Poulter and Anor & Lenton

[2012] FamCA 154

FAMILY COURT OF AUSTRALIA

POULTER AND ANOR & LENTON [2012] FamCA 154

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

Adoption Act2009 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

1st APPLICANT: Mr Poulter

2nd APPLICANT: Ms Nixon

RESPONDENT: Mr Lenton

FILE NUMBER: TVC 1183 of 2011

DATE DELIVERED: 6 February 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Murphy J

HEARING DATE: 6 February 2012

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT:

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the Applicants to commence adoption proceedings of the child C born … February 2000.

2. Leave is granted to the Applicants to dispense with the necessity for service.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Poulter and Anor & Lenton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 1183 of 2011

Mr Poulter and Ms Nixon

Applicants

And

Mr Lenton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an application filed on 8 November 2011 Mr Poulter and Ms Nixon apply to this court for leave to adopt a child C born in February 2000, born of a relationship of the mother. 

2. C is currently 12 years of age and is the subject of an Application to this Court for leave to adopt pursuant to section 60G of the Family Law Act1975 (Cth) (“the Act”). I note that C is a child who is five or over and who is under 17 within the meaning of the Adoption Act 2009 (Qld) (“the Adoption Act”).

3. The application is accompanied by an affidavit which deposes to a number of matters relevant to the application itself and to a further component of the application whereby the parties seek leave to proceed with the application, absent service of the application upon the father.

4. As Chisholm J remarked in Fogwell & Ashton (1993) FLC 92-429 at 80,390:

   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.

5. His Honour went on to say at 80,390:

   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:  see 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) FLC 91-843; 75 ALR 469.

6. These proceedings, too, are undefended. No argument is addressed in respect to the constitutional validity of the provisions of the Act. I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings.

7. Adoption of children in this State is governed by the Adoption Act which came into force on 1 February 2010. 

8. The new Adoption Act specifies criteria different to those in the previous Act.  Critically, the Adoption Act requires prospective adopting step-parents 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.

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

10. Section 60G of 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.

11. While, as has been observed, the failure to obtain leave now has consequences under the (new) Adoption 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)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.

12. 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.

13. Section 65J of the Act provides:

    (1)    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)The parenting order stops being in force 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.

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

15. 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.

16. 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. 

17. 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.

18. 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.

19. 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 80,391 onwards).

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

21. 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. 

22. 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 Adoption 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 wellbeing and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order; …

23. 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, they nevertheless 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.

24. 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. Mr Poulter entered C’s life more than five years ago, and for about four-and-a-half years he and C’s mother have been living together as a family together with C’s three sisters by a previous relationship of the mother:  B who is aged 21, D who is aged 19 and L who is aged 17.  Mr Poulter deposes to the family living together as a family group and to he having accepted C and his sisters “as my own”. 

2. Mr Poulter further deposes that he “guides them through life as a father”, and to the fact that C has “accepted me as his father and refers to me as dad”.  The relationship between the mother and C’s father was marked by significant violence.  It was also marked by the father’s drug addiction, and there were criminal offences directly related to that drug addiction. 

3. An exhibit to the affidavit relied upon is a copy of a protection order emanating from an application brought by the police on behalf of the mother. The order was made in September 2009.  The mother also gave a statement to police on 26 August 2009 that is exhibited to the affidavit. It relates a lengthy history of violence between her and C’s father.  In particular that statement contains the mother’s record of a telephone conversation between she and C’s father, recorded, she says, because of her previous history with the father and her knowing that she ought take details of conversations by reason of having been involved in domestic violence proceedings in the past.

4. That records the mother saying that she would prefer steps to be taken “legally and through a mediator”.  She then records the father yelling at her, “Tell him [Mr Poulter] to shut the fuck up.  I’ll make you a widow real easy.  I ain’t messing around.  You will be a widow.  He don’t have a say.  He’s my son and I’m going to see him.  He’d better shut up because he won’t know what hit him.  I’m not fucking around.”  The mother replied, “This has to be done legal,” and the father yelled, “You won’t stop me.”  The conversation continues in a similar vein.

5. The conversation is recorded as having occurred on 25 August 2009 and a subsequent phone call having occurred later that day to similar effect.  That conversation (which occurred some two-and-a-half years ago) is the last contact in any form whatsoever that the mother or Mr Poulter has had with C’s father. 

6. It is deposed that C’s father has been incarcerated on previous occasions but the applicants are unable to indicate whether he is incarcerated at the present time.

7. The only member of the father’s family of whom the mother is aware is his mother, and the mother’s knowledge of the father’s mother extends only to knowing that she lives somewhere on the Gold Coast.  She has not had any contact with the father’s family for many years. 

8. It probably goes without saying that there have been no proceedings brought in this Court or the Federal Magistrates Court by the father in relation to his son. The applicants say that they have no means of contacting the father or ascertaining his whereabouts. 

9. It will be appreciated that an application for leave to adopt is different from the application for adoption itself, although the leave of this Court is now a precondition for Mr Poulter adopting C for the purposes of the State Act.  It may well be that when the Department and/or the state Court receives the formal application for adoption, further inquiries might be demanded of the applicants in respect of attempting to ascertain the father’s whereabouts.

10. For present purposes, however, I am satisfied that the applicants have made reasonable attempts for the purposes of obtaining the leave of this Court to the proposed adoption. 

11. Accordingly I propose to order that service of the application for leave to adopt be dispensed with and that the application for leave to adopt be heard ex parte. 

12. Although the material before me is somewhat brief and has been prepared by the parties themselves, I am nevertheless satisfied in the particular circumstances of this case that C’s best interests lie in Mr Poulter being able to pursue his application for adoption through the relevant steps required by the Adoption Act.

13. I note that Mr Poulter has now formed a stable family unit with C’s mother and indeed the three children of her previous relationship. 

14. I am told in that respect that those three children have not spent any time or otherwise had any contact with their father since about 2005.  The applicants were married in April 2009 and have been living together as a family since 2006. 

15. It seems to me that in the circumstances of this case it is appropriate that the parties be given leave to adopt so as to pursue that application by undertaking the other steps required of the Adoption Act Queensland. 

16. I will accordingly make the usual order that leave to adopt be granted to the applicants. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 February 2012.

Associate: 

Date:  21 March 2012