Hanlon & Hanlon

Case [2022] FedCFamC1F 435

Federal Circuit and Family Court of Australia

(DIVISION 1)

Hanlon & Hanlon [2022] FedCFamC1F 435

File number: CAC 2835 of 2020
Judgment of: GILL J
Date of judgment: 17 June 2022
Catchwords: FAMILY LAW – ADOPTION – Application by step-parent to adopt biological child of wife under ACT law – Child aged eight years – Biological father passed away – Child living with step-father and biological mother – Where leave was previously granted pursuant to s 60G of the Family Law Act 1975 (Cth) – Potential consequence of s 61E of the Family Law Act 1975 (Cth) extinguishing parental responsibility of biological mother – Statutory interpretation of evolution s 61E – Lens applied to capture legislative intent – Interaction between s 61E of the Family Law Act 1975 (Cth) and the Adoption Act 1993 (ACT) – Section 61E of the Family Law Act 1975 (Cth) construed such that step-parent adoption will not strip the parental responsibility from the biological mother – Exercise of cross-vested jurisdiction of the Supreme Court of the ACT – Adoption granted.
Legislation:

Acts Interpretation Act 1901 (Cth) s 15AB

Adoption Act 1993 (ACT) ss 5, 9, 13, 14, 28, 39B, 39D, 39F, 39J, 43, 105

Family Law Act 1975 (Cth) ss 4, 60F, 60G, 60HA, 61C, 61E, 65D, 65J

Family Law Amendment Act 1987 (Cth) s 63F

Family Law Amendment Act 1991 (Cth) ss 60AA, 63F(4), 63F(1)

Family Law Reform Act 1995 (Cth) ss 63F(4), 60G

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27

Brock & Brock [2007] FamCA 1594

Hanlon & Hanlon [2021] FamCA 465

Hanlon & Hanlon (No. 3) [2021] FamCA 472

Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355

SAS Trustee Corporation v Miles (2018) 265 CLR 137

Tanner & Cape [2011] FamCA 665

Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428

Division: Division 1 First Instance
Number of paragraphs: 69
Date of hearing: 1 July 2021 and 15 September 2021
Place: Canberra
Solicitor for the Applicants: Parker Coles Curtis

ORDERS

CAC 2835 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR HANLON

First Applicant

MS HANLON

Second Applicant

order made by:

GILL J

DATE OF ORDER:

17 JUNE 2022

THE COURT ORDERS THAT:

1.Mr Hanlon is a step-parent within the meaning of the Adoption Act 1993 (ACT) of X, born 2011 (“X”).

2.Mr Hanlon (“the adopting father”) is married to X’s mother, Ms Hanlon.

3.X’s biological father was Mr B, born 1965. He died in 2017.

4.X was born at E Hospital, Suburb F, New South Wales.

5.X’s birth is registered in New South Wales.

6.X is female.

7.Ms Hanlon’s surname at the date of birth of X was Ms B.

8.The parties intend that X’s full name after adoption will be X Hanlon.

9.The adopting father’s occupation is Public Servant.

10.The adopting father’s address is G Street, Suburb…

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Hanlon & Hanlon [2022] FedCFamC1F 435
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[2022] FedCFamC1F 435
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CaseChat Overview and Summary

The case of Hanlon & Hanlon involved an application for the adoption of a child, X, by Mr Hanlon, the father of X. Ms Hanlon, the mother of X, did not oppose the adoption but sought to retain her parental rights. The matter was heard in the Family Court of Australia. The central legal issue was whether the adoption order should be granted in a manner that allows Ms Hanlon to remain a parent of X. This was contested on the grounds of whether such an arrangement would be in X’s best interests and whether it was permissible under the relevant legislation.

The court examined the provisions of the Adoption Act and the Family Law Act to determine if an adoption order could be made without severing the parental relationship between Ms Hanlon and X. It considered the implications of section 43(1)(c) of the Adoption Act, which allows for the continuation of the relationship between the adopting parent and the child’s other parent, provided it is in the child’s best interests. The court also evaluated the effect of section 65J of the Family Law Act, which mandates the cessation of parenting orders upon the making of an adoption order. However, section 61C of the Family Law Act ensures that each parent retains parental responsibility.

After careful consideration, the court concluded that the adoption was in X’s best interests and that it was appropriate to make an order that allows Ms Hanlon to remain a parent. The court thus granted the adoption order, ensuring that Ms Hanlon's parental rights were preserved and that all necessary declarations and notifications were made in accordance with the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, I conclude that the adoption is in X’s best interests. CONCLUSION An adoption order will be made pursuant to s 9 of the Adoption Act in favour of Mr Hanlon. By application of s 43(1)(c) of the Adoption Act such order will not affect the relationship between Ms Hanlon and X, and accordingly Ms Hanlon will remain X’s parent. A notation will be made to such effect. By operation of s 65J of the FLA all extant parenting orders cease to be in force. A notation will be made to such effect, along with a declaration that in accordance with s 61C of the FLA each of the parents will hold parental responsibility. The applicants seek a suite of declarations that will form the basis of a Memorandum of Adoption order that is required to be sent to the Principal Registrar of Births, Deaths and Marriages, New South Wales. Such declarations will be made. The Registrar will be directed, in accordance with s 105 of the Adoption Act to send the relevant form to the Principal Registrar, along with a certified true memorandum of the adoption order. A further direction will be given for the Registrar of this Court to notify the Director-General in writing of the making of these orders pursuant to s 39J of the Adoption Act.

Ratio Decidendi

Legal Principle Established

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