Thomasson and Stewart

[2010] FamCA 89

FAMILY COURT OF AUSTRALIA

THOMASSON & STEWART [2010] FamCA 89

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings pursuant to s 60G – Reliance on hearsay evidence – Leave granted

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 Thomasson

RESPONDENT: Mr Stewart

FILE NUMBER: ROC 8 of 2010

DATE DELIVERED: 27 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No appearance

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 J born … November 1998.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 8 of 2010

MR AND MRS THOMASSON

Applicants

And

MR STEWART

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. These proceedings, too, are undefended.  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. The evidence in this case reveals that the applicants, Mr and Mrs Thomasson have been residing together for over 10 years and were married in July 2005.  The child, the subject of these proceedings, J, was born in November 1998 and is now 11.  In 2006, J’s name was formally changed from her birth name, … to Thomasson.  J has been cared for by Mr and Mrs Thomasson from when she was very tiny.  The material reveals that the relationship between J’s mother and her birth father was brief and is described by the mother as “volatile.”

2. The evidence reveals that the relationship lasted in its entirety for about four months.  Upon discovering that she was pregnant to the father, Mrs Thomasson left the relationship and commenced residing with her parents.  There has been very little contact between the mother and J’s birth father during the past 11 years.  For reasons associated with the volatility of the relationship, the mother did not make her whereabouts known to J’s father but the mother deposes, and I accept, that her parents have remained a mutual point of contact for the father and mother.

3. The mother deposes, and I accept, that at no point has any attempt been made by the father to inquire about J’s well-being.  Affidavits of service have been filed in these proceedings deposing to the fact that material, the subject of these proceedings, including material containing the facts just outlined, were served upon the father.  J now has two siblings born to the relationship of Mr and Mrs Thomasson.  E, who is eight and D, who is six.  The material reveals a happy and loving family and a solid sibling relationship between J and her two siblings.

4. It is plain that Mr Thomasson has taken on all of the responsibilities including the financial and emotional responsibilities with respect to the parenting of J, as well, of course, as the parenting of the parties’ own two children, E and D, for virtually the entirety of J’s life.  The material reveals that J has been made aware of the fact that she has a different father to her siblings, and that this first occurred when she was about six.  The mother deposes that:

   Since this time, discussions regarding [the father] have been open and honest at all times.  Every endeavour has been made to answer all her questions and concerns in an appropriate manner.  This also includes any questions that [E] and [D] have raised in regards to the technical relationship between herself and [Mr Thomasson] and [the father] and her.  At no time has or will the term step-parent, step-daughter or step-sister be used in our family.  Our girls are all sisters and [J] is our daughter.

5. The material also reveals that the father has paid very little child support.  It seems a total of about $1800 during the entirety of J’s life.  On 25 August 2006, Mrs Thomasson made a request to the Child Support Agency to cease collecting child support on her behalf and to cease attempts to recover arrears then owing of about $6300.  Mrs Thomasson deposes to the fact that this was done at the father’s request and she complied.

6. There is no formal consent from the father to the adoption of J in the material before me.  In an affidavit filed on 7 January 2010, Mr Thomasson deposes that:

   [The father] has verbally admitted to [the mother] that he is satisfied to give consent for myself to formally adopt [J].

7. Mrs Thomasson’s affidavit, filed the same day, also deposes to that matter, saying that:

   [The father] has verbally admitted to myself that he is satisfied to give consent for [Mr Thomasson] to formally adopt [J].

8. It will be plain that the consent of J’s father is a precondition to the State Magistrates Court granting the order for adoption, and is therefore, in my view, an important matter to be taken into account by this court in deciding whether to grant leave. The facts and circumstances of this case are redolent of the consent of the father having been given to the process of adoption and, furthermore, in my view, Division 12A of the Act applies to applications pursuant to 60G of the Act by reason of these proceedings being “child-related proceedings” within the meaning of the Act.

9. I am therefore, in the circumstance of this case, prepared to rely upon the hearsay evidence deposed by Mr Thomasson and what I will regard as an admission by the father to Mrs Thomasson that he gives his consent to the adoption taking place.  I am satisfied sufficiently about that matter for the purposes of leave so as to proceed to make the order sought, which in my view, the best interests of J clearly indicate ought be made in this case.  For the reasons just given, I consider, then, in J’s best interests, that leave be granted for the adoption proceedings in the state courts to proceed, and I make a formal order to that effect.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  12 February 2010