Randall & Anor and Shire

[2012] FamCA 578

FAMILY COURT OF AUSTRALIA

RANDALL AND ANOR & SHIRE [2012] FamCA 578

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

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

Carlson and Ors & Bowden [2010] FamCA 432
Fogwell & Ashton (1993) FLC 92-429
Levine & Perpenko (2010) FamCA 67
Rees and Another & Doren [2012] FamCA 180

APPLICANTS: Mr Randall & Ms Frank

RESPONDENT: Mr Shire

FILE NUMBER: BRC 4222 of 2012

DATE DELIVERED: 9 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Ross of Hopgood Ganim Lawyers

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 L born … February 2006 (“the child”).

IT IS FURTHER ORDERED THAT

1. The orders of the Federal Magistrates Court of Australia dated 30 June 2006 and 23 February 2007 be discharged.

2. The Respondent Mr Shire (“the father”) have no parental responsibility for the child.

3. The Applicant Mr Randall have parental responsibility for the child.

4. Pursuant to section 65D(1) of the Family Law Act 1975 (Cth), the applicants Ms Frank (“the mother”) and Mr Randall exercise equal shared parental responsibility for the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Randall & Shire 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 BRISBANE

FILE NUMBER: BRC 4222 of 2012

Mr Randall & Ms Frank

Applicants

And

Mr Shire

First Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. L was born in February 2006 (“the child”) of a brief de facto relationship between his mother and Mr Shire (“the father”).  That relationship broke down in August 2005 prior to the child’s birth.

2. The evidence before me reveals that the father has had very limited contact with his son during the intervening time.

3. The child’s mother and her co-applicant, seek leave from this Court, pursuant to section 60G of the Family Law Act 1975 (“the Act”), so as to adopt the child as their child. They, themselves, have a child G, born in April 2009.

4. Adoption proceedings pursuant to State legislation have not yet commenced.  I note that L 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”).

Legislation and Relevant Principles

1. In Levine & Perpenko (2010) FamCA 67 I outlined the legislation and relevant principles governing applications of this type. I now reiterate those principles here.

2. 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.

3. 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.

4. In these proceedings, too, 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.

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

6. The 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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. 

15. 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.

16. 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.

17. 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).

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

19. 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. 

20. 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; …

21. 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.

22. 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. The father has filed an affidavit on 29 June 2012. In its material particulars it confirms that which each of the co-applicant depose in their affidavits.  That is to say he confirms that he has had a very limited involvement in the child’s life effectively since the child was born.

2. Most importantly of all, perhaps, the father deposes to the fact that having initially opposed the proposed adoption, he now consents to that course of action. He deposes that the adoption proposal was:

   First raised with me by [the mother] by correspondence forwarded to me from her solicitors ….. at that time I was not prepared to consent to [Mr Randall] adopting [the child] and I informed [the mother] of this through her solicitors on the same day.  [The mother] subsequently did not raise the issue with [Mr Randall] adopting [the child] with me again.

   However, subsequent to [the mother’s] request in September 2010 I had the opportunity to further consider the proposed adoption at length.  After doing so on 17 June 2011, I forwarded correspondence to [the mother’s] solicitor inquiring as to whether [the mother] still sought my consent for [Mr Randall] to adopt [the child].  Through her solicitors [the mother] replied to the effect that she would like progress an adoption of [the child] by [Mr Randall].

3. The father forwarded correspondence to the mother’s solicitors on 21 June 2011 confirming that he would provide his consent to that adoption.  Subsequently, on 29 June 2012, he swore an affidavit in these proceedings confirming that that remained his position.

4. Plainly enough, the father’s consent to the proposed adoption in circumstances where he has, on his own material, given significant thought to that course of action and its ramifications, is a powerfully important consideration in the current application.

