Saunders and Best

[2010] FamCA 654

FAMILY COURT OF AUSTRALIA

SAUNDERS & BEST [2010] FamCA 654

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Leave granted

Family Law Act 1975 (Cth) s 60G
Adoption Act 2009 (Qld) s 92(1)(d)

Brock & Brock [2007] FamCA 1594
Berry & Wratten [2010] FamCA 75

Reynolds & Donaldson [2008] FamCA 518

APPLICANT: Mrs Saunders

SECOND APPLICANT: Mr Saunders

RESPONDENT: Mr Best

FILE NUMBER: BRC 3103 of 2010

DATE DELIVERED: 21 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 21 July 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Saunders and Mr Saunders have leave to commence proceedings for the adoption of V born … January 1996.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3103 of 2010

MRS SAUNDERS

Applicant

MR SAUNDERS

Second Applicant

And

MR BEST

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mrs Saunders and Mr Saunders that they have leave to commence proceedings for the adoption of V born in January 1996 now 14 ½ years. Mrs Saunders is V’s biological mother and Mr Saunders is her stepfather. V’s biological father Mr Best has been served with the application and supporting material.

2. The matter was listed for hearing on 22 June 2010 by order made by Registrar Kane on 27 April 2010.  That order provided also that the applicants must file and serve on Mr Best by 4 pm on 25 May 2010 several documents including an initiating application (the applicants at that stage having filed, anomalously, only an application in a case but there being no proceedings on foot in which such an application in a case could then have been filed) and certain specific affidavit material.

3. On 16 June 2010 Mr Best caused to be sent the following to the Court by facsimile which, on 22 June 2010, I caused to be received into evidence as exhibit 1:

[…] Rd

[…] Qld

Attention: The Registrar

Family Court of Australia

Brisbane

[…]

Re: File No: (P) BRC3103/2010

[Saunders vs Best]

In the Order dated the 27 April 2010, it states in point 3 that the applicant must file and serve upon the respondent, being myself, the following items by 4 pm 25 May 2010:

3(b) An affidavit by the applicant step-father in support of the application

3(c) Further affidavit evidence of the applicants addressing the matters relevant to the orders sought in the application.

To date, I have not been officially served with either of the above. I am currently in China for work and my wife, [Mrs Best], advised me that a person came to the door on Tuesday night 15^th June 2010 at 6.30pm. They did not identify themselves, handed her an envelope and left without obtaining any signature. The envelope was actually addressed to [Mrs Saunders].

My wife informs me that inside the already opened envelope are Affidavits but I have yet to be able to see them. She also tells me that they say they were filed on the 11 June 2010 which is also after the filing date in the Order dated 27 April 2010. My wife also says that the Affidavits are incorrectly prepared and not consecutively numbered. She contacted the Family law Court on my behalf and they advised her that I should write this letter advising the Court of what has happened.

I am 100% opposed to his adoption. I have never been encouraged to see my daughter [V] and this is just another step in a long line of instances where [Mrs Saunders] has tried to remove me altogether from [V’s] life. In 1999 [Mrs Saunders] wanted to put [Mr Saunders’] name on the Birth Certificate for [V] which would have removed my [sic] altogether from her life back then. I have 3 other children who very much want to have [V] as part of their lives but it has been sporadic and up to the whim of [Mrs Saunders]. […], my 5 year old daughter, in particular always asks when we can see [V].

Give that [Mrs Saunders] and [Mr Saunders] have not complied with the Order, I would like this application dismissed.

I am unable to attend court on the 22^nd June 2010 and will not be available on a land line and sporadically on my Mobile […]. I only arrive back from China on the 20^th June 2010 and have to work all week. I have not had time to prepare my evidence but I do not think this is in the best interest of [V].

Having not been served by the 25^th May 2010, I actually thought that [Mrs Saunders] might have realised that this is not in the vest interest of [V] and withdrawn the application.

Yours sincerely

[Mr Best]

P.S. I have asked my office to fax this on my behalf as I can’t print and send from China.

1. In the result, on 22 June 2010, I caused the Court Officer to telephone Mr Best on his mobile telephone number referred to in exhibit 1 and thus, on that date, he appeared by telephone.  After hearing from him, I then ordered on 22 June 2010:

   (1)The respondent file and serve a response to the applicants’ initiating application and any affidavits on which he wishes to rely by 4pm on Tuesday 6 July 2010.

   (2)The applicants file and serve any affidavits strictly in reply to the respondent’s affidavits by 4pm on Tuesday 13 July 2010.

