Walters and Cooper

[2010] FamCA 88

FAMILY COURT OF AUSTRALIA

WALTERS & COOPER [2010] FamCA 88

FAMILY LAW – CHILDREN – ADOPTION – Whether to grant leave for step-father to commence adoption proceedings pursuant to s 60G – Leave granted

Adoption Act 2009
Adoption of Children Act 1964
Evidence Act 1995 (Cth)
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 Walters

RESPONDENT: Mr Cooper

FILE NUMBER: BRC 11549 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 L born … July 1999.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11549 of 2009

MR AND MRS WALTERS

Applicants

And

MR COOPER

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. L was born in July 1999 and is currently aged about ten and a half.  L was born to his parents in Western Australia where they were living.  When L was about six weeks old his father and mother separated.  The mother desired to move back to Brisbane and the father to remain in Western Australia.

2. Orders were made by consent in December 1999 that provided for time between L and his father for a period of about 12 weeks per year on the giving of written notice.  The mother relocated to Brisbane with L on 1 January 2000.  Thereafter, plainly enough, there was a significant geographic separation between L and his father.  The evidence reveals that the time between L and his father, pursuant to the orders that are made by consent in December 1999, occurred for up to about two years thereafter.  During that time, the father did not spend time with L for the whole of the 12 visits pursuant to the orders but saw him a couple of times per year.

3. From about 2001 there has been little contact between L and his father, and for about four years L has not seen his father face to face, and has not spoken to him for approximately two years.  Each of the father and mother have re-partnered.  The mother commenced a relationship with her now husband in February 2000, and they were married in February 2001.  Accordingly, when the mother and her husband were married, L was a tiny baby approximately 18 months old.  Subsequently, the mother and her husband have had two children together:  B, currently aged about 7, and J, yet a baby, aged about 18 months.

4. The respondent father, Mr Cooper, both represents himself in these proceedings and has appeared today by telephone.  Prior to his appearance, Mr Cooper filed an affidavit on 22 January 2010.  That affidavit takes no issue with any of the factual matters just outlined and makes it clear that he supports the application for adoption being made by Mr and Mrs Walters.  He too has a new relationship and has two very young children born to it.  It is plain, on the material before me, that Mr and Mrs Walters provide a loving and caring environment, not only for L but for their other two children as well.

5. No issue is taken in that respect by Mr Cooper.  Indeed, Mr Cooper’s affidavit indicates that he is aware of the fact that the mother and her husband are, as it were, taking good care of L.  It is important to emphasise that Mr Cooper swears to the fact that the mother first raised the issue of L’s adoption a significant period of time ago, approximately seven years ago.  He deposes that at first he didn’t agree but has since changed his mind.  At paragraph 18, Mr Cooper deposes:

   I have put a lot of thought into my decision.  I am aware that should the adoption application be successful, this means that I will lose my parental responsibility for [L] and he will effectively cease to be my child.

6. He goes on to say:

   I know that (the mother) and (her husband) have a close family unit and that [L] regards (Mr Walters) as his father.  (Mr Walters) has really been the person constant in [L’s] life.  I know that [L] has been diagnosed with Asperger’s syndrome and that both (the mother) and (her husband) have been involved in assisting [L] with these matters.  I believe that granting the adoption will support the stable family environment that [L] lives in.

7. The facts and circumstances disclosed by the material, in my view, lead clearly to the conclusion that it is in L’s best interests that leave be granted for the adoption proceedings to be commenced within the meaning of section 60G of the Act; and I so order.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  12 February 2010