Mulhall v Hartnell

Supreme Court of NSW|2010-10-26|Before: Brereton J

CITATION : Application of MKM & RDM; re SCH [2010] NSWSC 1270

HEARING DATE(S) : 6 September & 26 October 2010

DECISION : Orders for adoption made.

(NSW) Adoption Act 2000, s 54 LEGISLATION CITED : (CTH) Family Law Act 1975, s 60G, s 60F(4) (CTH) Jurisdiction of Courts (Cross-vesting) Act 1987

CASES CITED : Mulhall v Hartnell (1988) 12 Fam LR 361 Young v Lalic (2006) 197 FLR 27, [36]-[48]

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTION LIST

2010/119 Application of MKM and RDM; re SCH JUDGMENT (in chambers) 1 HIS HONOUR: In this adoption application in respect of the child SCH, her mother MKM and step-father RDM are the plaintiffs and proposed adoptive parents. 2 The evidence appears to establish that it would be in the interests of the child to make an adoption order as sought, and that the child, who initiated the idea of adoption, strongly wishes that an adoption order be made, particularly to give formal recognition to the perceived reality of her family relationships. 3 However, the Summons seeks an order dispensing with the consent of the child's natural father, and also an order dispensing with notification to him. 4 As to dispensing with consent of the natural father, (NSW) Adoption Act 2000, s 54, provides as follows: 54 When consent of parent or person who has parental responsibility not required (cf AC Act s 26 (4A)) (1) Consent is not required under section 52 if: (a) the requirement for the consent has been dispensed with by the Court, or [Note. See Division 3 of Part 5.] (b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or (c) the child gives sole consent to his or her adoption in accordance with subsection (2), or (d) the child is 18 or more years of age. (2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years. (3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless: (a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Director-General or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or (b) the Court dispenses with the giving of notice. (4) The regulations may prescribe the particulars to be contained in a notice under this section. [Note. Parental responsibility is defined in the Dictionary.] 5 The child has given sole consent, in circumstances in which s 54(2) applies. Accordingly, by operation of s 54(1)(c), the natural father's consent under s 52 is not required, and there is therefore no need for a consent dispense order. 6 However, the evidence does not establish that notice of the application has been given to the child's natural father in accordance with s 54(3)(a). The evidence establishes that he and the mother (who is one of the applicants) shared parental responsibility following their separation. Although it is not clear on the evidence whether this was pursuant to a parenting order under the (CTH) Family Law Act 1975, or as the default position in the absence of an order, it matters not - on either basis he was a parent with parental responsibility whose consent would be required but for s 54(1)(c). 7 In my view, grounds for dispensing with notice to the natural father are not established. The evidence shows that there has been an ongoing, if difficult, relationship between the natural father and the child, that there has been ongoing if sometimes broken contact, and that it is intended that this continue. There is also evidence - albeit of a rather informal character, contained in the assessor's report - that suggests that, after initial opposition, he now considered the proposed adoption to be in the child's best interests, and that he has been provided with the mandatory written information, but has not read it, nor had any counselling or legal advice in respect of it. However, there is at least suggestion in the evidence that a factor in his acquiescence is a belief that, upon an adoption order being made, he would no longer be required to provide financial support for the child. 8 As things presently stand, that belief may be misconceived, although it would not be so if the applicants make an application, as they say they will if necessary, for leave to make an adoption application under Family Law Act, s 60G, which provides as follows: 60G Family Court may grant leave for adoption proceedings by prescribed adopting parent (1) Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent. (2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J. [Note: Sections 60CB to 60CG deal with how a court determines a child's best interests.] 9 It is not clear in what circumstances the applicants envisage that an application under s 60G would be necessary. As it contemplates leave for adoption proceedings to be commenced, such an application ought ordinarily be made before the adoption proceedings are commenced, or at least concurrently with them. 10 For the purposes of s 60G, a "prescribed adopting parent" is defined, in s 4, 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 The applicants are therefore plainly "prescribed adopting parents". 12 The significance of obtaining or failing to obtain leave under s 60G becomes apparent from the following provisions. Absence of leave does not prevent this court making an adoption order in respect of a child, but it limits the effect of the order. Section 60F(4) has the effect that for the purposes of the Family Law Act, the child would upon adoption cease to be a child of the marriage of the natural father and the mother if and only if leave under s 60G has been given: (4) The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent :

