Davis and Anor and Peters

[2011] FamCA 948

FAMILY COURT OF AUSTRALIA

DAVIS & ANOR & PETERS [2011] FamCA 948

FAMILY LAW – ADOPTION – By step-parent – Whether to grant leave to commence proceedings pursuant to s 60G of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) s 60G, s 61E, s 4(1), s 65J, s 61C

Fogwell & Ashton (1993) FamCA 113
Holden & Britten (2010) FamCA 197

1st APPLICANT: Mr Davis

2nd APPLICANT: Ms Aronson

RESPONDENT: Mr Peters

FILE NUMBER: BRC 3584 of 2011

DATE DELIVERED: 13 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr M.E. Pope

SOLICITOR FOR THE APPLICANTS: Derek Geddes Lawyers

THE RESPONDENT: No appearance

Orders

Accordingly, I make the following order:

1. Pursuant to section 60G of the Family Law Act 1975, leave is granted to the applicants to commence adoption proceedings in respect of the child B, born … 2003.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 3584 of 2011

Mr Davis and Ms Aronson

Applicant

And

Mr Peters

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me for determination today is an application by Mr Davis and Ms Aronson that leave be granted pursuant to section 60G(1) of the Family Law Act for proceedings to be commenced by those two applicants for the adoption of the child B, born in 2003. The respondent to the application is the biological or birth father of the said child, namely, Mr Peters. I am, on the evidence that is before me, satisfied that the respondent, Mr Peters, has been served with the initiating application and supporting affidavit evidence and was indeed aware of the hearing of the application today and of the ability and facility for him to appear and make a case in respect of the application if he saw fit, including as to an appearance by telephone if that was his want.

2. Indeed, the applicants have read in their case an affidavit of the respondent father, Mr Peters, that was filed on 29 April 2011 in which Mr Peters deposes at paragraph 11 of that affidavit to the following:

   I consent to [Mr Davis] adopting [the child] and assuming the role of father to her.  I consent to the applicant making application to this Court to formalise the adoption of [the child] by [Mr Davis].

3. Although that suggests some slight misunderstanding of the nature of these actual proceedings by the respondent father, Mr Peters, in that this Court is not seized with the jurisdiction to formalise the adoption but simply is asked to grant leave to the applicants to proceed with the adoption application in the Queensland State Magistrates Court pursuant to the Queensland adoption legislation.

4. Indeed, in Queensland, adoption of children is governed by the Adoption Act (Queensland) 2009.  Under that relatively recent legislation, new criteria was introduced to applications for adoption.  The Adoption Act requires prospective adopting step-parents, such as Mr Davis in this instance, to satisfy, in addition to the pre-existing criteria that have to be satisfied, two new criteria, namely, that the relevant child is at least five years old and not yet 17, and secondly, that this Court has granted leave to apply for the adoption.  Further, a natural parent must, absent an order of the Court dispensing with same, give consent to that adoption.

5. Section 60G of the Family Law Act was inserted into the Act in 1995, that is, after the decision by the former Chisholm J of this Court in the case of Fogwell & Ashton (1993) FamCA 113 in which Chisholm J considered whether the criterion of best interests applies to an application for leave to adopt. Section 60G(2) of the Family Law Act now makes it plain that a decision whether to grant leave is actually governed by a determination of best interests.

6. The failure to obtain leave from this Court to apply to the state Court for adoption has consequences under the state legislation. It also has consequences under the Family Law Act. Section 61E of the Family Law Act provides:

   (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)Parental responsibility ends on adoption of child. 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.

7. The expression “prescribed adopting parent” is defined in section 4(1) of the Act as follows:

   Prescribed adopting parent, in relation to a child, means:

   (a)a parent of the child ; or

   (b)the spouse of, or a person in a de facto relationship with, a parent of the child;  or

   (c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

8. Section 65J of the Family Law Act provides under the heading Effect of Adoption on Parenting Order:

   (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.

9. Thus, as Murphy J respectfully pointed out in Holden & Britten (2010) FamCA 197 at paragraph 11,

   An effect of adoption is that all parental responsibility for the children ceases, as do all other parenting orders.

   Ultimately, at paragraph 22, Murphy J said as follows:

   The question then, in my view, can be expressed this way.  Is it in the relevant children’s best interests to permit adoption proceedings to proceed in the (State) Magistrates Court with the potential consequences that a parent shall (with the consent of the other parent or absent consent, by court order) cease to have any of the duties, powers, responsibilities, and authority in respect of his or her child, as distinct from parenting orders being made in this Court that might involve the parent and step-parent?

10. I respectfully agree that that is the question that I must consider in determining this application.  The applicant, Ms Aronson, the mother of the child B and the respondent, Mr Peters, commenced a de facto relationship some time in or around 1999.  The child was born of that de facto relationship in 2003.  Just over a year later, in September 2004, when the child was only 13 months old, the respondent father and Ms Aronson separated by mutual agreement.  From that time on, the respondent father and the child have had what can only truly be described as a fairly limited relationship.  I do not consider it necessary to go into all of the evidence that is before me as to the explanation, at least proffered by the mother of the child, for that limited relationship between the biological father and the child.

11. In or around April 2007, the mother applied to the Registrar of Births, Deaths and Marriages in Queensland to change the child’s surname to Aronson from Peters.  That apparently occurred.

12. In or around October 2004, the mother started a relationship with the other applicant, Mr Davis.  They began to live together in December 2004, when the child was only about 16 months of age.  From the time that they commenced living together, the applicant, Mr Davis, has supported the child and the mother from his income.  He has assumed the role of father to the child.  The child calls him “dad”.  The child knows and is aware that she nevertheless has a biological father different to Mr Davis.  However, she has, over the years, developed a close and loving relationship and father-child bond with her stepfather, Mr Davis.  She, in fact, considers him to be her father.

13. In or around May of 2010, the applicant mother telephoned the respondent father and advised him that Mr Davis wanted to adopt the child, and she asked him for his permission.  The child was six years old at the time.  Apparently, the respondent father indicated his agreement to the adoption but stipulated a number of conditions.  The mother, I find, was not prepared to agree to all of those conditions.  Notwithstanding that, the mother and Mr Davis have continued to push for their adoption of the child.

14. Mr Davis and Ms Aronson live together in their home with the child at C Town.  They have lived there now for some seven months, and the child occupies her own bedroom and has a playroom of her own in the home as well.  She is presently attending grade 2 at D School, which is a private school in the suburb of C Town.  The applicant, Mr Davis, pays the child’s school fees.  He also pays for all of her extracurricular activities, which include art classes, gymnastics classes and swimming lessons.

15. On the evidence, that I accept, the respondent father has not seen the child since January 2005 and has, apparently, not taken any steps to change that situation.  He has not contacted the mother since then at all to talk about the child.  In Mr Davis’s evidence, he deposes to the fact that he has never been involved in any court proceedings in relation to any other matter, nor has he been involved in any domestic violence matter.  He deposes to the fact that his desire to adopt the child is part of his wish to consolidate his family unit so that he can be formally regarded as the child’s father.  He regards himself as her only father figure and the only father that she has ever known.

16. Having regard to all of the evidence that is before me and particularly the evidence of the respondent father’s consent to an adoption of his child by Mr Davis, her stepfather, I am indeed satisfied that it is in the child’s best interests to permit the applicants, Mr Davis and Ms Aronson, to commence proceedings in the State Magistrates Court seeking the adoption of the child B, born in 2003.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 July 2011

Associate:

Date:  20 October 2011