Garmon and Anor and Jeans

[2020] FamCA 60

FAMILY COURT OF AUSTRALIA

GARMON AND ANOR & JEANS [2020] FamCA 60

FAMILY LAW – ADOPTION – Application for leave to commence proceedings – step-parent adoption – application granted

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

1st APPLICANT: Mr Garmon

2nd APPLICANT: Ms Garmon

RESPONDENT: Mr Jeans

FILE NUMBER: BRC 13901 of 2019

DATE DELIVERED: 30 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 January 2020

REPRESENTATION

REPRESENTATION

1ST APPLICANT: In person

2ND APPLICANT: In person

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The children, X, born … 2004 and Y, born … 2004 have leave to attend the proceedings today.

2. Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the children, X, born … 2004 and Y, born … 2004.

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  Garmon & Jeans has been approved by the Chief Justice pursuant to s 121(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 13901 of 2019

Mr Garmon

First Applicant

And

Ms Garmon

Second Applicant

And

Mr Jeans

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have today an application which was commenced initially by Initiating Application filed on 12 November 2019 and continued by Amended Initiating Application filed on 17 November 2019. 

2. By that Application, an order is sought granting leave pursuant to section 60G of the Family Law Act1975 (Cth) to commence proceedings for the adoption of the children: X, born in 2004, and her sister, Y, also born in 2004.

3. The Initiating Application informs that there are no ongoing cases in relation to the children in any other jurisdiction and that no orders, including any orders for domestic violence or protection orders, have been made as between the parties to this Application.  Further, there are no existing parenting orders in relation to the children. 

4. Section 92 of the Adoption Act2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of a stated child, only if a number of matters have been satisfied. Included within these matters, in particular at subparagraph 1(d) of that section, is that a person has been granted leave under the Family Law Act1975 (Cth).

5. In determining whether to grant leave for parties to commence adoption proceedings, the Court must be satisfied of a number of things.  One is that the proceedings are by a prescribed adopting parent.  That condition is clearly satisfied in this case.  This Court must also consider whether granting leave will be in the children’s best interests, having regard to the effects of s 60F(4)(a), s 60HA(3)(a), s 61E and s65J of the Act, where those sections are applicable. 

6. The decision facing this Court this morning is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of children or not. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections particularised in s 60G of the Family Law Act 1975 (Cth); only an order for option if made by an appropriate State Court has that effect.

7. However, s 208 of the Adoption Act2009 (Qld) is to the effect that the court may make a final adoption order under that Act only if satisfied of a number of matters, included within which are that an order for adoption by a step-parent would better promote a child’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any court order or no order at all. It is therefore obvious that this Court ought not to make an order granting leave to an applicant to permit proceedings in the State Court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.

8. I record here my view that it is clear that, in this case, the mandatory legislative pre-requisites are established on the evidence before me.

9. In determining, as I must, under s 60G(2) of the Family Law Act 1975 (Cth), whether granting leave to commence proceedings is in the children’s best interests (considered collectively and individually), I must give broad consideration to the familiar best interests considerations, where they are relevant, as prescribed by s 60CC of the Family Law Act 1975 (Cth).

10. However, any failure to mention specifically any particular consideration in these Reasons delivered this morning orally does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon – being evidence I had the opportunity to read yesterday evening and again this morning, prior to commencing the hearing of this application.

11. It is appropriate to record that Mr Garmon is the children’s step-father.  It is, I think, also appropriate to record that he and the girls’ mother married in 2012, after commencing cohabitation together in May 2011, at which time the children were about six and a half years of age.  Since then, to take up Mr Garmon’s words, they have all been together for so long, I have no doubt that, since the time of the commencement of the cohabitation between Mr Garmon and the children’s mother, he and she together have discharged all of the obligations associated with parenting the children.

12. It is also appropriate, I think, to record that Mr Jeans, to whom the children’s mother was previously married, has indicated by affidavit filed on 12 November 2019, that he consents to the children being adopted by Mr Garmon. 

13. It is unnecessary to detail in particular in these Reasons certain aspects of the children’s conception.  It is relevant to note, though, that their mother separated from Mr Jeans at a time when they were about five months of age.  It is also relevant to note that, between 2004 and 2011 Mr Jeans is said to have had some, but not regular, contact with the girls. It is also relevant, I think, to note that, according to their mother, Mr Jeans has paid child support through the Child Support Agency.

14. I accept though that, from the time when Mr Garmon and the girls’ mother commenced their cohabitation in early May 2011, Mr Garmon has joined in providing care and support to the children.  As I have said, I accept, on the evidence before me, that he has fulfilled all of the responsibilities and obligations of being a parent to the children.

15. I accept, on the evidence before me, that contact between the girls and Mr Jeans continued, it seems, until about October 2012; after which it appears to have fallen away somewhat, including, perhaps, as a consequence of Mr Jean’s apparent relocation to Tasmania.

16. I also note from the mother’s evidence that, whilst Mr Jeans attempted to call the girls on their 12^th birthday, they were not inclined to speak with him on that occasion. 

17. The evidence is to the effect that, in 2009, Mr Jeans made contact with the girls’ mother (and, no doubt, Mr Garmon also) through lawyers to seek to reconnect with the children: after speaking with them over the telephone and hearing their views, as expressed at that time (which were to the effect that they did not want contact with him then but, maybe, later and in the future), Mr Jeans determined that the appropriate course was to cease legal attempts in relation to contact with the children. On their mother’s evidence, he told her to start the adoption process.

18. That evidence is, I think, well corroborated by the fact that, as I have already stated, Mr Jeans has filed an affidavit in these proceedings outlining his position in relation to the leave sought by Mr Garmon.

19. I also accept the evidence given by the children’s mother and Mr Garmon (for all intents and purposes their father, given his contribution to their lives over such a lengthy period) that they are supportive of the children if they should choose, in the future, to resume contact with Mr Jeans.

20. I accept, speaking generally then, in the context of the way in which this family has lived together and the way in which the girls’ mother and Mr Garmon have, I infer, jointly cared for, supported, loved and discharged all other parenting obligations towards the children since May 2011, that the purpose of the application to seek orders for adoption is, in essence, to bring into line, in a legal sense, the way in which this family has lived since May 2011.

21. The fact that Mr Garmon seeks formally to recognise, by way of an order he will seek that the State Court make following the making of an order I intend to make this morning, is a further indication, it seems to me, that he seeks to continue to discharge the role of parenting the children; and that he seeks to continue to do so with the support of their mother.

22. I therefore consider that it is open to me to infer that it is much more likely than not that the children’s mother, Mr Garmon and the children themselves will likely gain significant additional emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made.

23. Therefore, for these reasons delivered orally, I have no hesitation at all in concluding that the commencement of proceedings seeking adoption is something that is in Y and X’s best interests.  Accordingly, I make an order in these terms.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 January 2020.

Associate:     

Date:              30 January 2020