Hanlon & Hanlon
[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 H, Australian Capital Territory.
11.The adopting father’s place of birth is Suburb J, New South Wales.
12.The adopting father was 41 years of age at the date of birth of the adopted child.
THE COURT ORDERS THAT:
13.Pursuant to s 9 of the Adoption Act 1993 (ACT), and in the exercise of the cross-vested jurisdiction of the Supreme Court of the Australian Capital Territory, an adoption order is made for X born 2011 (“the child”) in favour of Mr Hanlon (“the adoption order”).
14.It is noted that by operation of s 43(1)(c) of the Adoption Act 1993 (ACT) the adoption order does not affect the relationship between the child and Ms Hanlon.
15.It is noted that by operation of s 65J of the Family Law Act 1975 (Cth) that all extant parenting orders are discharged.
16.It is declared that in accordance with s 61C of the Family Law Act 1975 (Cth) each of the parents has parental responsibility for the child.
17.A Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Canberra is requested to certify a completed Adoption Regulations 1993 - Form 3 on the basis of the declarations made above, but noting that the adoption order was made by the Federal Circuit and Family Court of Australia (Division 1) exercising the jurisdiction of the Supreme Court of the Australian Capital Territory, and not by the Supreme Court of the Australian Capital Territory, and to provide the certified form to the Principal Registrar of Births, Deaths and Marriages, New South Wales.
18.A Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Canberra is requested to advise the Director-General in writing of the making of these orders.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanlon & Hanlon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION
These proceedings concern an application for the adoption of X (“X”), born in 2011, by her step-father Mr Hanlon. The joint applicants are Mr Hanlon and Ms Hanlon, X’s biological mother.
The circumstances of the case were set out generally in Hanlon & Hanlon.[1] The adoption application is made in circumstances where X’s biological father, Mr B, died in 2017. Ms Hanlon and Mr Hanlon were married in 2020, having been in a relationship since 2018. Mr Hanlon seeks to adopt X in order to provide stability and promote her wellbeing in circumstances where X has expressed a desire to be known as “Hanlon” and refers to Mr Hanlon as “dad”.[2] Consent orders were made on 11 February 2021 providing for Ms Hanlon and Mr Hanlon to have equal shared parental responsibility for X.
[1] [2021] FamCA 465.
[2] Hanlon & Hanlon [2021] FamCA 465, [11]–[13].
Leave was then granted to both Ms Hanlon and Mr Hanlon to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) (“the FLA”) in two separate judgments delivered on 1 July 2021.[3]
[3] Hanlon & Hanlon [2021] FamCA 465; Hanlon & Hanlon (No. 3) [2021] FamCA 472.
Despite being X’s biological mother, leave to commence adoption proceedings was granted to Ms Hanlon due to a possible effect of s 61E of the FLA if an adoption order is made in favour of Mr Hanlon. This possible effect is that upon the making of that adoption order, s 61E would appear at face value to extinguish Ms Hanlon’s parental responsibility for X. This would be an unintended and undesirable consequence in circumstances where Ms Hanlon is X’s biological mother, and neither applicant seeks to displace Ms Hanlon’s relationship with X.
Although leave has been granted for Ms Hanlon to make an adoption application, an adoption order in favour of Ms Hanlon is now not sought by the applicants. The applicants instead sought an adoption order in favour of Mr Hanlon and a parenting order under s 65D of the FLA with the effect that both Ms Hanlon and Mr Hanlon have parental responsibility for X from the date of the adoption order.
In aid of the adoption application the applicants seek a suite of declarations and orders as set out in the appendix to this judgment that substantively seek an adoption order in relation to Mr Hanlon, orders for Ms Hanlon and Mr Hanlon to have parental responsibility and orders to facilitate the transmission of the adoption order to the Principal Registrar of Births Deaths and Marriages, New South Wales.
Although the applicants submitted that such a course could be taken without grappling with the correct interpretation of s 61E and the interaction between the FLA and the Adoption Act 1993 (ACT) (“Adoption Act”), the necessity of the proposed s 65D parenting order is predicated on various assumptions as to the operation of these statutes. As such, the legal background against which the orders proposed by the applicants may be made should be considered.
STATUTORY CONTEXT
The FLA contains a suite of provisions dealing with the interaction between adoption, a creature of State and Territory legislation, and parental responsibility as dealt with by the FLA. More specifically, the provisions deal with the interaction of Federal provisions and orders in relation to parental responsibility with State and Territory adoption orders.
The provisions in large part ensure that a State or Territory order for adoption does not find itself in conflict with a pre-existing Federal order in relation to the allocation of parental responsibility, implicitly so as to avoid the undermining of the State or Territory adoption order.
However, a specific focus of the provisions is directed to step-parent adoption. Such a focus is understandable, given that the general effect of adoption is the severance and replacement of a parent, such that the previous parental relationship is extinguished and substituted with a new one.