5. Within that context, the material, all of which I should add has been served upon the father and to which, as a result, he has been provided with an opportunity to respond, indicates, plainly, that the applicants have a loving relationship within which they co-nurture both the child and their son G. Significantly, as it seems to me, the material reveals that the child regards Mr Randall as his father, refers to him as “dad” and plainly has a close and loving relationship with him.

6. I have no doubt whatsoever, on the material before me, that Mr Randall is committed to the current and future care of the child in all respects, including, importantly, the development of an appropriate emotional and psychological relationship with the child.

7. In that respect I consider it important that the material reveals that Mr Randall and the mother have adopted an intelligent and sensitive approach to revealing the child’s parentage to him.  He has been told of the fact that Mr Randall is not his biological father, and that the father is, and he has been kept appraised, in age appropriate language, of the steps that are being taken by his mother and Mr Randall.

8. To the extent that a six year old is expressing views about that course of action the material plainly reveals that he is very enthusiastic about it.  Again, the material reveals a very close and bonded relationship between the child and G.

9. I am entirely satisfied that neither the mother nor, more significantly, Mr Randall, distinguishes between the two children in the sense that their different parentage results in them being treated differently.

10. I am convinced, on the material before me, that the attitudes towards the responsibilities of parenthood exhibited by the mother and Mr Randall, in respect of each of their children, is entirely appropriate and, importantly in this context, apply equally as between the child and G.

11. The helpful written submissions provided by the solicitor for the applicants refer to the test that is applicable, by reference to the decision of Rees and Another & Doren [2012] FamCA 180 at 34 where the Court said:

    Is it in [the child’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 a Court order, cease to have any of the duties, powers, responsibilities and authority in respect of his child as distinct from orders being made in this Court that might involve a parent and the step-parent.

12. The legislative pathway and the authorities which illuminated that conclusion can be seen in Levine & Perpenko earlier referred to.

13. In my judgment, the material in this case plainly reveals that it is in the child’s best interests to permit adoption proceedings to proceed in the Queensland Magistrates Court in accordance with the Adoption Act Queensland and I so order.

Parental Responsibility in the Interim

1. In addition to the application for leave to adopt, a parenting order is sought by the applicants relating to parental responsibility which will take effect until such time as the adoption proceedings can be prosecuted and determined in the State Magistrates Court. Specifically, the orders sought are that the orders of the Federal Magistrate’s Court on 30 June 2006 and 23 February 2007 be discharged.  Those parenting orders are orders made by the Federal Magistrate’s Court as between the father and mother of the child. 

2. The father refers to those orders in his affidavit material and plainly, by the terms of his own affidavit, he has no difficulty with those orders being discharged and in light of the circumstances to which I have referred and the prospective adoption proceedings, it is plain that they should be. I so order.

3. Secondly, a parenting order is sought in the following terms:

   That pursuant to section 65D(1) of the Family Law Act 1975 (Cth), first and second applicants exercise equal shared parental responsibility for the child.

4. As I raised with the solicitor for the applicants, Ms Ross, at the commencement of these proceedings, the provisions of Part VII of the Act, read in their entirety, seem to me to suggest, with respect, that an application made in those terms is not, in fact, the proper application.

5. As has been commented on both by myself and other judges of this Court, one of the issues that arises under Part VII is that “equal shared parental responsibility” is, despite having a very significant role within the context of Part VII, not defined for the purposes of the Act.

6. “Parental responsibility” is defined and there are consequences that flow in respect of that defined expression. Parental responsibility arises by reason of parentage alone (see section 61C of the Act). Issues arising with respect to non-parents having “equal shared parental responsibility” have been referred to in Carlson and Ors & Bowden [2010] FamCA 432 and I rely upon those principles here.

7. By reason of all of the circumstances to which I just referred, not least, of course, the affidavit of the father himself, it seems entirely appropriate that an order ought to be made so as to facilitate the applicants to these proceedings having parental responsibility with respect to the child.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 July 2012.

Associate: 

Date:  25 July 2012