Beard and Coates

[2010] FamCA 265

FAMILY COURT OF AUSTRALIA

BEARD & COATES [2010] FamCA 265

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Child’s biological father in prison – Child’s biological father does not oppose the adoption – Child’s best interests – Child’s opportunity to develop appreciation for her Aboriginal culture – Existing adoption proceedings affected by recent commencement of the Adoption of Children Act 2009 (Qld) – Leave granted

Family Law Act 1975 (Cth) ss 60G(1), 60G(2), 60F(4)(a), 60HA(3)(a), 61E, 65J, 60CC, 60CG
Adoption of Children Act 1964 (Qld) [repealed]
Adoption of Children Act 2009 (Qld) s 92(d)

APPLICANTS: Mr and Mrs Beard

RESPONDENT: Mr Coates

FILE NUMBER: ROC 568 of 2007

DATE DELIVERED: 16 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 16 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McLennan

SOLICITOR FOR THE APPLICANT: Anne Murray & Co

THE RESPONDENT: In person

Orders

1. The application in a case filed on 10 February 2010 be treated as an initiating application and the amended application in a case filed on 9 March 2010 be treated as an amended initiating application. 

2. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Beard has leave to commence proceedings for the adoption of H born … May 1996 by him.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 568 of 2007

MR AND MRS BEARD

Applicants

And

MR COATES

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 60G(1) of the Family Law Act 1975 (Cth) by Mr Beard and Mrs Beard that Mr Beard have leave to commence proceedings for the adoption of H, born in May 1996, who is now 13 years and will become 14 years in May 2010. H’s biological father, Mr Coates, has been served with the application and supporting material. Mr Coates presently is in prison and will be eligible for parole in 2013. Mr Coates has appeared today by telephone.

2. Whilst Mr Coates does not consent to leave being granted, I have explained to him the statutory factors and matters involved and he has said that he does not oppose the grant of leave to commence the adoption proceedings or indeed the adoption itself.  Mr Coates and H’s biological mother, Mrs Beard, were in a relationship for a few years before H’s birth in 1996, but parted ways before her birth.  Mr Coates was present at H’s birth but has seen little of her since.

3. In 1998, Mr Coates was convicted of a serious crime and commenced the prison term which he is presently serving.  H, however, spends time with and has telephone communication with Mr Coates’ biological family including her paternal grandparents, Mr and Mrs Coates (Snr), Mr Coates’ sister, the child’s Aunty, and brother, whom H calls by the nickname “Uncle Dumbo”.

4. Proceedings had been commenced in Queensland in 2007 for H’s adoption under the Adoption of Children Act 1964 (Qld). However, that Act was repealed, effective 1 February 2010, and replaced, effective on the same date, by the Adoption of Children Act 2009 (Qld). The 2009 Act provides, by s92(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 s60G(1) of the Family Law Act 1975(Cth) and other matters. Under s 60G(2) of the Commonwealth Act, I am required to consider whether the granting of leave would be in H’s best interests, having regard to the effect of s 60F(4)(a) or s60HA(3)(a), and ss61E and 65J.

5. As to those matters, s60F(4)(a) is not applicable as H is not the biological child of Mr Beard and Mrs Beard. Section 60HA deals with de facto relationships and is not applicable, as Mr Beard and Mrs Beard have been married for 11 years. 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 s60G for the adoption proceedings to be commenced. Today I have explained to Mr Coates, and I am satisfied that he understands, that if I grant leave for the adoption proceedings to be commenced and they proceed to result in an adoption his parental responsibility for H will cease. Further, I am satisfied, from Mr Beard’s affidavit, that willingly he would assume parental responsibility for H.In particular, at par 15, he has deposed that he seeks leave of the Court to commence the adoption proceedings so that H not only will have financial and emotional security but also the legal security of knowing that she, like Mr Beard’s other daughters K born in January 1999 and A born in March 2002, is “100 percent my child”. Mr Beard said further that he seeks to adopt H also so that should her mother predecease her she will not be separated from himself or her sisters. 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 s60G for the adoption proceedings to be commenced. Mrs Beard, in compliance with directions given by Registrar Kane, has deposed that there are no parenting orders, agreements, parenting plans or undertakings to the Court of any kind currently in force between the parties or otherwise relating to H. Earlier, there were parenting proceedings in the Federal Magistrates Court between the paternal grandparents and Mr and Mrs Beard, however, they were finalised by a notice of discontinuance filed on 1 September 2009 without any resultant final parenting orders.

6. I turn then to the matter of H’s best interests.  I will refer to the particular provisions of ss60CC to 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. 

7. H, on the material, has a close relationship not only with her biological mother but with Mr Beard and her half siblings K and A, who are nine and seven years respectively.  Mr and Mrs Beard have been in a relationship now for about 13 years and have been married for 11 years.

8. H, in effect, has no relationship with Mr Coates, her biological father.  The background circumstances to that already have been mentioned.  It is clear on the material, however, that the door is open to her to have a relationship with Mr Coates if in the future she should wish to contact him.  There is not specific reference in the material to child support.  The material includes that H is keen to have the adoption proceed.  Already, she has legally the same surname as her siblings and to date has expressed frustration only at the legality of the process but wants it to occur.

9. On each side of H’s biological tree she has Aboriginal descendency.  In relation to her mother, by living with and growing with her and her half siblings, she has opportunity to be exposed to and understand her Aboriginal culture stemming from that side.  In relation to her biological father, whilst his imprisonment presently inhibits direct exposure to her Aboriginal culture on his side by direct time with him, as mentioned she is spending time with her biological paternal grandparents and aunt and uncle.  Further, her relationship with them appears to be meaningful. 

10. In a family report prepared in the earlier Federal Magistrates Court proceedings, Mr S, psychologist, at pars 105 and 106 referred to H’s cultural connections and observed that she may prefer at this point primarily to identify with her mother’s household and have occasional contact with her natural father’s family and culture. At par 121, he recommended that H be provided with opportunities to spend time with her paternal grandmother.  Further, at par 123, he recommended that the paternal grandmother and her family provide Mrs Beard, the mother, with information and suggestions as to what might be appropriate by way of cultural development or experience for H as she grows older.  I am satisfied on the evidence that, to the extent presently possible, H is exposed to and has opportunity to develop appreciation for her Aboriginal culture on her paternal biological side as well as her maternal biological side.

11. As mentioned, the adoption process was commenced with the State authority in 2007 under the now repealed legislation.  The effect of the new 2009 State Act has necessitated this application.  It is not for me to concern myself with the question whether the existing application, under transitional provisions, is continued or whether the existing application be treated as a new application under the 2009 Act or indeed, whether Mr and Mrs Beard will be required to bring a new application.  That is a matter for State law.

12. For the purposes of the Commonwealth law I am satisfied in all of the circumstances that it is in H’s best interests that I grant the leave sought, and I will do so. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:                 

Date:              13 April 2010