The provisions within the Act ensure via a leave requirement that State and Territory step‑parent adoptions do not subvert the role of the court in determining the allocation of parental responsibility between separated parents. It is only when such leave is granted that a State or Territory adoption order is enabled to have full effect to alter the allocation of parental responsibility.
In this case, where the proposed step-parent adoption is in the context of the death of X’s natural father, leave has been granted on the basis that such an adoption is in X’s best interests. Typically that would signal the end of the involvement of this Court (or since the amendments to the FLA of September 2021, Division 2 of the Federal Circuit and Family Court of Australia as that court now holds the jurisdiction to deal with such leave questions).
In this instance however the court has been left with simultaneous applications before it, as identified above, both in relation to the substantive application for adoption under the law of the ACT (by operation of the cross-vesting legislation as remains effective to vest the jurisdiction of the ACT Supreme Court in this Court) and the leave requirement under the FLA. The reason for such parallel applications relates to questions arising in these proceedings as to the potential effect of s 61E of the FLA being to extinguish the mother’s parental responsibility for X should an adoption order be made. Section 61E is in the following terms:
61E Effect of adoption on parental responsibility
(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.
A brutalist literal interpretation points to a stripping of parental responsibility from the mother, as a person who had parental responsibility for the child, on the making of an adoption order in respect of Mr Hanlon. Such an outcome is not intended by either the mother or Mr Hanlon. The question arises as to whether such is the correct interpretation of s 61E.
In construing s 61E of the FLA and the other related provisions, it is necessary to bear in mind what was said on the subject of statutory construction by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc and Ors v Australian Broadcasting Authority (“Blue Sky”),[4] having observed that the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”[5] and taking into account the general purpose and policy of the provision, and on the “prima facie basis that its provisions are intended to give effect to harmonious goals”.[6] In particular, it is noted at [78]:
78. …the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:
“The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that parliament intended to deal with”
(Footnotes omitted)
[4] (1998) 194 CLR 355.
[5] (1998) 194 CLR 355 at [69].
[6] (1998) 194 CLR 355 at [70].
This approach points to the need to carefully consider the statutory context to determine the legislative purpose and the meaning of the provisions. Such an approach also flows from what was described by Gageler J in Work Health Authority v Outback Ballooning Pty Ltd,[7] at [76]:
76. “[O]ne of the surest indexes of a mature and developed jurisprudence” is “to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning”. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly “to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”. That a finding of purpose can involve a “contestable judgment” only heightens that responsibility.
(Citations omitted)
[7] [2019] 266 CLR 428.
This should not be taken to say that the meaning of the words and language used is disregarded, as such an approach would conflict not only with Blue Sky but also with cases such as Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[8] at [47] which describes that “statutory interpretation must begin with a consideration of the text itself.” However, as identified by Gageler J in SAS Trustee Corporation v Miles (“SAS Trustee”),[9] at [41]:
41. Statutory construction is the process by which meaning is attributed to statutory text. In a doubtful case, it involves constructional choice. The statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means.
[8] (2009) 239 CLR 27.
[9] (2018) 265 CLR 137.
In this instance, the requirement to take into account the statutory context means that it is necessary to identify both the development of the provisions and also the content of the Territory adoption provisions that they are to interact with.
The adoption provisions contained in the Family Law Act 1975 (Cth)
The provisions within the FLA touching upon adoption have gone through a number of iterations. The development of those provisions are set out below, and have culminated in a present position whereby there are separate consequences in respect of the effect of adoption, dependent upon whether or not it is a step-parent adoption and, if it is, on whether leave for the application to adopt was first received under the Act.
The Family Law Amendment Act 1987 (Cth) contains the first retrievable mention of the rights of custody and guardianship of children in an adoptive context.
The new s 63F re-enacted the substance of existing provisions in s 61 in the Principal Act, and extended their operation to ex-nuptial children following the referral of power from most states.[10] This section dictated that “each of the parents of a child who has not attained 18 years of age is a guardian of the child, and the parents have the joint custody of the child”.[11] Relevantly, at s 63F(4) the Act states:
An order made under this Part in relation to the custody or guardianship of, or access to, a child ceases to be in force if the child is adopted by a person who is not a parent of the child.
[10] Family Law Amendment Act 1987 Explanatory Memorandum page 25.
[11] Family Law Amendment Act 1987 (Cth), section 63F(1).
A specific reference to step-parent adoption first made an appearance in the Family Law Amendment Act 1991 as it amended s 63F(4). The Explanatory Memorandum set out that the general purposes of the amending Act included “to clarify the effect which a step-parent adoption of a child has on the custody, guardianship or access rights of the child’s natural parents under the Family Law Act”.[12]
[12] Family Law Amendment Act 1991 (Cth) Explanatory Memorandum page 1.
