West & Anor and Kantor

[2011] FamCA 954

FAMILY COURT OF AUSTRALIA

WEST AND ANOR & KANTOR [2011] FamCA 954

FAMILY LAW – ADOPTION – By step-parent – Whether to grant leave to commence proceedings pursuant to s 60G of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) s 60G, s 61E, s 61C, s 4(1), s 65J

Holden & Britten (2010) FamCA 197

1st APPLICANT: Mr West

2nd APPLICANT: Ms West

RESPONDENT: Mr Kantor

FILE NUMBER: BRC 6090 of 2011

DATE DELIVERED: 5 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 5 October 2011

REPRESENTATION

THE 1ST APPLICANT: Mr West in person

THE 2ND APPLICANT: Ms West in person

THE RESPONDENT: No appearance

Orders

1. Leave is granted pursuant to s 60G of the Family Law Act for proceedings to be commenced by Mr West and Ms West for the adoption of the child B, born … 2006.

IT IS NOTED that publication of this judgment under the pseudonym West and Anor & Kantor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6090 of 2011

Mr West and Ms West

Applicants

And

Mr Kantor

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. Before me for determination today is an application by Mr West and Ms West that leave be granted pursuant to section 60G of the Family Law Act for proceedings to be commenced by those two applicants in the State Courts of Queensland for the adoption of the child B, born in 2006. 

2. The respondent to the application is Mr Kantor, who is the registered father of the said child.  When I say he is the registered father, I say that based on my understanding of the evidence that he is registered as the father of the child in the relevant register of births, deaths and marriages in the Country C after her birth, notwithstanding the fact that he is not actually her biological father. Indeed the child was conceived after some years of difficulties being experienced by the female applicant and Mr Kantor during their marriage in naturally conceiving a child and ultimately the child was conceived with the assistance of a sperm donor.  There is evidence about the identity of the sperm donor and other matters pertaining to him, but I do not consider it necessary at this point in time to refer any further to that. 

3. Mr Kantor lives in Country C and has lived there since, I believe, around 2004 when he and Ms West, then married, travelled to the Country C to live and to work.  Ms West returned to live permanently in Australia some time in 2007, Mr Kantor remaining in England thereafter and up to this point in time.  He currently lives in the suburb of C in City E. 

4. He did not appear today on this application after having been called three times in the precincts of the Court by the court officer. Ms West did not put before me any documentary proof of service on Mr Kantor of notice that the application was listed for hearing today and consequent to that, I caused her to be sworn in and asked her to give oral evidence in respect of the issue of Mr Kantor’s notice of today’s proceedings.  I am satisfied, after having heard that evidence, that Mr Kantor is indeed aware that the application is being heard today and that it is appropriate, notwithstanding his non-appearance, to proceed in his absence. 

5. By way of note, that evidence included evidence by Ms West that in accordance with order 5 of Registrar Kane’s order made on 27 July 2011 that Mr Kantor be served with a copy of the order that Registrar Kane made as well as all of the material filed in the proceedings by 4.00 pm on 31 August 2011 that she did so serve him.

6. One of the matters dealt with in the order of Registrar Kane was the listing of this application for hearing at 9.30 am this morning, 5 October 2011.  Ms West deposed in oral evidence to the fact that she complied with the order by sending copies of all material and a sealed copy of that order to Mr Kantor and that he was therefore aware of these proceedings being heard today.  I am satisfied of that because indeed she also said she asked Mr Kantor in that same correspondence if he would file an affidavit and an affidavit by him, upon which Ms West, relies was filed by him on 28 September 2011, a date thereafter.  Ms West also deposed to the fact that she had recent email communication with Mr Kantor, including as late as last Friday just gone, where the application being heard this morning was discussed and Mr Kantor had asked Ms West to tell him of the outcome of the proceedings after they were concluded. 

7. In Queensland, adoption of children is governed by the Adoption Act (Queensland) 2009.  Under that relatively recent legislation, some new criteria were introduced in respect of the determination of applications for adoption.  The Adoption Act requires prospective adopting step-parents, such as Mr West in this instance, to satisfy the Court, in addition to the pre-existing criteria that have to be satisfied, in respect of a number of new criteria. They include that the relevant child is at least five years old. I note that she is not yet but soon will be and no doubt will be by the time the application to be determined by the State Court. They also include a requirement that she is not yet 17 years old.  Further, they include the requirement that this Court has granted the parties leave to commence proceedings to apply for an adoption order.  Further still, a natural parent, such as Mr Kantor in this case, must, absent an order of the State Court dispensing with same, give consent to that adoption.

8. Section 60G of the Family Law Act was introduced into the Act in 1995. Section 60G(2) of the FLA makes it plain that a decision whether to grant leave for proceedings to be commenced for the adoption of a child is actually governed by a determination of the best interests of the child. Failure to obtain leave from this Court to apply to the State Court for adoption has consequences under the state legislation and it also has consequences under the Family Law Act.

