Sedgman and McMullen

[2010] FamCA 85

FAMILY COURT OF AUSTRALIA

SEDGMAN & MCMULLEN [2010] FamCA 85

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings pursuant to s 60G – Whether the need for expedition in child related proceedings might overcome the insufficient material filed

Adoption Act 2009
Adoption of Children Act 1964
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS: Mr and Mrs Sedgman

RESPONDENT: Mr McMullen

FILE NUMBER: BRC 11164 of 2009

DATE DELIVERED: 27 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child P born … March 2002.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11164 of 2009

MR AND MRS SEDGMAN

Applicants

And

MR McMULLEN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by a step-parent for leave to adopt pursuant to s 60G of the Family Law Act1975 (“the Act”).

2. As Chisholm J remarked in Fogwell & Ashton (1993) FamCA 113:

   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 (“the Act”).

3. His Honour went on to say:

   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:  C.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) 75 ALR 469.

4. No argument is addressed in respect to the constitutional validity of the provisions of the Family Law Act. In this ex tempore judgment.  I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings. 

5. Adoption of children in this state is governed for another five days by the Adoption of Children Act1964.  On 1 February 2010, the Adoption Act2009 will apply. 

6. A number of applications currently in train will, at that new Act’s commencement date, have new criteria within that Act applied to them. Critically, the Act will require prospective adopting stepparents to satisfy, in addition to existing criteria, two new criteria, namely that the relevant child or children is or are at least five years old and not yet 17, and secondly, that this court has granted leave to adopt.

7. Further, a natural parent must, absent an order of the court dispensing with same, obtain consent, irrespective of whether the natural parents of the children were married. 

8. Section 60G of the Family Law Act1975 (“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.

9. While, as has been observed, the failure to obtain leave now has consequences under the (new) State 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)[Parental responsibility ends on adoption of child] The person’s parental responsibility for the child ends of 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.

10. 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.

11. Section 65J of the Act provides:

    1.     [Application of section] 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.[Effect of adoption on parenting order] The parenting order stops being in force on the adoption of the child, unless the adoption is via prescribed document parent, and leave was not granted under section 60G for the adoption proceedings to be commenced.

12. 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 of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

13. 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.

14. 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. 

15. 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.

16. 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.

17. 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, in this State, after 1 February, will be 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 paras 23ff).

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

19. 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. 

20. 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 new State 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 well-being and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order;

21. 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, nevertheless they 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 prerequisites.

22. 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.

23. In general terms, Division 12A of the Act applies, in my view, by reason of the fact that these are, “child-related proceedings” by reference to section 69ZM of the Act, being proceedings that are wholly within part VII of the Act.

Background and decision

1. P was born in March 2002 and is nearly eight.  There has been little contact between he and his father, Mr McMullen, who appears by telephone this morning in person.  Mr McMullen wrote a letter to the mother on 6 January 2006 proposing, in effect, that P be adopted by Mr and Mrs Sedgman.  He confirms this morning that he is in agreement with that course of action and that he understands what that means.  He tells me this morning that he hasn’t had contact with P for a number of years and it is not proposed by him or I gather the other parties that there be any form of regular contact between them. 

2. Mr and Mrs Sedgman commenced a relationship in 2005 and were married in May 2006.  They have a child of their relationship, L, who is now just two.  The material originally filed by Mr and Mrs Sedgman, who represent themselves and who have prepared their own material, was clearly deficient.  In those circumstances, Registrar Coutts made an order on 20 January 2010 requiring the filing of further material.  Mrs Sedgman advises me this morning that the material has been filed, but the timeline required by Registrar Coutts’s orders was necessarily a tight one, and those documents have not reached the file. 

3. In circumstances where by reason of the commencement of the Adoption Act 2009 in five days time on 1 February 2010, it is necessary for this court to grant leave if so minded, or the application for adoption will lapse and will need to commence again. It seems to me that I ought consider other means by which the court can properly be informed of the matters necessary to make a judgment in this case. In that respect, I have in mind the provisions of Division 12A of the Act, the mandatory duties and principles enunciated in that division, and in particular, the principle that the child-related proceedings, of which I consider these to be, should be conducted with as much expedition and with as little legal form and technicality as possible, and in that respect, those principles are underlined by section 69ZT, which abrogates the rules of evidence with respect to applications of that type.

4. With those matters in mind, and bearing in mind the ramifications for a failure to consider properly the application for leave today, which of itself, it seems to me, has ramifications for P’s best interests, I determined to receive oral evidence from the mother by telephone, all of which Mr McMullen was present for.  It seems plain on the evidence that Mr and Mrs Sedgman are in a stable, happy relationship that provides appropriate financial and emotional support for both L and P.  So much is, it seems to me, conceded by Mr McMullen, both by his silence in the proceedings today, but also by reason of what he had to say in the letter that he wrote to Mrs Sedgman in January 2006.  

5. The evidence reveals that for all intents and purposes, Mr Sedgman regards P as his own child.  There is no distinction drawn between P and L, and it is intended that the two of them grow together as siblings in the knowledge that formally, as well as practically, they receive the exercise of duties, authorities, responsibilities and powers by Mr Sedgman.  In all of those circumstances, it seems to me to clearly be in P’s best interests that leave be granted to allow the proceedings for adoption to be commenced in the State Magistrates Court.  And I so order.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  12 February 2010