   (3)The applicants’ initiating application be listed for hearing at 9.30am on Wednesday 21 July 2010.

2. Those orders were pronounced in open court while Mr Best appeared by telephone and also were sent to him by the Court to his address referred to in exhibit 1 namely …, QLD. 

3. Despite this proactivity by the Court to ensure that Mr Best should have full opportunity to participate in these proceedings, in particular having regard to the sentiment expressed in his communication to the Court exhibit 1, Mr Best has failed to file and serve any response or any affidavit material and has not appeared today.  Indeed, the Court Officer has called his name three times at the door of the courtroom with no response and shortly before 10am telephoned his mobile telephone number in exhibit 1 which was not answered.

4. I will, therefore, proceed to hear and determine the matter on the basis that Mr Best has been accorded procedural fairness and chosen not to participate further in these proceedings.

5. The Adoption Act 2009 (Qld) provides by section 92(1)(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 section 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under section 60G(2) of the Commonwealth Act, I am required to consider whether the granting of leave would be in V’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

6. As to those matters, section 60F(4)(a) does not apply, as Mrs Saunders and Mr Best did not marry. Section 60HA deals with de facto relationships. It appears that this also does not apply as whilst Mrs Saunders and Mr Best lived together sporadically there is no real indication in the material that in truth they became de facto partners. Indeed, from the Bar table today, Mrs Saunders has confirmed my conclusion drawn from the material that she and Mr Best were not in a de facto relationship. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been granted under section 60G for the adoption proceedings to be commenced. If I grant leave to commence adoption proceedings, and an adoption order ultimately is made by the State Court, then Mr Best will cease to have parental responsibility for V. 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 section 60G for the adoption proceedings to be commenced. Mrs Saunders has deposed that there are no parenting orders agreements parenting plans or undertakings to the Court of any kind currently in force between the parties or otherwise relating to V.

7. I turn then to the matter of V’s best interests. I will refer to the particular provisions of section 60CC to section 60G 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.

8. V, on the material, has a close relationship not only with her biological mother Mrs Saunders and with Mr Saunders, with whom the child has lived since she was about 8 months, but also with their child Q Saunders who is her baby brother born in March 2009. In mid August, in about a month’s time, Mrs Saunders and Mr Saunders will welcome another son into their family.

9. It appears that Mr Vest has had a very limited relationship with V for the whole of her life.  It is not the case that in any way has he abandoned her, but rather that his life path and Mrs Saunders’ life path were such that in reality there was little communication.  I have the impression from the material that there was not aggression or disharmony as such. Mr Best now has a wife and they have three children. Mr Best’s wife invited V to attend their daughter’s fourth birthday party.  V and Mrs Saunders have retained relationship with V’s paternal grandmother, Mr Best’s mother, and V, it appears, independently has a relationship with her, sharing cards, letters, telephone calls and visits.  Mrs Saunders and V stayed with the paternal grandmother in November 2008 and again in March 2010.  According to the mother’s affidavit, the paternal grandmother has expressed that it is her view that an adoption by Mr Saunders would be in V’s best interests for her mental and emotional wellbeing. Mr Best works in the food industry.  He and his wife have a shop which, I would infer, must be a food shop, on the Gold Coast. Since the shop opened a few years ago V has visited it about four times.  It seems to me therefore that although it is plain that at the moment V has perhaps a strained relationship with Mr Best, I would not consider that if the adoption proceeds there necessarily would be a closed door to V. Perhaps however a little time would need to pass before she could further develop her relationship with Mr Best and his extended family. I say that despite the sentiment expressed in exhibit 1, which I have set out above, and despite the content of a text message Mr Best to Mrs Saunders on 8 April 2010:

   Okay I’ll sign it! But I will never wont [sic] 2 see [V] [sic] ever and I mean ever again! ‘I’m sad 4 [V]’. Please don’t call me ever again.  This includes my children.  I’m not happy about this!

10. The text message was, as may be evident, in the course of negotiation between Mrs Saunders and Mr Best as to whether he would sign papers to cooperate with the adoption, the material showing that at first he indicated that he would not cooperate, then changed his mind and said that he would sign what was required.  Subsequently, however, as is plain, Mr Best expressed strong opposition to any adoption not only in the text message but also in both exhibit 1 and orally on 22 June 2010.

