Eastern and Anor and a**Fa** (No. 2)

[2008] FamCA 838

FAMILY COURT OF AUSTRALIA

EASTERN AND ANOR & “F” (NO. 2) [2008] FamCA 838

FAMILY LAW – ADOPTION – Application seeking leave to commence adoption proceedings pursuant to s 60G – where biological father has no involvement in child’s life – effect of 61E on parental responsibility if leave granted – whether child’s best interests are paramount consideration under s 60G – whether in best interests of child to grant leave – leave to commence proceedings granted

Family Law Act 1975 (Cth) ss 4, 60F, 60G, 61E & 65J

FIRST APPLICANT: Mr Eastern

SECOND APPLICANT: Ms Pidd

RESPONDENT: "F"

FILE NUMBER: ADC 1136 of 2008

DATE DELIVERED: 6 June 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 6 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Adlem

SOLICITOR FOR THE APPLICANTS: Paces Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That the applicants have leave pursuant to section 60G of the Family Law Act 1975 to commence proceedings in the Youth Court of South Australia for the adoption of the child … born … August 2005.

2. That paragraph 2 of the Application for Final Orders filed on 20 March 2008 be dismissed.

3. That the Application for Final Orders filed on 20 March 2008 be removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1136 of 2008

MR EASTERN

First Applicant

And

MS PIDD

Second Applicant

And

“F”

Respondent

EX TEMPORE REASONS

1. This matter was before me yesterday on an Application for Final Orders and I dealt with it as far as I was able to.  I adjourned the application to today in order to finalise it and I am now able to do that.

2. I note that I made orders yesterday giving leave to amend the Application for Final Orders and I note that those amendments have now been made.  I also note that I made an order dispensing with service upon the respondent father.

3. In the Application for Final Orders the applicants seek leave pursuant to section 60G of the Family Law Act 1975 to commence proceedings for the adoption of the child by the applicants.  The child the subject of the application was born in August 2005.  His mother is one of the applicants and his stepfather is the other.

4. The application, as I said, is made pursuant to section 60G of the Family Law Act 1975, which provides as follows:

   (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.

   Note: Sections 60CB to 60CG deal with how a court determines a child's best interests.

5. As can be seen that section also refers to other paragraphs and sections of the Act as follows: 

   Section 60F(4)(a), which provides:

   (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, which 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) 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, which provides:

   (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.

6. In determining this matter 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), section 61E and section 65J. Here, paragraph 60F(4)(a) and section 65J do not apply because the child is not a child of a marriage and there is no parenting order in force. However I need to consider section 61E.

7. The effect of section 61E is that if this Court grants leave and the adoption order is made, the parental responsibility of any person who had parental responsibility for the child immediately before the adoption ceases. That would apply here to the mother of the child. However, the effect of the application being a joint application, is that if the adoption order is made in favour of both the stepfather and the mother then they will thereafter have parental responsibility for the child. I have to take that into account in determining whether the order sought is in the best interests of this child.

8. The other preliminary matter that I should mention is the reference in the relevant paragraphs and sections - and specifically section 60G, for example - to the adoption of the child by a prescribed adopting parent. The definition of "prescribed adopting parent" is in subsection (4)(1) of the Act.  That definition provides that, "a prescribed adopting parent in relation to a child means: (a) a parent of the child" - thus obviously the mother is in that category - "or (b) the spouse of or a person in a de facto relationship with a parent of the child" -thus obviously the stepfather is in that category.

9. Turning to the issue of whether granting leave would be in the best interests of the child. As I have commented in the past, interestingly section 60G does not specifically provide that the child's best interests are to be the paramount consideration, unlike, for example, section 60CA which is relevant to most matters that are heard by this court in relation to children. Although I make that observation I do not consider 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 there are other factors that the court should have regard to, but nothing else is identified in section 60G. 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.

10. In any event I do not intend to pursue that topic in these reasons.  In my view I do not need to go outside what is in the best interests of this child in determining this application.

