Boone & Myers (No 2)
[2025] FedCFamC1F 331
•22 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boone & Myers (No 2) [2025] FedCFamC1F 331
File numbers: CAC 216 of 2025
CAC 919 of 2025Judgment of: GILL J Date of judgment: 22 May 2025 Catchwords: FAMILY LAW – ADOPTION – Joint application by the child’s step-father and biological mother – Consent provided by other parent who is the biological mother’s former de facto partner who is on the child’s birth certificate – Where the applicants seek joint parental responsibility and a declaration of parentage – Order for adoption of the child in favour of the step-father Legislation: Family Law Act 1975 (Cth) s 60G
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4
Adoption Act 1993 (ACT) ss 5, 9, 13, 14, 26, 28, 39B, 39D, 39E, 39F and 113
Cases cited: Hanlon & Hanlon [2022] FedCFamC1F 435 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 16 May 2025 Place: Canberra Solicitor for the Applicants: Ms Parker of Parker Coles Curtis The Respondent: Did not attend ORDERS
CAC 216 of 2025
CAC 919 of 2025FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOONE
First Applicant
MS SCHMID
Second Applicant
AND: MS MYERS
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
1.It is declared that Ms Schmid and Mr Boone are the parents of X Schmid, also known as X Boone, (“the child”), born in 2015.
2.Ms Schmid and Mr Boone hold joint parental responsibility for the child.
3.All other outstanding applications are withdrawn and dismissed.
THE COURT FURTHER ORDERS THAT:
4.Pursuant to s 9 of the Adoption Act 1993 (ACT) and in the exercise of the cross-vested jurisdiction of the Supreme Court of the Australian Capital Territory, an adoption order is made in relation to X (“the child”), born in 2015, in favour of her step-parent Mr Boone.
IT IS NOTED THAT:
A.By operation of s 43(1)(c) of the Adoption Act 1993 (ACT), the adoption order does not affect the relationship between the child and the second applicant.
B.Ms Myers is no longer a parent of the child.
IT IS DIRECTED THAT:
5.A Registrar of the Court complete and certify a document in accordance with the Adoption Regulations 2015 (NSW) on the basis of the adoption order identifying the child’s parents as Ms Schmid and her adoptive parent Mr Boone, and to furnish such details as are required by those Regulations as disclosed in the evidence filed in these proceedings and including the following particulars of the child following the making of the adoption order to the Principal Registrar of Births, Deaths and Marriages in New South Wales:
(i)Name – X
(ii)Sex – female
(iii)Date and place of birth – … 2015 E Hospital
(iv)The full name of the child’s adoptive parent – Mr Boone
(v)The occupation of the child’s adoptive parent – professional
(vi)The age and place of birth of the child's adoptive parent –1988, City F, Tasmania
(vii)The date and place of marriage of the mother and the adoptive parent – … 2025 at Canberra, Australian Capital Territory
(viii)Details of previous children of the adoptive parent's relationship – nil
(ix)The name of the informant – Ms Schmid
6.That a Registrar of this Court advise the Director-General of Births, Deaths and Marriages in NSW in writing of the making of these orders.
7.That a Registrar of this Court issue a Memorandum in relation to the adoption to the relevant authorities in the Australian Capital Territory and the State of New South Wales to allow the records (if any) to be amended accordingly.
8.All other applications are dismissed.
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 a pseudonym Boone & Myers has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
These reasons concern parallel proceedings conducted under the Family Law Act 1975 (Cth) (“the Act”) and the Adoption Act 1993 (ACT) (“Adoption Act”) dealing with the step-parent adoption and parenting orders relating to X born 2015 (“X”), and, accordingly, there are two sets of orders to which they relate.
The Adoption Act proceedings form the primary proceedings and are reliant upon the vesting in this Court of the jurisdiction of the Supreme Court of the ACT by virtue of s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The applicants seek ancillary relief pursuant to the Act in the form of a declaration as to parentage, and parenting orders.
Orders were made earlier today granting leave to the joint applicants, Mr Boone and Ms Schmid, to commence proceedings for adoption in circumstances where Mr Boone is a prescribed adopting parent, being a step-parent of X, pursuant to s 60G of the Act.
Leave was also granted to allow the Initiating Application seeking the adoption order to be filed in Court this morning following the granting of leave, and for the matter to be heard immediately on the basis that the respondent, Ms Myers, was on notice of such and consents to the adoption, and on the basis that the relevant Territory authority, the Director-General of the Community Services Directorate of the ACT, has provided a report and also consents to the adoption. On the hearing of the leave application both Ms Myers and the Director-General indicated that they neither wanted to be heard further in relation to the adoption proceedings, nor to appear further in the adoption proceedings.
The background circumstances to this application are set out in the judgment delivered in relation to the s 60G leave and need not be repeated here.
X is the biological child of one of the applicants, Ms Schmid. The other parent of X is the respondent, Ms Myers. Of particular significance within those circumstances is that Ms Myers consents to an order being made for Mr Boone to adopt X and thereby displace her as a parent and that she has executed a consent in the terms required by the Adoption Act.
Material relied upon
The material relied upon for these applications was in the form of affidavits from each of the applicants and the respondent, an adoption report prepared by the Director-General, and oral evidence from Ms Schmid that demonstrated that at the time of the making of the order for adoption X was present in the ACT, as required by s 9 of the Adoption Act.
The adoption report was provided as required pursuant to s 39D of the Adoption Act. Section 113 of the same Act requires that the report not be disclosed, including to the parties, unless ordered so by the Court.
Although there are strong reasons to order release, in this case the applicants did not seek the making of an order for its release and were content to conduct the proceedings without knowledge of its content. Accordingly, no order for its release is made. Rather, consistent with s 113 of the Adoption Act, orders will be made that will retain a copy of the adoption report secure upon the court file, not to be accessed without judicial authorisation.
