Hahn and Trillin

[2020] FamCA 830

FAMILY COURT OF AUSTRALIA

HAHN & TRILLIN [2020] FamCA 830

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

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth) s 60G

FIRST APPLICANT: Mr Hahn

SECOND APPLICANT: Ms Trillin

FILE NUMBER: BRC 6272 of 2020

DATE DELIVERED: 24 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Hooper
Hooper Family Lawyers

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth) leave be granted to the applicant, Mr Hahn, to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the children, X born … 2006 and Y born … 2009.

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 Hahn & Trillin 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 6272 of 2020

Mr Hahn

First Applicant

And

Ms Trillin

Second Applicant

EX TEMPORE REASONS FOR JUDGMENT

1. By an Initiating Application filed on 27 May 2020, Mr Hahn and his wife, Ms Trillin, seek an order pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Family Law Act”) to be granted leave to commence adoption proceedings for the adoption of Ms Trillin’s children, X born in 2006 and Y born in 2009, who are aged 14 and 11 now respectively. Ms Trillin supports her husband’s application in its entirety.

2. There is no respondent to the application. Mr B, who was the biological father of the two boys, sadly passed away from motor neurone disease in 2019, more than a year ago now.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act 2009 (Qld). It is a piece of Queensland legislation, not Commonwealth legislation, like the Family Law Act. Under that Queensland legislation, a step-parent of a child may apply to the Chief Executive of the Queensland Department of Child Safety, Youth and Women to arrange an adoption of his or her step-child, provided that a number of preconditions are met. Those include that the step-parent is a spouse of a parent of the child; that the parent, the step-parent and the child all live together; that 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.

2. They also include the requirement that the step-parent applicant be an adult and an Australian citizen, or at least the spouse of the applicant must be an Australian citizen. They must also reside in Queensland. 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.

3. Section 60G of the Family Law Act is 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.

4. Section 61E of the 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.

5. 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.

6. I consider it sufficient to say that in an application for leave for proceedings to be commenced in the State court by a stepparent seeking the adoption of a child, that 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.

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

8. In the circumstances of this case, none of that matters in actual fact as the boys’ biological father has been deceased now for over a year. As a consequence, Mr Hahn’s wife, Ms Trillin, as the only surviving parent of those two boys, is the only person with parental responsibility for those boys. There is no order of the Family Court or a court with jurisdiction under the Family Law Act that gives parental responsibility or any other parental rights to any other person.

Some history of the matter

1. Ms Trillin was born in 1976 and is 43 years of age. Mr Hahn, her husband, was born in 1979 and is 40 years of age. They were married in 2016, over four years ago.  They commenced their relationship in April 2014, started living together in April 2015 and they have lived together continuously since then for a period of over five years. Mr Hahn is an educator and employed in Suburb D. Ms Trillin deposes in her affidavit that has been read on her behalf to being an Australian citizen and she lives in Australia.

2. Ms Trillin was, I understand, married to Mr B and the two boys were the progeny of their marriage. They lived in Victoria during the course of their marriage relationship but they separated in early March 2014 after Mr B requested that Ms Trillin leave the home in which she and the boys lived with Mr B.  The two boys, X and Y, moved out of the home with her.  I will not say too much about it but Ms Trillin has deposed in her affidavit material to there having been a history of family violence that she suffered at the hands of Mr B during the course of their relationship. No doubt, that was one of the causes of the breakdown of their relationship.

3. After they separated there was an informal parenting care arrangement in place between the two parents. X and Y spent time with their father on a regular basis and had contact with him by telephone on a regular basis. However, after Ms Trillin commenced a relationship with Mr Hahn, as is not an uncommon phenomena in many similar situations, the relationship between Mr B and Ms Trillin began to deteriorate even further. His relationship with his boys began to deteriorate in the same vein at the same time.

4. Sometime after the separation, whilst his relationship with Ms Trillin and the boys was continuing to deteriorate, Mr B was diagnosed with the terrible disease known as motor neurone disease. It obviously had some pretty significant effects on Mr B, physically and more importantly, emotionally and mentally in the years of his decline prior to his unfortunate and untimely death as his relationship with his boys, particularly, deteriorated until a time when he effectively told Ms Trillin that he did not want to see the boys anymore or have anything to do with them. That was some time in the year or two before his death.

