Blue and Busby

[2010] FamCA 702

FAMILY COURT OF AUSTRALIA

BLUE & BUSBY [2010] FamCA 702

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)

Saunders & Best [2010] FamCA 654

FIRST APPLICANT:	Mr Blue
SECOND APPLICANT:	Mrs Blue

RESPONDENT: Mr Busby

FILE NUMBER: BRC 6187 of 2010

DATE DELIVERED: 10 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 10 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Owens

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Blue has leave to commence proceedings for the adoption of C born … August 2001.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:    BRC 6187 of 2010

MR BLUE

First Applicant

And

MS BLUE

Second Applicant

And

MR BUSBY

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act1975 (Cth) by Mr Blue that he have leave to commence proceedings for the adoption of C born in August 2001 now nine years. Mrs Blue is C’s biological mother and the husband of Mr Blue. She supports the application. C’s biological father is Mr Busby. He also supports the application and indeed offers his consent to it.

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 Act1975 (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 C’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

3. C’s biological parents married in July 1997. They were divorced on 2 October 2004. Section 60F(4)(a) has effect that if I grant leave for adoption proceedings to be commenced C would cease to be a child of the marriage of the biological parents. Section 60HA does not apply as C’s biological parents were not de facto 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 Busby would cease to have parental responsibility for C. 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. Mrs Blue 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 C. There is however a personal agreement between C’s biological parents to the effect of which I need not presently refer.

4. I turn then to the matter of C’s best interests. I will refer to the particular provisions of section 60CC to section 60G 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 Busby deposes that he and Mrs Blue separated in about February 2003 when C was about one and a half years.  He saw C from time to time for about six to eight months but then moved to Melbourne.  Subsequently he travelled to Brisbane a few times to spend time with her but then decided he would cease that because of considerable acrimony between himself and Mrs Blue.  He has not seen C since she was about three years.  He consented in early January 2007 for C’s name to be changed to Blue.  He deposes that, having taken legal advice, he consents to the adoption and thus also to the grant of leave to commence proceedings for the adoption.

6. Mr Blue and Mrs Blue have been married since April 2006 about four and a half years.  C thus has lived with them for that period.  They have two other children L born in August 2006 nearly four years and A born in May 2009 one and a half years.  The three siblings enjoy a very close relationship.

7. Mr Blue has provided for C since he and Mrs Blue married, emotionally financially and physically including private school fees and for extra curricular activities including horse riding and swimming.  C has a close relationship with her maternal grandparents and also her step paternal grandparents as well as three cousins.  C is aware that Mr Blue is her stepfather and recently has begun to ask questions about that.  Mrs Blue deposes that she is aware that C will be interviewed by Adoption Queensland if leave to commence adoption proceedings is granted.

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

9. I note that Mr Blue applies solely for leave to commence the step parent adoption proceedings.  I will therefore make the order in his name.  In some other cases both the step parent and spouse have applied. In relation to such cases I would refer to my observations in, for example, Saunders & Best [2010] FamCA 654 at [21]. However, in this particular case, as Mr Blue solely has applied for leave to commence the proceedings that is the order which I will make.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:     

Date:              13 August 2010