Principles and discussion
Before moving to consider the merits of the application for adoption, it is necessary to identify the effects of the adoption. Given that leave has been granted pursuant to s 60G of the Act, an adoption order in favour of Mr Boone will have full effect to remove the status of Ms Myers as a parent of X.
In accordance with my analysis in Hanlon & Hanlon [2022] FedCFamC1F 435, an order in favour of Mr Boone will not displace the parental status of Ms Schmid.
It should be noted that Mr Boone and Ms Schmid seek ancillary relief under the Act in relation to parenting orders and declarations. These will be discussed further below after the issue of adoption is resolved.
The Adoption Act imposes a number of prerequisite conditions to the making of an adoption order.
In accordance with the requirements of s 9, X was under 18 years of age when the application was filed, and was present in the ACT.
In accordance with the requirements of s 13 Mr Boone is ordinarily resident in the ACT, and in accordance with s 14, is on the register of suitable people maintained by the ACT, is a step-parent of X and has been granted leave pursuant to s 60G of the Act.
In accordance with s 26, relevant consent to the adoption has been given by Ms Myers, and has not been revoked within the relevant time period. Ms Schmid’s consent was not required as she is a co-applicant for the adoption order pursuant to s 28 of the Adoption Act.
Given the consent of Ms Myers, the notice requirement at s 39B has no application.
In accordance with s 39D the Director-General has provided to the Court a report on the proposed adoption. That report included consultation with X as required pursuant to s 39E.
The material demonstrates that, in accordance with the requirements of s 39F, Mr Boone is of good reputation and able to fulfil the responsibility of a parent of X including protecting her physical and emotional wellbeing. Consideration of his age and level of education does not undermine his application. His physical, mental and emotional health and capacity enable him to nurture X, again a matter supportive of the application.
Finally, as set out below, the adoption is in X’s best interests which is expressed to be the paramount consideration at s 5 of the Adoption Act. Those best interests are to be determined on a consideration of the following matters set out at s 5(2) of the Adoption Act:
(2) In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:
(a) the likely effect of the decision on the life course of the child or young person taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging;
(b) the child’s or young person’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances;
(c) the child’s or young person’s cultural, physical, emotional, intellectual, and educational needs;
(d) the views expressed by the child or young person in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision);
(e) taking into account the benefit of maintaining meaningful relationships, the likely effect of the decision on the child’s or young person’s relationship with the following people:
(i) the child’s or young person’s birth parents;
(ii) the child’s or young person’s siblings (if any);
(iii) the child’s or young person’s other relatives;
(iv) carers or other significant people in the child’s or young person’s life;
(f) the relationship the child or young person has with the adoptive parents;
(g) the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs;
(h) the alternatives to adoption for the child or young person to secure permanent family arrangements;
(i) the continuity and sense of belonging that comes from a child or young person having stable emotional and physical living conditions;
(j) the need to protect the child or young person from physical or psychological harm associated with exposure to abuse, neglect or family violence.
Consideration
The adoption is consistent with the anticipated life course of X as a part of her family group. It reflects the long-term arrangements that she will be raised by Mr Boone and Ms Schmid, in a family group with her two siblings, and with Mr Boone and Ms Schmid together providing support for X’s development. The adoption appears likely to enhance X’s sense of belonging as being a member of the family in all possible ways, and as Mr Boone being fully identified as her father.
X is currently aged 9 years. The report indicates limited interest, at this point, for X in terms of her biological background. It reveals, however, an enthusiasm on X’s part for the adoption and formalisation of her relationship with Mr Boone. Without considering that X has a full understanding of the legal ramifications, her hope and desire to be in all senses a part of the family and Mr Boone’s child, is apparent and demonstrates a relevant, even if incomplete understanding of the effect of adoption.
Both Mr Boone and Ms Schmid have a demonstrated capacity to provide for X’s physical, emotional, intellectual and educational needs, with no particular cultural needs being identified. They provide a supportive home environment, support X in school and extra-curricular activities and have embedded her in their wider families.
As noted above adoption accords with the views expressed by X. It is consistent with the relationship that X has with Ms Schmid and Mr Boone, as she regards them both as her parents. Focussing on the relationship with the adopting party, it appears to be close, supportive and loving.
Whilst parenting orders could provide some security in what is already a parent-child like relationship, adoption takes the matter a step further in giving the relationship full recognition at law as being a relationship between parent and child. It gives the strongest stability to the arrangements for X’s care and development, within a family group that will be protective of X from harm, abuse, neglect and family violence.
These matters collectively indicate that an order providing that Mr Boone adopt X is in her best interests.
Ancillary relief
The applicants seek various further orders to provide for amendment of the birth certificate and to provide notice to relevant authorities. Orders will be made that are facilitative of such.
Family Law Act relief
The applicants who, by virtue of the adoption order are the parents of X, seek further orders under the Act, to ensure the appropriate allocation of parental responsibility following the making of the adoption orders. They seek, further and allied to such, a declaration as to their status as X’s parents.
The particular orders for parental responsibility sought are for joint parental responsibility, the default position under the Act. The making of such an order ensures no uncertainty for X following the adoption and is both by consent and consistent with her best interests.
Similarly, in circumstances where there is some divergence of judicial view as to the effect of step-parent adoption, the making of a declaration sets the effects of the adoption order, and brings clarity to the parentage for X. Those circumstances make it appropriate to grant the declaration and provide security for X and her parents in terms of their joint status.
Finally, an order has been made to waive the filing fee, noting the connected nature of the application, and orders to waive the hearing fees for each.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 22 May 2025
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