Walter and Smith

[2010] FamCA 681

FAMILY COURT OF AUSTRALIA

WALTER & SMITH [2010] FamCA 681

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Deemed service on respondent – Leave granted

Family Law Act 1975 (Cth) s 60G

Brock & Brock [2007] FamCA 1594
Berry & Wratten [2010] FamCA 75

Reynolds & Donaldson [2008] FamCA 518

APPLICANTS: Mr and Mrs Walter

RESPONDENT: Mr Smith

FILE NUMBER: BRC 6747 of 2010

DATE DELIVERED: 2 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 2 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms de Groot Gill

McKays Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. The service effected by the applicant’s solicitors described in the affidavits of Lindy de Groot Gill, solicitor, Emma Louise Moloney, paralegal assistant, Reginald Allan Standfast, commercial agent and Barry St Clair, commercial subagent, of the documents described in those affidavits and in exhibit 1 be deemed good service upon the respondent of those documents. 

2. Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Walter and Mr Walter have leave to commence proceedings for the adoption of J born … August 1993.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6747 of 2010

MR AND MRS WALTER

Applicant

And

MR SMITH

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) filed 21 July 2010 by Mrs Walter and Mr Walter that they have leave to commence proceedings for the adoption of J born in August 1993 now nearly 17 years. Mrs Walter is J’s biological mother and Mr Walter is his step father.

2. J’s biological father Mr Smith has not been able to be located by the applicants or their solicitors since 14 July 2010 when Mrs Walter told Mr Smith during a telephone conversation that she and Mr Walter proposed to bring this application: see Mrs Walter’s affidavit pars 22, 53 and 54.

3. In these circumstances, Mr and Mrs Walter seek an order dispensing with service on Mr Smith or alternatively that the steps they have taken for service be deemed good service. There is a degree of urgency to the application under section 60G in that J turns 17 years this week. Section 92(1) of the Adoption Act 2009 (Qld) provides that a person may apply to the chief executive to arrange an adoption if, amongst other matters, the child has not turned 17 years: section 92(1)(i). Section 92(2) provides that despite subsection 1(i) the chief executive may accept an application relating to a child who has turned 17 years if the chief executive considers that there is enough time to complete the adoption process before the child turns 18 years and that grounds for making an adoption order in favour of the applicant are likely to exist. However, plainly it is preferable that if an order for leave to commence the proceedings is to be made it be made before J turns 17 years so that application under section 92 of the State Act also can be made before that event.

4. In relation to the attempts to locate Mr Smith since 21 July 2010 to effect personal service on him I would refer, without setting out, to the affidavits of Mr Walter pars 40 – 49, Linda de Groot Gill, solicitor, Emma Moloney, paralegal assistant to Ms de Groot Gill, Reginald Standfast, commercial agent and Barry St Clair, commercial subagent.  In my view, these materials collectively show that the steps taken to effect personal service on Mr Smith are exhaustive. 

5. In short, Mr Smith, it appears, has left his place of residence last known to Mr and Mrs Walter in about March 2010.  That was …, Brisbane.  The usual inquiries (electoral roll, white pages) have not produced any new address.

6. Since the 14 July 2010 telephone conversation, several voice messages have been left on Mr Smith’s mobile telephone number 04… including specifically in relation to this matter and no calls have been returned.

7. Mr Smith’s place of casual employment is known, G Business.  Several attempts to find him there have failed.

8. Nonetheless, the material shows that at 3.15 pm on 28 July 2010 Barry St Clair left at G Business a sealed envelope for Mr Smith containing copies of the amended initiating application and an order made by Registrar Kane on 27 July 2010 listing the matter to today at 10 am and, I would infer, the documents described in the letter from Ms de Groot Gill to Mr Smith 23 July 2010 comprising part of exhibit 1, which letter specifically refers to the affidavit also of Mrs Walter, and that a Ms S at G Business accepted the documents to be given to Mr Smith; and further that at 11.50 am on 29 July 2010 Barry St Clair left at G Business a sealed envelope for Mr Smith containing copies of the second amended initiating application and affidavit of Mr Walter with a Ms H who said she would make sure that Mr Smith received the envelope.

9. Moreover, it seems to me that the non return of the many telephone calls by Mr Walter to Mr Smith set out in Mr Walter’s affidavit (par 47) together with the evidence that Mr Smith tends to be avoidant about matters concerning the subject matter of any adoption application concerning J have effect that more likely than not he has taken steps to evade service.  I would refer again to Mr Walter’s affidavit pars 40 - 49, in particular pars 47, 48 and 49.

10. In all of the circumstances I am satisfied that Mr Smith knows about the application and that it is appropriate that I order that the service effected by the applicants’ solicitors and agents as described in the affidavits to which I have referred be deemed to be good service on Mr Smith.  The importance of the matter is such that I am not prepared to dispense with service.  However, I am satisfied that deemed service in the particular circumstances of the case is appropriate.

11. I would add that the father’s name has been called three times at the door of the courtroom with no response and that also this morning at about 10 am the court officer telephoned Mr Smith on the mobile telephone number to which I have referred with no result.

12. I will therefore proceed to hear and determine the matter on the basis that Mr Smith has been accorded procedural fairness and chosen not to participate in the proceedings.

