Carrick & Anor and Gillet

[2017] FamCA 1147

FAMILY COURT OF AUSTRALIA

CARRICK AND ANOR & GILLET [2017] FamCA 1147

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

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

FIRST APPLICANT: Ms Carrick

SECOND APPLICANT: Mr Carrick

RESPONDENT: Ms Gillet

FILE NUMBER: BRC 6057 of 2017

DATE DELIVERED: 18 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Allen
DA Family Lawyers

THE RESPONDENT: No Appearance

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the applicants, Ms Carrick and Mr Carrick, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, B born … 2010, by her step-mother Ms Carrick.

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 Carrick and Anor & Gillet 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 6057 of 2017

Ms Carrick and Mr Carrick

Applicants

And

Ms Gillet  

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed on 14 June 2017, Mr Carrick and his wife, Ms Carrick, seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth), they be granted leave to commence adoption proceedings for adoption of the child, B born in 2010, by her step-mother Ms Carrick.

2. The respondent to the application is Ms Gillet.  She is the child’s biological mother.  The child was conceived during a brief relationship between Ms Gillet and Mr Carrick. An affidavit sworn by Ms Gillet has been filed in these proceedings in which she clearly says she consents to the order being made by this Court and to the adoption of the child B by Ms Carrick.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act 2009, which is Queensland State law. Under that piece of legislation, a step-parent of a child may apply to the Chief Executive of the Queensland Department of Communities, Child Safety and Disability Services to arrange an adoption of his or her step-child if that step-parent is a spouse of the parent of the child; and the parent, the step-parent applicant and the child live together; and the adults have been spouses and both living together with the subject child for a continuous period of at least 3 years up to the time of the application. The step-parent applicant must also be an adult and an Australian citizen or the spouse of the applicant must be an Australian citizen. They must also reside in Queensland; interestingly, they must not be the same gender as their spouse; and the child must be at least 5 years of age and not yet have turned 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.

2. Section 60G of the Family Law Act provides 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.

3. The definition of prescribed adopting parent is contained in s 4 of the Family Law Act and it includes “the spouse of a parent of the child”. Therefore, Ms Carrick is a prescribed adopting parent within the definition contained in s 4 of the Family Law Act.

4. Section 61E of the Family Law 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 order 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. In this particular case, there is no parenting order currently in place. There has never been a parenting order in place. Accordingly, Mr Carrick and Ms Gillet each currently have parental responsibility for the child pursuant simply to the workings of s 61C(1) of the Family Law Act, but Ms Gillet’s parental responsibility effectively conferred by that section in respect of the child would end if Ms Carrick lawfully adopts the child.

Some history of the matter

1. The applicant father, Mr Carrick, was born in 1991 and he is 26 years of age. The respondent biological mother, Ms Gillet, was born in 1991 and she is 26 years old.  They began a relationship of sorts in or about late 2009.  The relationship was a brief one, and could be described as an “on-and-off again” type of relationship.  Nevertheless, the child was born of that relationship after the parties had well and truly separated and ended that relationship.

2. Ms Gillet made the decision to sign an adoption care agreement with the Adoption Services division of the Queensland department that I have referred to.  At the time, Ms Gillet did not have any contact with Mr Carrick, and she made that decision unilaterally.

3. A short time later, Mr Carrick learned of the child’s birth and he made arrangements to meet the child on 15 April 2011, whilst she was in foster care. Ms Carrick, the applicant, accompanied him on this visit. A few further visits with the child took place, and ultimately, on 22 May 2011, Mr Carrick notified Adoption Services Queensland that he and Ms Carrick had made the joint decision to care for the child full-time.  As such, the child spent the first six months of her life in foster care, but has spent all of the rest of her life since then in the care of the applicants.

4. Ms Gillet has not seen or had any contact with the child since she first placed her into foster care.  Ms Gillet agreed to sign a passport application for the child in the past, and she also consented to the child’s family name and middle name being changed from those that she had from her birth. Mr Carrick has deposed in his affidavit material to the fact that Ms Gillet has never paid any child support in respect of the child.

5. Ms Carrick is a professional at the C Hospital.  She was born in 1991 and she too is 26 years of age.  She began a relationship with Mr Carrick in May 2010, and they were married in 2014.  Ms Carrick has, one could say, been the only mother that the child has ever known, given that she has been in the full-time care of Ms Carrick and Mr Carrick since she was six months old. The applicants state that they have always played an equal role in the child’s parenting and in respect of decisions that are made and have been made pertaining to the child’s upbringing. the child regards Ms Carrick’s parents as her own grandparents and no doubt, Ms Carrick’s parents regard the child as their own granddaughter, that is evident by the presence of Ms Carrick’s mother here in the Court today, clearly displaying a very keen interest in the outcome of these proceedings.  The applicants have another child together, a boy named D, who was born in 2016.  They depose in their affidavit material that D and the child have lived together as brother and sister with a normal brother and sister relationship for children of that age, since he was born.  

Best Interests

1. I must consider whether it is in the child’s best interests for leave to be granted for her step-mother, Ms Carrick, to commence an adoption application in respect of the child in the State court of Queensland with the consequence that if the adoption is granted (with Ms Gillet’s consent), that the child’s biological mother, Ms Gillet, will cease to have any parental responsibility in respect of the child whatsoever from that time on.

2. In the process of considering that question, I must of course have regard to, relevantly, the provisions of s 60CC and s 60CD of the Family Law Act.

3. One of those matters that I must consider is, of course, the benefit to the child of having a meaningful relationship with both of the child’s parents. In this case, that requires me particularly to consider the benefit to the child of having a meaningful relationship with her mother, Ms Gillet, and her father, Mr Carrick. It also requires me to consider all of the matters set out in s 60CC(3), which list includes any views expressed by the child and any factors (such as her maturity or level of understanding) that the Court thinks are relevant to the weight to be given to her views.

4. Ms Gillet has not seen or had any contact with the child since she went into foster care, when she was only two days’ old.  Ms Gillet has, I am satisfied, shown no express interest in being involved in the child’s life whatsoever from that time on. According to the affidavit evidence of Mr Carrick and Ms Carrick, Ms Gillet has not contacted Mr Carrick at all in any way to actually try to see the child. 

5. The evidence satisfies me beyond any doubt that the child clearly has a meaningful mother and daughter relationship with Ms Carrick. The applicants have always shared the responsibility for the long-term decisions that they have made in relation to the long term care of the child. Ms Gillet has not been part of those decisions made regarding the child since placing her in foster care.  

6. Ms Gillet has by her affidavit demonstrated that she understands that the successful adoption of the child would mean that she will no longer be the legal parent of the child and that she will be prevented from seeking any orders with respect to care arrangements for her in this Court or in the Federal Circuit Court of Australia. Notwithstanding that Ms Gillet maintains her consent for the child to be adopted and is to be given appropriate credit for that responsible decision that she has apparently made.

Conclusion

1. In conclusion, and without the need to say much more of the other matters that I have actually considered, I can say that I am more than satisfied on the evidence that is before me that Ms Carrick takes the responsibility of parenting the child quite seriously and regards herself as the child’s mother, showing to this point in time shown her clear commitment to undertaking and accepting all of the practical as well as legal responsibilities and obligations that come with being a parent to a child.

2. Having regard to all of the evidence, and most particularly the evidence of Ms Gillet in which she says she does not oppose the order that the applicants seek being made by the Court, I am indeed satisfied that it is in the child’s best interests to permit the applicants, Ms Carrick and Mr Carrick, to commence proceedings in the State Magistrates Court seeking the adoption of the child, B born in 2010.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 September 2017.

Associate: 

Date:  26 February 2018