Ebert and Anor and Traimand

[2011] FamCA 949

FAMILY COURT OF AUSTRALIA

EBERT & ANOR & TRAIMAND [2011] FamCA 949

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

Holden & Britten (2010) FamCA 197

FIRST APPLICANT: Mr Ebert

SECOND APPLICANT: Ms Ebert

RESPONDENT: Mr Traimand

FILE NUMBER: BRC 2428 of 2011

DATE DELIVERED: 13 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 July 2011

REPRESENTATION

FOR THE APPLICANTS: Mr and Mrs Ebert in person

FOR THE RESPONDENT: No appearance

Orders

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 … 2000.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 2428 of 2011

Mr Ebert and Ms Ebert

Applicants

And

Mr Traimand

Respondent

REASONS FOR JUDGMENT

1. Before me today for determination is an application by the applicants, Ms Ebert and Mr Ebert, for an order to be made pursuant to section 60G of the Family Law Act granting them leave for proceedings to be commenced for the adoption of the child B, born in 2000, now 10 years of age.

2. Ms Ebert, the second applicant, is the mother of the subject child.  The first applicant, Mr Ebert, is the husband of Ms Ebert and the stepfather of the subject child.  The respondent, Mr Traimand, is the biological or birth father of the subject child.  I am, on the evidence before me, satisfied that he was served with the relevant application and supporting evidence and that he was aware that the matter was set for hearing by this Court this day and that he has, for reasons only known to him, chosen not to appear before the Court today when his name was called outside the Court three times.

3. The adoption of children in Queensland is governed by the Adoption Act (Queensland) 2009.  Under that relatively recent legislation, a number of criteria apply to applications for adoption.  Critically, the Adoption Act requires prospective adopting step-parents, such as Mr Ebert in this case, to satisfy, in addition to the pre-existing criteria, two new criteria that were introduced in that recent legislation, namely, that the relevant child is at least five years old and not yet 17, and secondly, that this Court has granted leave to adopt.  Further, a natural parent must, absent an order of the State Court dispensing with same, give consent (irrespective of whether the natural parents of the children were married).  In this instance, clearly the subject child is at least 5 years of age and not yet 17, and the applicants apply to this Court for leave to proceed, as is required.

4. Section 60G(2) of the Act makes it plain that a decision whether to grant leave is governed by a determination of the best interests of the subject child.

5. Failure to obtain the leave of this Court pursuant to section 60G now has consequences under the State legislation as just observed. It also has consequences under the Family Law Act. Section 61E of the 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 a 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.

6. 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.

7. Section 65J of the Family Law Act 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.

8. Consequently, an effect of adoption is that all parental responsibility for the child ceases, as do all other parenting orders.

9. At paragraph 22 of his decision in Holden & Britten (2010) FamCA 197, Murphy J after considering all of the same sections I have just set out said this:

   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 now turn to consider whether the subject child’s best interests are served by granting the applicants leave to commence the adoption proceedings in the State Magistrates Court with all of the potential consequences just outlined.

11. The mother of the subject child and the biological father were never married.  They were in a relationship, and on the evidence I am satisfied that when the mother fell pregnant with the subject child, the biological father, Mr Traimand, became unhappy and ended the relationship.  That relationship had ceased by the time the child was born.  On the evidence, Mr Traimand, the biological father of the child, has never had anything to do with the said child.  They have never had any relationship since the child was born, and he has not seen the child since she was born.  He has never provided any financial support for the said child either.

12. The evidence establishes, and I am satisfied, that the father has at no time ever made any attempt to contact either the child or the mother, either to make any effort to see the child or find out about the child or to offer any financial support or other support to the mother or the child.  I accept the evidence that the child has never expressed any desire to see the biological father.

13. From in or around late 2005 to the present date, the applicant mother and the subject child have been living with the applicant stepfather as a family unit.  Some time in or around the middle of 2010, the applicant mother and stepfather bought a unit together in Suburb C, and they have been living there in that unit with the subject child since that time.  I accept the evidence that the subject child considers the applicant stepfather to be her father and she refers to him as “Papa”.

14. The stepfather, Mr Ebert, is, along with the mother, responsible for the day-to-day care, support and upbringing of the child.  He involves himself in cooking food for her, buying her clothes, taking her to and from primary school, taking her to and from dancing lessons, helping her with her school homework and assignments, driving her to the doctors when she is sick, taking her to social outings such as going shopping or going to the movies.  I accept that the child lives a very happy and contented life in the family unit of the applicant mother, applicant stepfather and herself.  I accept that the evidence establishes that the applicant stepfather takes the responsibility of parenting the child, B, seriously and regards himself as her father and wishes to take on all of the legal obligation that would normally go with being the parent of a child.

15. In all the circumstances of this case and having regard to my obligations under the legislation to consider whether or not it is in the best interests of the child to permit adoption proceedings to proceed in the State Magistrates Court with all of the potential consequences that the biological father will cease to have any of the duties, powers, responsibilities and authority in respect of his child, I say that I am so satisfied. I will grant the leave sought.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 July 2011.

Associate:  Ly Bui

Date:  20 October 2011