Murray and East

FAMILY COURT OF AUSTRALIA

MURRAY & EAST

[2010] FamCA 69

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act–Whether Deficient Material might be overcome by need to conduct proceedings without undue delay under s 69ZN –Leave Granted

Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

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

Fogwell & Ashton (1993) FamCA 113

APPLICANTS:

Mr and Mrs Murray

RESPONDENT:

Mr East

FILE NUMBER:

BRC

11044

2009

DATE DELIVERED:

27 January 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

27 January 2010

REPRESENTATION

THE APPLICANTS:

In person

THE RESPONDENT:

No appearance

Orders

Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child A born … May 2002.
Leave is granted to dispense with service of the Case Application and Affidavit filed by the Applicants on 2 December 2009 and that such Application be heard ex-parte.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11044 of 2009

MR AND MRS MURRAY

Applicants

And

MR EAST

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application to adopt by a step-parent pursuant to s 60G of the Family Law Act 1975 (“the Act”).
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 Act 1975 (“the Act”).
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.
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.
Adoption of children in this state is governed for another five days by the Adoption of Children Act 1964. On 1 February 2010, the Adoption Act 2009 will apply.
A number of applications currently in train will, at that new Act’s commencement date, have new criteria within that Act applied to them. Critically, the Act will require prospective adopting stepparents to satisfy, in addition to existing 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.
Further, a natural parent must, absent an order of the court dispensing with same, obtain consent, irrespective of whether the natural parents of the children were married.
Section 60G of the Family Law Act 1975 (“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.
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 of 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.
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.
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.
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.
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 so in proceedings of this type.
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.
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.
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, in this State, after 1 February, will be 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).
Having said that, it is important to observe that the new State legislation does bear upon the decision to be made in these proceedings.
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.
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 new 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 Act 1975 (Cwlth), any other court order or no court order;
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 prerequisites.
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.
In general terms, Division 12A of the Act applies, in my view, by reason of the fact that these are, “child-related proceedings” by reference to section 69ZM of the Act, being proceedings that are wholly within part VII of the Act.
On 20 January 2010, Registrar Coutts made a number of procedural orders in chambers designed to affect the hearing of the application by me today. The time frame imposed on those directions was necessarily tight by reason of the fact that the application needed to be heard prior to the commencement of the Adoption Act 2009 (Qld) on 1 February 2010, lest the application for adoption with the Department start again.
The material filed by Mr and Mrs Murray is deficient. I mean no criticism of the parties when I say that. They represent themselves and have clearly prepared their own material. However, this court is charged with the responsibility of making an order for leave to commence adoption proceedings only in circumstances where it is satisfied that it is in the best interests of the relevant child to do so.
This court can, though, take judicial notice of the notorious fact that proceedings for adoption in this State take a very long time by reason of both the number of applications compared to the resources available to deal with them, and the (appropriately) onerous responsibilities placed upon officers within the Department under State legislation for appropriate assessment and enquiries to be made.
The process in this case is now about 18 months into its life, the application for adoption being made with the Department by the applicants in these proceedings on 19 June 2008. As the order made by Registrar Coutts indicates the court would, in the usual course of events, require sworn affidavit material from the parties more extensive than that which had already been filed, and it is to that which those procedural orders were directed.
As a part of the court considering the best interests of the child the subject of the application, that ought, in my view, be a consideration of the fact that a failure to grant leave has the consequence that an already lengthy process with the Department, may become even longer. That, it seems to me, is a significant matter.
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 so in proceedings of this type.
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.
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.
Bearing those specific principles in mind, and the other matters contained in division 12A of the Act as a whole, I determined to receive from the mother of the child, the subject of these proceedings, A, born in May 2002, information from her in respect of the matters considered relevant by me in determining whether leave to commence the proceedings ought be given.
It is important in that respect to again underline the distinction between proceedings for leave to commence proceedings on the one hand, which is the responsibility of this court, and an ultimate decision about whether adoption is in the best interests of the particular child, which is the province of the State Magistrates Court ultimately making a decision about adoption in this case.
The nature and extent of the inquiry in this court relevant to leave is, although based in best interests, somewhat different to that which confronts the State Magistrates Court in making an ultimate decision about adoption.
I have also taken account of that as a factor in determining to proceed with the application in the way that I have.
The evidence received in the manner just described, together with the affidavit of Ms Murray filed on 2 December 2009, reveals that the father of A has had little to do with him for virtually the whole of his life. There were some supervised visits occurring as part of a court-ordered process that the mother says took about a year to commence and thereafter occurred on approximately five occasions in 2005. The last of those visits, which was the last time that the father had face to face time with A, occurred over four years ago in January 2006.
The mother tells me that there was a restraining order in place and, in November 2006, it was necessary for her to renew that restraining order when the father made contact with her. No contact between the father and the child occurred at that time.
The mother and her current husband commenced cohabitation in February 2004, and married in March 2006. They have been cohabitating, then, nearly six years. They have one other child of theirs, D, who was born in November 2006. At about the time of D’s birth, the mother and her husband, who were then living in Western Australia, decided to move to Queensland.
Appropriately, an application was made to the court so as to, as it were, allow that to occur. The first return date of that application was in November 2006. The matter was adjourned four times. On each of those occasions, the father did not appear. Ultimately, on 11 January 2007, in default of appearance, orders were made which, in effect, permitted the child, the mother and her husband to move to Queensland.
The mother has no knowledge of the father’s whereabouts. She does not know of any family or friends of his through whom she can contact him. She does not have any current or past phone numbers for him. She receives from the child support agency a yearly document in respect of child support which indicates, that the father is unemployed. In any event, the mother has no idea where he might be employed if he is employed.
In those circumstances, the mother seeks, for the purpose of these proceedings, that service be dispensed with. I will so order.
I again emphasise, in that context, that in respect of the application for adoption (as distinct from the application for leave to commence adoption proceedings) that a State Magistrate’s Court may well need to look at the issue of dispensing with consent by the child’s father.
The mother and her husband live as a family in N. There is nothing to suggest, and I accept, that the family is a loving happy family that provides appropriate nurture and support, both emotional and financial to both D and the child the subject of these proceedings, A.
The mother tells the court that A has been raised by Mr Murray in all respects as though he were his natural child, and A refers to him as “Daddy”, and A and his sibling relate as natural siblings and have a strong bond.
In the circumstances just described, it seems to me appropriate and in A’s best interests that his mother and her husband ought have the opportunity to present a case for adoption to the State Magistrate’s Court consequent upon the process prescribed in the Adoption Act 2009.
I so order.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 9 February 2010

[2010] FamCA 69

27 January 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Procedural Fairness

Jurisdiction