11. By his not appearing today, there is an equally available inference as to whether he has withdrawn his opposition or whether despite strong opposition he does not wish to stand in the way, as it were, of the adoption, especially as, as will be seen, it is V’s very strong wish, a matter upon which since 22 June 2010 Mr Best no doubt has had time to reflect.  It is to that aspect of the matter which I will now turn.  The material includes that V instigated the adoption process and that it has always been her decision that on her behalf Mrs Saunders and Mr Saunders take necessary action to bring about her adoption. 

12. The material includes that V wanted to address the Court herself to express her desire.  V did this in a one-paged handwritten document, which I will read in:

    This adoption is so important and means a lot to me.  I would be appreciative; no, I would be ecstatic if it went through. 

    The last thing I want is technicalities in my life, so to say that ‘this is my Dad’ and know that legally, mentally and emotionally he is, and not to have to worry….That would make me so happy.

    [Mr Saunders] is there for me,  he has always been there for me, I trust him and the moments I have spent with him are some of the best and most cherished moments in my life.

    I love him.  I love my Dad.  I can trust and know that no matter what happens he won’t every [sic] give up on me. And that is comforting to know. He is my family.  This adoption is something we have been waiting for, for so long, for what feels like an eternity.  I so desperately want this,  it would complete me.  It would make me so happy.  He is caring, loving, trustworthy, loyal and everything perfect. 

    He is the best Dad in the world.

13. It seems to me that at 14 ½ years V is of an age at which she is not only capable of expressing genuine views but at which they should be taken into account.  However, against this it must cautiously be borne in mind that she is too young to appreciate the legal effect of adoption, namely, that Mr Best would cease to have parental responsibility for her, and that if an adoption proceeds there is the possibility that it would sever all prospect of her having a meaningful relationship with her biological father and biological extended paternal family, although it is to be hoped such would not occur. 

14. The material shows that Mrs Saunders and Mr Saunders have a strong and stable relationship.  They met and began dating in May 1996 when V was only a few months old and have been together ever since.  They married in 2004.  I have referred already to V’s sibling, Q, and the child soon to be born.  Mrs Saunders deposes that she and Mr Saunders have strong family values and a devoted and committed relationship. V attends a Lutheran school reflecting the values which they have instilled in her.

15. It is relevant to mention that, although during V’s life there has been little time spent between Mr Best and herself, from time to time he provided child support, and as at August 1999, when she was a toddler, he wrote to Mrs Saunders saying that he loved V as much as she did and that he would like his name to be on her birth certificate as her father. 

16. The matter is not one which is free from complexity, however, for the purposes of the Commonwealth law I am satisfied, having carefully weighed all of the above matters, that it is in V’s best interests that I grant the leave sought and I will do so.

17. Mr Best will cease to have parental responsibility for V. It is to be hoped that any resultant adoption would not have the effect of the severance of any possibility of a relationship for V with Mr Best and his extended family. However, even if that occurs, V would have the benefit of the secure family unit she craves and, in my view, it is that factor which tilts the balance to persuade me that it is in her best interests to grant leave to commence the adoption proceedings. I am persuaded also by the view of her own biological paternal grandmother, who favours the adoption. Even if V and her biological father are not able to develop a future relationship, including in relation to Mrs Best and their three children who are V’s siblings also, it would appear that at least she will maintain a relationship with her biological paternal grandmother.

18. The order will be in favour of both applicants, as sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Mrs Saunders leave, as the State Act, Part 5, Division 1, section 92 contemplates application for adoption only by the step parent and not a joint application with the opposite sex biological parent who is the step parent’s spouse or partner.  Section 61E however provides that in relation to a person who had parental responsibility immediately before the adoption, upon an adoption that person’s parental responsibility ends.  If section 61E be given its literal meaning, unless Mrs Saunders the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Saunders the child’s step father.  Probably section 61E should be read down to exclude the biological parent who is the spouse or partner of the adopting step parent (if not amended to that effect) as it is an awkward proposition to think that one could apply to adopt one’s own child and indeed that is not the effect of the State Act, Part 5, Division 1, section 92.  Other judges however have taken the view that the order should be made in favour of both the step parent and the biological parent who is the spouse or partner of the step parent on the basis that otherwise upon the making of an adoption order in favour of a step father the biological mother’s parental responsibility for the child would end.  See, for example, Brock & Brock [2007] FamCA 1594 at [2] and [3] per Strickland J; Reynolds & Donaldson [2008] FamCA 518 at [2] per Strickland J; and as to the effect of section 61E: Berry & Wratten [2010] FamCA 75 at [12] per Murphy J. Although thus I doubt that the mother can apply to adopt her own child, the existence of section 61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.

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:              30 July 2010