Morton and Anor and Yeats

[2014] FamCA 690

FAMILY COURT OF AUSTRALIA

MORTON AND ANOR & YEATS [2014] FamCA 690

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – joint application by mother and stepfather pursuant to s 60G of the Family Law Act 1975 seeking leave to commence adoption proceedings – consideration of child’s best interests pursuant to s 60CC

Family Law Act 1975 (Cth) ss 60CC, 60F(4)(a), 60G, 61E(2), s 65J

Prior [2008] FamCA 592

1st APPLICANT: Mr Morton

2nd APPLICANT: Ms Morton

RESPONDENT: Mr Yeats

FILE NUMBER: PAC 1803 of 2014

DATE DELIVERED: 25 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Rafton Family Lawyers

Orders

1. That leave be granted pursuant to Section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of the children B born .. 1998 and C born … 1998 by Ms Morton and Mr Morton.

2. That these proceedings be removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morton and Anor & Yeats 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 PARRAMATTA

FILE NUMBER: PAC 1803  of 2014

Mr Morton and Ms Morton

Applicants

And

Mr Yeats

Respondent

REASONS FOR JUDGMENT

1. The applicant mother and her new husband seek leave of the court pursuant to section 60G of the Family Law Act 1975 to make application to adopt the twin children B and C born in 1998.

2. The respondent to the application is the children’s father.

3. Proceedings were commenced by the applicants on 22 April 2014.

4. Subsequent to service of the application on the respondent father he filed an affidavit sworn by him on 29 May 2014. The father deposed that he did not contest the application for leave to adopt and that he understood that the application meant that he would forfeit any and all legal rights in relation to his children. He further deposed that he had not taken the decision lightly, loving his children very much. He believed, he said, that at 15 years of age it was in his daughters’ best interests to allow the adoption to proceed.

5. The mother is 40 years of age and commenced to live with her present husband in about 2000 and they married in 2001. There is one child of their marriage that child, a daughter, now being 12 years of age.

6. The mother’s relationship with the respondent father was for 2 years only from 1997 to 1998. The subject children are the children of that relationship. The mother and the father did not live together subsequent to the birth of the children.

7. In April 1999 an apprehended domestic violence order was made for the protection of the mother for a period of 5 years following a serious assault by the father on the mother.

8. On 23 April 1999 final parenting orders in relation to the children were made at the Suburb D Local Court. In summary those orders provided for the children to live with the mother that the parties have equal shared parental responsibility for the long term care, welfare and development of the children and that the father spend certain defined time with the children.

9. Following the assault by the father of the mother and a breach of the apprehended domestic violence order in February 2000 the orders for the father’s time were later on 27 April 2001 discharged and interim orders made that the father was to have supervised time with the children under the supervision of the children’s the paternal grandmother. Those interim orders continue in force today.

10. The father saw the children about 4 or 5 times in the period to late 2002 and thereafter except for a one-hour visit in November 2005 the father has spent no time the children. The mother at present receives minimal child support of $13.95 per month for the children.

11. To the best of her knowledge the father resides in Queensland.

12. The mother’s relationship with her present husband commenced when the children were 12 months of age and she says that he has been a father figure to the children all of their lives. The children adopted the surname Morton when they were about 4 years of age. The children have a close relationship with their half-sister.

13. The mother’s husband provides financial support for the family through his full-time income as a truck driver/excavator.

14. The children reside with the applicants in a comfortable 5 bedroom home where they have lived for over 10 years. The children currently attend E School where they are in year 10.

15. Section 60G provides that this court may grant leave for proceedings to be commenced for the adoption of a child by a “prescribed adopting parent”. For the purposes of the Family Law Act 1975 a “prescribed adopting parent” means:

    a)a parent of the child or

    b)a 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.

16. The applicants are prescribed adopting parents for the purposes of the Act.

17. Should the applicants not have sought leave as in the present application they would not have been precluded from obtaining an adoption order in relation to the children. However the Act provides that an adoption order with prior leave under section 60G of the Act:

    d)ends parental responsibility for the child or children of the parent who is not the adoptive parent (s 61E(2)),

    e)renders the child the subject of the adoption order no longer a child of the marriage for the purposes of the Act (s 60F(4)(a)),

    f)ends the operation of any parenting order which was in force under the Act (s 65J).

18. In proceedings for leave the court must consider whether granting leave would be in the child or children’s best interests having regard to the effect of an adoption order as set out above. These considerations were considered in detail by Benjamin J in Prior [2008] FamCA 592.

19. Notwithstanding the granting of leave the mother and the respondent father will continue to have equal shared parental responsibility for the children by reason of the old orders that are still in place until such time as an adoption order is made.

20. The determination of a child or children’s best interests is to be made having regard to the consideration set out in section 60CC of the Act.

21. In qualitative and prospective terms of the children have a significantly meaningful relationship with the mother who has been their primary carer throughout the whole of their lives. That relationship is valuable significant and important to the children.

22. The children have no relationship with the father who has had no contact with them since they were 7 years of age. There does not seem to be any reasonable prospect that least into the foreseeable future of the children’s relationship with their father being restored however the children are of an age that they are able to form their own view as to whether they would make enquiries as to the father and seek to have some sort of relationship with him into the future.

23. There are no protective concerns in relation to the subject children. Incidents of family violence as between the mother and father are of historical interest only.

24. There are no expressed views by the children in relation to the present application, although there is a strong inference having regard to the background in which the application is made that the children for themselves would be strongly supportive of the application.

25. The children have a well-established and settled relationship with their mother and a well-established relationship with their stepfather. The children regard their stepfather as their father and refer to him accordingly. They have no relationship with their father as referred to above.

26. The mother has engaged in making long-term decisions in relation to the children and being their primary carer in the absence of the father since the children were 7 years of age. The father has in effect abandoned his responsibilities in this regard to the children’s mother and stepfather.

27. The mother and her husband have undertaken the obligation to maintain the children in the absence of any meaningful financial contribution by their father.

28. The mother has demonstrated an appropriate capacity in conjunction with her new husband to provide for the needs of the children including it is to be inferred their emotional and intellectual needs in the absence of any capacity in this regard being demonstrated by the father.

29. The mother has demonstrated an appropriate attitude to the children and her responsibilities of parenthood in particular in seeking to formalise the present arrangements in which the children live with her and her new husband. The father on the other hand has abdicated these responsibilities completely to the mother.

30. There has been historical violence as referred to above as between the mother and father, being the subject of an apprehended domestic violence order and later causing the discharge of the father’s contact orders with the children except under supervision.

31. It is not known whether there is any ongoing family violence order involving the children or a member of the children’s family.

32. There are no other relevant factors for the courts consideration.

33. In circumstances where the applicants are likely to be successful in an application for the adoption of the children, the court is satisfied that it is in the best interests of the children that leave be granted having regard to the consequences of that leave being granted under the Act as referred to above.

34. An order will be made accordingly.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 August 2014.

Associate: 

Date:  25 August 2014