ANDERS & TYSON

[2010] FamCA 931

FAMILY COURT OF AUSTRALIA

ANDERS & TYSON [2010] FamCA 931

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Leave granted

Family Law Act 1975 (Cth) s 60G
Adoption Act 2009 (Qld) s 92(1)(d)

Brock & Brock [2007] FamCA 1594
Reynolds & Donaldson [2008] FamCA 518
Berry & Wratten [2010] FamCA 75

APPLICANTS: Mr and Mrs Anders

RESPONDENT: Mr Tyson

FILE NUMBER: ROC 402 of 2010

DATE DELIVERED: 11 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 11 October 2010

REPRESENTATION

THE APPLICANTS:	In person (by telephone)
THE RESPONDENT:	No appearance

Orders

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr and Mrs Anders have leave to commence proceedings for the adoption of K born … April 1998.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 402 of 2010

MR AND MRS ANDERS

Applicants

And

MR TYSON

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mrs Anders and Mr Anders that they have leave to commence proceedings for the adoption of K born in April 1998 now 12 years. Mrs Anders is K’s biological mother. Mr Anders is her husband. K’s biological father is Mr Tyson. He supports the application.

2. The Adoption Act 2009 (Qld) provides by section 92(1)(d) that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under section 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under section 60G(2) of the Commonwealth Act I am required to consider whether the granting of leave would be in K’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

3. K’s biological parents did not marry. They lived in a de facto relationship between 1993 and 2000, during which time K was born. As K’s parents were not married it is not necessary to consider section 60F(4)(a). Section 60HA(3) has the effect that if I grant leave for the adoption proceedings to be commenced K would cease to be a child of her biological parents as partners. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been granted under section 60G for the adoption proceedings to be commenced. If I grant leave to commence adoption proceedings and an adoption order ultimately is made by the State Court then Mr Tyson would cease to have parental responsibility for K. Section 65J(2) provides that a parenting order stops being in force on the adoption of a 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. It does not appear that there are any parenting orders, agreements, parenting plans or undertakings to the Court of any kind currently in force in relation to K.

4. I turn then to the matter of K’s best interests.  I will refer to the particular provisions of section 60CC to section 60CG of the Commonwealth Act which relate to the determination of a child’s best interests only to the extent as on the material may seem relevant. 

5. Mr Tyson deposes that he and Mrs Anders separated when K was about two years.  Since then he has had very little contact with her.  He has not assumed responsibility as a parent, and has spent time with her only sporadically.  The last time he spent time with her was about two years ago.

6. Mrs Anders deposes that in the past ten years or so K has spent time with Mr Tyson on only a handful of occasions, that since they separated, although Mr Tyson has been assessed to pay child support through the Child Support Agency, she requested the Child Support Agency to collect child support but that Mr Tyson consistently has been in arrears of it.  She deposes that she and Mr Anders have been together since 2000, commenced to live together in 2002 and remained living together for approximately two years.  In 2004 they separated for a brief time, however, in 2007 she and K relocated to Rockhampton and moved back in with Mr Anders and resumed the full time relationship on 27 April 2007.  They married in May 2010.  She deposes that Mr Anders has been involved in K’s life since she was two years old, that she and Mr Anders have a very close and loving relationship, that she and Mr Anders provide a very stable and loving environment for K and that whilst K does not call Mr Anders Dad when speaking to him she does refer to him as her father when speaking about him to her friends and members of their respective families.  She deposes that Mr Anders is involved in every aspect of K’s care, schooling, extra-curricular activities and her more general day to day activities.  She deposes further that Mr Ander’s mother has a very close relationship with K and considers K her granddaughter and that they spend frequent time together.  She deposes that she has discussed with K the process of adoption and its effect and that K is desirous for the adoption to go ahead and that in recent times after the marriage K sought to be known by the surname Anders to which Mr Tyson agreed.

7. Mr Tyson deposes that in his belief it would be in K’s best interests that K be adopted by Mr Anders and that he is aware how much K loves and adores Mr Anders and how close they are.  He deposes that he is aware also that if the adoption proceeds it would have effect that K would cease to be a child of his and Mrs Anders’ relationship for the purpose of the Commonwealth Act and that he would no longer have parental responsibility for K. 

8. Mr Anders, I am satisfied on all of the material, not only is fully aware of the aspect of assumption of parental responsibility but indeed has performed that role for K throughout her life since she was about two years. 

9. I am satisfied having carefully weighed all of the above matters that it is in K’s best interests that I grant the leave sought and I will do so.

10. The order will be in favour of both applicants, as sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Mrs Anders leave, as the State Act, Part 5, Division 1, section 92 contemplates application for adoption only by the step parent and not a joint application with the opposite sex biological parent who is the step parent’s spouse or partner.  Section 61E however provides that in relation to a person who had parental responsibility immediately before the adoption, upon an adoption that person’s parental responsibility ends.  If section 61E be given its literal meaning, unless Mrs Anders, the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Anders, the child’s step father.  Probably section 61E should be read down to exclude the biological parent who is the spouse or partner of the adopting step parent (if not amended to that effect) as it is an awkward proposition to think that one could apply to adopt one’s own child and indeed that is not the effect of the State Act, Part 5, Division 1, section 92.  Other judges however have taken the view that the order should be made in favour of both the step parent and the biological parent who is the spouse or partner of the step parent on the basis that otherwise upon the making of an adoption order in favour of a step father the biological mother’s parental responsibility for the child would end.  See, for example, Brock & Brock [2007] FamCA 1594 at [2] and [3] per Strickland J; Reynolds & Donaldson [2008] FamCA 518 at [2] per Strickland J; and as to the effect of s61E: Berry & Wratten [2010] FamCA 75 at [12] per Murphy J. Although thus I doubt that the mother can apply to adopt her own child, the existence of section 61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 11 October 2010.

Associate:     

Date:              15 October 2010