5. Ms Trillin has also been having some unfortunate health problems and it was because of those that Mr Hahn and Ms Trillin decided to relocate from Victoria to Queensland with the two boys. They moved up here a couple of years ago, to the best of my recollection from the material.

6. The boys, X and Y, lived principally with their mother in the six years since the separation of the mother and their father naturally got to know the mother’s new partner, Mr Hahn very well in those years. It seems from the evidence of Mr Hahn, supported completely by the evidence of Ms Trillin, that the boys and Mr Hahn have developed a very close and loving relationship with a parental-child like attachment growing between them. Both boys at some point after the commencement of cohabitation between their mother and Mr Hahn, began calling Mr Hahn by the expression “dad” or “daddy”. The younger boy beginning to call Mr Hahn by the expression “dad” or “daddy” about a month or six weeks before his older brother did, but with apparent comfort.

7. The illness that has affected Ms Trillin on and off over the years is apparently a recurrent one that comes and goes and is debilitating for a time before improving and allowing her to live a reasonably normal life in between its impacts. In the time though when she is suffering from its effects, Mr Hahn has been providing her with physical, emotional and financial support and in particular he has taken on an enormous role in assisting her with parenting the two boys, X and Y.

8. The evidence that both of the applicant parties have put before the Court sets out a normal, loving, happy, busy, thriving family life between the mother, her new husband, who is the step-father of the two boys, and the two boys. They do lots of things together, the boys who are now certainly into adolescence, in respect of the eldest, the younger boy moving into that stage of his life now as they approach, rapidly, young adulthood, seem to enjoy the company, mentoring, parenting and friendship that their stepfather, Mr Hahn, gives them in all the facets of their life. No doubt his training and work in his profession as a teacher would be helping him greatly in respect of the way he relates to these two growing young men and in how he can assist them in developing and maturing through not just their life process but their education process as well at the same time.

9. The evidence tells me that the parents, the applicants, Ms Trillin and Mr Hahn, married in 2016 and the joyous occasion that they had was shared in a major way with the two boys, X and Y. The evidence says that these two young men became Mr Hahn’s ‘best men’ at the wedding and not only were they the ‘best men’ standing beside him and their mum as they exchanged their wedding vows, they had the privilege and the honour of escorting their mother down the aisle as she went to marry their step-father.

10. In all respects the evidence satisfies me that these boys look up to Mr Hahn now, particularly since the unfortunate demise of their father at the end of a deteriorating relationship between them with their father and their father’s extended family, as if he is their dad. He looks upon them as if they are his children and he treats them as such. Their mother looks upon the relationship between Mr Hahn and her two boys, growing into young men, as clearly a relationship of father and sons, one that she is very happy to see formalised by way of an adoption process.

11. I am satisfied that Mr Hahn understands that the successful adoption of X and Y would mean that he then will become a legal parent of these two boys in all respects. I am satisfied that knowing that, that is what he is willing to take on and that is in fact what he wants to take on. I have no doubt on the evidence before me that that is what the boys X and Y want and look forward to as well.

Best interests

1. I must consider whether it is in X and Y’s best interests for leave to be granted for their step-father to commence an adoption application, along with their mother. In the process of considering that question I must, as I have said, have regard to the provisions of s 60CC and s 60CD of the Family Law Act as well. In this case, unlike many others that I have determined pursuant to the same provisions of the Family Law Act, the biological father of the boys is not around anymore and is now deceased. Ms Trillin has had the parental responsibility for these two boys on her own, in the legal sense, since Mr B passed away early last year. 

Conclusion

1. I am, in all the circumstances, satisfied that Ms Trillin also supports Mr Hahn’s application to become the lawful adoptive father of her two sons in every way and she joins him in asking the Court for those orders.

2. In all these circumstances, I can say that I am satisfied on the evidence that is before me that Mr Hahn takes the responsibility of parenting X and Y seriously and has demonstrated that he is committed to undertaking and accepting all of the legal responsibilities and obligations that come with being a parent to a child when he asks to be formally allowed to make an adoption application to become a parent to these two boys, in a legal sense.

3. Having considered all of the matters that I have just referred to and considering all the principles that I have referred to, namely the fact that I must be satisfied that the granting of leave is in the best interests of the subject children, I am satisfied that it is in X and Y’s best interests for Mr Hahn and Ms Trillin to be given leave to be able to commence proceedings in the State courts of Queensland for an order granting the adoption of the children. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 August 2020.

Associate: 

Date:  29 September 2020