Tilman & Anor and Baxter

[2016] FamCA 141

FAMILY COURT OF AUSTRALIA

TILMAN AND ANOR & BAXTER [2016] FamCA 141

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – joint application by mother and stepfather pursuant to s 60G of the Family Law Act 1975 seeking leave to commence adoption proceedings – Consideration of child’s best interests pursuant to s 60CC.

Family Law Act 1975 (Cth) ss 60CC, 60F(4)(a), 60G, 61E(2), 65D, 65J, 66M, 68B

Flanagan v Handcock [2000] FamCA 150
Foocks v McCarthy [1993] FamCA 117
Mulvena & Mulvena & Butler & Edwards [1999] FamCA 280
Prior & Prior [2008] FamCA 592

1st APPLICANT: Ms Tilman

2nd APPLICANT: Mr Tilman

RESPONDENT: Mr Baxter

FILE NUMBER: PAC 3099 of 2015

DATE DELIVERED: 9 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 February 2016

REPRESENTATION

SOLICITOR FOR THE 1ST AND 2ND APPLICANTS: McPhee Kelshaw

Orders

1. That leave be granted pursuant to Section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of the child B born on … 2000 by Ms Tilman and Mr Tilman.

2. That the applicants Ms Tilman and Mr Tilman have equal shared parental responsibility for the child B born on … 2000.

3. That the child, B born on … 2000, live with the applicants.

(4)       That the Mother Ms Tilman be authorised to apply to the Registrar of Births, Deaths and Marriages, NSW that the child registered as B born on … 2000 be now registered as B Tilman.

(5)       Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in Order (4) herein.

(6)       The Court forward a sealed copy of this order to the Registrar of Births, Deaths and Marriages NSW.

1. That these proceedings be removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tilman and Anor & Baxter 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 PARRAMATTA

FILE NUMBER: PAC 3099  of 2015

Ms Tilman and Mr Tilman

Applicants

And

Mr Baxter

Respondent

REASONS FOR JUDGMENT

1. The applicant mother and her new husband seek leave of the Court pursuant to s 60G of the Family Law Act 1975 (Cth) to make application to adopt the child B born in 2000.

2. The child is nearly 16 years of age.

3. The respondent to the application is the child’s father.

4. The application was filed on 26 June 2015 and at the time of filing was supported by an affidavit by the applicant mother filed on the same date.

5. The application and affidavit were personally served on the respondent father on 21 August 2015 at which time the father signed an acknowledgement of service (Exh A).

6. On 7 September 2015 of the proceedings were listed before a registrar. The respondent father appeared in person. It was ordered by the registrar that proceedings be adjourned to 20 October 2015 and that the father file and serve his response by 15 October 2015.

7. On 20 October 2015 there was no appearance by or on behalf of the respondent father and proceedings were adjourned to 14 December 2015 for undefended hearing. 

8. On 22 October 2015 the applicants’ solicitor forwarded a letter by ordinary prepaid post to the respondent informing the respondent that the case was adjourned to 14 December 2015 for undefended hearing and that in the event that he failed to appear the Court would make orders in his absence. On the same day an email was forwarded to the respondent father by the solicitor for the applicants in the same terms.

9. On 14 December 2015 proceedings were before the Court and there was no appearance for or on behalf of the respondent father. Proceedings were adjourned for undefended hearing to 26 February 2016 and the applicants were ordered to provide a short Family Report as to the subject child’s understanding and wishes in respect to the present application.

The applicants’ evidence

1. The applicant mother is 36 years of age and in employment as a customer service specialist. The applicant stepfather is nearly 34 years of age and in employment as a sales manager.

2. The mother’s relationship with the respondent father was for a period from 1997 until the relationship finally ended in 2001. They did not marry.

3. The applicant stepfather and the mother commenced a relationship in October 2003 and married in 2007. There are two children of their relationship now aged six and nearly three.

4. The mother describes her relationship with the respondent father as tumultuous. They lived in various premises after commencing cohabitation when the mother was 18 years of age and the father 19 years of age. The mother gives evidence of incidents of violence commencing at the very beginning of their relationship, prior to the birth of the child and while she was pregnant.

5. Thereafter the mother was subject to a serious assault by the father on 12 September 2000 that she reported to the police the following day. The father was subsequently arrested and charged with assault and an interim Apprehended Violence Order was issued. The mother is unaware as to the result of these proceedings. In mid-2001 the father head-butted the mother knocking her unconscious. The mother was concerned that the domestic violence in her relationship at the hands of the father would risk her ongoing care of the child and did not report this subsequent assault.

6. Thereafter there have been other threats to the mother and her partner. The mother has concerns in relation to the father’s drug, alcohol and mental health issues.

