Rees & Anor and Doren

[2012] FamCA 180

FAMILY COURT OF AUSTRALIA

REES AND ANOR & DOREN [2012] FamCA 180

FAMILY LAW – CHILDREN –ADOPTION – where the mother and her de facto partner seek leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 – whether a de facto partner constitutes a “spouse” for the purposes of the Adoption Act 2009 (Qld) – where that Act does not define “spouse” – where “spouse” is defined to include “de facto partner” in the Acts Interpretation Act 1954 (Qld) – where the child the subject of the application has not yet turned 5 – whether leave can be granted– where there is nothing in the Adoption Act 2009 to prevent leave being granted by this Court to commence proceedings for adoption under that legislation, in circumstances where a child has not yet turned 5 – where leave granted.

FAMILY LAW – PROCEDURE – Service – where the father’s contact details are unknown – where the father has not sought to make contact with the child, or her mother, for over four years – where attempts have been made to effect substituted service upon the father – where such attempts have been unsuccessful –service dispensed with.

Acts Interpretation Act 1954 (Qld) (as amended)
Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANT(S): Ms Rees and  Mr Vyden

RESPONDENT: Mr Doren

FILE NUMBER: TVC 1338 of 2011

DATE DELIVERED: 19 March 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Murphy J

HEARING DATE: 19 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms O’Brien of MacDonnells Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act 1975 (Cth) leave is granted to the Applicants to commence adoption proceedings of the child H born … July 2007.

2. Leave is granted to dispense with service upon the Respondent of the Initiating Application filed on 15 December 2011 and Affidavits filed by each of the Applicants on 7 December 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rees and Anor & Doren 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 1338 of 2011

Ms Rees and Mr Vyden

Applicants

And

Mr Doren

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. H was born in July 2007 and is currently about 4 and a half. She is the subject of an application in this court by her mother and step-father for leave to adopt, pursuant to section 60G of the Family Law Act 1975 (Cth) (“the Act”).

Pre-Conditions to Relief?

1. Adoption proceedings pursuant to state legislation have not yet commenced. Section 92 of the Adoption Act 2009 (Qld) (“the Adoption Act”) prescribes the preconditions for adoption. Two of the preconditions for adoption have some relevance to the facts of this case. 

2. First, the child subject of the application must be aged over five and under 17. A second precondition is, relevantly, that the person applying for adoption be the “spouse” of a parent of the child. Spouse is not defined in the Adoption Act. Section 4 of the Acts Interpretation Act 1954 (Qld) (as amended) defines “spouse” so to as include a de facto partner. “De facto partner” is also defined in that Act (s 32DA).

3. Relevant for present purposes, the evidence reveals that the mother and her co-applicant have lived together since October 2008 and have co-nurtured H during that time. They became engaged on in December 2010 and intend marrying in a few months time in June 2012. I am satisfied that the co-applicant is a “de facto partner” and, therefore, a “spouse” within the meaning of the Adoption Act.

4. A second issue arises; H is not yet five. By reason of s 92 of the Adoption Act, the applicants for an order in this Court are precluded from making an application for adoption under state legislation until such time as H turns five.

5. It is important to understand, however, 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 Queensland Magistrate’s Court.  The granting of leave by this Court does not have the legal consequences of adopting a child, to which I will refer in a moment; only an order for adoption made by that state court has those consequences. 

6. A question therefore arises as to whether this Court should, in the best interests of H, grant leave to adopt in circumstances where, as at today, the co-applicants are precluded from applying to the state court for adoption. 

7. The relevant preconditions to which I have just referred, including H’s age, sit with another precondition, namely the obtaining of leave by this Court. The obtaining of leave by this Court is, then, but one of a number of preconditions that the state legislature has determined ought apply to the adoption of children by step-parents. There is nothing within the Act, and in particular in s 60G, which suggests that it is necessary for the state preconditions to be met before an application for leave to adopt can be brought in this Court.

8. Accordingly, the fact that H is not yet five, in my view, is not a bar to the bringing of an application for leave to adopt in this Court. 

Dispensation from Service

1. A separate application is made by the co-applicants for an order dispensing with service of the relevant documentation upon the respondent.  Attempts to both contact the respondent father and to effect service upon him are deposed to by the legal representatives for the co-applicants. In simple terms, it can be seen that a number of earnest attempts have been made to contact the father and all of them have been unsuccessful. 

2. Most recently, the affidavit of Ms B an employee of the co-applicant’s lawyers, deposes to a text message sent to a telephone number on Friday 16 March 2012, consequent upon procedural orders made by Burr J on 20 January 2012.  Those orders by his Honour required the sending of a text message to a telephone number which it was thought might be a means of attempting to contact the father.

3. The affidavit of Ms B refers to a response being received some six minutes or so after the text message had been sent.  The response was received via a land-line telephone number.  The affidavit deposes:

   The person did not say who she was but asked if I had sent her a message. When I replied, telling her that I had sent her a message, she told me words to the effect of, “Why? I have already told another solicitor that I do not have contact details for [the father].  The text messages are harassment and I’m sure solicitors have other ways of finding people.”

4. The reference to an earlier communication to, “another solicitor” is also referred to in affidavit material filed on behalf of the co-applicants.  That affidavit from Mr McPherson, a partner in the co-applicants’ legal firm, filed 3 February 2012, refers to a text message sent by him, again pursuant to Burr Js order to the same telephone number.  On that occasion the response came from a person, “who identified herself as [Ms Y].”  The affidavit deposes:

   She said to me words to the effect of, “I don’t know where [the father] is.  I don’t know where he works.  He could be anywhere.  Last I heard he was in [Town C] but I don’t know where he is now.  I have no idea.  I don’t have his phone number.  He lost his phone and so he doesn’t have a phone.”

