Rowe & Anor and Van Huesen

[2012] FamCA 908

FAMILY COURT OF AUSTRALIA

ROWE AND ANOR & VAN HUESEN [2012] FamCA 908

FAMILY LAW – ADOPTION – Leave to commence proceedings – Where Father’s de facto partner is seeking leave to commence proceedings to adopt – Where Mother objects to the application – Application dismissed

Adoption Act (Qld) 2009
Family Law Act 1975 (Cth) Div 12A, ss 60G

Holden & Britten (2010) FamCA 197

FIRST APPLICANT: Ms Rowe

SECOND APPLICANT: Mr Evans

RESPONDENT: Ms Van Huesen

FILE NUMBER: BRC 5432 of 2012

DATE DELIVERED: 29 October 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 29 October 2012

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: The First Applicant appearing by telephone (not legally represented)

COUNSEL FOR THE SECOND APPLICANT: The Second Applicant appearing in person

SOLICITOR FOR THE RESPONDENT: The Respondent appearing in person

Orders

IT IS ORDERED THAT:

1. The Applicants’ Amending Initiating Application filed 23 July 2012 is dismissed and the proceedings are removed from the Active Pending Cases List.

1. Each party to bear their own costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rowe and Anor & Van Huesen 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 5432 of 2012

Ms Rowe

First Applicant

Mr Evans

Second Applicant

And

Ms Van Huesen

Respondent

REASONS FOR JUDGMENT

1. The matter concerns an application for leave to adopt filed by the applicant, Ms Rowe.  Ms Rowe is in a de facto relationship with Mr Evans, the father of the children subject to this application.  The respondent, Ms Van Huesen, is the mother of the children.  She objects to the application.  There are five children:  B, born … September 1991; C, born… January 1993; D, born …January 1994; E, born … September 1995; and F, born … May 1997.  E and F are the subject of this application.

2. While originally being a party to the application, the father, Mr Evans, stated in the family report interview with Ms G that he did not support Ms Rowe’s application for leave to adopt based on observing the level of distress this has caused for Ms Van Huesen and the potential adverse impact upon family relationships.  On 22 October, however, of this year, the father stated that he changed his mind and does now fully support the adoption application and he has filed an affidavit to that effect.

3. The parents and children were all born in the Europe.  The mother and father immigrated to Australia in late 2002.  The marriage broke down shortly after and the mother returned to Europe on 22 January 2003.  The mother has remained living in the Europe since.  The children have resided with the father.  The father and the applicant met and began a relationship in December 2004.  She spent a lot of time in the family home from this period and began living with the family in September 2007.

4. The applicant deposes that the three younger children have grown up in Australia with very little contact with their mother.  From about September 2008, E ceased having contact with the mother.  When the mother called, E refused to speak to her.  Since B and C have left home, the mother does not telephone very often at all.  The applicant deposes she played the mother role for the younger three children.  E has considered the applicant her mother and has chosen to exclude the mother, ie, biological mother from her life.  She has been insistent in asking the applicant to adopt her.  F has battled emotionally with the mother leaving and attends regular therapy.  F is unsure but would like to consider the option of “my adopting her too”.

5. The mother states she has suffered health and depression issues and returned to Europe as she was extremely sick.  She states she was pressured by the father in reciting parenting orders.  Further, that upon returning to Europe, the father strictly controlled telephone calls and the children were never allowed to call in privacy.  She deposes the father made it increasingly difficult to spend time with the children when she visited Australia.  She has not visited since May 2011, which I think was for about five days, and she did not see E on this occasion.  The mother cites issues between the children being torn between her and the father and the father and applicant putting pressure on the children to choose between them, as reasons for her not coming.

6. The application is pursuant to section 60G of the Family Law Act.  The applicant, Ms Rowe, is applying for leave to commence proceedings for the adoption of the child.  The Adoption Act (Queensland) 2009 governs adoption processes in Queensland.  It outlines a number of criteria that must be fulfilled to apply for adoption.  The legislation particularly requires a prospective adopting step-parent to satisfy, in addition to the pre-existing criteria, two new criteria, namely, the relevant child is at least five years of age and, of course, that the Family Court has granted leave to adopt.  A natural parent absent of the state court dispensing with this requirement must give consent.

