Acker & Anor and Denniss

[2016] FamCA 1139

FAMILY COURT OF AUSTRALIA

ACKER AND ANOR & DENNISS [2016] FamCA 1139

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the respondent biological father is deceased – Order that leave be granted

Family Law Act 1975 (Cth) s 60G, s 61E
Adoption Act 2009 (Qld)

FIRST APPLICANT: Mr Acker

SECOND APPLICANT: Ms Adams

RESPONDENT: Mr Denniss

FILE NUMBER: BRC 528 of 2016

DATE DELIVERED: 4 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 4 April 2016

REPRESENTATION

THE FIRST APPLICANT: In Person

THE SECOND APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Mr Acker and Ms Adams, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child B ACKER (born ADAMS) born … 2003, by her stepfather, Mr Acker.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Acker and Anor & Denniss has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 528 of 2016

Mr Acker

First Applicant

And

Ms Adams

Second Applicant

And

Mr Denniss

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed in January of this year, Ms Adams (now Acker) and her husband, Mr Acker, seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth), they be granted leave to commence adoption proceedings for adoption of Ms Acker’s child, B Adams born in 2003, by her stepfather and the husband of Ms Acker, Mr Acker. The child is now referred to formally as B Acker, the mother having informed the court this morning that she has recently changed her surname from Adams to Acker. The child is now 12 years of age and soon to turn 13.

2. The person named as the respondent to the application is Mr Denniss, who Ms Acker deposes is the child’s biological father.  Mr Denniss is, however, now deceased, having passed away some time in or just prior to 2012.  The child has a birth certificate, a copy of which is exhibited to Ms Acker’s affidavit and adduced into evidence.  The birth certificate does not record any named person as the father. 

3. In Queensland, the adoption of children is governed by the Adoption Act 2009, which is a piece of Queensland legislation.Under that legislation a stepparent of a child may apply to the Chief Executive of the Department of Communities, Child Safety and Disability Services to arrange an adoption of his or her stepchild, provided the stepparent is a spouse of a parent of the child; the parent, the stepparent and the child live together; and the adults have been spouses and both living together with the subject child for a continuous period of at least three years up to the time of the application.

4. The stepparent applicant must also be an adult and an Australian citizen or the spouse of the applicant must be an Australian citizen. They must also reside in Queensland, not be of the same gender as their spouse, and the child must be at least 5 years of age and not yet 17. Finally, the stepparent must have been granted leave to proceed with the adoption application by this court pursuant to s 60G(1) of the Family Law Act.

5. Section 60G of the Family Law Act provides as follows:

   (1)Subject to subsection 2 the Family Court 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.

6. 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)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.

7. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to s 60G. A current parenting order stops being in force if the child is adopted.

8. I consider it sufficient to say that in proceedings for leave for proceedings to be commenced in the State court by a stepparent seeking the adoption of a child, this Court must consider whether the granting of that leave would be in the child’s best interests, having regard to the effect of a number of other important sections of the Family Law Act.

9. Mr Acker is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Family Law Act, a person within the definition contained. 

10. Essentially, the effect of those critical sections of the Family Law Act to which regard must be had when considering the child’s best interests is that on the granting of an adoption order pursuant the State legislation, any pre-existing parental responsibility rights and rights in respect of the child spending time with or living with the other parent, immediately cease. 

11.In this particular case, there is no evidence of any parenting order being in place.  The evidence is that the biological father of the child is deceased.  The applicants have been limited in what information they can put before the court by way of evidence supporting that proposition, however, Ms Acker has deposed to the fact that she learned of the death of the child’s father in or around 2012 simply by seeing it on Facebook.  She deposes to having made contact with Mr Denniss’ family to ascertain whether or not the child could attend his funeral and she deposes to receiving nothing other than negative responses from them, apparently based on no doubt their grief at the loss of their loved family member, but also the fact that Mr Denniss had remarried and had children by his new wife who did not know that he had a child with Ms Acker. 

1. Ms Acker has, being the only surviving parent of the child, all parental responsibility for the child pursuant to s 61C(1) of the Family Law Act.

2. The test for me to consider this morning is whether it is in the child’s best interests for leave to be granted for her stepfather, Mr Acker, to commence an adoption application. In the process of considering that question, I must have regard to, relevantly, the provisions of ss 60CC and 60CD of the Family Law Act as well.

3. Section 60CC (3) includes a list of many things that must be considered by the court in determining what is the best interest of the child. It includes importantly any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that go to the weight that should be given to any of those views expressed by the child that the Court thinks are relevant.

