Saturday, 20 March 2010

12 points in getting leave to adopt

Twelve points in getting leave to adopt

  1. The father was violent and abusive to the mother.
  2. The father lost interest in the child, and did not seek to spend time with him or her.
  3. The father resented paying child support, and either did not pay, or was substantially in arrears.
  4. The mother had remarried or repartnered. Her new relationship was loving and stable.
  5. The new partner had parented the child from when the child was young- infancy or toddler.
  6. The new partner was seen by the child as a father figure.
  7. The child had a strong, loving relationship with the mother's new partner.
  8. The child knew about the existence of the natural father.
  9. The child wanted the mother's partner recognised as his or her father.
  10. The father did not want to be involved in the court proceedings- either evading service or when served not turning up.
  11. It was clearly in the best interests of the child for leave to be granted.
  12. The parties are eligible to adopt and the child is eligible to be adopted  in that State or Territory.
If parties are seeking to adopt a child in Australia where the child is the child of a marriage of one of them, then the adoption will not be effective unless the intending adoptive parent or parents obtain leave (or court permission) to adopt under the Family Law Act.

Without leave to adopt, the child remains a child of the marriage, irrespective of the adoption. With leave to adopt, the natural parent (usually the father) has no rights or responsibilities (such as payment of child support) relating to that child.

The reason that the section of the Family Law Act, section 60G and related provisions were inserted into that Act was because it was perceived by Parliament that women were freezing men out of having contact with the ir children. The preception was that mothers who had repartnered were ensuring that either the new partner adopted the child, or the mother and new partner adopted the child, resulting in the child no longer being a child of the marriage.

The odd provision about section 60G is that, with the exception of the NT and WA, and if cleverly used the ACT, applications for leave to adopt cannot be made in the same proceedings as the adoption proceedings. In the NT the application is made to the Supreme Court, WA to the Family Court of WA. Everywhere else, the application for leave to adopt is made to the Family Court (but not the Federal Magistrates Court), but the adoption proceedings are conducted elsewhere- for example in NSW in the Supreme Court and in Queensland in the Childrens Court.

The other odd provision about section 60G is that it is a standalone procedure. In Queensland for example, Adoption Services Queensland requires leave to adopt to be given first before applying to adopt. Any step-parent thinking of adopting therefore needs to factor in delays caused by the two step process. Step 1- apply for leave to adopt. AFTER that has been obtained, THEN step 2- apply to adopt.

Section 60G is an obscure provision of the Family Law Act. Most family lawyers, from my discussions, have never made an application under this section. I have made several, all successfully (touch wood). Ignorance of family lawyers about this section has meant that when several clients came to me asking for advice, and had previously been to a family lawyer, the option of adoption, and leave to adopt, had not been raised by the lawyer. An example of when lawyers did not know what they were doing can be seen here.

Another odd provision is whether or not you have to serve the State adoption services. I do not know what the practice is throughout Australia and can only comment on Queensland. My first application for a client was a long time ago. In those days (before the High Court decision in Re Wakim) the Family Court also had the jurisdiction of the Supreme Court of Queensland. I served the State adoption services, in part because my clients were seeking dispensation of the consent of the father to the adoption. This was an order that could only be made in the adoption proceedings by the Supreme Court. I managed to obtain leave to adopt and dispensation of consent in one go, saving my clients delay and cost.

However, since that case, whenever I have served the State adoption services since, they have returned service copies of the documents to me, as they were not interested, taking the view that leave to adopt had nothing to do with them. I always figured that as the State authority they should be accorded procedural fairness, and I could always tell the court that a copy had been provided, even if the service had then sent it back. (Of course I would tell the court that, too.)

As will be seen below, it seems that in Queensland at least that State adoption services now want to be served.

With overdue changes to Queensland's adoption laws, to allow de facto couples for the first time to adopt in this State, there has been a rush of applications for leave to adopt. All those applications, except one, have been beofre Justice Murphy, who has set out standard reasons in his judgments


Howard and Horta (2009)

Justice Strickland stated:

The question to be answered in an application under s 60G is if the applicants bring adoption proceedings and if those proceedings are successful would the children’s best interests be better served by the adoption having the wider consequences under the Family Law Act which the granting of permission for the adoption application would give it.

Hutchens and Franz (2009)

This was an altruisitc surrogacy in which leave to adopt was sought before Justice Strickland in Adelaide. I note that the intended parents (unlike Re Michael: Surrogacy) appeared to be eligible to adopt in South Australia. Leave was granted.
Re Michael: Surrogacy (2009)

Intended parents from a surrogacy arrangement in NSW were refused  leave to adopt by Justice Watts because they were not eligible to adopt in NSW.

Benson & Orlando (2009) - doing it smart

The mother and her partner not only obtained leave to adopt, but ensured that they also obtained an order that they share parental responsibility,  that the child live with them, and that the child's name be change don the birth certificate:  useful first steps before the adoption application succeeds.

