Budd and Allison

[2008] FamCA 1048

FAMILY COURT OF AUSTRALIA

BUDD & ALLISON [2008] FamCA 1048

FAMILY LAW – ADOPTION – Application by mother and step-father pursuant to s 60G seeking leave to commence adoption proceedings – where application supported by biological father – consideration of child’s best interests – leave granted

Family Law Act 1975 (Cth) ss 60CC & 60G

APPLICANTS: Mrs and Mr Budd

RESPONDENT: Mr Allison

FILE NUMBER: ADC 1991 of 2008

DATE DELIVERED: 14 November 2008

PLACE DELIVERED: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: In person

SOLICITOR FOR THE APPLICANTS:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That leave be granted pursuant to Section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of … born … August 1996 (“the child”) by the Applicants MRS BUDD and MR BUDD.

2. That the Initiating Application filed 21 October 2008 be otherwise dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1991 of 2008

MRS AND MR BUDD

Applicants

And

MR ALLISON

Respondent

REASONS FOR JUDGMENT

1. I have before me today an Initiating Application filed by Mrs Budd and Mr Budd on 21 October 2008 in which they seek an order from this Court granting them leave to proceed with the adoption of the child who was born in August 1996. 

2. The application has been properly served on the biological father of the child, Mr Allison, and indeed he appears in person today.  He has indicated that he supports the application and he does so with the full knowledge that it will extinguish all of his parental rights, duties and responsibilities and by doing so will no longer at law, once the adoption proceeds - if indeed it does proceed and it is successful - be considered to be the child’s parent.

3. The application is made pursuant to Section 60G of the Family Law Act. By some strange quirk of legislative reasoning it is necessary for there to be permission from this Court to pursue an application for adoption before the more formal adoption proceedings can then be pursued.

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

   Section 60G

   (1)Subject to subsection (2), the Family Court, 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.

   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) and of sections 61E and 65J.

5. While the Court must consider the child’s best interests in considering whether to grant leave for adoption proceedings, Section 60G does not provide that the best interests of the child are the paramount consideration and thus there is no requirement to consider section 60CC in determining the child's best interests. However, in my view it is a useful guide in determining and establishing what is appropriately in the child’s best interests before granting leave.

6. There is no need, in my view, to consider Section 60CC in detail. Section 60CC is divided into Primary Considerations and Additional Considerations. The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. The second of those provisions is not relevant to my determination of this application.  The first is in the sense that, given Mr Allison’s acknowledgment that the child’s best interests would be served by remaining in the secure family environment which she presently enjoys, the meaningful relationships that the child presently enjoys and should be entitled to continue to enjoy, are those with Mr and Mrs Budd.

8. In his Affidavit filed on 21 October 2008 Mr Budd details the history of the development of his relationship with Mrs Budd, the other applicant, and hence with the child.  He deposes to the fact that he has known the child since July 1998 meeting her just prior to her second birthday.  The child is now 12 years of age and hence Mr Budd has been a significant figure in the child’s life for the past 10 years.

9. After a relatively short period of time Mr and Mrs Budd married; namely in August 1999.  He describes in his Affidavit a developing relationship.  He describes many activities enjoyed by himself with the child and generally as a member of this family group. 

10. It is clear from that Affidavit that he enjoys a close and affectionate relationship with the child, a fact clearly acknowledged by Mr Allison in taking the stance he has in these proceedings.  Mr Budd describes some learning difficulties from which the child suffers and describes further the assistance he has provided as a family member in helping her deal with those issues.  He deposes to the special times they have together, and in fact they have their own description of it which they call “[Child] and Daddy time”, where they undertake special activities together.  He has regularly, and does regularly, take the child to school and pick her up from school.

11. The child now also enjoys having a baby sister who was born to the Applicants in August 2001.  Mr Budd describes the emotional and financial security that they have been able to achieve and which would be better fulfilled if leave is granted to them to pursue adoption of the child.

12. These matters become particularly relevant and support the granting of the application when considering the additional considerations pursuant to Section 60CC of the Act. Whilst there is no indication in the documentation of the child’s views directly, I believe I am entitled to infer from the material before me that it would be the child’s wish to - if indeed she understood the full legal consequences of all of these proceedings - be a formal and legal member of the family group in the sense of having Mr Budd as her acknowledged legal father, should the adoption proceedings be successful.

13. I have considered all of the other provisions which, in general, require me to consider the nature of the relationships of the child with relevant adults.  The matters that I referred to from Mr Budd’s affidavit clearly support the making of the orders being sought because of the close relationship which has developed.  There will indeed be no change in the child’s circumstances as they are now in reality to her.  The legal impact of any orders that I make will be beneficial for her and not likely to produce any physical or practical change at all.

14. I am satisfied from the material I have before me that Mr and Mrs Budd demonstrate all of the requisite capacities as parents in order to provide for the child’s needs, including her emotional and intellectual needs.

15. I have considered all of the other provisions of Section 60CC which would bear upon my determination and I am satisfied in all the circumstances that granting the application would represent the child’s best interests.

I certify that the preceding fifteen (15) paragraphs are a true copy of the Ex tempore reasons for Judgment of the Honourable Justice Burr 

Associate: 

Date:  14 November 2008.