Cahill & Fryer

[2008] FamCA 1245

FAMILY COURT OF AUSTRALIA

CAHILL & FRYAR [2008] FamCA 1245

FAMILY LAW – CHILDREN – ADOPTION – leave to commence proceedings – where biological mother and stepfather seek to adopt the child – where biological father is not opposed but wants to know the wishes of the child – child interviewed by Family Consultant – child comfortable with being adopted – in the best interests of the child for leave to be granted

Family Law Act 1975 ss 60G, 60F, 61E

APPLICANTS: Mr and Mrs Cahill

RESPONDENT: Mr Fryar

FILE NUMBER: ADC 2849 of 2008

DATE DELIVERED: 5 December 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 5 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That leave be granted pursuant to Section 60G of the Family Law Act for proceedings to be commenced for the adoption of the child … born … December 1995 by Mr and Mrs Cahill.

2. That all applications be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2849 of 2008

MR AND MRS CAHILL

Applicants

And

MR FRYAR

Respondent

EX TEMPORE REASONS

1. I have before me an Amended Application filed on 21 October 2008 in which the applicants - that is, Mr and Mrs Cahill - seek an order pursuant to Section 60G of the Family Law Act, that this Court grant leave to the applicants to proceed with an application for adoption of the subject child, a daughter, in accordance with the Adoption Act of South Australia.

2. This matter originally commenced with an application filed on 18 July 2008.  That was an application brought by Mr Cahill, with Mrs Cahill as a respondent.  When the matter first came before me in September 2008, I raised the issue of whether Mrs Cahill should also be an applicant.  I will not go into the detail of that, but the long and the short of it is that Mrs Cahill ultimately determined that she should be an applicant, and I gave leave on 26 September for the Initiating Application to be amended to that effect.

3. Mr Fryar, the biological father of the child, during that hearing indicated that he was not opposed to the application but he was concerned to know what the child’s wishes about it were.  On that basis I also made an order on that day that the child be interviewed by a Family Consultant to ascertain her wishes as to the question of adoption by her stepfather and her mother, and to provide a report to the court as to those wishes as soon as possible.

4. That was attended to, and a Family Report is now before me dated 15 October 2008 which records an interview that took place between Dr A, Family Consultant, and the child in October.

5. Without going into too much detail, the recommendations of the Family Consultant were that this Court grant leave to Mr and Mrs Cahill to proceed with an adoption application.  She also went on to say that Mr and Mrs Cahill should explore preliminary discussions with the South Australian Adoption and Family Information Service to gain a better understanding of what is involved with the application if leave is granted.

6. That is the recommendation.  However, I did not seek a recommendation from the Family Consultant, and frankly, I cannot put very much weight on that recommendation because the Family Consultant only spoke with the child.  I did not intend, and in fact I did not permit any wide-ranging interviews with, for example, the adults involved.  I do not know on what basis the Family Consultant thought it was appropriate to make such a recommendation but she did.  What I wanted from the family consultant was to know what the child's wishes were, and in that regard there is sufficient information in the report to guide me and I rely on that.

7. In summary, my reading of the report is that the child does want to be adopted by her stepfather but also, obviously, her mother, in the overall scheme of things.  However, the Family Consultant, in her evaluation, says in effect that she did not think that the child appreciated all that was involved with that.

8. For my part, I do not intend to take that any further.  Indeed if anybody could do so it would be the biological father, Mr Fryar.  I have asked him about this, this morning, and his position is, quite simply, "Well, [the child] seems to want this, so I won't stand in the way of it”.  Thus I proceed on the basis that the child is - and I choose my words carefully - comfortable with being adopted, if that is the ultimate result of the application, of course bearing in mind that I am not dealing with the adoption per se; I am dealing with an application for leave to make an application to adopt.

9. The bottom line, I suppose, is, as the child herself is reported to have said in her interview (paragraph 20):

   [The child] said that she would like the court to know that she would like Mr [Fryar] to know that she wants Mr [Cahill] to be her father because Mr [Cahill] has raised her and Mr [Fryar] has not.

