – Whether the applicants are granted equal shared parental responsibility of the child whilst the application for adoption to proceed is being considered – Where leave to adopt has been previously granted to the applicants by this Court pursuant to s 60G –Finding that it is in the child’s best interests that the applicants be granted equal shared parental responsibility of the child.

Family Law Act (1975) Cth s 60G, s 61C, s 61D, s 61B, s 61E, s 61DA, s 60CC, s 60CA, s 60I

APPLICANTS: Ms Mortland and Mr Mortland

RESPONDENT: Mr Wheaton

FILE NUMBER: BRC 2504 of 2011

DATE DELIVERED: 24 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 October 2011

REPRESENTATION

APPLICANTS: Mr & Ms Mortland in person

RESPONDENT: No appearance

Orders

1. The applicants, Ms Mortland and Mr Mortland, each has parental responsibility in respect of the child L WHEATON born … April 2005.

1. The applicants, Ms Mortland and Mr Mortland, be permitted to make application to the Australian Government for a passport to issue to L WHEATON born … April 2005 without the need for the consent of the respondent, Mr Wheaton, the biological father of the child, and, to the extent that it is necessary, the signature of the respondent, Mr Wheaton, required in the normal circumstances for such a passport to issue, is dispensed with.

1. The applicants, Ms Mortland and Mr Mortland, be permitted to take the child L WHEATON from the Commonwealth of Australia as and when they see fit.

IT IS NOTED that publication of this judgment under the pseudonym Mortland and Wheaton (No 2) 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 and Mr Mortland

Applicants

And

Mr Wheaton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction  

1. On the 27^th of June 2011 his Honour Justice Murphy of this Court  made orders in proceedings between Ms Mortland and Mr Mortland as the applicants, and Mr Wheaton as the respondent, in respect of the child L who was born in April 2005.  L is currently aged 6 years of age.

2. The orders that his Honour Justice Murphy made on the application of Mr and Ms Mortland were as follows:

   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.

3. On the same day his Honour Justice Murphy delivered ex tempore reasons for his decision. They included particularly, from paragraph 23 through to paragraph 42, a statement of the background for the decision and all of his Honour’s reasons as to why he determined it in L’s best interests to make the orders that he did. It is clear from his Honour’s reasons that L’s biological father, Mr Wheaton, was indeed in favour of, and effectively consented to, the order being made by his Honour that leave be granted to the applicants, pursuant to s 60G, for them to commence adoption proceedings in the State Courts of Queensland in respect of the child, L.

4. His Honour’s reasons reveal that L’s biological father, the respondent Mr Wheaton, had very little, if any, involvement in L’s life, that is, practical or financial, from shortly after the time that L was born.  The  evidence revealed that L was indeed fortunate enough nevertheless to be living with his mother and her chosen partner, Mr Mortland, from early in his life and was indeed being cared for and loved by both of them as if they were both in fact his parents. 

5. Justice Murphy ultimately saw it being completely in the best interests of L for the two parties, Mr and Ms Mortland, to be able to proceed to apply to the Queensland Courts for an adoption order under the Queensland Adoption Act2009.  Justice Murphy revealed in his reasons that he had considered and accepted evidence that Mr Wheaton, who apparently was having his own gender identification issues, had unfortunately also experienced quite significant issues with alcohol abuse in his life and had apparently, unfortunately, relapsed into such difficulties. 

6. The applicants, Mr and Ms Mortland, come back before the Court for some further orders to be considered by the Court on their application.  The evidence they have filed and relied upon in support of the application they have before the Court today includes evidence that the process for their adoption of L, through the State Courts of Queensland and the Department of Community Services of Queensland, will indeed take considerably longer than they first anticipated and considerably longer than Mr Wheaton apparently anticipated when he pressed them for them to undertake the adoption of young L. The evidence that I have seen that is before me today, and I have no cause at all to not accept it, is that the process of consideration and approval may indeed take two to three years.  That brings them to court for orders that include an order conferring parental responsibility upon them and also ordering the dispensation of the need for the biological father’s signature in respect of the passport application for the child L and an order that permits them to take L from the Commonwealth of Australia.

7. It is apparent on the evidence that the Mortlands have relied upon, that things are somewhat problematic for them in respect of the parenting of L when it comes to having to sign documents as his parents, effectively as his guardians, whilst there are no orders in force in respect of the parenting of L whilst the application for the adoption to proceed is being considered. That is the basis for their seeking an order that parental responsibility be conferred upon the two of them in respect of L, notwithstanding the fact that the adoption has not gone through. The difficulty lies for them in the fact that pursuant to the provisions of Part 7 of the Family Law Act, namely, in particular, s 61C and s 61D, parental responsibility, as it is defined in s 61B of the Family Law Act, is statutorily conferred through s 61C(1) on each of the parents of a child.  That confers parental responsibility on Ms Mortland and the child’s biological father, Mr Wheaton, the respondent.

8. The orders that were made by Justice Murphy permit an application for an adoption to proceed in the State Courts. Pursuant to s 61E of the Family Law Act, one of the effects of an adoption order being made by the State Courts under the Adoption Act, where leave has been previously granted by this Court pursuant to s 60G, is that parental responsibility resting with a parent pursuant to law immediately before the adoption, whether in full or to any limited extent, ceases.

9. Ultimately, therefore, if the application that the parties were given leave by his Honour Justice Murphy to proceed with in the State Courts is successful, Mr Wheaton will no longer have any parental responsibility in respect of L. However, given that it is two to three years potentially before such an order can be obtained by the Mortlands, they seek an exercise of the Court’s discretion under Part 7 of the FLA, at this earlier stage, to remove parental responsibility from Mr Wheaton and place it with Mr Mortland in his stead, in conjunction of course with Ms Mortland. 

