Boone & Myers
[2025] FedCFamC1F 327
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boone & Myers [2025] FedCFamC1F 327
File number(s): CAC 216 of 2025 Judgment of: GILL J Date of judgment: 16 May 2025 Catchwords: FAMILY LAW – ADOPTION – Joint application by the biological mother and step-father – Where the applicants seek leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) – Consent provided by other parent who is the biological mother’s former de facto partner who is on the child’s birth certificate alongside the biological mother – Consideration of the child’s best interests pursuant to s 60CC – Leave granted Legislation: Adoption Act 1993 (ACT) s 14
Births, Deaths and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth) ss 60CC, 60F, 60G, 60H, 60HA, 61E, 65G and 65J
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 25
Adoption Regulations 1993 (ACT)
Cases cited: Brucedale and Anor & Vaulks [2020] FamCA 143
Poulter and Anor & Lenton (2012) 46 Fam LR 623; [2012] FamCA 154
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 16 May 2025 Place: Canberra Solicitor for the Applicants: Ms Parker, Parker Coles Curtis The Respondent: Did not attend ORDERS
CAC 216 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOONE
First Applicant
MS SCHMID
Second Applicant
AND: MS MYERS
Respondent
DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE
Other
ORDER MADE BY:
GILL J
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 60G of the Family Law Act 1975 (Cth), the applicants are granted leave to commence adoption proceedings for X, born 2015, by Mr Boone.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boone & Meyers has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J:
The application, made by both Mr Boone and Ms Schmid, who are married, concerns leave for Mr Boone to commence adoption proceedings in relation to X, born 2015, pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”). Mr Boone is X’s step-parent and accordingly, a prescribed adopting parent for the purposes of the Act.
Ms Schmid and Mr Boone commenced a relationship after November 2018, entered into a de facto relationship in June 2019, and married in 2025. They have had two children together, B aged 5 and C aged 1 year. Mr Boone first met X in January 2019.
X is the child of Ms Schmid and the respondent, Ms Myers. Ms Schmid, who gave birth to X, and Ms Myers were in a de facto relationship at the time of X’s conception by intrauterine insemination and birth and are her parents by operation of s 60H of the Act.
The relationship between Ms Schmid and Ms Myers ended in around June 2016 when X was an infant.
Ms Myers has given her support both to leave being granted to the applicants to commence adoption proceedings and that Mr Boone be permitted to adopt X in any subsequent adoption proceedings.
The legislative scheme
Where, as here, the proposed adoption of a child is by that child’s step-parent, both the Act and the Adoption Act 1993 (ACT) (“Adoption Act”) impose a requirement that leave be given for the adoption to take place. That leave is governed by s 60G which is in the following terms:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), the Supreme Court of the Northern Territory or the Family Court of a State 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.
Note:Sections 60CB to 60CG deal with how a court determines a child’s best interests.
By operation of s 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) this Court has jurisdiction in relation to this application following its transfer from Division 2 of the Federal Circuit and Family Court of Australia.
The granting of leave has importance for a number of reasons.
Section 60F(4) of the Act provides that where leave is given pursuant to s 60HA(3), then on adoption X would cease to be a child of the de facto relationship of Ms Schmid and Ms Myers. If leave is not obtained prior to the making of the application then a subsequent adoption order does not have this effect.
Section 61E relates to the ending of a person’s parental responsibility on adoption of a child. Section 65J relates to adoption bringing extant parenting orders to an end. Neither of these provisions have that effect if the adoption is by a step-parent and leave has not been granted pursuant to s 60G.
Leave is further a matter of importance due to the operation of s 14 the Adoption Act which requires that, for a step-parent to adopt, permission pursuant to s 60G must have been given.
Accordingly, for adoption to have its full effect in this case, or even to be able to take place at all, it is necessary that leave be given.
As set out in s 65G, the requirement for the granting of leave is that it be in X’s best interests, which are to be determined on consideration of the matters set out in s 60CC insofar as they are relevant to the case, in the context of the effects of adoption.
X’s history
The application occurs in the context of the breakdown of a previous de facto relationship between Ms Schmid and Ms Myers, as well as circumstances where Ms Schmid is the only known biological relation to the child, who was conceived through an anonymous sperm donor.
Ms Schmid and Ms Myers commenced a relationship in mid-2011 and commenced cohabitation in Sydney towards the end of 2012. During their relationship, they chose to have a child and did so through a fertility clinic and sperm donation. The sperm donor was anonymous and unknown and does not form part of these proceedings.
By s 60H Ms Schmid and Ms Myers are X’s parents, a matter reflected in X’s birth certificate as issued pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW).
In or around June 2016 Ms Schmid and Ms Myers separated, with arrangements for X to live with Ms Schmid, spend some time with Ms Myers each week during the daytime, and for Ms Myers to pay an agreed amount of child support. Ms Myers subsequently relocated to Country D for about twelve months when X was aged about one year. During this time Ms Myers FaceTimed X each month or so. After returning to Australia, Ms Myers continued with occasional FaceTime communication. The last in-person time that Ms Myers and X have shared was in about June 2017 prior to Ms Myers moving to Country D.