7. The child was born after the mother and father’s physical separation. The child’s birth was difficult and after the child was discharged from hospital the mother and child resided at the child’s maternal grandmother’s home.

8. The child’s name was subsequently registered by the mother and father incorporating both the father’s surname and the mother’s then maiden name.

9. The mother has been the primary carer of the child since birth and after returning to work she made appropriate care arrangements for the child with the assistance of her mother.

10. The father spent time with the child for the first two years of the child’s life although such time included no overnight time and was usually for a period of about two hours supervised by the mother. Later the father spent time with the child at his parent’s home with the time supervised by the child’s paternal grandparents, although the mother asserts that the father did not avail himself of time with the child at all times that the child was at the paternal grandparents’ home.

11. Subsequent to the mother forming a new relationship with her now husband in early 2003 the father ceased spending time with the child from May 2003 until mid-2006.

12. The child commenced school in kindergarten in 2006 at the local public school and thereafter the mother observed that the child commenced to refer to her new partner as “dad”. This was not encouraged by her.

13. The mother had further contact with the father in mid-2006 when she received a letter inviting her to mediation in relation to the child’s care. The mother had concerns about her welfare and that of the child and did not respond. Thereafter in September 2006 the mother attended at the child’s school at the request of the school headmaster and on so doing she observed the father sitting in the passenger seat of a vehicle parked out the front of the school. The mother did not approach the father. She subsequently made a police report in relation to the incident.

14. In October 2006 a legal aid mediation conference was conducted by telephone in relation to the child’s parenting arrangements but there was no agreement. There was no subsequent application made by the father in relation to time with the child.

15. The mother married her co-applicant in 2007 and shortly thereafter they purchased a home with the child moving to a primary school at Suburb C. The child commenced high school in 2013.

16. The child is currently in year 10 at high school, in good physical health save for having regular assessments for cognitive functioning. His overall abilities remain in the low to average range of cognitive functioning.

17. The father currently makes no contribution to child support, not having paid child support since November 2014. The child is otherwise supported financially by the mother and her husband.

18. The mother and stepfather wish to formally adopt the child in proceedings under the relevant state legislation. Should that application for adoption be successful it is the mother’s wish and the child’s wish that he be known B Tilman. The child has already adopted the use of that name informally.

The Family Report

1. In the context of the application consideration was given to the Family Report dated 13 February 2016 prepared by Mr D, family consultant.

2. The family consultant considered the documents filed in these proceedings and interviewed the child on 11 January 2016.

3. The child presented to the family consultant as a tall, quietly spoken youth with a pleasant disposition. The family consultant reports that the child remembers very little about the father, knowing his name but not knowing his current whereabouts. He could not remember what his father looked like nor did he hold any recollection of the paternal grandparents.

4. The child assumes that there has been no contact from his father because his father is not interested in him. He does not care about his father “because he doesn’t care about me”.

5. The child spoke positively of the mother and her husband saying that they are deeply caring of him and his young siblings. He gave examples of that affection to the family consultant. The child confirmed to the family consultant that he wished to change his surname as sought by the mother saying that he felt identification with his mother’s new husband as his “dad” for many years. He reported to the family consultant that he himself had commenced using the proposed new surname.

6. In evaluation the family consultant reported that the child impressed as an emotionally mature teenager, psychologically stable and apparently will cared for in the day-to-day sense. The child identifies strongly with his family and to all intents and purposes regards Mr Tilman as his father. The child showed a clear understanding of and support for the application before the Court.

7. Overall the family consultant was of the view that the child’s wishes should be given significant weight.

Discussion

1. Section 60G provides that this Court may grant leave for proceedings to be commenced for the adoption of a child by a “prescribed adopting parent”. For the purposes of the Family Law Act 1975 (Cth) (“the Act”) a “prescribed adopting parent” means:

   a)A parent of the child; or

   b)A 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.

2. The applicants are prescribed adopting parents for the purposes of the Act.

3. Should the applicants not have sought leave as in the present application they would not have been precluded from obtaining an adoption order in relation to the child.

4. However the Act provides that an adoption order with prior leave under s 60G of the Act:

   a)Ends parental responsibility for the child or children of the parent who is not the adoptive parent (s 61E(2));

   b)Renders the child the subject of the adoption order no longer a child of the marriage for the purposes of the Act (s 60F(4)(a));

   c)Ends the operation of any parenting order which was in force under the Act (s 65J).

5. In proceedings for leave the Court must consider whether granting leave would be in the child’s best interests having regard to the effect of an adoption order as set out above.

6. These considerations were considered in detail by Benjamin J in Prior & Prior [2008] FamCA 592.

7. Notwithstanding the granting of leave the mother and the respondent father will each continue to have parental responsibility for the child by reason of the provisions of the Act until such time as an adoption order is made.