4. Having read Ms Acker’s affidavit I have to say that there was not much said in it about the mother’s relationship with Mr Denniss, except to say that he had spent some time with the child on and off whilst he was alive and after the child’s birth, and for some time he lived in a spare room for a time when he was unemployed at Ms Acker’s house.  I infer from that evidence that that was before Ms Acker took up a relationship with Mr Acker.  I have been told by Ms Acker from the bar table this morning that after she commenced a relationship with Mr Acker, Mr Denniss had no relationship or contact with the child whatsoever, it having dropped off to nothing after he moved out of the residence in which Ms Acker and the child were living.

5. The evidence, which I accept, is that the child has as a result not seen her father since she was four years old, which is now nearly 12 years ago.  Ms Acker says she has not been able to prove the death of Mr Denniss in any more formal way, such as by exhibiting a copy of the death certificate, as she deposes to trying to do so but experiencing difficulties in obtaining a copy because she is not able to formally prove the relationship between Mr Denniss and the child given that Mr Denniss is not registered as the child’s father on her birth certificate.

6. As I have said, not even the exact date of death of Mr Denniss is able to have been deposed to by Ms Acker as she simply learned of it after his death, but before his funeral, through some Facebook posting she observed.  Nevertheless, it seems that the Australian Government, through the Child Support Agency in particular, has accepted Mr Denniss’ death.  That is evidenced by a letter that Ms Acker exhibits to her affidavit from the Child Support Agency dated 6 June 2013 in which they communicate to Ms Acker their sympathy at the loss of Mr Denniss and having closed the case for Ms Acker to receive child support from Mr Denniss for the child as of 3 January 2012.

7. Having regard to the evidence that I have just referred to, I do accept and make a finding, to the extent that it is necessary, that Mr Denniss, the child’s biological father, is deceased and that consequently his consent to the making of an order pursuant to s 60G of the Family Law Act or indeed in respect of the application for Mr Acker to adopt the child in the State court, is not required.

8. In respect to other relevant matters, Ms Acker met Mr Acker in the second part of 2008.   They commenced their relationship around the time they met and within several months they took up cohabitation together.  They have been living together for about six or seven years. As they proudly informed me this morning, they married recently, towards the end of 2015, and they happily have had a child of their own together now, a little boy named C. They own a house together in Suburb D where the child lives with them and her little brother C.  She has her own bedroom in that house and according to what I have read, is a very happy and content member of this family unit.   

9. Mr Acker is also the father of two other sons who are 10 and 14 years of age, that were born of a previous relationship.  He has regular contact with those two boys, they stay with him and Ms Acker in Suburb D every third weekend and for half of each of the school holidays. Ms Acker says in her affidavit that the children, including those two boys, have loving sibling relationships despite of course sometimes having the usual sort of brother and sister “spits” as she describes them.

10. The evidence also discloses that the child also has a loving relationship with Mr Acker’s parents and his siblings and actually calls them “Grandma and Poppy” and “Aunty and Uncle” respectively even though they are not biologically related. She receives Christmas presents in the mail from them along with the other children and she writes to them, sending them photos and speaking to them often on the phone.

11. Indeed the application by Mr and Mrs Acker is supported by an affidavit of Mr Mr E Adams who is Ms Acker’s father.  He says, in what can be described as a very short affidavit, some very positive things about Mr Acker and his daughter, his perception of their relationship and indeed his perceptions of the child and the child’s relationships with Mr Acker and with her stepbrothers who are Mr Acker’s children.

12. The child has been living with her mother since she was born, and now also with Mr Acker from the age of about six.  When she was seven, apparently according to the evidence which I accept, she asked Mr Acker if she could call him “Dad” and he gave her permission to do so.  Apparently she was very pleased to be able to do that and indeed his sons, on the evidence, were pleased to be able to call the child their sister from that time on.  Ms Acker says that Mr Acker and the child have an affectionate relationship and that Mr Acker involves himself in as much of the child’s educational and extracurricular life as he possibly can, work permitting. In particular, he enjoys going to her singing events which take place at the school.

13. Mr Acker has sworn an affidavit in which he deposes to his love and commitment to his partner Ms Adams and to her biological daughter the child who he now regards as his daughter as well. 

14. I am satisfied on all of the evidence that it is in the child’s best interests for the applicants to be able to proceed with their desired course, namely to file an application for stepparent adoption in the State Courts and for it to be considered in those courts in accordance with the State adoption legislation and I order accordingly

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 April 2016.

Associate: 

Date:  20 January 2017