10. Clearly, what I am being asked by the Mortlands to do in this application is to make orders that can only be described as parenting orders. Section 61DA(1) of the Family Law Act says this in respect of such proceedings:

    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

11. So one begins these proceedings today with a presumption that it is in L’s best interests for his biological parents to have equal shared parental responsibility for him.  Section 61DA (2) says, however, this:

    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

    (b)      family violence.

12. There is no suggestion either being made by the Mortlands themselves or on the evidence that I have seen, that such applies, so I cannot determine on the facts of this case that the presumption does not apply for those grounds.  Section 61DA(4) however goes on to say this:

    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

13. Of course reference must also be made in the consideration of this application to s 60CA that says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

    I also refer to s 60CC which sets out that in determining that which is in the child’s best interests the court must consider the matters set out in sub-sections (2) and (3) of s 60CC. Those listed matters are namely the primary and additional considerations that the court must consider when determining what is in the best interests of the children. 

14. In this particular case, it is clear to me on a reading of the evidence that is before me and the reasons given by his Honour Justice Murphy for making the orders that he did in June this year, that it is indeed in the best interests of L for his parental responsibility to be held by and shared between Mr Mortland and Ms Mortland. 

15. The evidence satisfies me on the balance of probabilities that L’s biological father clearly supports L’s parenting being taken over completely by Ms Mortland and Mr Mortland and is indeed clearly anxious for that to happen in all respects as soon as it possibly can.  It seems, from the evidence that I have read and considered, that Mr Wheaton indeed himself considers it in L’s best interests that he ultimately understand, consider and believe himself to be the actual child of Mr and Ms Mortland as opposed to Mr Wheaton’s child.  No doubt that has a great deal to do with Mr Wheaton’s decision to reassign his gender and it appears to me that Mr Wheaton himself is acting in a way that is putting L’s interests to the fore. 

16. In all the circumstances, and in particular, there being no apparent desire or intention expressed on Mr Wheaton’s part to have any further parental role in any form in L’s life, I have no hesitation in determining that it is in L’s best interests for Mr and Ms Mortland to be granted equal shared parental responsibility in respect of L and I will be making that order.

17. The second part of the application arises from the factual circumstances that L’s maternal grandparents have graciously gifted to Mr and Ms Mortland, L and L’s baby brother, C, a south pacific island cruise that they intend and expect to undertake as a family in the middle of 2012.  Sensibly the planning of that cruise has been done a long time in advance and it enables the processes that were necessary to be properly completed.  On the evidence that I have seen Mr Wheaton was made aware of the fact that the cruise was gifted to the family and was planned to be undertaken and he was also made aware that in order for a passport to issue he would either have to sign an application or his signature on that application would have to be dispensed with. 

18. The impression I got from the material I read is that Mr Wheaton indicated his approval of and consent to L going on such a holiday.  He indicated initially that he had no problem in signing the passport application. The impression I got was that life was a bit too chaotic and hectic for Mr Wheaton at the time and that he indicated he might have difficulties getting around to signing the relevant documents and getting them back to Ms Mortland.  As it transpires, the evidence before me is that that is in fact what happened and that Mr Wheaton’s chaotic lifestyle and pre-occupation with other things in his life over the past few months has prevented that from happening. 

19. In all the circumstances I have no hesitation in determining that it is appropriate for Mr Wheaton’s signature to be dispensed with in respect of the application for the passport.  Further, it follows that I have no hesitation in determining that it is in L’s best interests for him to travel with his parents, his baby brother, maternal grandfather and maternal step-grandmother on that holiday cruise in the middle of 2012.  I will be making an order that permits him to be taken from the jurisdiction for that purpose.

20. I did not mention it initially but I shall mention it now and deal with it. The provisions of s 60I of the Family Law Act which is also contained within Part VII of the Act, deal with the attendance at family dispute resolution by parties before they can actually apply for a Part VII order. Section 60I(7) says this:

    Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

21. In this particular case, no such 60I certificate was filed with the application for the Part VII order that I have been asked to make. I turn then to the exceptions that s 60I(7) referred to that are contained within s 60I(9). That sub-section begins with this:

    Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

    Then it lists quite a number of circumstances that can apply in order for an exception to the statutory requirement for the filing of a s 60I certificate to come into effect. Relevantly, in this case, I refer to sub-paragraph (e) of s 60I(9):

    (e)  one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason);

22. I am satisfied that family dispute resolution processes were unable to be participated in, in this particular case because of a number of reasons that fall within that exception. Firstly, the remoteness of Mr Wheaton from dispute resolution services that the parties could have conveniently and appropriately attended together. Secondly, because of Mr Wheaton’s circumstances and his apparent inability and unwillingness to cope with all of the responsibilities and requirements surrounding this type of proceedings. Thirdly, because he apparently consents to or does not oppose these orders being made in the form being sought in any event. I am satisfied that he was properly served in a timely fashion with the application and supporting material and has for his own reasons chosen not to appear and clearly is not opposing the orders that are sought. Therefore, I am quite satisfied that the proceeding can be heard and determined notwithstanding the absence of a s 60I certificate.

23. Having said earlier that I consider it in L’s best interests for equal shared parental responsibility to be conferred on Mr and Ms Mortland, I have now after consulting the Mortlands and discussing with them the nature of and differences between parental responsibility orders and equal shared parental responsibility orders, heard that they would prefer an order that simply confers parental responsibility on the two of them as exists normally between a couple who are not separated.  I am satisfied having regard to their wishes that it is not a case where equal shared parental responsibility is required to be conferred on them in L’s best interests.  His best interests are served by conferring parental responsibility on them as they ask for and not otherwise.

24. I order accordingly.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 October 2011.

Associate: 

Date:  15 December 2011