Skinner & Anor and Tasci

[2015] FamCA 101

FAMILY COURT OF AUSTRALIA

SKINNER AND ANOR & TASCI [2015] FamCA 101

FAMILY LAW – CHILDREN – Adoption – by step parent – consent of the biological father obtained – leave to commence proceedings in County Court

FAMILY LAW – CHILDREN – Order that Applicants have equal shared parental responsibility for the child – child to live with the Applicants

FAMILY LAW – CHILD SUPPORT – Consent Order – child support agreement set aside – departure from the administrative assessment

Family Law Act 1975 (Cth) s 60G(1)

Child Support (Assessment) Act 1989 (Cth), ss 117, 136

Lowe and Anor & Clayton [2011] FamCA 1024
Prior & Prior [2008] FamCA 592

FIRST APPLICANT: Ms Skinner

SECOND APPLICANT: Mr Jillet

RESPONDENT: Mr Tasci

FILE NUMBER: MLC 11033 of 2014

DATE DELIVERED: 21 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 21 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Dunlop

SOLICITOR FOR THE APPLICANTS: Robertson Hyetts

COUNSEL FOR THE RESPONDENT: Ms Williams

SOLICITOR FOR THE RESPONDENT: Carew Counsel Pty Ltd

Orders

1. BY CONSENT pursuant to s 60G(1) of the Family Law Act leave be granted to Ms Skinner and Mr Jillet (“the applicants”) to commence proceedings in the County Court of Victoria for adoption of the child B born … 2006 (“the child”).

2. BY CONSENT the applicant mother and applicant step-father have shared equal parental responsibility for the child.

3. The child live with the applicant mother and applicant step-father.

4. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same, with the exception of Exhibit “1” to remain on the Court file.

IT IS CERTIFIED

1. 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 Skinner and Anor & Tasci 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 MELBOURNE

FILE NUMBER: MLC 11033 of 2014

Ms Skinner

First Applicant

Mr Jillet

Second Applicant

And

Mr Tasci

Respondent

REASONS FOR JUDGMENT

1. Ms Skinner (‘the mother’) and Mr Jillet (‘the step father’), are the applicants in proceedings seeking consent to adopt the child B born in 2006 who is now aged eight.  The respondent to that application is Mr Tasci, the father.

2. These proceedings were commenced by application filed 5 December 2014 supported by an affidavit of the mother and a subsequent affidavit of the mother filed 5 December 2014.  This application is supported by the father’s response filed 16 December 2014 which is supported by his affidavit and his financial statement filed the same day.  There is also an application for some orders in relation to child support.  I will deal primarily in these reasons with the question of parenting.

3. First of all, let me say that the orders that are being sought by the parties are by way of consent order both in relation to the question of child support and in relation to the question of adoption.  Each of the parties was represented by competent counsel.  In terms of the relevant legal principles to be applied, in Lowe and Anor & Clayton [2011] FamCA 1024, Murphy J set out the law regarding approval of leave to adopt from paragraphs 9 to 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:

   (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?

4. It is an unusual process for one court to give leave to another court to enable an adoption to take place.  I considered that in a decision of mine in Prior & Prior [2008] FamCA 592 in paragraphs 7 through to 23:-

   7.It is unusual for legislation to put in place the necessity to apply to one Court for leave to apply for another Court for the exercise of the latter court’s ordinary jurisdiction.  However, as observed by Chisholm J in Denderfield & Anor that is what is required by the Australian Parliament by reason of this provision.

8.Upon careful reading of the section the leave requirement cannot be read in the normal sense as ‘permission to commence a proceeding’.   Although an adoption order without leave under s60G seems somewhat pointless.

9.     Leave is not necessary under s 60G for adoption proceeding to be commenced in a State or Territory Supreme Court. The section itself provides that leave may [emphasis added] be granted but failure to grant leave does not preclude the adoption order. Sections 60F, 61E and 65J deal with the impact of adoption orders if leave is not granted, this legislatively presupposes that failure to have leave given under s65G does not prevent or prohibit the adoption proceedings in State or Territory Courts. The legislature, through this provision of the Act does not endeavour to legislatively require leave as a precursor to adoption proceedings but instead sets out the impact of an adoption order upon parental responsibility, status as a child of the marriage and orders under the Act both if leave is granted or if leave is not granted.

10. The impact of the leave being granted under s 60G is that, on an adoption order being made, the parent who is not the adoptive parent, no longer has parental responsibility for that child under the Family law Act.

11. A further impact upon leave being granted under the section is that on adoption the child (the subject of the adoption order) ceases to be a child of the marriage for the purposes of the Act. To give this section meaning and purpose it should be construed that the child ceases to be a child of the marriage as between the birth parents. If the child is adopted by parents who are married, post adoption that child would be a child of the marriage to the adoptive parents.

12. Finally if leave is granted under the section then a parenting order which was in force under the Act stops being in force upon adoption.

13.    This is an application for leave to adopt, not for the adoption itself, the question of whether there ought to be an adoption order is a matter for the Queensland Supreme Court, if and when such application is made. 

