Prior & Prior

[2008] FamCA 592

FAMILY COURT OF AUSTRALIA

PRIOR & PRIOR [2008] FamCA 592

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – joint application by mother and stepfather pursuant to s 60G of the Family Law Act1975 seeking leave to commence adoption proceedings – consideration of child’s best interests pursuant to section 60CC – the jurisdiction of the Federal Magistrates Court – the meaning and impact of the term ‘leave’ in the context of s 60 G – leave granted pursuant the section.

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

Fogwell & Ashton (1993) FLC 92-429
Bacon & Bacon [2007] FamCA 1594
Denderfield and Anor & Power [2007] FamCA 298

APPLICANT: Mr and Mrs Prior

RESPONDENT: Mr Firth

FILE NUMBER: CSC 239 Of 2008

DATE DELIVERED: 31 July 2008

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 4 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS:	Mrs Willis
SOLICITOR FOR THE APPLICANTS:	Murray Lyons
COUNSEL FOR THE RESPONDENT:	No appearance
SOLICITOR FOR THE RESPONDENT:

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 child, Z, born […] August 2001 by Mrs Prior and Mr Prior.

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

   IT IS CERTIFIED

3. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Prior and Prioris approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:  CSC 239 of 2008

Mr and Mrs Prior

Applicant

And

Mr Firth

Respondent

REASONS FOR JUDGMENT

1. These are proceedings are between Mrs Prior (“the mother”) and Mr Prior (“DP”) as applicants and Mr Firth (“the father”) as respondent. The mother and DP jointly seek leave pursuant to s60G of the Family Law Act 1975 (“the Act”) to commence proceedings in the Supreme Court of Queensland for an order for the mother and DP to adopt Z (“the child”).  The child was born in August 2001 and is a child of the mother and the father. 

2. These proceedings were commenced in the Federal Magistrates’ Court Cairns on 18 April 2008 and were transferred by the Federal Magistrate to the Family Court. The application came before me for determination on 4 July 2008.

3. In support of the application is an affidavit of the mother sworn 9 April 2008 (which has annexed to it various documents relating to child support and paternity testing procedures between her and the father) together with an affidavit sworn by DP on 9 April 2008.

4. In addition the mother and DP relied upon an affidavit of service of a process server sworn 17 June 2008. This affidavit provided evidence that the father was personally served with the affidavits of the mother and DP and their application and information sheet filed 18 April 2008.  The father was served on 17 May 2007 and has not participated in the proceedings in either the Federal Magistrates Court or this court. There was no appearance by the father when the application was heard on 4 July 2008 and the leave order was made on an undefended basis.  I am satisfied that the father knew of the proceedings.

5. The transfer of the proceedings was necessitated as it was argued that the Federal Magistrates Court had no jurisdiction to entertain such an application. The wording of s 60G(1) of the Act is;

   60G(1) Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

6. As this subsection refers to “the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State” the Federal Magistrates Court appears to be without jurisdiction under the Act in these proceedings. It may be that jurisdiction for the Federal Magistrates Court is created elsewhere but there was no submission in that regard.

7. It is unusual for legislation to put in place the necessity to apply to one Court for leave to apply for another Court for the exercise of the latter court’s ordinary jurisdiction.  However, as observed by Chisholm J in Denderfield & Anor[1] that is what is required by the Australian Parliament by reason of this provision.

   [1] [2007] Fam CA 298 at page 80391

8. Upon careful reading of the section the leave requirement cannot be read in the normal sense as ‘permission to commence a proceeding’.   Although an adoption order without leave under s60G seems somewhat pointless.

9. Leave is not necessary under s 60G for adoption proceeding to be commenced in a State or Territory Supreme Court. The section itself provides that leave may [emphasis added] be granted but failure to grant leave does not preclude the adoption order. Sections 60F, 61E and 65J deal with the impact of adoption orders if leave is not granted, this legislatively presupposes that failure to have leave given under s65G does not prevent or prohibit the adoption proceedings in State or Territory Courts. The legislature, through this provision of the Act does not endeavour to legislatively require leave as a precursor to adoption proceedings but instead sets out the impact of an adoption order upon parental responsibility, status as a child of the marriage and orders under the Act both if leave is granted or if leave is not granted.

10. The impact of the leave being granted under s60G is that, on an adoption order being made, the parent who is not the adoptive parent, no longer has parental responsibility for that child under the Family law Act.[2]

    [2]S61E(2) of the Act.

11. A further impact upon leave being granted under the section is that on adoption the child (the subject of the adoption order) ceases to be a child of the marriage for the purposes of the Act.[3]   To give this section meaning and purpose it should be construed that the child ceases to be a child of the marriage as between the birth parents.   If the child is adopted by parents who are married, post adoption that child would be a child of the marriage to the adoptive parents.

    [3] S 60F(4)(a) of the Act.

12. Finally if leave is granted under the section then a parenting order which was in force under the Act stops being in force upon adoption.[4]

    [4] S65J of the Act.

