Rook and Marsden

[2010] FamCA 456

FAMILY COURT OF AUSTRALIA

ROOK & MARSDEN [2010] FamCA 456

FAMILY LAW – CHILDREN – Leave to commence adoption proceedings –Application to dispense with personal service on father in China or for substituted service or for deemed good service – Observation made as to service of process in foreign countries – Application relating to service refused - Principal application thus refused for want of proper service – Best interests of child considered – Cultural and other factors considered – Principal application at this stage would have been refused in any event

Family Law Act 1975 (Cth) ss 60G(1), 60G(2), 60F(4)(a), 60HA(3)(a), 61E, 65J, 60CC
Adoption of Children Act 1964 (Qld) [repealed]

Adoption of Children Act 2009 (Qld) ss 92(d)

Family Law Rules 2004, Rule 7.18, Parts 7.5, 7.6

APPLICANT: Mr and Mrs Rook

RESPONDENT: Mr Marsden

FILE NUMBER: BRC 11361 of 2009

DATE DELIVERED: 11 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 11 May 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. The amended application filed 12 March 2010 (original filed 11 December 2009) that pursuant to s60G of the Family Law Act 1975 (Cth) Mr Rook have leave to commence adoption proceedings in relation to the child J born … September 2009 is dismissed.

2. The application filed 4 May 2010 for substituted service on the respondent is also dismissed. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11361 of 2009

MR AND MRS ROOK

Applicant

and

MR MARSDEN

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Rook and Mrs Rook that Mr Rook have leave to commence proceedings for the adoption of J born in September 1999 who is now 10½ years. 

2. Mr Rook and Mrs Rook have been married for 4 years.  J has lived with them for the last 3½ years since Mrs Rook was awarded custody of him in China. 

3. The respondent, Mr Marsden, is J’s biological father.  According to the best evidence known to Mr Rook and Mrs Rook, his last known place of address and to the best of their knowledge, current address, is …, China.

4. Before dealing with the substance of the principal application for leave to commence adoption proceedings, it is necessary to deal with an application in a case filed by Mr Rook and Mrs Rook on 4 May 2010 for an order dispensing with personal service upon Mr Marsden and, as I read the application, implicitly seeking also either substituted service or alternatively that there be deemed good service by reference to an affidavit of service already filed.

5. It is convenient to refer first to the affidavit of service already filed.  That is by Mr Rook filed 17 March 2010 deposing that the documents described in Part 4 of the affidavit were served on Mr Marsden at the address to which I have already referred by posting them by prepaid post in an envelope addressed to him.  An annexure to that affidavit shows postage to Mr Marsden at that address by Express Courier International Post on 15 March 2010.

6. The parties’ material includes an affidavit by Mrs Rook that she has attempted to contact Mr Marsden at his last known address and telephone number, but has had no response and deposes that she cannot trace him in China.  She deposes that she also has attempted to trace Mr Marsden through his extended family members in China, but they are unwilling to provide contact details because of the nature of the divorce between her and Mr Marsden in 2003. 

7. The matter of service of court proceedings in foreign countries is one in which all necessary protocols, conventions and arrangements must strictly be observed.  In relation to the Family Law Rules2004, the matter of dispensing with service, or ordering substituted service, or finding deemed good service, is dealt with in Part 7.5. See in particular Rule 7.18 in relation to dispensing with service.

8. Without setting out the matters there referred to, I am satisfied that they are not met in this particular case to enable me to consider dispensing with service.  In particular, the evidence does not show any attempt to comply with the requirements for service on a Chinese citizen in the People’s Republic of China. 

9. If China is a country to which a service convention relates, then the convention must be complied with. If it is a non-convention country, then Part 7.6 of the Rules applies, which provides that a person may serve a document on a person in a non-convention country in accordance with the laws of the non-convention country; or, if the non-convention country permits the service of judicial documents through the diplomatic channel, then through the diplomatic channel. It provides further that a person seeking to serve a document in a non‑convention country through the diplomatic channel must request the registry manager, in writing, to arrange service and lodge two copies of each document to be served translated if necessary into an official language of that country. Further, if the registry manager receives a request he or she must seal the documents to be served and send those sealed documents to the Secretary of the Department of Foreign Affairs with a written request that the documents be sent to the government of the non‑convention country for service.