8. The determination of a child or children’s best interests is to be made having regard to the consideration set out in s 60CC of the Act.

9. In qualitative and prospective terms the child has a significant and meaningful relationship with the mother who has been his primary carer throughout the whole of his life. That relationship is valuable, significant and important to the child.

10. The child has no relationship with the father who has had no contact with him for about 10 years. There does not seem to be any reasonable prospect at least into the foreseeable future of the child’s relationship with their father being restored. However the child is of an age where he is able to form his own view as to whether he would make enquiries as to the father and seek to have some sort of relationship with him into the future.

11. There are no protective concerns in relation to the subject child. Incidents of family violence as between the mother and father are of historical interest only but were regrettable.

12. There are strong views expressed by the child as referred to above. They should be afforded significant weight.

13. The child has a well-established and settled relationship with his mother and a well-established relationship with his stepfather. The child regards the stepfather as his father and refers to him accordingly. He has no relationship with his father as referred to above.

14. The mother has engaged in making long-term decisions in relation to the child and has been his primary carer in the absence of the father since the child was six years of age. The father has in effect abandoned his responsibilities in this regard to the child’s mother and stepfather.

15. The mother and her husband have undertaken the obligation to maintain the child in the absence of any meaningful financial contribution by the father.

16. The mother has demonstrated an appropriate capacity in conjunction with her husband to provide for the needs of the child including his emotional and intellectual needs. There is no evidence of any such capacity in the father.

17. The mother has demonstrated an appropriate attitude to the child and her responsibilities of parenthood in particular in seeking to formalise the present arrangements in which the child lives with her and her husband. The father on the other hand has abdicated these responsibilities completely to the mother.

18. There has been historical violence as referred to above as between the mother and father, being the subject of police intervention and an apprehended domestic violence order.

19. There is no ongoing family violence order involving the child or a member of the child’s family.

20. There are no other relevant factors for the Court’s consideration.

21. In circumstances where the applicants are likely to be successful in an application for the adoption of the child, the Court is satisfied that it is in the best interests of the child that leave be granted having regard to the consequences of that leave being granted under the Act as referred to above.

Parental Responsibility

1. Otherwise the applicants seek an orders that they have equal shared parental responsibility for the child and that the child live with them.

2. The presumption of equal shared parental responsibility does not apply as the second applicant is not a parent. The issue is determined by the child’s best interests.

3. In the light of the discussion of the child’s best interests set out above it is appropriate that such orders be made.

Change of Name

1. The nature of orders relating to a child's surname was considered by the Full Court of the Family Court in Flanagan v Handcock [2000] FamCA 150. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a s 68B injunction or a s 65D parenting order, either directly or indirectly the paramountcy principle as to the child’s best interests is applicable.

2. There are numerous decisions that pre-date the 1995 amendments to the Act relating to a child's surname.

3. In Foocks v McCarthy [1993] FamCA 117 Warnick J held at [14]:

   There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.

4. The factors frequently considered in determining whether there should be any change to a child's name include:

   a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;

   b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;

   c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;

   d)The effect of frequent or random changes of name;

   e)The contact that the non-custodial parent has had and is likely to have in the future with the child;

   f)The degree of identification that the child or children have with their non-custodial parent; and

   g)The degree of identification which the child or children have with the parent with whom they live.

5. A consideration of relevant factors is indicative of an order as sought by the applicants.

6. The order for equal shared parental responsibility carries with it responsibility for name. However for the sake of clarity and to facilitate the name change a facilitating order will be made.

Section 66M Order

1. The applicants seek an order that the second applicant Mr Tilman has a duty to maintain the child under s 66M of the Act. The application for such an order Division 7 of the Act is ill-founded.

2. In Mulvena & Mulvena & Butler & Edwards [1999] FamCA 280 it was said:

   The purpose of the Division is to make provision for child maintenance and it places upon parents the primary duty to be responsible for the financial support of their children. The purpose of s 66M is to provide for those cases in which a parent cannot meet this duty and it is appropriate, in the circumstances of the case, to impose a secondary duty on a step-parent. It can be said, then, that if there is no application for child maintenance, there can be no duty imposed under s 66M. That is to say, the duty only exists in conjunction with an application asserting a right to child maintenance.

   This conclusion is supported by the words of s 66N which clearly assume there is an application under Division 7. The same result can be reached by asking what right corresponds to the duty in s 66M and the answer to that is an application for child maintenance. That is because a determination under s 66M(2) is preliminary to an enquiry into what financial support, if any, the step – parent ought to provide. Therefore, the application fails at this point. If I am wrong in that view, the application still does not satisfy the provisions of s 66M(3).

3. The order will be refused.

4. Otherwise orders will be made accordingly.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 March 2016.

Associate: 

Date:  9 March 2016