10. That is a very stark statement.  I do not understand it is anything more than the child stating the fact of the matter, namely that Mr Fryar has not been there as her father.  There have been a couple of attempts to reintroduce the child to him but they have been unsuccessful.  With the effluxion of time, the child appears to have settled into the family that now exists, including the other children of Mr and Mrs Cahill, and she very much treats Mr Cahill as her father.  She, of course - and this is important - has been aware of her biological father but, as she herself says, she wants Mr Cahill to be her father in all respects, given the circumstances that have developed.

11. The application is made pursuant to section 60G of the Family Law Act, which provides:

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.

(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) and of sections 61E and 65J.

I also set out the paragraphs and sections of the Act referred to in sub-section 60G(2) as follows:

Section 60F(4)(a)

(4)The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

(a)if a court granted leave under section 60G for the adoption proceedings to be commenced--the child ceases to be a child of the marriage for the purposes of this Act;

Section 61E

(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.

Section 65J

(1)       This section applies if:

(a)       a child is adopted; and

(b)immediately before the adoption, a parenting order was in force in relation to the child.

(2)The parenting order stops being in force 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.

1. The effect of paragraph 60F(4)(a) is that if I grant leave the child will cease to be a child of the marriage of her mother and the biological father.  That does not apply here because of course the mother, Mrs Cahill, and the father, Mr Fryar, were never married.  Thus I do not need to consider paragraph 60F(4)(a).

2. The effect of section 61E of the Family Law Act is that if I grant leave and an adoption order is made, the parental responsibility of any person who had parental responsibility for the child immediately before the adoption ceases. That applies to both Mrs Cahill and Mr Fryar. Mr Fryar understands that that will be the effect of an ultimate adoption order. This is the issue that led me to raise with Mrs Cahill whether she wanted to become an applicant rather than a respondent, namely, that on that basis, if an adoption order is made in favour of both Mr and Mrs Cahill, then they will thereafter have parental responsibility for the child. In other words, although the effect of section 61E is that Mrs Cahill would nominally lose her parental responsibility for the child, upon the adoption, the effect of the adoption would be that she gets it back.

3. Finally, the effect of section 65J is that upon the adoption order being made any parenting order that is in force in relation to the child ceases.  I am told that there is no parenting order in force in this matter in relation to the child, so I do not need to concern myself with that.

4. In summary, I do not need to have regard to paragraph 60F(4)(a) or section 65J, and in terms of section 61E, that has now been taken into account by Mrs Cahill becoming an applicant.

5. In support of the application there are two affidavits that are before me and they are firstly, the affidavit of Mr Cahill filed on 18 July 2008, and secondly, the affidavit of Mrs Cahill filed on the same date, 18 July 2008.

6. Before I deal with the application, one other preliminary matter I should mention is the reference in the relevant paragraphs and Sections of the Act to adoption of the child by a prescribed adopting parent.  The definition of "prescribed adopting parent" is in section 4(1) of the Act and a prescribed adopting parent in relation to a child means:  (a) a parent of the child - obviously Mrs Cahill comes into that category - or (b) the spouse of or a person in a de facto relationship with a parent of the child - that obviously captures Mr Cahill.

7. Turning to the issue of whether granting leave would be in the best interests of the child, as I have remarked on previous occasions, interestingly, section 60G does not specifically provide that the child's best interests are to be the paramount consideration, unlike section 60CA, which is relevant to most matters that are heard by this Court in relation to a child. Although I make that observation, I do not consider that it has any specific import on whether I grant the leave today, it is just an observation by me as to why that is not the case and whether it means that there are other factors to which the Court should have regard to.

8. Nothing else is identified in section 60G, and there is also some authority in this Court about this in relation to the section which preceded section 60G, namely, section 60AA, wherein there was no reference to "best interests" whatsoever.