(a) if a court granted leave under section 60G for the adoption proceedings to be commenced - the child ceases to be a child of the marriage for the purposes of this Act; (b) in any other case - the child continues to be a child of the marriage for the purposes of this Act . 13 Section 61E has the effect that an adoption order would not affect the natural father's parental responsibility unless leave under s 60G is granted: 61E Effect of adoption on parental responsibility (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) 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 . 14 Section 65J has the effect that an adoption order would not affect any extant parenting order, unless leave under s 60G is granted: 65J 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 . 15 The natural father is prima facie entitled to notice. The only arguable basis for dispensing with it might be his apparent acquiescence, but that acquiescence is informal and does not substitute for formal notice; moreover I cannot be satisfied, on the evidence, that it is fully informed. 16 Moreover, in the absence of a grant of leave under s 60G, the intent of the child in seeking adoption will not be achieved. It is plain that an important factor in the child's mind is the legal formalising of family relationship with the applicants, but in the absence of leave under s 60G that will not really be achieved. 17 While I express no concluded view as to jurisdiction, it may well be that this court could, in exercise of the cross-vested jurisdiction of the Family Court of Australia, deal with an application under s 60G in conjunction with the adoption application [cf Mulhall v Hartnell (1988) 12 Fam LR 361; Young v Lalic (2006) 197 FLR 27, [36]-[48]]. 18 I therefore decline to make an order dispensing with notification to the natural father. It will be necessary for notice of the application to be served on the natural father of the child. 19 I direct that a copy of these reasons be provided to the applicants and to the Director-General. 20 I adjourn the proceedings to Tuesday 5 October 2010 at 0930 before me. I direct that the Director-General or appropriate principal officer serve notice of the application, and of the date time and place of the hearing, and a copy of these reasons, on the natural father by 13 September 2010. 21 The applicants should also give consideration to whether they intend to seek leave under Family Law Act, s 60G, and if so whether they wish to make that application in this court in conjunction with the adoption application, in which event it can be made returnable before me on Tuesday 5 October 2010 at 0930, when I will invite submissions on the jurisdictional issue.

Tuesday 26 October 2010 In Closed Court 22 On 6 September 2010, I declined to make an order dispensing with notification of this adoption application to the natural father for reasons given on that day, and adjourned the proceedings initially to 4 October and subsequently to today, directing that the Director-General serve notice of the application on the natural father in the meantime. 23 The affidavit of Amanda Whitbread, sworn 18 October 2010, proves service by registered post on 6 October 2010 of notice of the application, and of the amended date, time and place of hearing, and a copy of my reasons for judgment of 6 September 2010. I was concerned that the registered post receipt and the signature on it did not coincide with the appearance of the signature of the natural father on the marriage certificate. As a result, an enquiry has been made on behalf of the applicant Director-General this morning, and the court is informed that the outcome of that enquiry is that the natural father says that it is his signature, and that it must have changed in the nineteen years that have elapsed since the marriage. 24 The other concern that I expressed in my reasons of 6 September 2010 was that, in circumstances where leave had not been given pursuant to (CTH) Family Law Act 1975, s 60G, to institute these proceedings, the adoption would not have the effect that the proposed adopting parents, and more particularly the child, desired and believed that it would have. I postulated that it might be possible for this court to deal with the s 60G application in its cross vested jurisdiction, but more mature reflection and research reveals that applications under Family Law Act, s 60G are a "Special Federal Matter" within the (CTH) Jurisdiction of Courts (Cross-vesting) Act 1987, and accordingly ought not be dealt with in this court except in the presence of special circumstances, and if commenced in this court ought to be transferred to the Family Court. It is not suggested on behalf of the applicants, and it is not apparent, that there are sufficient special circumstances in this case to warrant that course. 25 Nonetheless, the applicants wish to proceed to obtain an adoption order, despite the limited effect that it will have without a grant of leave under Family Law Act, s 60G. The court is informed that the applicants understand that this has the consequence that the natural father remains, for the purposes of the Family Law Act, a person with parental responsibility for the child, and remains entitled to make applications for relief under the Family Law Act. 26 In those circumstances, being satisfied that the applicants understand the limited effect which an adoption application will have in the present circumstances, I will make the orders sought. 27 I make an order for the adoption of the child xxxxx xxxxxxxxx xxxxxx in favour of the adopting parents xxxxxxxx xxxxx xxxxx and xxxx xxxxx xxxxx. I make an order that the child have the forenames xxxxx xxxxxxxxx, and the surname xxxxx. 28 For the reasons given on 6 September 2010, it is not necessary to make an order dispensing with consent of the natural father. I have already declined to make an order dispensing with giving of notice to him, but am satisfied that such notice has now been given. 29 I will refer the matter to chambers for formal completion of the order. **********

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(1988) 12 Fam LR 361

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