Bartrell and Anor and Campton

[2011] FamCA 947

FAMILY COURT OF AUSTRALIA

BARTRELL & ANOR & CAMPTON [2011] FamCA 947

FAMILY LAW – ADOPTION – By step-parent – Whether to grant leave to commence proceedings pursuant to s 60G of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) s 60G, s 61E, s 61C, s 4(1), s 65J

Holden & Britten (2010) FamCA 197

1st APPLICANT: Mr Bartrell

2nd APPLICANT: Ms Bartrell

RESPONDENT: Mr Campton

FILE NUMBER: BRC 7785 of 2011

DATE DELIVERED: 7 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 7 October 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Dean Kath Kohler Solicitors

FOR THE RESPONDENTS: No appearance

Orders

1. Pursuant to s 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings in respect of the child B born … 2002.

IT IS NOTED that publication of this judgment under the pseudonym Bartrell and Anor and Campton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7785 of 2011

Mr Bartrell and Ms Bartrell

Applicants

And

Mr Campton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction  

1. Today I am asked to determine an application by Mr Bartrell and Ms Bartrell for leave to be granted pursuant to section 60G of the Family Law Act for proceedings to be commenced by those two applicants for the adoption of the child, B, born in 2002.  The respondent to this application is the biological father of the child, namely Mr Campton.

2. I am satisfied, on the evidence that is before me and from what I have been told by Ms Armstrong, solicitor who represents the two applicants, and in addition, having regard to the undertaking she has given that she will file within seven (7) days of today’s date an affidavit in which she deposes to service on Mr Campton of proper notice that the application was to be heard today, that Mr Campton has been served with all of the material in addition to the amended application that the applicants rely upon in support of their application today. I am satisfied that Mr. Campton was indeed aware of the hearing of the application today and also, relevantly, of the ability and facility for him to appear electronically, if necessary, as the respondent to make submissions either in support of the application or, more importantly, against it. 

3. Importantly, the applicants have read in their case an affidavit of Mr Bartrell which attaches to it a copy of a letter that was written by the respondent father, Mr Campton, addressed to the solicitors who act for the two applicants and dated 2 August 2011.  I will not read into the record all of the contents of that letter as it is already part of the evidence, but I refer to it particularly and to the note in which Mr Campton says this:

   I, [Mr Campton], relinquish all rights as the child’s biological father … I also encourage for [Ms Bartrell’s] husband [Mr Bartrell] to adopt the child as his own son and give the child the same last name as the rest of his family.  In  short, I, [Mr Campton], of sound mind hereby relinquish all my rights as the child’s biological father to [Ms Bartrell] and give her husband [Mr Bartrell] the right to adopt the child as his son and take on the family name [Bartrell].

4. In Queensland, adoption of children is governed by the Adoption Act which is a Queensland statute enacted in 2009.  Under that relatively recent legislation, new criteria were introduced in respect of applications for adoption.  The Adoption Act requires prospective adopting step-parents, such as Mr Bartrell in this instance, to satisfy two new criteria in addition to the pre-existing criteria that have to be satisfied before one of the State Courts will grant the adoption.  The two new criteria are that the relevant child is at least 5 years old and not yet 17, and secondly, that this Court has granted leave to the applicants to apply for the adoption.  Furthermore, a natural parent, such as Mr Campton, must, absent an order of the State Court dispensing with same, give his consent to that adoption.

5. Section 60G of the FLA was inserted into the Act in 1995. Section 60G(2) of the FLA makes it plain now that a decision whether to grant leave for proceedings to be commenced for the adoption of a child is actually governed by a determination of the best interests of the relevant child.

6. The failure to obtain leave from this Court to apply to the State Court for adoption has consequences under both the state legislation and the FLA itself.  Section 61E of the FLA says this:

   (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 a child. 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. The expression “prescribed adopting parent” is defined in section 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.

8. Section 65J of the FLA provides under the heading “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.

9. Thus, as Murphy J respectfully pointed out in Holden & Britten (2010) FamCA 197 at paragraph 11:

   An effect of adoption is that all parental responsibility for the children ceases, as do all other parenting orders.