13. The Adoption Act 2009 (Qld) provides by section 92(1) that a person may apply to the chief executive to arrange an adoption by the person of a stated child if, among other matters, the person has been granted leave under section 60G(1) of the Family Law Act 1975 (Cth): section 92(1)(d). Under section 60G(2) of the Commonwealth Act I am required to consider whether the granting of leave would be in J’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

14. As to those matters, section 60F(4)(a) does not apply as Mrs Walter and Mr Smith did not marry. Section 60HA deals with de facto relationships. This also does not apply to Mrs Walter and Mr Smith. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been granted under section 60G for the adoption proceedings to be commenced. If I grant leave to commence adoption proceedings and an adoption order ultimately is made by a State court then Mr Smith will cease to have parental responsibility for J. Section 65J(2) provides that a parenting order stops being in force on the adoption of a 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. Mrs Walter has deposed that there are no parenting orders agreements parenting plans or undertakings to the Court of any kind currently in force between the parties or otherwise in relation to J.

15. I turn then to the matter of J’s best interests. I will refer to the particular provisions of section 60CC to section 60G of the Commonwealth Act which relate to the determination of a child’s best interests only to the extent as on the material that may seem relevant.

16. J was born of a brief relationship between Mrs Walter and Ms Smith when Mrs Walter was in grade 12 at school.  However, Mrs Walter met Mr Walter when she was about seven months pregnant and they have been together since then.  Mr and Mrs Walter began living together in 1997 when J was three years old and married in l997 when J was four years old.

17. Mr Walter accepted J into the marriage and since then has continued to treat J as his own son along with the two sons that Mr and Mrs Walter have had together R born in May 1997 and N born in December 1998.

18. Since about 2003 J has expressed the wish to be adopted by Mr Walter.  He has told Mrs Walter, his biological mother, that he wants to be regarded as Mr Walter’s son and not just a step son and also not just a step brother to R and N.

19. Mrs Walter explained that J has always regarded himself as the oldest brother of the three because he is the first born and that he has taken on that role with R and N.

20. She explains that J truly wishes to be a Walter in every sense and in particular in the last two years J R and N have been performing together as brothers in their band called “…” and that it has become urgently important to J to be recognised as a Walter.

21. Mrs Walter deposed to a long history of attempted adoption applications seemingly on no fewer than five occasions since 1997 when she and Mr Walter have asked Mr Smith for his consent but consent was not forthcoming.   Her affidavit refers to their understanding at the time of the Queensland Government’s interpretation of the law that the consent of both birth parents was mandatory, that they considered court challenge to that but as students at the time without financial backing were unable to bring such court challenge and that they subsequently learned in 2008 of a Supreme Court ruling in 2007 of successful challenge to the Queensland Government’s interpretation of the adoption laws such that on 12 June 2008 finally they submitted their application for step parent adoption.  In June 2010 they were contacted by Adoption Queensland who advised that new legislative changes required this application to the Family Court of Australia and that in the circumstances their existing application for adoption had been cancelled.

22. The circumstance that J turns 17 years this week impelled the matter to urgency having regard to the cancellation of their existing adoption application. 

23. It was in those circumstances that on 14 July 2010 the mother telephoned Mr Smith.  She deposes that on that occasion Mr Smith expressed his love for J and told her of his sincere concern that J continues to feel different in the family.  This circumstance, Mr Smith said to her, was a concern that J had told him about as early as 2003, and his only desire now is to do whatever is in J’s best interests.  She said that for the first time he indicated he would not withhold his consent if J wishes for the adoption to take place.

24. I have mentioned already that that is J’s wish, as expressed to Mrs Walter.

25. Over the years, J has had some occasions of time spent with Mr Smith, in the early days and in the more recent times.  In the early days, Mr Walter would take J to meet with Mr Smith at playgrounds and so forth in support of J spending time with Mr Smith.  Visits have ensued over the years though not with great frequency.  The material indicates that between about 2006 and 2008 there were about five occasions that J and Mr Smith spent time together and similarly about five occasions in the last two years 2009 and 2010 and that J has maintained at least some communication with Mr Smith’s extended family including paternal grandmother, paternal grandfather, paternal uncles, paternal aunt, paternal uncle in law, paternal grandfather and paternal grandmother.

26. Mr Walter deposes that a few days after J’s birth in August 1993 it was he who indeed collected the mother and J from the hospital and drove them home.  He deposes that he has been involved in J’s life as if he were his own biological son since that time, that he has financially supported J along with the mother for the last 15 or so years and is very keen, along with Mrs Walter and J, that the adoption proceed.

27. The matter is one in which, for the purposes of the Commonwealth law, having carefully weighed all of the above matters, I am satisfied it is in J’s best interests that I grant the leave sought and I will do so.

28. The order will be in favour of both applicants, as sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Mrs Walter leave, as the State Act, Part 5, Division 1, section 92 contemplates application for adoption only by the step parent and not a joint application with the opposite sex biological parent who is the step parent’s spouse or partner.  Section 61E however provides that in relation to a person who had parental responsibility immediately before the adoption, upon an adoption that person’s parental responsibility ends.  If section 61E be given its literal meaning, unless Mrs Walter the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Walter the child’s step father.  Probably section 61E should be read down to exclude the biological parent who is the spouse or partner of the adopting step parent (if not amended to that effect) as it is an awkward proposition to think that one could apply to adopt one’s own child and indeed that is not the effect of the State Act, Part 5, Division 1, section 92.  Other judges however have taken the view that the order should be made in favour of both the step parent and the biological parent who is the spouse or partner of the step parent on the basis that otherwise upon the making of an adoption order in favour of a step father the biological mother’s parental responsibility for the child would end.  See, for example, Brock & Brock [2007] FamCA 1594 at [2] and [3] per Strickland J; Reynolds & Donaldson [2008] FamCA 518 at [2] per Strickland J; and as to the effect of s61E: Berry & Wratten [2010] FamCA 75 at [12] per Murphy J. Although thus I doubt that the mother can apply to adopt her own child, the existence of section 61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.

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

Associate:     

Date:              6 August 2010