13. This is an application for leave to adopt, not for the adoption itself, the question of whether there ought to be an adoption order is a matter for the Queensland Supreme Court, if and when such application is made. 

14. The application in the Family Court is made s 60G of the Act which provides in full:

    (1)    Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

    (2)    In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a) and of sections 61E and 65J.

15. Subsection 60G(2) refers to other sections of the Act, namely :

    Section 60F(4)(a)

    (4)The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

    (a) if a court granted leave under section 60G for the adoption proceedings to be commenced--the child ceases to be a child of the marriage for the purposes of this Act;

    Section 61E

    (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.

    Section 65J

    (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

16. A reading of section 60F of the Act discloses that the child will not cease to be a child of the marriage unless and until an actual order for adoption is made; and only then if leave was first obtained from a court of competent jurisdiction.

17. In my view even if I make the orders sought, the joint parental responsibility for the child enjoyed by the mother and the respondent father pursuant to section 61C of the Act remains in place until such time as either a contrary parenting order is made by a court of competent jurisdiction, or an adoption order is made. However, no parenting orders or orders concerning parental responsibility were sought by the applicants in this case.

18. Should I not make an order granting leave, the effect of sections 61E and 65J of the Act are that parental responsibility and any parenting order vested in the mother and the respondent father prior to any adoption order, would subsist notwithstanding any order for adoption. In this case I note there are no parenting orders in existence.

19. Although dealing with earlier provisions of the Act which then applied to such applications, the discussion by Chisholm J in the matter of Fogwell & Ashton[5] is still applicable. His Honour considered further the consequences which may arise upon leave not being granted and stated[6],

    I first consider the situation that would arise if leave were to be refused. (It is not necessary to consider whether the position would be any different if leave had not been sought.) If the applicant were to make the application for an adoption order after having leave refused by this Court it seems to me that the Supreme Court would have three main options. It could make the order of adoption. It could decline to hear the matter on the merits because this Court had refused leave. Finally, it could, perhaps, itself grant leave under section 60AA using cross-vested jurisdiction from the Family Court. It is necessary to consider these three options in a little more detail.

    If the Supreme Court were to make the order of adoption notwithstanding the refusal of leave, the effect of the provisions of the Family Law Act would be that the rights of the birth father would "not cease". It is not clear whether the birth father would retain custody and guardianship rights in addition to, or in substitution for, the custody and guardianship rights that would normally be acquired by the stepfather as a result of the adoption. The result, however, would either be that the birth father and the birth mother alone retained custody and guardianship, or, alternatively, that custody and guardianship rights were shared among the birth mother, the birth father, and the step father. It is not necessary to express a conclusion as to which of these two possibilities is the more likely to be correct. It is reasonably clear that either result would be unsatisfactory, confusing, and clearly inconsistent with the applicants' plans for the child.

    It might reasonably be predicted, therefore, that the Supreme Court would not wish to make an adoption order which had either of these strange results. Even on this assumption, however, there is a possibility that the Supreme Court might hold that s 60AA of the Family Law Act 1975 is beyond the power of the Commonwealth. In that event, an adoption order would have its ordinary effect, and the lack of prior leave would not be a disincentive to the making of an order for adoption. It follows that the first possibility, that the Supreme Court would make an order for adoption despite the refusal of leave by this Court, cannot be dismissed as entirely fanciful.

    The second possibility is that the Supreme Court would decline to deal with the adoption application because the leave of this Court had been refused.  In that event, in one sense the legislation would have operated as it was presumably intended to do.  On the other hand, the result may be considered unsatisfactory, because the effect of this Court's having denied leave would be that the possibility of [the child’s]adoption would have been eliminated without any court having fully considered an adoption application on its merits.

    [5] (1993) FLC 92-429

    [6] Ibid at paragraphs 25 - 32

20. His Honour proceeded to discuss the third option, being the Supreme Court hearing the leave application itself pursuant to the then-existing cross-vesting legislation. That option has now been excluded by the specific exemption of section 60G applications by amendments to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).[7]  His Honour continued,

    The above discussion indicates that it is very difficult to predict what approach the Supreme Court might take if an adoption application were made notwithstanding the refusal of leave by this Court under s 60AA of the Family Law Act. In my view I must proceed on the basis that none of the three possibilities discussed can be confidently excluded….

    The situation that would arise if this Court grants leave is much simpler.  The applicants will be in a position to choose whether to bring an application before the Supreme Court.  If they do so, no doubt that application will be dealt with on its merits. 