Ms Myers describes that at the end of 2019 she decided to have no further contact with X, having previously observed that the relationship with X had “dwindled” and that X appeared confused at their relationship.
Between November 2018 and June 2019, the applicants commenced a relationship and then commenced cohabitation. Arising from this relationship are two biological children, B, born 2019 and C, born 2024. Neither of these children are the subjects of these proceedings.
In October 2019 Ms Myers wrote to Ms Schmid expressing that she would relinquish her role as X’s parent.
In January 2022 Ms Myers advised Ms Schmid that she would consent to X being adopted by Mr Boone.
In October 2023 Ms Myers executed a Limited Consent for X to be adopted by Mr Boone, purportedly pursuant to the Adoption Regulations 1993 (ACT). However, the execution of that document did not comply with the necessary requirements, leading to Ms Myers executing a further such document in November 2024 in a manner compliant with the Regulations, including as to the provision of legal advice as to the implications of adoption and the legal consequences of signing the document.
An application for leave was filed on 10 February 2025. Although initially primary relief in the form of an adoption order was pursued in that application, that aspect of the application was discontinued to be pursued again should leave be granted to commence the application for step-parent adoption. At that time it was indicated to the parties that should leave be granted at the next scheduled listing of 16 May 2025 that an application for adoption could also be determined on that date.
At the listing on 12 May 2025 Ms Myers appeared and indicated her agreement to both leave being granted, and to an adoption order being made. Ms Myers further advised that she wished to appear no further in the proceedings, although she was advised that arrangements would be made to enable her to, should she so choose.
X’s current circumstances
As noted above, X has been raised predominantly by Ms Schmid her whole life. From November 2018, when X was about three years old, she has known Mr Boone, and has lived with he and Ms Schmid since June 2019.
Her first sibling, C, was born when X was about four, and then B one year ago.
Mr Boone treats X as his daughter, in the same manner that he regards C and B. Since C was born X has expressed that she wants Mr Boone to be her father, and has called him “dad”. Neither Ms Schmid nor Mr Boone have imposed this notion of fatherhood onto X who, it appears, has instigated the notion that Mr Boone should be her father.
Ms Schmid describes that Mr Boone functions in every manner as X’s father, save for as to the legal status of that relationship. She, and he, describe a warm, caring, nurturing and loving relationship representing the discharge of parental responsibilities by Mr Boone toward X.
Further Ms Schmid describes her relationship with Mr Boone, in terms that indicate stability, a capacity to work through disagreements, cooperation, and a supportive, caring and warm relationship. That is reflected not only in the duration of their de facto relationship, but also in the fact that they have recently married.
Best interests
The determination of whether to grant leave for step-parent adoption is one that is reliant on X’s best interests. Those are to be determined through the considerations set out at s 60CC of the Act which are as follows:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Before discussing these matters it is important to identify the substance of what is sought here. Although the application is for leave to commence proceedings, rather than for the adoption itself, it forms the gateway to adoption.
The issue in determining whether leave is in the best interests of the child is as identified in Brucedale and Anor & Vaulks [2020] FamCA 143 at [7]:
Their best interests are to be considered in the light of s 60CC of the Act. That is, is it in their best interests to open the gateway to consideration of whether it is also in their best interest to make an adoption order.
In Poulter and Anor & Lenton [2012] 46 Fam LR 623 at [24], Murphy J put the issue in the following manner:
The question then, in my view, can be expressed in this way: is it in the relevant child or 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 orders being made in this Court that might involve the parent and step-parent?
Adoption, if ordered, will change X’s parents from Ms Schmid and Ms Myers to Ms Schmid and Mr Boone, in a permanent change. Adoption changes X’s legal status within her family, and changes who bears responsibility for her, and who has the right to make decisions on her behalf. The granting of leave occurs as a recognition that, subject to direct consideration of an adoption application, this adoption appears to be in X’s best interests.
There are significant factors that lead to a conclusion that it is in X’s best interests to grant leave for the adoption application.
It is significant that Ms Myers agrees to the adoption. A child’s parents are important to who a child is, and to a child’s identity. Ms Myers’s acknowledgement that she does not, and will not function in the role as X’s parent, and that she would relinquish that status place this application into a very different category to the situation nowhere the other parent resists such an outcome.
The family into which X would join is a place of safety for X. It is a place where X’s developmental, psychological, emotional and cultural needs can, and in all likelihood, will, be met. Mr Boone has demonstrated the capacity to meet those needs.
X wants to have Mr Boone in all senses as her father.
Finally, the apparent stability of the union between Ms Schmid and Mr Boone are suggestive that the circumstances pointing toward the adoption are enduring.
These matters point toward the grant of leave for the consideration of adoption as in X’s best interests.
Conclusion
Leave will be granted for Mr Boone and Ms Schmid to commence proceedings for the adoption of X by Mr Boone as her step-parent.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 16 May 2025
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