Morrison and Anor & Starter (2009)

The mother and her partner not only obtained leave to adopt, but ensured that they also obtained an order that they share parental responsibility, that the child live with them

Brooks and Sloan (2009)
The significance of this decision was that the court required a family report to be prepared first, before considering granting leave to adopt. It also found that the practice of NSW DOCS was not to order such an assessment before granting leave to adopt, but only after that step had been undertaken, as part of the adoption applicaiton itself.

Justice Austin also said that he needed to consider, in the best interests of the child, the list of matters under section 60CC of the Family Law Act.

Carter and Jackson (2009)

Justice Mushin stated:

The relevant factors [as to the best interests of this child] to my mind start with the proposition that there is a lengthy status quo of parenting of the child for most of her life, not just by her biological mother but by Mr Carter, her social father. It would appear that on the basis of all the expert evidence and on the basis of the material to which I have referred, the child does not have the sense of identity which she would acquire were she to be adopted by Mr and Mrs Carter together. While this is not necessarily applicable to all children, it is clear that it applies in this particular case. She would appear to have some developmental difficulties, although hopefully at this stage not too advanced, and all of the evidence points towards the proposition that adoption is a realistic possibility for enabling her to improve those difficulties and to live a happy and fulfilled life.


Falconio and Conchita (2009)

Justice Faulks exercised the jurisdiction of the ACT Supreme Court as well as that of the Family Court. His Honour gave leave, and an adoption order, after the father had refused to consent. However, the father also did not oppose the applications.
Somerville and Somerville (2010)

Justice Mushin gave leave to adopt. Adoption Services Queensland consented to leave. His Honour stated:

This application does not create an order for an adoption. It is simply, if granted, an expression by this Court that there is no impediment to the relevant parties proceeding in the Children’s Court of Queensland to seek to adopt the subject child. The question of the merits of that application is not a matter for this Court, it is a matter for the Children’s Court.

And now for Justice Murphy...

Dixon and Ferrier (2010)

Justice Murphy refused leave to adopt. The mother and her partner sought leave to adopt and dispensation of service of that application. There was no evidence about what efforts they had made to contact the father, although they stated that a process server had been engaged. In an own goal for the intended adopters, the court telephoned the father who said that this was the first anyone had told him about it, and he was opposed to it. He said that the mother and her partner had made it difficult for him to spend time with the child in accordance with the orders.




Joseph and Sadler (2010)

Justice Murphy refused the father's application for adjournment when, if it had been granted the 2 1/2 years spent by the applicants in the adoption queue would have had to be re-started.

Lester and Martin (2010)

Justice Murphy stated that:

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] .

The parties must be eligible to adopt and the child eleigible to be adopted in that State or Territory.

Re Garwood (2010)

Justice Murphy stated that he had to take into account section 60CC of the Family Law Act, as well as the requirements of the State adoption act. He also stated:

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.


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.

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.

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.

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

 
Justice Murphy granted leave in circumstances when the mother did not know who the father, as the child had been conceived from a one night stand.
 
Re McIlroy (2010)
 
Justice Murphy granted leave in similar circumstances to Re Bairstow:
 
His mother conceived of him  [ a child now aged 7] at a time when she was 16. She deposes to the circumstances of the conception in her affidavit. She says that she went to a party, drank alcohol for the first time, has no recollection of the events of the night, including having no recollection of having sexual relations with anyone. She says that it wasn’t until some seven weeks later that she “started to develop symptoms of pregnancy.” By implication, it is suggested that no pregnancy could have occurred with any other person in the intervening time.



Berry & Wratten (2010)
 
Justice Murphy granted leave after dispensing with service on the father, which had also happened in separate adoption proceedings.
 
Black & Duncan (2010)  Sedgman and McMullen (2010)
 
In Black and Duncan, Justice Murphy granted leave to adopt 4 children, when the father proposed that the stepfather adopt the children, and told the court that he supported the adoption process.
 
In Sedgman and McMullen, Justice Murphy granted leave to adopt a child when the father proposed that the stepfather adopt the child, and told the court that he supported the adoption process.
 
Thomasson and Stewart (2010)
 
Justice Murphy, again:
 
It will be plain that the consent of J’s father is a precondition to the State Magistrates Court granting the order for adoption, and is therefore, in my view, an important matter to be taken into account by this court in deciding whether to grant leave. The facts and circumstances of this case are redolent of the consent of the father having been given to the process of adoption and, furthermore, in my view, Division 12A of the Act applies to applications pursuant to 60G of the Act by reason of these proceedings being “child-related proceedings” within the meaning of the Act.
 
Levine and Popenko (2010)
 
Justice Murphy granted leave where the natural father was dead, and neither he nor his extended family had "little to do with the child either during the father’s lifetime or since

".
 Murray and East (2010)  
Justice Murphy granted leave when the father could not be located.

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