    [7] See definition of “special federal matter” at section 3 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) which adopts the similarly-named Commonwealth Act’s definition as inter alia

21. This Court must have regard to the best interests of the child in determining whether leave ought to be granted having regard to the effect of paragraphs 60F(4)(a), Section 61E and Section 65J. Strickland J’s observations in the recent matter of Rohrlach, Rohrlach &Dodderidge[8] at paragraph 13 were:

    Turning to the issue of whether granting leave would be in the best interests of the child, I have commented in the past on the fact that section 60G does not specifically provide that the child's best interests are to be the paramount consideration, unlike section 60CA which is relevant to most matters that are heard by this court in relation to children. Although I make that observation, I do not consider it has any specific import on whether I grant the leave today. As I have said before, it is just an observation as to why that is not the case and whether it means that there are other factors which the court should have regard to. Nothing else is identified in section 60G, and there is also some authority in this court about this in relation to the section which preceded section 60G, namely section 60AA, wherein there was no reference to best interests whatsoever. That is the case of Fogwell & Ashton (1993) FLC 92-429. In any event, I do consider I need go outside what is in the best interests of the child in determining this application.

    [8] [2008] Fam CA 518

22. In relation to which  factors I ought to have regard to in determining what is in this child’s best interests, again I refer to His Honour who noted,[9]

    Another interesting observation, at least for me, is that, in referring to best interests, there is no reference in section 60G(2) to the relevant section in the Family Law Act 1975, which is section 60CC, which sets out what factors the court must consider in determining what is in the best interests of the child. Again, I do not know why that is, but logically, in determining this issue of best interests, I should have regard to and consider the provisions of section 60CC. If nothing else, it is a convenient guide to what factors bear upon a child's best interests.

    [9] Ibid, paragraph 13; see also Bacon and Bacon at paragraph 17.

23. I agree, and shall deal with the relevant subsections of section 60CC of the Family Law Act 1975 generally below.

24. In this case there is no doubt the child has a meaningful relationship with the mother and has no relationship with the father.  The father has raised the question of contact with the child since the date of the child’s birth but has taken no real steps to have a relationship with him. 

25. The mother has shown some unwillingness to facilitate and encourage a relationship between the child and the father.  When the father has raised interest in seeing the child (usually in relation to his child support concerns) the wife has not facilitated such contact.  However, to be fair to her the father has not pursued such contact.  There is no evidence that the Father has sought to participate in making decisions about major long-term issues in relation to the child.

26. The father has not provided any financial support for the child despite having an obligation to do so and in that respect I have regard to the arrears of child support owed by the father amounting to a sum in excess of $40,000.00.

27. The benefit for the child in knowing the father can only be considered in terms of pure speculation bearing in mind the history of no contact as it presently stands.  The child will no doubt, in years to come, be interested in determining and finding out something about his father and it may be that he will have some interest in contacting the father in later times.

28. Notwithstanding that leave is granted to adopt that leave in itself does not preclude the child from making such enquiries and under present laws the name of the child’s father and his existence would not be legislatively or is unlikely to be legislatively excluded from him.

29. The effect of the order proposed, that is giving leave to the mother and DP to apply to the Supreme Court, will not impact on the current circumstances that have existed during the child’s life.  The child is attached to the mother and DP and regards them as his parents.  The application will not change that circumstance.

30. There is no evidence of abuse, neglect or family violence within the traditional definition.  No doubt the child who does not know his biological father may have some emotional difficulties to carry into his years of puberty and beyond.  In the factual circumstances of this case there appears to be no need to protect the child by not allowing such a leave application.

31. The child regards the applicant stepfather as his father and calls him ‘dad’.  The evidence is that the applicant stepfather has been a significant role model in this child’s life so far.  There is no evidence of the child expressing any views apart from that of remaining in the care of the applicants.

32. The application for adoption has the capacity to bring about a circumstance of the child not knowing the father.  In this case the father, as I have earlier identified, has not shown any real interest in having a relationship with the child.  In terms of any medical or family history, that will be available under any adoption orders made in the State of Queensland.  Whether the applicants have leave to adopt or even if the child is adopted it does not prevent the father from making an application to this court to spend time or communicate with the child provided it is in the child’s best interests. 

33. As the father does not spend time with the child the effect of this order in terms of practical difficulty and expense in communicating with a parent and whether the expense will impact on the child’s right to maintain the relationship is not relevant.

34. The question is, after considering all of the above factors, whether it is in the best interests of the child for the applicants to be granted or refused leave.  If granted leave it would enhance and perhaps promote the impact of an adoption order in the Supreme Court of Queensland.  Chisholm J observed;[10]

    It seems to me that the correct approach is that the Court should grant leave in circumstances such as the present if it is satisfied that there is a real possibility that an adoption order would be made if the parties were to apply for such an order and that there are no circumstances which would lead the Court to doubt that to allow the adoption application to be made would be likely to promote the child's welfare.

    [10] Fogwell & Ashton (1993) FLC 92-429 at [39]

1. Having regard to all the facts and circumstances and having regard to the best interests of the child I am satisfied that it is in the child’s best interests to grant leave having regard to the consequences of that leave under the Act if an adoption order is subsequently made. Whilst there may be some negative aspects to such an application that would, at the end of the day, be a matter for the Supreme Court of Queensland.

I certify that the preceding 35 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Legal Associate     :          K Mooney

Date  :          31 July 2008.

(ab) a matter arising under section 60G of the Family Law Act 1975 in a court other than the Family Court of Western Australia or the Supreme Court of the Northern Territory