10. The matter of service in foreign countries, as is plain, cannot be treated casually or infringed.  I am not satisfied in all of the circumstances either that there has been attempted service in accordance with any arrangements between the Australian Government and the People’s Republic of China, on the one hand, or, if there are none, in accordance with the service rules for service in a non‑convention country.   

11. As I observed to Mr Rook and Mrs Rook during argument, this matter is one of importance for them, so that if they wish to pursue it at another time they might benefit from engaging lawyers who are specialists in the service of court process in the People’s Republic of China. 

12. I refuse the application to dispense with service or to order substituted service or to regard the existing service as good service.

13. I turn now to the substance of the application.  Proceedings earlier had been commenced in Queensland for J’s adoption under the Adoption of Children Act 1964 (Qld). However, that Act was repealed, effective 1 February 2010, and replaced, effective on the same date, by the Adoption of Children Act 2009 (Qld). The 2009 Act provides, by s 92(d), that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under s 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under s 60G(2) of the Commonwealth Act, I am required to consider whether the granting of leave would be in J’s best interests, having regard to the effect of s 60F(4)(a) or s60HA(3)(a) and ss 61E and 65J.

14. As to those matters, s 60F(4)(a) is not applicable as J is not the biological child of Mr Rook and Mrs Rook. Section 60HA deals with de facto relationships and is not applicable as Mr Rook and Mrs Rook have been married for 4 years. Section 61E(2) provides that parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parenting and leave has not been granted under s 60G for the adoption proceedings to be commenced. Section 65J(2) provides that a parenting order stops being in force on the adoption of a child unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced. That provision appears not relevant as there are no parenting orders in Australia in force in relation to J. The orders of the Chinese court that Mrs Rook have custody of J would not be affected, however, by that provision.

15. In determining the matter of J’s best interests, I will refer to the particular provisions of ss60CC to 60CG of the Commonwealth Act which relate to the determination of a child’s best interests only to the extent as on the material may seem relevant.

16. J, it appears, has no present relationship with his biological father in China or with his extended family in China.  Mr Marsden, J’s biological father, in the past has not paid child support for him and presently does not do so.  Mr Rook and Mrs Rook, together with J, recently have welcomed into their family unit a new son, B, which is a Chinese name, B having been born in December 2009 so that he is now 6 months old and J’s half-sibling.

17. J, it appears, has expressed the wish to be adopted by Mr Rook.  However, though he is 10½ years, in my view he is too young to understand the legal and cultural ramifications of his adoption by an Australian citizen.  Indeed, it would be impossible for a boy of 10½ years to begin to understand those ramifications.  Whilst, therefore, I take J’s wishes into account, in the particular circumstances of the case I give J’s own views little weight.  Adoption is a serious lifelong matter to be contrasted, perhaps, with a child’s living arrangements, which can change from time to time. 

18. I turn now to cultural matters.  There is no evidence as to any cultural detriment which may operate in relation to J or which might obtain in the future if, for example, in the future he should wish to live in the People’s Republic of China.  J is the first born and only son of a Chinese national and citizen of the People’s Republic of China.  Before proper consideration could be given to the matter of his adoption in Australia and thus any leave to proceed with adoption in Australia evidence would be required as to the potential long term cultural effect on J’s life.

19. Even if these matters were not of concern, there would remain the circumstance that although plainly devoted and committed at the moment Mr Rook and Mrs Rook have only been married for the relatively short period of 4 years.  Whilst plainly they plan their long term future together, in my view before contemplating such a serious matter as adoption, or the preliminaries to it including leave to commence proceedings for adoption, there should be more time of demonstrated longevity in Mr Rook’s and Mrs Rook’s marriage.    

20. In the particular circumstances of the case I need not further consider those aspects of the matter.  Even if there had been proved proper service on Mr Marsden in China I would have had a reservation as to whether leave to adopt presently would be in J’s best interests and in all probability would have refused the order on that basis.

21. However, as there is a basis to refuse the order for want of good service, I will refuse it on that basis, which has effect that the matter is left open for Mr Rook and Mrs Rook in the future if they wish to make a fresh application when J is older.  If they bring such fresh application they should seek the assistance of lawyers specialising in the service of Australian court process in the People’s Republic of China and also be able to adduce expert cultural evidence as to the effect on J now, in the short term, and lifelong, if as the first born son of a Chinese national there is an order of a foreign court by which legally he has been adopted by a citizen of a foreign country.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:     

Date:              7 June 2010