14. The application in the Family Court is made s 60G of the Act which provides in full:

(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) and of sections 61E and 65J.

15. Subsection 60G(2) refers to other sections of the Act, namely :

Section 60F(4)(a)

(4)The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

(a)if a court granted leave under section 60G for the adoption proceedings to be commenced--the child ceases to be a child of the marriage for the purposes of this Act;

Section 61E

(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.

Section 65J

(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.

16. A reading of section 60F of the Act discloses that the child will not cease to be a child of the marriage unless and until an actual order for adoption is made; and only then if leave was first obtained from a court of competent jurisdiction.

17. In my view even if I make the orders sought, the joint parental responsibility for the child enjoyed by the mother and the respondent father pursuant to section 61C of the Act remains in place until such time as either a contrary parenting order is made by a court of competent jurisdiction, or an adoption order is made. However, no parenting orders or orders concerning parental responsibility were sought by the applicants in this case.

18. Should I not make an order granting leave, the effect of sections 61E and 65J of the Act are that parental responsibility and any parenting order vested in the mother and the respondent father prior to any adoption order, would subsist notwithstanding any order for adoption. In this case I note there are no parenting orders in existence.

19. Although dealing with earlier provisions of the Act which then applied to such applications, the discussion by Chisholm J in the matter of Fogwell & Ashton is still applicable. His Honour considered further the consequences which may arise upon leave not being granted and stated,

I first consider the situation that would arise if leave were to be refused. (It is not necessary to consider whether the position would be any different if leave had not been sought.) If the applicant were to make the application for an adoption order after having leave refused by this Court it seems to me that the Supreme Court would have three main options. It could make the order of adoption. It could decline to hear the matter on the merits because this Court had refused leave. Finally, it could, perhaps, itself grant leave under section 60AA using cross-vested jurisdiction from the Family Court. It is necessary to consider these three options in a little more detail.

If the Supreme Court were to make the order of adoption notwithstanding the refusal of leave, the effect of the provisions of the Family Law Act would be that the rights of the birth father would "not cease". It is not clear whether the birth father would retain custody and guardianship rights in addition to, or in substitution for, the custody and guardianship rights that would normally be acquired by the stepfather as a result of the adoption. The result, however, would either be that the birth father and the birth mother alone retained custody and guardianship, or, alternatively, that custody and guardianship rights were shared among the birth mother, the birth father, and the step father. It is not necessary to express a conclusion as to which of these two possibilities is the more likely to be correct. It is reasonably clear that either result would be unsatisfactory, confusing, and clearly inconsistent with the applicants' plans for the child.

It might reasonably be predicted, therefore, that the Supreme Court would not wish to make an adoption order which had either of these strange results. Even on this assumption, however, there is a possibility that the Supreme Court might hold that s 60AA of the Family Law Act 1975 is beyond the power of the Commonwealth. In that event, an adoption order would have its ordinary effect, and the lack of prior leave would not be a disincentive to the making of an order for adoption. It follows that the first possibility, that the Supreme Court would make an order for adoption despite the refusal of leave by this Court, cannot be dismissed as entirely fanciful.

The second possibility is that the Supreme Court would decline to deal with the adoption application because the leave of this Court had been refused.  In that event, in one sense the legislation would have operated as it was presumably intended to do.  On the other hand, the result may be considered unsatisfactory, because the effect of this Court's having denied leave would be that the possibility of [the child’s]adoption would have been eliminated without any court having fully considered an adoption application on its merits.

20. His Honour proceeded to discuss the third option, being the Supreme Court hearing the leave application itself pursuant to the then-existing cross-vesting legislation. That option has now been excluded by the specific exemption of section 60G applications by amendments to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth.  His Honour continued,

The above discussion indicates that it is very difficult to predict what approach the Supreme Court might take if an adoption application were made notwithstanding the refusal of leave by this Court under s 60AA of the Family Law Act. In my view I must proceed on the basis that none of the three possibilities discussed can be confidently excluded….

The situation that would arise if this Court grants leave is much simpler.  The applicants will be in a position to choose whether to bring an application before the Supreme Court.  If they do so, no doubt that application will be dealt with on its merits. 

21. This Court must have regard to the best interests of the child in determining whether leave ought to be granted having regard to the effect of paragraphs 60F(4)(a), Section 61E and Section 65J. Strickland J’s observations in the recent matter of Rohrlach, Rohrlach & Dodderidge at paragraph 13 were:

Turning to the issue of whether granting leave would be in the best interests of the child, I have commented in the past on the fact that section 60G does not specifically provide that the child's best interests are to be the paramount consideration, unlike section 60CA which is relevant to most matters that are heard by this court in relation to children. Although I make that observation, I do not consider it has any specific import on whether I grant the leave today. As I have said before, it is just an observation as to why that is not the case and whether it means that there are other factors which the court should have regard to. Nothing else is identified in section 60G, and there is also some authority in this court about this in relation to the section which preceded section 60G, namely section 60AA, wherein there was no reference to best interests whatsoever. That is the case of Fogwell & Ashton (1993) FLC 92-429. In any event, I do consider I need go outside what is in the best interests of the child in determining this application.