11. Another observation is that in referring to "best interests" there is no reference in section 60G(2) to the relevant section in the Family Law Act, which is section 60CC, and which sets out what factors the court must consider in determining what is in the best interests of the child. There is a note below section 60G which says, "Sections 60CB to 60CG deal with how a court determines a child's best interests", but I do not know why that was not included in the section itself.  Logically, in determining this issue of "best interests", I should have regard to and consider the provisions of section 60CC. If nothing else it is a convenient guide to what factors bear upon a child's best interests.

12. Turning then to section 60CC of the Family Law Act, I do not propose to deal with each subparagraph of section 60CC seriatim. I propose to deal with it in a global sense because it seems to me a number of matters referred to in section 60CC are not relevant to this case.

13. In support of the application I have two affidavits, both filed on 20 March 2008.  The first is the affidavit of the stepfather, Mr Eastern, and the other affidavit is the affidavit of the mother, Ms Pidd.  I have read those affidavits.

14. Referring in a general way to the relevant facts.  The mother was born in South America.  The stepfather who was born in Europe is an Australian resident.  He met the mother on the internet in January 2006 and then met her personally in April 2006 when of course the child was approximately eight months old.  To repeat, the child was conceived in a casual relationship that the mother had with a man named “F”, while she was living in South America.  When the mother found out she was pregnant with the child she contacted the biological father who declined to accept any responsibility for the pregnancy or for the child, even to the point of refusing to acknowledge that the child was his.  The biological father has never met the child nor offered any financial or emotional support to either the child or his mother.  The mother registered the child, as she was obliged to, with the relevant authorities with her surname only, and the biological father refused to sign the appropriate forms.

15. I should also mention that there is one child of the marriage between the mother and the stepfather and that is L born in January 2007. 

16. The parties, that is, the mother and the stepfather were married in South America in August 2006 and the stepfather returned to Australia with the mother and the two children on 11 April 2007.  Eventually the family settled in Adelaide and they have lived here since June 2007.

17. As I have said, there are no parenting orders in place regarding the child and the biological father has had absolutely nothing whatsoever to do with the child.  On the other hand it is apparent from the evidence before me that the stepfather has always treated the child the subject of these proceedings as his own and I accept that he loves this child equally as much as his own child and in the same way.  The mother, the stepfather, and the two children operate very much as a single‑unit family. 

18. The affidavits give me a snapshot of family life in the household of the mother and the stepfather and how they care for, support and raise not only the child the subject of these proceedings but the child of their relationship.

19. The catalyst for this application is that the mother and the stepfather do not want the parentage of this child to be an issue, particularly as he approaches school age.  The stepfather very much wants to adopt the child and become his father in terms of the rights and responsibilities towards him that would flow from an order for adoption.  Of course, I cannot say whether an adoption order will ultimately be made, all I am dealing with is leave to commence those proceedings.  Obviously though in considering what is in the child's best interests I need to take into account what may happen in the event that the adoption is successful.

20. In the circumstances of this case, and particularly given the history of it and the fact that the biological father has not shown any interest whatsoever in adopting any role towards the child the subject of these proceedings, I accept that the child is now part of a loving and committed family unit and I have no hesitation in finding that it is in this child's best interests for leave to be granted to enable the applicants to commence proceedings to adopt the child.

21. I am satisfied that the mother and the stepfather 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.  I am satisfied that there is a good relationship between the applicants and the child.  There is nothing of any concern that has been put to me today nor that is apparent from the affidavit material about that relationship or the attitude of the applicants to the child during the time that the child has lived with them.  I note that there is no issue of family violence and there are obviously no family violence orders to take into account.

22. The process, of course, which has been commenced, will end in a significant change in the child's circumstances and I am satisfied, as I say, that that change is in his best interests.  Therefore I propose to make the order sought.  Before I make that order though I should mention again that order number 2 in the application is an order that this court cannot make, and I propose to dismiss the application for that order.

I certify that the preceding 22 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 6 June 2008.

Associate: …

Date: