Hanlon & Hanlon

[2021] FamCA 465

FAMILY COURT OF AUSTRALIA

Hanlon & Hanlon [2021] FamCA 465

File number(s):

CAC 2835 of 2020

Judgment of:

GILL J

Date of judgment:

1 July 2021

Catchwords:

FAMILY LAW – ADOPTION – whether leave to commence adoption proceedings is in the best interests of the child – leave granted under s 60G of the Family Law Act 1975 (Cth) to commence proceedings

Legislation:

Adoption Act 1993 (ACT) s 14

Family Law Act 1975 (Cth) ss 60CC, 60G, 60F, 60E, 60J

Cases cited:

Brucedale and Anor & Vaulks [2020] FamCA 143

Poulter and Anor & Lenton [2012] 46 Fam LR 623

Number of paragraphs:

19

Date of hearing:

3 June 2021

Place:

Canberra

Solicitor for the Applicants:

Parker Coles Curtis

ORDERS

CAC 2835 of 2020

BETWEEN:

MR HANLON

First Applicant

MS HANLON

Second Applicant

ORDER MADE BY:	GILL J
DATE OF ORDER:	1 JULY 2021

THE COURT ORDERS THAT:

1.Mr Hanlon is granted leave to commence adoption proceedings in relation to X, born … 2011.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanlon & Hanlon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J:

1. This application, made by both Mr Hanlon and Ms Hanlon, concerns leave for Mr Hanlon to commence adoption proceedings in relation to his step child, X (born in 2011), pursuant to s 60G of the Family Law Act 1975 (Cth).

2. Section 60G is in the following terms:

   (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), or paragraph 60HA(3)(a), and of sections 61E and 65J.

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

3. Section 60F(4) provides that where leave is given pursuant to s 60G, then on adoption X would cease to be a child of the marriage of Ms Hanlon and Mr B.

4. Section 60HA(3)(a) relates to children of a de facto relationship and has no application.

5. Section 61E relates to the cessation of parental responsibility on adoption.

6. Section 65J relates to adoption bringing extant parenting orders to an end.

7. In summary it may be seen that these provisions reflect the character of adoption as displacing a parent, bringing one parental relationship to an end, and another into being.

8. As set out in s 65G, overarching these matters is the requirement that the granting of leave be in X’s best interests, being a matter to be determined on consideration of the matters set out in s 60CC, insofar as they are relevant to the case.

   X’s circumstances

9. The application occurs in the context of X’s father, Mr B, having died in 2017.  X’s mother, Ms Hanlon, married Mr Hanlon in 2020.  Ms Hanlon and X have lived with Mr Hanlon for approximately 17 months.  Mr Hanlon’s son, C also lives half the time in the household.  Mr Hanlon is currently in dispute with his previous partner in the Federal Circuit Court in relation to parenting arrangements for C, as well as for his other son, D.

10. Ms Hanlon is a co-applicant with Mr Hanlon in the application for leave to commence adoption proceedings.

11. Mr Hanlon says that X has asked to be known as “Hanlon” so that “we can all be a family together”.[1]  Ms Hanlon reports that in March 2020 she asked to call Mr Hanlon “dad” and that she now refers to him in such a manner.[2]

    [1] Affidavit of Mr Hanlon filed 27 April 2021, paragraph 19.

    [2] Affidavit of Ms Hanlon filed 27 April 2021, paragraph 48.

12. Mr Hanlon says that his objective in pursuing adoption is to ensure stability and protection for X to further her well-being.  Ms Hanlon describes it as providing X with “as much protection and reassurance as we can”.[3]

    [3] Ibid paragraph 51.

13. Ms Hanlon deposes to X having expressed to her a fear that the mother might die, leaving X an orphan.[4]  She also reports that X has described Mr Hanlon as a “good father” and that his children are “lucky to have him as a dad”.[5]

    [4] Ibid paragraph 21.

    [5] Ibid paragraphs 28 and 47.

14. On 20 January 2021 Mr Hanlon was placed on the Register of Suitable People kept pursuant to s 14 of the Adoption Act 1993 (ACT), that being a prerequisite to a person being considered for adoption under that legislation.

15. On 11 February 2021 orders were made by consent in this court for Ms Hanlon and Mr Hanlon to equally share parental responsibility, and for X to live with them.

    Consideration

16. The issue in determining whether leave is in the best interests of the child is as identified in Brucedale and Anor & Vaulks [2020] FamCA 143 at [7]:

    Their best interests are to be considered in the light of s 60CC of the Act. That is, is it in their best interests to open the gateway to consideration of whether it is also in their best interest to make an adoption order.

17. In Poulter and Anor & Lenton [2012] 46 Fam LR 623 at [24], Murphy J put the issue in the following manner:

    The question then, in my view, can be expressed in this way: is it in the relevant child or 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 orders being made in this Court that might involve the parent and step-parent?

18. In the case of step-parent adoption where one of the parents is deceased, although best interests are still the touchstone of the determination, the considerations are somewhat different to the circumstance where both parents are still alive, being that there is no displacement of a living parent by virtue of the proposed adoption.  Accordingly, unlike in the case where both parents are alive, there is, in respect of the deceased parent, no issues arising as to the benefits of meaningful relationship, and no issues, in respect of the Objects and Principles at s 60B, flowing from the proposed removal and displacement of a parent.

19. Here, amongst the s 60CC considerations, X’s views (a consideration at s 60CC(3)(a)) being her desire for the status of Mr Hanlon as her father, the nature of her relationship with Mr Hanlon (s 60CC(3)(b)) and the contribution Mr Hanlon makes to X’s well-being, along with the potential for the provision of a sense of security to X (s 60CC(3)(f)) establish that it is in X’s best interests for leave to be granted to commence proceedings, such that consideration be given to an adoption application.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       1 July 2021