Collins & Anor and Sillitoe
[2016] FamCA 446
•7 June 2016
FAMILY COURT OF AUSTRALIA
| COLLINS AND ANOR & SILLITOE | [2016] FamCA 446 |
| FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – Joint application by mother and stepfather pursuant to s 60G of the Family Law Act 1975 seeking leave to commence adoption proceedings – Consideration of child’s best interests pursuant to s 60CC.
Prior & Prior [2008] FamCA 592 | |
| 1st APPLICANT: | Ms Collins |
| 2nd APPLICANT: | Mr Collins |
| RESPONDENT: | Mr Sillitoe |
| FILE NUMBER: | PAC | 4782 | of | 2015 |
| DATE DELIVERED: | 7 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 30 May 2016 |
REPRESENTATION
| SOLICITOR FOR THE 1ST APPLICANT: | Collins Paton & Taylor |
| SOLICTOR FOR THE 2ND APPLICANT: | Collins Paton & Taylor |
| COUNSEL FOR THE RESPONDENT: | Ms Webb |
| SOLICITOR FOR THE RESPONDENT: | Baldock Stacy & Niven |
Orders
That leave be granted pursuant to s 60G of the Family Law Act 1975 (Cth) for proceedings to be commenced for the adoption of the child B born on … 2008 by Ms Collins and Mr Collins.
That the applicants Ms Collins and Mr Collins have equal shared parental responsibility for the child B born on … 2008.
That the child, B born on … 2008 live with Ms Collins and Mr Collins.
That these proceedings be removed from the pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Anor & Sillitoe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4782 of 2015
| Ms Collins and Mr Collins |
Applicant
And
| Mr Sillitoe |
Respondent
REASONS FOR JUDGMENT
The applicant mother and her new husband seek leave of the Court pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”) to make application to adopt the child B born in 2008. They also seek orders for equal shared parental responsibility of the child and that the child live with them.
Section s60G provides:
(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), or paragraph 60HA(3)(a), and of sections 61E and 65J.
The child is seven years old.
The respondent to the application is the child’s father. On hearing on 30 May 2016 he was represented by his counsel. The father consents to the orders sought by the applicants.
The applicant mother is 33 years of age. She is presently employed on a full-time basis.
The child was born of a casual relationship between the mother and the respondent father. The father is not registered on the child’s birth certificate. Otherwise the father has had virtually no engagement in the life of the child with no contact or communication with the child for years.
The father has no emotional connection to the child or any desire to be part of the child’s life. The respondent father does pay child support as assessed by the agency which is garnisheed from his salary. That obligation will cease on the child being adopted by the applicants.
The applicant mother has been the child’s primary carer since birth.
The applicant and her present husband Mr Collins commenced a relationship in early 2012 and Mr Collins has been a constant figure in the child’s life since that time. The mother and Mr Collins commenced cohabitation in December 2012 and were married in 2013.
There is one child of the relationship between the mother and Mr Collins, C born in 2015.
The child B and Mr Collins have a very close relationship, he being intimately involved in the child’s day-to-day life and activities.
The applicants reside in a property in D Town, NSW that is owned by them. The property affords comfortable four bedroom accommodation where the child has his own bedroom.
The child presently attends the E School in D Town.
The respondent father also lives in D Town. He is married and he has two stepchildren and one other child from a previous relationship now aged 16 who lives with her mother in Sydney.
Leave to Adopt
Section 60G provides that this Court may grant leave for proceedings to be commenced for the adoption of a child by a “prescribed adopting parent”.
For the purposes of the Act, a “prescribed adopting parent” means:
A parent of the child; or
A spouse of or a person in a de facto relationship with a parent of the child; or
A parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
The applicants are prescribed adopting parents for the purposes of the Act.
Should the applicants not have sought leave as in the present application they would not have been precluded from obtaining an adoption order in relation to the child.
However the Act provides that an adoption order obtained with prior leave of the Court under s 60G of the Act:
a)ends parental responsibility for the child or children of the parent who is not the adoptive parent (s 61E(2)); Thus any parental responsibility held by the respondent father would cease on adoption.
b)renders the child the subject of the adoption order a child of the marriage of the adopting parents for the purposes of the Act (s 60F(4)(a)); and
c)does not end the operation of any parenting order which was in force under the Act (s 65J(2)) as at the date of the adoption order. Thus the orders to be made in these proceedings for the applicants to have equal shared parental responsibility and for the child to live with them will survive the adoption orders and remain in force.
The Child’s Best Interests
In proceedings for leave the Court must consider whether granting leave would be in the child’s best interests having regard to the effect of an adoption order as set out above.
These considerations were considered in detail by Benjamin J in Prior & Prior [2008] FamCA 592.
The determination of a child or children’s best interests is to be made having regard to the consideration set out in s 60CC of the Act.
In qualitative and prospective terms the child has a significant and meaningful relationship with the mother who has been his primary carer throughout the whole of his life. The primary attachments of the child are with the mother and Mr Collins. Those relationships are valuable, significant and important to the child.
The child has no relationship with the father who has had no contact with him for years. There does not seem to be any reasonable prospect at least into the foreseeable future of the child’s relationship with his father being restored, particularly having regard to the father’s expressed intention to play no part in the child’s life.
There are no protective concerns in relation to the subject child. He is in a settled and loving circumstance.
The child was spoken to by a family consultant (Exh A) in the context of the present application. He presented as a shy and quiet boy. The child spoke positively about his mother and Mr Collins and his new baby sister. He spoke positively to the family consultant about school and his friends. The child recalled his mother telling him that another man had helped to make him. But when asked some questions in relation to the present issue he appeared to be uncomfortable and it was “unclear if this was because he did not clearly understand what was being asked of him or why”.
The child has a well-established and settled relationship with his mother and a well-established relationship with his stepfather. The child regards the stepfather as his father and refers to him accordingly. He has no relationship with his father as referred to above.
The mother has engaged in making long-term decisions in relation to the child and has been his primary carer in the absence of the father since the child’s birth. The father has in effect abandoned his responsibilities in this regard to the child’s mother and stepfather.
The mother and her husband have undertaken the primary obligation to maintain the child in the absence of any meaningful financial contribution by the father other than periodic child support.
The mother has demonstrated an appropriate capacity in conjunction with her husband to provide for the needs of the child including his emotional and intellectual needs. There is no evidence of any such capacity in the father.
The mother has demonstrated an appropriate attitude to the child and her responsibilities of parenthood in particular in seeking to formalise the present arrangements in which the child lives with her and her husband. The father on the other hand has abdicated these responsibilities completely to the mother.
There are no assertions of family violence. There is no ongoing family violence order involving the child or a member of the child’s family.
There are no other relevant factors for the Court’s consideration.
In circumstances where the applicants are most likely to be successful in an application for the adoption of the child, the Court is satisfied that it is in the best interests of the child that leave be granted having regard to the consequences of that leave being granted under the Act as referred to above.
Parental Responsibility and Live With
Otherwise the applicants seek an orders that they have equal shared parental responsibility for the child and that the child live with them.
The presumption of equal shared parental responsibility does not apply as the second applicant is not a parent. The issue is determined by the child’s best interests as between the applicants and the father.
In the light of the discussion of the child’s best interests set out above it is clearly appropriate that such orders be made.
Orders will be made accordingly.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 June 2016.
Associate:
Date: 7 June 2016
Key Legal Topics
Areas of Law
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Family Law
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