9. The other observation that I make about section 60G is that it does not specifically refer to how the Court determines a child's best interests, but in a note the Court is referred to sections 60CB to 60CG, the implication being that that is how the Court determines a child's best interests. That is sensible, because those sections - and particularly section 60CC - set out the factors which the Court must consider when determining what is in the best interests of a child. In this case, if nothing else, that is a convenient guide to what factors bear upon the child's best interests.

10. The issue is not directly whether the child's best interests will be better served by an adoption or by parenting orders in favour of Mr and Mrs Cahill.  The refusal of permission to bring the adoption application does not prevent it being brought, but nor does it result in parenting orders being made.  The question is, if the mother and Mr Cahill bring adoption proceedings and if those adoption proceedings are successful, would the child's best interests be better served by the adoption, having the wider consequences under the Family Law Act which the granting of permission for the adoption application will give it?  In this case I am satisfied that they would.

11. I do not intend to deal with each subparagraph of Section 60CC seriatim, I just propose to deal with the relevant factors arising from those subparagraphs in a global sense, because not all of those factors are relevant to this case.

12. In terms of the relevant factual history of this matter, the child was born in December 1994.  Mrs Cahill tells me in her affidavit that she was living with Mr Fryar and his mother when she fell pregnant at the age of 16 years.  She chose to move out from that home because of concerns that she had with what was happening in that home.  She then moved in with her mother, who helped her through her pregnancy. 

13. She first met Mr Cahill when the child was nearly two years old; indeed Mr Cahill says it was when the child was 21 months old.  As I understand it Mr Cahill at that time had another child, or not long after.  Mr Cahill took a great interest in caring for the child and assisting Mrs Cahill in that regard.  From the commencement of that relationship I am told that Mr Cahill treated the child like a daughter.  As things have turned out, he has been the only real father that she has known.

14. Mr Cahill’s family has been very supportive and very loving towards the child.  They have supported Mr Cahill’s decision to become involved in the child’s life as if she was his daughter.

15. There was an unfortunate incident which occurred in 1998, and which led to Mr and Mrs Cahill parting ways for a short time, but they remained in touch and remained good friends, and ultimately they got back together again and indeed they eventually married in September 2003.

16. In 1999 Mr and Mrs Cahill had twins.

17. After the marriage, with the child’s consent - and that is important - Mr and Mrs Cahill obtained a court order to change her last name to Cahill, and since then she has been known formally by that surname.

18. Since then there has been a good deal of discussion about adoption, because of the important role that Mr Cahill has played in the child’s life from when she was approximately two years old.  As I have said before, and I repeat, he has been in effect the only real father that she has ever known.

19. Mr Fryar saw the child when she was about 18 months old.  There was an attempt to reintroduce the child to him but that was unsuccessful.  When the child was about three years old, there was another attempt to introduce Mr Fryar to the child, but again that was unsuccessful.

20. Then when the child was five years old, Mrs Cahill contacted Mr Fryar and arranged for him to sign a statutory declaration to say that he was her biological father to enable child support to be obtained.  Since that time Mrs Cahill has been receiving child support of approximately $12.50 a month from Mr Fryar.  That is of great credit to Mr Fryar.

21. In summary then, I am satisfied that both Mr and Mrs Cahill have the capacity to provide for the needs of the child.  I am satisfied that they have demonstrated a proper attitude to the child and to the responsibilities of parenthood.  The child has now lived with Mr and Mrs Cahill, just putting aside those few months they were apart, since she, the child, was approximately two years of age. 

22. There is nothing of any concern that has been put to me today - and Mr Fryar has had that opportunity - nor is there anything apparent in any affidavit material which leads to any concern, in my mind, about the relationship or the attitude of Mr and Mrs Cahill to the child during that extensive period of time.  There is also no issue of family violence and there are obviously no family violence orders to take into account.

23. If the adoption proceeds, of course, that process will result in a significant change to the child’s circumstances.  I am satisfied, as I have said, that that change is in her best interests.  In view of the evidence that I have before me, I am satisfied to grant the application, and I consider that that would be in accordance with, and consistent with, the child’s best interests.

I certify that the preceding 34 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 5 December 2008.

Associate