10. So it is important to note that if leave is granted for the adoption application to be commenced and if Mr Bartrell and Ms Bartrell are successful in their application in the State Court for the adoption of the child, that all parental responsibility for the child in respect of Mr Campton ceases, as do all other existing parenting orders. 

11. Justice Murphy went on to say, at paragraph 22 of that decision, this:

    The question then, in my view, can be expressed this way.  Is it in the relevant 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 parenting orders being made in this Court that might involve the parent and step-parent?

12. I respectfully agree that is the question that I must consider in determining this application. 

13. The applicant, Ms Bartrell, and the respondent, Mr Campton, lived in a de facto relationship at the time that the child of that de factor relationship, B, was born.  That was, as I have already referred to in 2002.  In the first year of young the child’s life, the de facto relationship between his mother and his father ended. As I understand it, the child was about eight months old at that time.  On the evidence that is before me, it appears that it ended when on separation Mr Campton moved out of the home that he shared with Ms Bartrell. 

14. Mr Bartrell and Ms Bartrell commenced their relationship some months thereafter when the child was about 12 months old.  They have been in a relationship ever since.  The child is now nine, going on ten years of age.  Mr Bartrell moved into the same home as Ms Bartrell and the child in or about April 2003 when the child was about 14 or 15 months old and has lived together with Ms Bartrell and the child ever since.

15. On the evidence, which I accept, Mr Bartrell has acted as father to the child, effectively, since that time.  This a little different from many of the cases that come before me like this, in that it is not a situation where the child knows no other person as his father than Mr Bartrell.  Indeed, the child knows Mr Campton is his father.  That, as I understand it from the evidence, is because from the time of separation until recently, the child has spent time on and off with his father in the house that Mr Campton and his new partner and children occupy.  On the evidence that is before me, including the letter that I referred to before that Mr Campton wrote only a few months ago, there seems to have been some disputation between Ms Bartrell and Mr Campton on parenting issues.  On the evidence of Ms Bartrell and Mr Bartrell, which I accept, Mr Campton has effectively come into and gone out of the child’s life on a sporadic, irregular basis over the years since their separation. This in itself, on the evidence of the Bartrells, which I now have no reason not to accept, has been detrimental to the child’s wellbeing. 

16. Mr and Ms Bartrell, the applicants, married in 2007.  They have two children of their marriage, namely: C, born in 2008, now 3 years of age; and D, born in 2005, now 6 years of age.  The child has been brought up by Mr Bartrell and Ms Bartrell, living in the same home as them, as his two sisters have come into the world, and as their brother.  On the evidence which I accept, he has a very normal sibling relationship with those two sisters.  The evidence of the Bartrells is that Mr Bartrell acts as if he is the child’s natural father.  In all respects he seems to fill the role of father to the child and, rather unfortunately I must say, it seems as if Mr Campton, for all his own reasons, whether they be good ones or bad ones, no longer wants to have any fatherly role in young the child’s life. 

17. Having regard to the evidence before me, I have some concerns about Mr Campton’s apparent desire to no longer have any role in the child’s life.  It seems to me that the child is very well cared for and very well loved in the home of his mother and his stepfather and that his stepfather is desirous of stepping into the role of father in all respects, including in respect of all legal parental responsibility.  Mr Campton has indicated quite forcefully that he wants to surrender that and relinquish it all and that he is prepared to do that in favour of Ms Bartrell and Mr Bartrell. 

18. In all the circumstances presented to me, particularly these two things:

    a)the preponderance of the evidence in favour of the nature of the relationship that the child has with Mr Bartrell in respect of father/child relationship; and

    b)the clear evidence that Mr Campton is strongly desirous of this outcome;

    I am nevertheless prepared to determine that it is in the child’s best interests for the application to be granted.  I am comforted by knowing that it is simply the granting of leave for the applicants to commence proceedings in the State Court for the adoption of the child.  On that application the issue of whether or not it is the best thing for the child to become the adopted child of Mr Bartrell will be determined by a judicial officer there, having regard to all the matters that he or she has to consider, most particularly, whether or not Mr Campton consents to such adoption. That strengthens my view that it is appropriate to grant the leave the applicants need. 

19. In all the circumstances and for the reasons I have just outlined, I order as follows.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 October 2011.

Associate: 

Date:  7 October 2011