9. Section 61E of the Family Law Act provides as follows:

   (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 a child. 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.

10. The expression “prescribed adopting parent” is defined in section 4(1) of the Family Law 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 Family Law Act provides under the heading “Effect of Adoption on Parenting Order”:

    (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.

12. Justice Murphy of this Court considered these provisions in the case of Holden & Britten (2010) FamCA 197, at paragraph 1. His Honour said:

    An effect of adoption is that all parental responsibility for the children ceases, as do all other parenting orders.

    At paragraph 22 his Honour said as follows:

    The question then, in my view, can be expressed this way.  Is it in the relevant 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 parenting orders being made in this Court that might involve the parent and step-parent?

13. I respectfully agree with his Honour that that is the question that I must consider in determining this application.  The applicant, Ms West, the mother of the child, B, and the respondent, Mr Kantor, were married after having been in a relationship for some time in 1999.  They moved to City E, as I understand it, sometime in 2004.  For some years they had been trying to conceive a child unsuccessfully.  Their attempt included involvement in an IVF program that was unsuccessful. 

14. Once they were living in Country C, they were able to obtain contact details of the man who ultimately was willing to be a sperm donor for them. It had been determined that the difficulties in conceiving a child lay, apparently, with Mr Kantor.  That seemed to be a proven fact when soon after the donation of sperm by this other gentleman, Ms West fell pregnant.  The child was born in 2006. 

15. Ms West has deposed in her affidavit to having a somewhat tumultuous relationship with Mr Kantor and to Mr Kantor not being very interested in the wellbeing of Ms West and the child, notwithstanding Ms West and the child experiencing rather traumatic labour and birth and being unwell, particularly for some time after the birth.  Ms West returned with the child to Australia without Mr. Kantor in 2007 and then went back to England and told Mr Kantor that she had decided that she wanted to return to live in Australia.  There was some disagreement between Mr Kantor and Ms West as to when that should happen and when Mr Kantor would return and Ms West returned with the child herself in or around the middle of 2007. 

16. Shortly thereafter, in circumstances that do not need to be discussed in these reasons, their relationship ended.  As I understand the evidence, the child was seven or eight months old at that time and that was the last time that Mr Kantor saw the child or indeed had anything to do with her.  There has been no contact between the child and Mr Kantor since that time. 

17. When the child was born, notwithstanding Mr Kantor not being her biological father, the parents, of course, agreed that he would be registered as the father in the details contained in Country C’s register of births, deaths and marriages.  That would, in similar circumstances in Australia, make him the lawful father of the child, especially when her conception was during wedlock and pursuant to arrangements with a sperm donor

18. Later in 2007, Ms West met her current husband, Mr West. They formed a relationship and ultimately commenced cohabitation with each other.  Mr Kantor and Ms West obtained a dissolution of their marriage and Mr West and Ms West married in 2009. They currently live in the suburb of F here in Brisbane and have, in addition to the child, living in their household as part of their family, two children of their own marriage, namely G born in 2009 and H born in 2011.  The child is the older sister to G and H and according to Ms West’s affidavit the children are very close and the child is protective of her two younger siblings. 

19. Mr West clearly has been involved as the father figure in the child’s life for as long as the child could possibly remember, given that she was only seven months old, or thereabouts, when she last saw Mr Kantor and only 9 months old when Mr West first came into her life.  The evidence is that she only knows Mr. West as her father and calls him “dad”, not surprisingly. 

20. Mr West has given evidence in his affidavit that he regards the child as his daughter and treats her as such and simply seeks to go through the formal adoption process to formalise at law in Australia, the nature of the relationship that they actually have.  Importantly, although Mr Kantor and Ms West have not agreed in their affidavit evidence as to every matter of fact, particularly with respect to the actual circumstances of the breakdown of their relationship, one thing is clear from Mr Kantor’s affidavit evidence and that is that which he says at paragraph 20 of his affidavit, namely:

    [Ms West] and I have stayed in contact since her returning to Australia and now she is remarried and has two other children of her own, I wish her and her family well.  I am happy for the adoption to go ahead and trust [the child] will prosper.

21. Mr Kantor has made no suggestion in his affidavit evidence that he is otherwise troubled by the notion of Mr West applying for formal adoption of  the child and he has made no suggestion in his affidavit that he wants, in the future, to have any form of father and daughter relationship with the child.  Indeed, Ms West in her affidavit evidence deposed to the fact that Mr Kantor had indicated that when their relationship broke down after Ms West and the child returned to Australia and Mr Kantor remained in the Country C, that he did not want to have anything further to do with parental responsibility or financial support of mother, nor did he want any sort of relationship with the child.  In all the circumstances of this case, I accept that evidence. Having considered all the matters I have referred to and all the evidence that is put before me, I determine that it is indeed in the child’s best interests to grant the leave that the applicants seek and I will do so.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 October 2011.

Associate: 

Date:  15 December 2011