7. The Family Law Act allows the Family Court to grant leave for adoption proceedings by a prescribed adopting parent. It further says that subject to section 60G(2):

   (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), or paragraph 60HA(3)(a), and of sections 61E and 65J.

8. It really requires me to apply the section 60CC factors.  Prescribed adoption parent is defined in section 4(1) of the Act, that being:

   (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.

9. And I emphasise that upon a Court granting leave under section 60G, the child ceases to be a child of the marriage for the purposes of the Act.

10. Section 61E states that the parental responsibility ends on adoption of a child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G.

11. The final parenting orders were made in this case on 17 August 2004.  The best interest tests, I refer to Murphy J who stated in Holden & Britten (2010) FamCA 197 at paragraph 22:

    The question then, in my view, can be expressed this way.  Is it in the relevant 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 parenting orders being made in this Court that might involve the parent and step-parent?

12. A family report dated 21 September 2012 by Ms G recommends that leave not be granted to commence adoption proceedings.

13. This is based on the information that both the father and the mother do not support the application.  The parents have independently reached the same conclusion that the potential detriment of pursuing this adoption to family relationships and the hurt it will cause is too great.  They also query the need to legally validate the child’s relationship with the applicant.

14. Ms G also opines that E and F’s self-focused, idealised views and sense of morality they may have about the adoption and how it may make sense of their relationship with mother, father and applicant can be explained by their development phase.

15. It is her opinion that the applicant’s motivation to adopt is underpinned by the sense of gratification that she receives from the public recognition of the significant role, and I emphasise significant role, she has played in the children’s lives.

16. Ms G says there is no magical panacea for the applicant adopting the children, and it will not change the quality of the relationship with the applicant.  It may however adversely impact upon the children’s endeavours to reconnect with the mother in future, if they wish to do so.  Ms G states:

    In light of the mother and father’s objection to the adoption, I have
    only provided a brief assessment of the key issues.  I am able to elaborate further as required.

17. Since that report the father has changed his mind and is now supporting the application of leave to commence proceedings for adoption.

18. I called upon Ms G to provide a small memorandum of her views in light of this.  It has been forthcoming and I have had copies handed to the applicant and the mother.  Notably, she has not changed her position and still recommends that leave not be granted.  It is her opinion that the potential emotional cost of the children’s relationship with their siblings and capacity to reconnect with the mother must be considered against the stability and depth of their relationship with the applicant.  The latter is likely to be more enduring and therefore is less vulnerable.

19. I note that B has sought that leave be refused, but I do not place much emphasis upon that.

20. The mother has filed a response at which inter alia she seeks that the application be dismissed, that there be arrangements made for the children to attend confidential counselling, and that the father pay the costs of and incidental to the counselling, and that the applicant pay the mother’s costs of and incidental to the application.

21. I have had put before me by the applicant her written submissions, and she sets out therein those matters which she considers of importance and in particular, as she says, she refers to five key points.  These points which she has put before me quite properly, I understand and I accept.  They would be particularly viable insofar as a question of custody is concerned – I use the word “custody” advisedly – but not insofar as seeking leave, in my view, to institute proceedings for adoption.

22. In all the circumstance I dismiss the application.

23. Insofar as a question of confidential counselling, I understand F is already receiving some therapy.  I do not believe that it would be necessary at this stage for E to have any counselling at all.

24. As I have said, I have read the reports of Ms G, and are of the view that such a report being prepared by this expert is very persuasive in my coming to the conclusion that I have.  She appears to me to have done a remarkably good and in-depth job and has considered all of those matters which I feel I have to consider pursuant to provisions of section 60CC.  Having accepted the reports of Ms G, I order that the application for leave be dismissed and make no order as to costs.

25. This being a matter under the Family Law Act, I can see no reason why each party should not pay their costs.  Notwithstanding the fact that Ms Van Huesen has come out from Europe, I understand it specifically for this hearing.  She could have unfortunately have been heard by way of phone, as the father has who is overseas.

26. Order accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 29 October 2012.

Associate: 

Date:  29 October 2012