Schmidt & Anor and Hall

[2012] FamCA 883

FAMILY COURT OF AUSTRALIA

SCHMIDT AND ANOR & HALL [2012] FamCA 883

FAMILY LAW – CHILDREN – Adoption – whether leave granted to commence proceedings pursuant to s 60G of the Act – Leave granted

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

Lowe and Anor & Clayton [2011] FamCA 1024

FIRST APPLICANT: Ms Schmidt

SECOND APPLICANT: Mr Schmidt

RESPONDENT: Mr Hall

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CSC 519 of 2012

DATE DELIVERED: 10 September 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 10 September 2012

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: Mr Cameron

SOLICITOR FOR THE FIRST APPLICANT: Williams Graham and Carman

COUNSEL FOR THE SECOND APPLICANT: Mr Cameron

SOLICITOR FOR THE SECOND 

APPLICANT:

Williams Graham and Carman

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: In person

Orders

In the proceedings of Schmidt, it is ordered:

1. Pursuant to s 60G of the Family Law Act 1975 (Cth) leave is granted for the applicants to commence adoption proceedings in relation to the child B born … June 2001 (“the child”).

2. This matter be removed from the list of cases requiring determination.

   IT IS DIRECTED

3. A copy of the reasons for these orders be taken out and placed on the Court file.

4. IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Schmidt and Anor & Hall 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 CAIRNS

FILE NUMBER: CSC 519 of 2012

Ms Schmidt

First Applicant

And

Mr Schmidt

Second Applicant

And

Mr Hall

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr and Mrs Schmidt are seeking an order giving them leave to apply for adoption of B (‘the child’), who was born in June 2001 and is now aged 11. The application is pursuant to s 60G of the Family Law Act 1975 (Cth) (‘the Family Law Act’), and I am conscious that the child is over five and under 17, and as such is a child within the meaning of the Adoption Act 2009 (Qld). The application is supported by a number of documents: the application itself, the affidavit of the mother, the first applicant, sworn 13 August and filed 21 August, an affidavit of the second applicant, the mother’s husband, Mr Schmidt, filed and served the same day, and an affidavit of Mr Hall (‘the biological father’) sworn 17 July and filed 24 August, being the child’s biological father.

2. This morning in Court, an affidavit by the solicitor for the applicants was filed in relation to providing notice of this material to the biological father.  I have had regard to that, and I am satisfied that the biological father knows of these proceedings and does not wish to appear.  He was called this morning, but there was no appearance by him.  These proceedings are undefended and are being heard on an ex parte basis.  In Queensland, the determination as to who should adopt a child is governed by the Adoption Act 2009 (Qld), which apparently came into force in February 2010.

3. There are some matters to which I have to have regard, namely, that the child is at least five and not yet 17, and secondly, that this Court has given leave to enable the adoption to proceed.  Another requirement of the legislation is that the biological father gives consent to the adoption.  To that end, I have had regard to the affidavit of the biological father which I have referred to earlier, in which he consents to this Court granting leave for the child to be adopted by the mother and her present husband. 

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. In Lowe and Anor & Clayton [2011] FamCA 1024 Murphy J set out the law regarding approval of leave to adopt, particularly in the State of Queensland, from paragraphs 9 to paragraph 23 where His Honour said:-

   9. 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. 

   10. 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:

   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

   11.      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.

   12.      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.

   13.      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.

   14. 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.

   15.      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. 

   16.      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. 

   17.      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. 

   18.      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).

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

   20.      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. 

   21. 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; …

   22.      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.

   23.      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?

THE BACKGROUND

1. In terms of the background, I have referred to the consent of the biological father and the affidavit of service.  I am satisfied, as I said that the biological father consents to the order and is content to have the matter heard on an undefended basis.  At the commencement of the hearing, I asked the mother to give evidence as to if and when she was going to inform the child of the  biological father.  The mother gave evidence and made it clear that she proposes to do so within the next 12 months, and I accept her evidence in that regard.  Mr Schmidt is aged 32, the biological father is aged 29 and the mother is aged 29.

2. The mother and the biological father were in a relationship between 2000 and 2002, during which time the child was born.  In early 2004, the mother commenced a relationship with her husband, Mr Schmidt, and they now have two children, C, aged four, and D, aged three months. 

THE EVIDENCE AND DISCUSSION

1. The mother’s evidence is that the biological father did not endeavour to maintain a relationship with the child, but she tried to contact him.  She said that the biological father lived with different friends and families and moved around a lot, and that he informed her that most of the places he was staying were unfit for children to reside in.  The mother appears to have been persistent in encouraging a relationship between the child and the biological father, but that persistence was not met with any meaningful success.

2. The applicants, it appears from the evidence, treat all three children as their own children, which in the case of the mother is accurate, and they work together as a family.  In 2011, the mother spoke to the biological father and discussed with him the question of adoption.  The biological father consented to the adoption because of his concerns about payment of child support and the need to move on.  It is also significant that in 2008, when the child was seven, steps were taken to change his surname to that of Schmidt.  In terms of the arrangements for the child, he has lived in Cairns since 2004, and he has been emotionally, financially and psychologically supported by both applicants since that time.

3. I accept the evidence of the mother as to the joint parenting by both of them of this child together with the other two children.  They live in a comfortable home, and it seems that the child is thriving in this environment.  He attends a private school, has swimming lessons, is a member of a sports club, and is well cared for in terms of his medical and dental needs.  The mother does not receive child support from the biological father, and deposes that the child is a healthy, happy boy.  I was concerned that the child did not know the identity of his birth father.  However, the mother has assured me, and as I said earlier, I accept that she will let the child know of that circumstance in the relatively near future.

4. The question for me is whether it is in this child’s best interests to permit the adoption proceedings to proceed.  There is no relationship between the child and his biological father.  There is a deep and meaningful relationship between the child and the applicants.  There is no concern that the child is at risk of neglect, abuse or violence.  From the information provided to me, the child’s views are that he is very happy enjoying his life, involved with all of those things one would expect and hope that an 11 year old is involved.  The primary relationships of this child are with the applicants and with his siblings, to which I have referred earlier in these reasons

5. The mother and her husband have each participated in the decision-making for this child, spent time with the child and communicated with the child.  Unfortunately, his biological father has not done so.  The mother has fulfilled her obligations to maintain the child; the biological father has not.  These orders will involve some legal change to the child’s life, but not any significant practical change to his life.  There will be no practical difficulty and expense in terms of the order I am going to make, and there is no doubt that the mother and her present husband has the capacity to provide for the needs of the child.

6. I am concerned that the child is of Aboriginal background through his biological father; however, it is clear that the applicants have adopted a sensitive child-focused approach to parenting, and I have no doubt that when the time comes and questions are asked, they will treat that in a sensitive and thoughtful manner in which they have treated all of his parenting so far.  That is reflected by the evidence of the mother encouraging the relationship between the child and the biological father for the time following separation, and the mother approached the biological father for consent to adopt.  This was not a short-term approach.  It was done, clearly thoughtfully, about a year out, and has given him time to think through the nature of that change, so I have confidence that she will enable this child to understand his background and culture.

7. In terms of the attitude to the responsibilities of parenthood demonstrated by each of the parents, I have referred to that above. There are no issues of family violence. These proceedings will inevitably lead to other proceedings, because they are designed to do just that. The mother will file proceedings in the States Magistrates Court for orders in due course. I am satisfied, in all of the circumstances, that it is in the best interests of this child that leave be granted to commence proceedings for adoption pursuant to s 60G of the Family Law Act, and I so order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 10 September 2012.

Associate:     

Date:              10 September 2012