Dary and Wood

[2010] FamCA 616

FAMILY COURT OF AUSTRALIA

DARY & WOOD [2010] FamCA 616

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Children’s biological father deceased - Leave granted

Family Law Act 1975 (Cth) s60G
Adoption Act 2009 (Qld) s92(1)(d)

Brock & Brock [2007] FamCA 1594
Berry & Wratten [2010] FamCA 75

Reynolds & Donaldson [2008] FamCA 518

FIRST APPLICANT: Mrs Dary

SECOND APPLICANT: Mr Dary

RESPONDENT:

Mr Wood

(deceased)

FILE NUMBER: BRC 5685 of 2010

DATE DELIVERED: 16 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 16 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Raine (by telephone)
The Advocacy and Support Centre

THE RESPONDENT: DECEASED

Orders

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Dary and Mrs Dary have leave to commence proceedings for the adoption by him of the children T born … February 1996, S born … December 1998 and J born … December 2000.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5685 of 2010

MRS DARY

First Applicant

MR DARY

Second Applicant

And

MR WOOD (DECEASED)

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mr Dary and Mrs Dary for leave to commence proceedings for the adoption of T born in February 1996 now 14 years, S born in December 1998 now eleven and a half years and J born in December 2000 now nine and a half years. The children’s biological father Mr Wood (Deceased) died in November 2008.

2. The Adoption Act 2009 (Qld) provides, by section 92(1)(d), that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under section 60G(1) of the Commonwealth Act and other matters. Under section 60G(2) of the Commonwealth Act I am required to consider whether the granting of leave would be in the children’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

3. Section 60F(4)(a) is not presently relevant in that whilst the children are the children of a marriage between their biological parents their biological father is deceased. Section 60HA is not relevant as the children’s mother and their biological father were not de facto partners. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been granted under section 60G for the adoption proceedings to be commenced. The matter of parental responsibility for the children by their biological father is not of relevance as he is deceased. Section 65J(2) provides that a parenting order stops being in force on the adoption of a 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. Similarly, as the children’s biological father is deceased this matter is not of relevance. In any event there are no parenting orders arrangements plans or undertakings in place concerning the children and their biological father.

4. I turn then to the matter of the children’s best interests.  I will refer to the particular provisions of section 60CC to section 60CG of the Commonwealth Act, which relate to the determination of a child’s best interests, only to the extent as on the material may seem relevant.  The children, on the material, have a close and meaningful relationship not only with Ms Dary, their biological mother, but also Mr Dary, their step father.  The children have expressed the desire that Mr Dary have legal responsibility for them.  They are each of an age at which their views should be taken into account.  The nature of the children’s relationship with Mr Dary is comprehensively set out in the affidavits of each of Mr Dary and Ms Dary which evidence shows a positive and beneficial relationship.  The children have a limited relationship with their biological grandparents, as explained in those same affidavits.  Mr Dary, by his application, demonstrates willingness to parent the children and to have legal and parental responsibility for them, as well as psychological identity between him and the children, by formalising his role as their father in the family unit, which has subsisted now for seven years, and in the marital context, for five years.

5. For the purposes of the Commonwealth law, I am satisfied in all of the circumstances that it is in the children’s best interests that I grant the leave sought, and I will do so.  The order will be in favour of both applicants, as sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Ms Dary leave, as the State Act, Part 5, Division 1, section 92 contemplates application for adoption only by the step parent and not a joint application with the opposite sex biological parent who is the step parent’s spouse or partner.  Section 61E however provides that in relation to a person who had parental responsibility immediately before the adoption, upon an adoption that person’s parental responsibility ends.  If section 61E be given its literal meaning, unless Ms Dary the biological mother is a co applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Dary the children’s step father.  Probably s61E should be read down to exclude the biological parent who is the spouse or partner of the adopting step parent (if not amended to that effect) as it is an awkward proposition to think that one could apply to adopt one’s own child and indeed that is not the effect of the State Act, Part 5, Division 1, section 92.  Other judges however have taken the view that the order should be made in favour of both the step parent and the biological parent who is the spouse or partner of the step parent on the basis that otherwise upon the making of an adoption order in favour of a step father the biological mother’s parental responsibility for the child would end.  See, for example, Brock & Brock [2007] FamCA 1594 at [2] and [3] per Strickland J; Reynolds & Donaldson [2008] FamCA 518 at [2] per Strickland J; and as to the effect of s61E: Berry & Wratten [2010] FamCA 75 at [12] per Murphy J. Although thus I doubt that the mother can apply to adopt her own children, the existence of s61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:     

Date:              22 July 2010