22.    In relation to which  factors I ought to have regard to in determining what is in this child’s best interests, again I refer to His Honour who noted,

Another interesting observation, at least for me, is that, in referring to best interests, there is no reference in section 60G(2) to the relevant section in the Family Law Act 1975, which is section 60CC, which sets out what factors the court must consider in determining what is in the best interests of the child. Again, I do not know why that is, but logically, in determining this issue of best interests, I should have regard to and consider the provisions of section 60CC. If nothing else, it is a convenient guide to what factors bear upon a child's best interests.

23. I agree, and shall deal with the relevant subsections of section 60CC of the Family Law Act 1975 generally below.  [Footnotes omitted]

…

1. The factual history in relation to this child, and his interaction with each of the parents was set out in the mother’s affidavit.  The mother and father are both currently aged 35 and the mother’s partner is aged 42.  Both the mother and her partner are in full-time employment, as is the father.  The child was born in 2006 and is currently eight years old.  The relationship between the mother and the father was, in the words of the mother, a casual relationship and the parties, it seemed, did not live together for any meaningful period of time if at all.

2. There is no doubt that the child is a child of the mother and father, given the evidence of the mother and the acceptance of that evidence as to his biological history.  The child has only met the father on one occasion when he was about six months old, but since that time and prior to that time, had no interaction with the child at all.  The child has been brought up by the applicant and the applicant stepfather as set out in paragraphs 30 through to 40 of the mother’s affidavit filed 5 December 2014.  One of the matters which caused me concern was in relation to the child’s knowledge of his biological father.  I am told by the mother in her affidavit that they have been open and honest with the child in relation to his biological father, including his name.

3. The father, through his counsel, informed me that he was content for the child to track down his biological history at some time in the future.  Given that, I am satisfied that the child will know who he is and where he came from.  As to the discussion, the evidence is that the father has not maintained a relationship with the child.  Although that may have been available to him.

4. The applicants treat the child as their own and have brought him up as their own, although they have been frank and honest with him in terms of his biological history.  I accept the evidence of the mother as to the parenting of the child with her partner, and the circumstances of the parties, including the care and thought that they have put in to the care of the child.  The question for me is whether it is in the child’s best interest for the adoption to occur.  There is a deep and meaningful relationship between the child and the applicants, or the child and the mother and her partner.

5. There is no concern on the material before me or expressed by the father for that matter that the child is in risk of neglect, abuse and violence.  From the information before me, the child is enjoying a happy life and is doing those things which one would expect from a nine year old child.  The primary relationship between the child is with his mother and her partner.  The mother and her partner have engaged in joint decision-making and the mother has fulfilled her obligations to maintain the child.  The father says he has, but says that he has been unable to meet the full extent of his financial obligations for the child.

6. These orders, if granted by this Court and by the County Court if it decides that way will bring about no practical change to this child. There will be no practical difficulty and expense in terms of the orders, and there are no other issues to which I have been addressed such as violence or the like. Consequently, 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 Act1975 (Cth) ('the Act’) and I will so order.

7. I also am satisfied that there ought to be an order for equal shared parental responsibility between the mother and the stepfather.  As to the question of child support, in her affidavit the mother sets out that the father is in arrears of child support of some $29,000 as at 14 May 2014.  For the majority of the last seven years, the father has not paid child support, and I take it that the mother has not actively pursued child support.

8. The mother does not seek, nor does she need, nor does applicant step father seek, nor does he assert a need for financial support from the father in terms of the child.  The parties approached the Child Support Agency and sought their guidance in resolving this issue in the light of the adoption application.  The orders that they seek by consent are those which reflect the advice given to them or the recommendations made to them by the Child Support Agency.

9. There is evidence before me that the Child Support Agency was notified of these proceedings and there is no evidence that the Child Support Agency is opposing or seeking to make any submissions in relation to this application.  Accordingly, in the matter of Skinner, Jillet & Tasci I make two separate orders.  The first order will be on a separate document to the second order and will relate to children’s matters.

10. In relation to the second order, I will make a separate order which will be between Ms Skinner and Mr Tasci, and that will be by consent, that pursuant to s 136 of the Child Support (Assessment) Act 1989 (Cth), (‘the Child Support (Assessment) Act’) the child support agreement dated 20 April 2007 between the applicant mother and the respondent father be set aside.

11. That pursuant to 117 of the Child Support Act, by consent pursuant to s 117 of the Child Support (Assessment) Act, there be a departure from the administrative assessment of child support payable by the father for the child as follows:-

    (a) for the period from 5 October 2006 to 21 January 2015, the total amount of child support be set as equal to the moneys already paid for the period, including the value of non-agency payments credited for the same period with the effect that there are no arrears remaining payable under that.

12. I otherwise discharge all outstanding applications, all extant applications, and certify for counsel.  I direct that the reasons be taken out and placed on the court file.

13. I will direct that a copy of the reasons when settled be forward to the solicitors for each of the parties.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 21 January 2015.

Associate:     

Date:              21 January 2015