Windle & Anor and Choi

[2010] FamCA 892

FAMILY COURT OF AUSTRALIA

WINDLE AND ANOR & CHOI [2010] FamCA 892

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act

Adoption Act 2009 (Qld)
Adoption of Children Act 1964 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS: Mr Windle and Ms Yeong

RESPONDENT: Mr Choi

FILE NUMBER: BRC 5498 of 2010

DATE DELIVERED: 6 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 6 September 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Provan of Harrington Family Lawyers

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 Mr WINDLE and MS YEONG to commence adoption proceedings of the child Y born … April 1994.

AND IT IS NOTED THAT

(a)Pursuant to Rule 7.19 of the Family Law Rules 2004, service has been effected in a non-convention country and the court is satisfied on the evidence before it that service has been effected in accordance with the law of the country of Taiwan.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5498 of 2010

MR WINDLE AND MS YEONG

Applicants

And

MR CHOI

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 by the Adoption Act2009 which came into force on 1 February 2010. 

6. The new Act specifies criteria different to those in the previous Act. Critically, the Act requires prospective adopting stepparents to satisfy, in addition to previous 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 of the other parent, 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, after 1 February 2010, is 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 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 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 (State) 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.

THE PRESENT APPLICATION

1. Y is now 16 years of age.  His parents separated when he was about 10 months old in February 1995.  There has effectively been no relationship between the child and his father since his birth. 

2. The father has not seen Y since that time, nor has he apparently shown any interest in either seeing the child or in having any form of communication with him.

3. The applicants in these proceedings commenced co-habitation in June 2007 and married in 2009.  They have been together, then, for about three years.  It is to be noted that at the time they commenced cohabitation, Y was aged about 13.

4. It is plain on the evidence before me that Mr Windle and Ms Yeong have a loving and committed relationship and that during the course of that relationship Mr Windle has taken on the responsibility for providing the necessities of life to both his wife and to Y.

5. It is also plain on the evidence before me that Mr Windle has provided for the psychological and emotional wellbeing of Y and has in every respect sought to treat him as though he was his own child.

6. All of the evidence before me suggests that not only is Y enjoying the support, comfort and broader parental environment provided by Mr Windler and Ms Yeong, but also that he is thriving within that environment.

7. As I have indicated, Y’s father has spent no time with him, nor has he evidenced since his birth any desire at all to effect any form of relationship with him.

8. The decision about whether to grant leave to adopt is, as I have set out in respect of the legal principles applicable to cases of this type, directly related to a finding about Y’s best interests. 

9. Written submissions provided on behalf of the applicants by Mr Provan, the solicitor who represents them, makes reference to the primary and additional considerations set forth in section 60CC of the Act.

10. It is sufficient for present purposes to say that the written submissions conveniently set out, as it seems to me, each and all of those matters which the court ought take into account in respect of Y’s best interests in the context of this application, and I have no hesitation in finding that Mr Windle and Ms Yeong will together provide an appropriate loving environment for the child now and into the future.

11. Before I leave these reasons, it is to be noted that the solicitors for the applicants amended the application so as to provide that Mr Windle and Ms Yeong are, as it were, joint applicants for leave to adopt. 

12. The primary reason for this is a suggestion by judges of this Court that s 61E creates a difficulty if the mother (who is the parent of the child here) is not included as an applicant for adoption, the conclusion being that the section would bring her parental responsibility for the child to an end (see, eg, Strickland J in Brock & Brock (2007) FamCA 1594, and more recently, the decision of O’Reilly J in Dary & Wood [2010] FamCA 616).

13. With the greatest respect to their Honours, I am not myself convinced of that interpretation of s 61E. However, out of an abundance of caution, in light of the fact that an amended application has been filed, and in reliance upon those decisions, I don’t consider that any harm comes from following them for the purposes of this application.

14. Indeed, it might be thought that if their Honours are correct and I am wrong then proceeding in this manner is the safest course.  It is for those reasons that I will make orders in terms of the amended application filed by each of the parents.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 September 2010.

Associate: 

Date:  4 October 2010