5. Those affidavits should also be seen against the deposition by the mother that:

   Since [the father] and I separated [in about August 2007] [the father] has spent time with [H] on one occasion, being on or about February 2008.  [H] was approximately six and a half months old.  [The father] turned up at the home that I was renting with my mother.  [The father] spent approximately three hours at the home and afterwards asked whether we could recommence our relationship.  I said that we could not and he left.  He has not seen, spent time with, or communicated with, [H] since that time.

6. Thus, the father has not seen, spent time with, or communicated with, H from the time she was a tiny baby for a period of about four years; when the father last saw H, she was about six months old.  Shortly after that time, the co-applicants commenced their co-habitation. In effect, the step-father is the only father figure that H has known for the whole of her life. 

7. I propose to order that service be dispensed with and these proceedings continue in the father’s absence.

The Relevant Principles

1. 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.

2. 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.

3. These proceedings, too, are undefended. More will be said in relation to this shortly. 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.

4. 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.

5. While, as has been observed, the failure to obtain leave now has consequences under the 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.

6. 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.

7. 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.

8. 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. [Bold in original]

9. 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.

10. 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. 

11. I note, in particular, that 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.

12. 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.

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

14. 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. 

15. 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; …

16. 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.

17. However, it seems to me that where in the normal course of events, H will turn five and can do so prior to the formal application being made pursuant to state legislation, there is no impediment and indeed, some advantage, to these proceedings being heard before she turns five so to as facilitate an application pursuant to the state legislation at the earliest opportunity. 

18. The question, then, on this Application can, in my view, be expressed this way.  Is it in H’s best interests to permit adoption proceedings to proceed in the state Magistrates Court with 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 child as distinct from orders being made in this Court that might involve a parent and the step-parent?

Is it in H’s best interests to permit adoption proceedings to proceed?

1. I have already made reference to the fact that Mr Vyden is, for all intents and purposes, the only father figure that H has known.  I have also already made reference to the fact that H’s father has not seen her, or had anything to do with her, for four years and since she was about six months of age. 

2. The affidavit of the mother refers in that respect to a short and volatile relationship with H’s father which included significant family violence. A number of specific incidents are referred to by the mother in her affidavit, including the father throwing a rock through the windscreen of her car, becoming angry on numerous occasions and punching her in the face.  A protection order was made by the Magistrates Court (Qld) on 6 March 2007 and a variation to that order made on 22 April 2008.  The mother deposes to ending her relationship with the father:

   …after he threatened to kill [H] and he began hitting me.  Because I did not show any emotion, he became angrier.  He said, “If I can’t hurt you anymore, I’m going to kill [H] to hurt you.”  I left that house and the relationship ended that night.

3. Mr Vyden has two daughters from a previous relationship – Z, born in April 2002 and L, born in August 2003.  His daughters live in Victoria with their mother and spend time with Mr Vyden, H and the mother during school holiday periods.  The mother and Mr Vyden depose to a significant and beneficial relationship between H and Mr Vyden’s two daughters. I have no reason to doubt that this is the case.

4. Unsurprisingly it might be thought, the mother deposes to H not knowing anything of her father.  She deposes, “[s]he does not know who he is or anything about him.”  She deposes that, despite the history of violence to which I have referred, since H was born she has not changed her telephone number since early 2008.  She still has the same circle of friends.  It might be observed that she lives in a small town. The implication is, and I accept, that if the father had been minded to make any contact with his daughter then he would readily have been able to do so. 

5. It is plain that the mother and Mr Vyden have between them constituted a family within which H has received appropriate nurture and care.  In that respect, it is said that the amount of child support paid for H by the father amounts to $188 per year.  Otherwise, Mr Vyden has taken on the responsibility of caring for H and when his daughters are with him, the family unit constituted by all three children. 

6. Mr Vyden works as a tradesman in Town T on a week-on, week-off basis.  He cares for H while the mother is at work.  She is employed in the health care industry, working eight-hour shifts fluctuating from 7.00am to 3.00pm, 3.00pm to 11.00pm or 11.00pm to 7.00am.  When the parties’ respective work commitments coincide, H is cared for by her maternal grandmother. 

7. The mother and Mr Vyden depose to the fact that they wish to formalise their relationship by getting married in the middle of this year.

8. The mother deposes and it seems to me to follow from the evidence to which I have just referred, that she and Mr Vyden “…wish for [H] to feel like she’s part of our family and not feel isolated or confused because she does not share the same surname.”

9. Mr Vyden has indicated plainly enough, in terms of the nature of the relationship he has had with H in conjunction with plans to continue his relationship with each of H and the mother into the future, that he has an intention and a desire to continue to nurture H into the future.

10. I have intentionally not traversed seriatim each and all of the primary and additional considerations contained in section 60CC of the Act. It seems to me that the overview which I have provided in these short Reasons makes it plain that I have considered the capacity of each of the mother and Mr Vyden to provide for H, the nature of the relationship that she has with each of them, and the willingness and ability of the mother and Mr Vyden to facilitate a relationship between the child and her father (noting, of course, that this is dictated by the father’s erstwhile attitude towards his child by which he has plainly indicated a desire to have nothing to do with her).

1. In all of the circumstances of this case, it seems to be appropriate to grant leave for the mother and the step-father to make an application to adopt. 

2. Accordingly, I will make the usual order pursuant to s 60G of the Act and I will make a formal order dispensing with the service of the relevant documentation in accordance with the application in the case filed by the mother and the second applicant on 17 January 2012.

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 19 March 2012.

Associate: 

Date:  27 March 2012