Frawley and Frawley and Anor

[2019] FamCA 913

FAMILY COURT OF AUSTRALIA

FRAWLEY & FRAWLEY AND ANOR [2019] FamCA 913

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the Respondent biological father is deceased – Order that leave be granted.

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)

FIRST APPLICANT: Mr Frawley

SECOND APPLICANT: Ms Frawley

RESPONDENT: Mr Potter

FILE NUMBER: BRC 10705 of 2019

DATE DELIVERED: 2 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 November 2019

REPRESENTATION

THE FIRST APPLICANT: In Person

THE SECOND APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Mr Frawley and Ms Frawley, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child X born … 2004, by her stepfather, Mr Frawley.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frawley & Frawley and Anor has been approved by the Chief Justice pursuant to s121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10705 of 2019

Mr Frawley

First Applicant

And

Ms Frawley

Second Applicant

And

Mr Potter

Respondent

REASONS FOR JUDGMENT

1. By application filed in October of this year, Ms Frawley and her husband, Mr Frawley, seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth) (“Family Law Act”), they be granted leave to commence adoption proceedings for the adoption of Ms Frawley’s child, X born in 2004, by her step-father and the husband of Ms Frawley, Mr Frawley. X has just turned 15 years old.

2. The person named as the Respondent to the application is Mr Potter, who Mr Frawley deposes is the child’s biological father. It was asserted by the Applicants that Mr Potter is, however, now deceased, having passed away in 2016. Neither of the Applicants had annexed a copy of Mr Potter’s death certificate to either of their affidavits filed in the proceedings at the initial hearing of the application, so, out of an abundance of caution, I made an order on that day for them to obtain that document, which they have.

3. In Queensland, the adoption of a child is governed by the Adoption Act 2009 (Qld). Under s 92 of that Act, a step-parent of a child may apply to the Chief Executive of the Department of Communities, Child Safety and Disability Services to arrange an adoption of their step-child, provided the step-parent is a spouse of a parent of the child; the parent, the step-parent and the child live together; and the adults have been spouses and both living together with the subject child for a continuous period of at least three years up to the time of the application.

4. The step-parent Applicant must also be an adult and an Australian citizen or the spouse of the Applicant must be an Australian citizen. They must also reside in Queensland, and the child must be at least 5 years of age and not yet 17. Finally, the step-parent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act.

5. Section 60G of the Family Law Act provides as follows:

   (1)Subject to subsection (2), the Family Court… 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.

6. Section 61E of the Family Law Act provides as follows:

   (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.

7. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to s 60G. A current parenting order stops being in force if the child is adopted.

8. I consider it sufficient to say that in proceedings for leave for proceedings to be commenced in the State court by a step-parent seeking the adoption of a child, this Court must consider whether the granting of that leave would be in the child’s best interests, having regard to the effect of a number of other important sections of the Family Law Act.

9. Mr Frawley is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Family Law Act, a person within the definition contained.

10. Essentially, the effect of those critical sections of the Family Law Act to which regard must be had when considering the child’s best interests is that on the granting of an adoption order pursuant to the State legislation, any pre-existing parental responsibility rights and rights in respect of the child spending time with or living with the other parent, immediately cease. 

11. In this particular case, there were parenting orders in place between the parties, allowing Mr Potter time with X, though this time was altered by the Court, which I will return to later.

12. There is no evidence of any current parenting order being in place, with the evidence being that the biological father of the child is deceased. Ms Frawley has deposed to the fact that X’s father died in 2016 as a result of complications of methamphetamine use and that she was not provided with (nor asked for) his death certificate at this time.

13. On 29 November 2019, Mr Frawley filed an affidavit, which included a certified copy of Mr Potter's New South Wales Death Certificate. It states that he passed away in 2016, having died of “myocarditis”, which is inflammation of the heart muscle. “Methamphetamine use” was also noted under the “Cause of Death and Duration of last illness” part of the document, which is consistent with that asserted by Ms and Mr Frawley.  

14. Having regard to the evidence that I have just referred to and the fact that I have since seen Mr Potter's Death Certificate, I do accept and make a finding, to the extent that it is necessary, that Mr Potter, X’s biological father, is deceased and that consequently his consent to the making of an order pursuant to s 60G of the Family Law Act or indeed in respect of the application for Mr Frawley to adopt X in the State Court, is not required.

15. Ms Frawley has, being the only surviving parent of X, all parental responsibility for X pursuant to s 61C(1) of the Family Law Act.

