Breen and Fisher and Anor

[2020] FamCA 514

FAMILY COURT OF AUSTRALIA

BREEN & FISHER AND ANOR [2020] FamCA 514

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – Whether it is in the children’s best interests to permit adoption proceedings – Where the respondent biological father consents to the adoption – Order that leave be granted.

Family Law Act 1975 (Cth) s 60G, s 61E
Adoption Act 2009 (Qld)

APPLICANT: Mr Breen

FIRST RESPONDENT: Mr Fisher

SECOND RESPONDENT: Ms Breen

FILE NUMBER: BRC 3319 of 2020

DATE DELIVERED: 22 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 22 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Clark

SOLICITOR FOR THE FIRST RESPONDENT:

Mr de Brenni

Alan R de Brenni & Co

THE SECOND RESPONDENT: Self-represented

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth) leave be granted to the applicant, Mr Breen, to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the children, X born … 2011 and Y born … 2012, by their step-father, Mr Breen.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Breen & Fisher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3319 of 2020

Mr Breen

Applicant

And

Mr Fisher

First Respondent

And

Ms Breen

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Initiating Application filed on 23 March and cosmetically amended on 29 April this year, Mr Breen seeks an order pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Family Law Act”), to be granted leave to commence adoption proceedings for the adoption of his wife’s children, X born in 2011 and Y born in 2012, who are aged nine and seven respectively.  His wife, Ms Breen (formerly Fisher) supports her husband’s application.

2. The respondent to the application is Mr Fisher, who is the children’s biological father. Mr Fisher filed an affidavit in the matter in which he expresses his consent to the orders sought by Mr Breen being made.  He says that while he loves his children dearly, he understands that Mr and Ms Breen are in a “permanent relationship” and have been parenting the children and providing for them financially. 

3. Indeed, at the hearing of the application this morning, Mr Fisher is represented by a solicitor who informs the Court that his client does consent to the making of these orders, conscious that they are in the children’s best interests having regard to all the circumstances.  He also assures the Court that his client is keen to maintain a loving relationship with his two children as they grow into adulthood. I am pleased to hear that as I consider that would certainly be in their best interests.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act 2009 (Qld). It is a piece of Queensland legislation, not Commonwealth, like the Family Law Act. Under that legislation, a step-parent of a child may apply to the Chief Executive of the Queensland Department of Child Safety, Youth and Women to arrange an adoption of his or her step-child, provided that a number of preconditions are met. Those include that the step-parent is a spouse of a parent of the child; that the parent, the step-parent and the child all live together; that the adults have been spouses and both living together with the subject child for a continuous period of at least three years up to the time of the application.

2. They also include the requirement that the step-parent applicant be an adult and an Australian citizen, or at least the spouse of the applicant must be an Australian citizen. They must also reside in Queensland. The child must be at least 5 years of age and not yet 17. Finally, the step-parent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act.

3. Section 60G of the Family Law Act is as follows:

   (1)Subject to subsection 2 the Family Court 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.

4. Section 61E of the Act provides as follows:

   (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)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.

5. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to s 60G. A current parenting order stops being in force if the child is adopted.

6. I consider it sufficient to say that in proceedings for leave for proceedings to be commenced in the State court by a step-parent seeking the adoption of a child, that this Court must consider whether the granting of that leave would be in the child’s best interests, having regard to the effect of a number of other important sections of the Family Law Act.

7. Essentially, the effect of those critical sections of the Family Law Act to which regard must be had when considering the children’s best interests is that on the granting of an adoption order pursuant to State legislation, any pre-existing parental responsibility rights or rights in respect of the child spending time with or living with the other parent, immediately cease.

8. In the circumstances of this case, that will not matter insofar as parental responsibility is concerned for Mr Fisher, because Ms Breen already has sole parental responsibility for the children pursuant to Orders made by consent between the parents on 28 March 2014.

9. Mr Breen is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Family Law Act, a person within the definition contained. 

Some history of the matter

1. Mr Fisher and Ms Breen separated in August 2013. Mr Fisher returned to live in New Zealand a few months later. Parenting Orders were entered into by consent on 28 March 2014 and these provided for Ms Breen to have sole parental responsibility and for the children to spend time with Mr Fisher as agreed. As Ms Breen deposes, the children have not seen Mr Fisher since he left for New Zealand, when they were aged two and a half years and 11 months respectively.

2. Ms Breen and Mr Breen met in 2002 and they became business partners in suburban Brisbane in 2006. They began cohabitating in or around late 2013/early 2014 and their relationship developed into a de facto relationship sometime soon after. Mr Breen and Ms Breen depose in their affidavits filed in support of this application that they were, at the time of affirming their affidavits, planning on being married in 2020. This morning Mr Clark, who appears for Mr Breen, has informed the Court that indeed they did marry on that day and are now a de jure married couple.

Best interests

1. I must consider whether it is in X and Y’s best interests for leave to be granted for their step-father to commence an adoption application. In the process of considering that question, I must have regard to, relevantly, the provisions of s 60CC and s 60CD of the Family Law Act as well.

2. One of those matters that I must consider is, of course, the benefit to the children of having a meaningful relationship with both of their parents. In this case, that requires me particularly to consider the benefit to X and Y of having a meaningful relationship with their father, Mr Fisher, and their mother, Ms Breen.

3. In this case though, unlike many that I have determined pursuant to the same provisions, Mr Fisher actually supports the making of this application and has provided an affidavit in support.  He deposes to loving his children dearly but recognises that he has had a limited role in their life since he moved to live in New Zealand.  He tells the Court that he has absolutely no opposition to Mr Breen formally applying to adopt his children. Indeed, he recognises that Mr Breen has performed the role akin to a natural parent in recent years, providing his two children with much love, stability and security.

4. Ms Breen has had sole parental responsibility for the children for the last six years and Mr Fisher has not been involved in making decisions for any major long-term issues for the children. He has also not been involved in their day to day care since October 2013.

5. Mr Fisher understands that the successful adoption of X and Y would mean that he will no longer be the legal parent of the children. Mr Fisher filed an affidavit, by his solicitor, Shannon McKay, who deposes to having informed Mr Fisher of the impact of the adoption order, if it is made.  She is satisfied that Mr Fisher is fully informed in giving his consent for the order for leave to adopt to be made today.

6. Mr Breen says that he has been in the children’s lives since they were born and is integrally involved in the children’s lives on a day to day basis these days.  He deposes to having a close relationship with the children and to assisting in the day to day care of the children by driving them to and from school and their extra-curricular activities. He says he enjoys teaching the children how to ride quad bikes and horses and about livestock on a farm he owns in New South Wales. Mr Breen deposes to wanting to adopt the children so he can ensure that they are provided for financially in the future.

7. Ms Breen deposes to supporting Mr Breen’s application in “every way”. She agrees that Mr Breen has a close relationship with the children and attests that everything he says about his relationship with them in his affidavit is true.

Conclusion

1. In the circumstances, I can say that I am satisfied on the evidence that is before me that Mr Breen takes the responsibility of parenting X and Y seriously and has demonstrated, over the last six or seven years, that he is committed to undertaking and accepting all of the legal responsibilities and obligations that come with being a parent to a child.

2. Having considered all of the matters that I have just referred to and considering all the principles that I have referred to, namely the fact that I must be satisfied that the granting of leave is in the best interests of the subject children, I am satisfied that it is in X’s and Y’s best interests for Mr Breen to be given leave to be able to commence proceedings in the State courts of Queensland for an order granting the adoption of the children. 

I certify that the preceding twenty-one (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 June 2020.

Associate: 

Date:  26 June 2020