16. The test for me to consider is whether it is in X’s best interests for leave to be granted for her stepfather, Mr Frawley, to commence an adoption application. In the process of considering that question, I must have regard to, relevantly, the provisions of ss 60CC and 60CD of the Family Law Act as well.

17. Section 60CC(3) includes a list of many things that must be considered by the Court in determining what is the best interests of the child. It includes importantly any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that go to the weight that should be given to any of those views expressed by the child that the Court thinks are relevant.

18. In respect of Mr Potter’s relationship with X, Mr Frawley deposes that Mr Potter had spent some time with X on and off whilst he was alive and predominately more regularly after X’s birth, initially fortnightly overnight visits before moving to day-only visits, because, as deposed to by Mr Frawley, “he could not provide a suitable and safe environment for her to stay overnight”. From about mid-2010 until his death in 2016, Mr Potter spent time with X approximately once a year, although being entitled to more than that.

19. Ms Frawley describes her relationship with Mr Potter in more detail, stating they separated when X was 7 months old in 2005, due to violence, and drug and alcohol abuse. She says that she ceased fortnightly visits with Mr Potter in 2007 as X would come home with “burns on her fingers” and Mr Potter would “not [provide] a bed for X, and therefore she would sleep with him in his bed, and at one point in the same bed as a woman that [Mr Potter] had just met”. Ms Frawley deposes that as a result, she went to Court and orders were made allowing for daytime-only visits with X once per fortnight.

20. In 2008, the parties went to Court again, with Mr Potter opposing Ms Frawley’s attempt to move to the Region B to become a Professional at Employer C. The Court ruled that Ms Frawley, Mr Frawley and X were allowed to relocate to the Region B and that Mr Potter would pay for X’s flights to City D, NSW once per month (accompanied by Ms and/or Mr Frawley), as well as child support, though no evidence was provided as to how much child support he was required to pay, although the cost of flights for X to see her father were taken out of that amount.

21. In 2010, Mr Potter moved to City E, Qld and did not see or have regular phone contact with X again until 2012, where he moved back to City D, NSW and saw her once per year at Christmas time and spoke to her on the phone one to two times per year. The last time Mr Potter came to Queensland was in 2012 and he stopped paying child support, though Ms Frawley asserts that the Child Support Agency did “begin forcibly taking approximately $20 per fortnight from his pay”.

22. The last time X saw Mr Potter was 2014 and last time she spoke with him on the phone was in 2015 for her birthday.

23. The evidence provided by Mr Frawley is that Mr Potter died in 2016 as a result of drug usage. Ms Frawley says that in 2016, she was informed by Mr Potter’s mother that he had passed away as a result of “Ice-related heart failure”. She stated that unbeknownst to her and Mr Frawley, Mr Potter had become addicted to the drug in 2014.

24. Although Ms Frawley was never issued with a death certificate for Mr Potter, and she says she never asked for one at that time, she and X attended the funeral the following week in City D, NSW.

25. In respect to other relevant matters, Ms Frawley met Mr Frawley in 2005. They commenced cohabitation in 2006 and it is at this time that X began living with Mr Frawley as well. The parties married in 2009. They had a son together, F, in 2010.

26. X has been living with her mother since she was about 7 months old, when Ms Frawley left Mr Potter and moved to City D in New South Wales to live with her parents, and now also with Mr Frawley from the age of about 2 years old. Ms Frawley deposes that X calls Mr Frawley “Dad”, with him being her dad “in all aspects except biologically”. She also says they have a “wonderful, loving relationship” and that extends to Mr Frawley’s family who “welcomed her in, and loved her as their own, since 2005”. Aside from not hearing from Mr Potter’s family, the mother states that they do visit Mr Potter’s parents one to two times per year and visit Mr Potter’s other child (X’s step-sister), whom X also calls “a few times per year”.

27. Mr Frawley has deposed in his affidavit about the nature of his relationship with X and the “very loving” nature of it. He states he is excited about the finalisation of the adoption and “X is proud of the idea and very positive about it”, with both of them being committed to the process. This is echoed by Ms Frawley who says “X understands [Mr Frawley’s] desire to have her as his legal daughter, as she already considers him as her dad. She understands that this application and the adoption process will make it official and she supports it”.

28. I am satisfied on all of the evidence that it is in X’s best interests for the Applicants to be able to proceed with their desired course, namely to file an application for adoption in the State Courts and for it to be considered in those Courts in accordance with the State adoption legislation and I order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 2 December 2019.

Associate:

Date:  2 December 2019