The amending legislation introduced a specific regime for dealing with a prescribed adopting parent, such as a step-parent, with the following provisions:
(4)The following provisions apply in relation to rights of custody or guardianship of a child, or access to a child, existing under this Act immediately before the adoption of the child:
(a)if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent - those rights cease; or
(b)if the child is adopted by a prescribed adopting parent, where a court granted leave under section 60AA for the adoption proceedings to be commenced - those rights cease; or
(c)if the child is adopted by a prescribed adopting parent and leave was not granted under section 60AA for the adoption proceedings to be commenced - those rights do not cease.
In addition, s 60AA which required the granting of leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent was also introduced.
While the Explanatory Memorandum described that s 63F(4) provides “that a custody, guardianship or access order made under the Act in relation to a child ceases to be in force if the child is adopted”,[13] the amendment went further and extinguished rights under the Act both of each of the parents of a child to be a guardian of that child, and for the parents to have joint custody under s 63F(1).
[13] Family Law Amendment Act 1991 (Cth) Explanatory Memorandum page 4.
The Family Law Reform Act 1995 (Cth) further amended the provisions. By the Explanatory Memorandum it was explained that the amendments were aimed to “clarify that, in considering whether to grant leave for the commencement of adoption proceedings in a State or Territory Court by a parent and/or the parent’s spouse or de facto partner, the Family Court must consider the best interests of the child having regard to the effect of adoption in severing the legal tie with the other parent (my emphasis). The provisions by which parental responsibility and any parenting orders are severed are also clarified.”[14]
[14] Family Law Reform Bill 1994 Supplementary Explanatory Memorandum page 1
The amending Act changed the wording, but not the substantive effect of s 63F(4) which became the current s 61E, setting out the provision in its current form.
Elsewhere, and more substantively coloured by the words of the Explanatory Memorandum, the new s 60G re-enacted the s 60AA provision, and inserted a requirement to consider the child’s best interests in making this determination. The Explanatory Memorandum, again, emphasises the context as being that the “significance of this is that the subsequent State court order of adoption severs the legal relationship between the child and the other parent (my emphasis)”.[15]
[15] Family Law Reform Bill 1994 Supplementary Explanatory Memorandum page 4
The current iteration
The current position is regulated by a number of provisions under the Act, which at s 60F define who is a child of a marriage, or at s 60HA, who is a child of a person and their defacto partner, at s 60G, for the granting of leave for adoption by a prescribed adopting parent (eg a step-parent), at s 61E for the effect of adoption upon parental responsibility, at s 65J for the effect of adoption on parenting orders, and at s 4 in the definition of parent. Those provisions are as follows:
4 Interpretation
(1) In this Act and the applicable Rules of the Court:
parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.
60G Family Court may grant leave for adoption proceedings by prescribed adopting parent
(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.
61C Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
61E Effect of adoption on parental responsibility
(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.
65J Effect of adoption on parenting order
(1) This section applies if:
(a) a child is adopted; and
(b) immediately before the adoption, a parenting order was in force in relation to the child.
(2) The parenting order stops being in force 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.
Territory adoption provisions
Given that the provisions relate to the interaction of the Federal and, in this case, the ACT provisions, it is important to understand the relevant operative provisions of the Adoption Act as they deal with step-parent adoption. The Territory provisions make reference not only to the issue of the necessity for leave to be granted for a step-parent adoption by the Family Court of Australia (s 14), but also for the interplay between the making of an adoption order and the retention of the place of the parent who is partnered with the relevant step-parent (the partner parent). At s 43(1) of the Adoption Act, the general effects of adoption orders, and the specific effects in the case of step-parent adoption are set out as follows:
43 General effect
(1)Subject to this Act and the provisions of any other Territory law that expressly distinguishes between adopted people and other people, on the making of an adoption order, for all purposes—
(a)the adopted person becomes in law a child of the adoptive parents, and the adoptive parents become in law the parents of the adopted person as if the adopted person had been born to the adoptive parents; and
(b)the adopted person ceases to be a child of the birth parents or of any person (a pre-adoption parent) who was an adoptive parent before the making of the adoption order, and any such pre‑adoption parent ceases to be a parent of the adopted person; and
(c)if the order is made in favour of a step-parent—the relationship of the adopted person with the parent living in a domestic partnership with the step-parent is not affected; and
(d)the relationship to one another of all people (including the adopted person and the adoptive parents, birth parents or any former adoptive parent) must be decided on the basis of paragraphs (a), (b) and (c) so far as they are relevant; and
(e)any existing appointment of a person as guardian of the adopted person ceases to have effect; and
(f)any previous adoption of the adopted person (whether under a Territory law or otherwise) ceases to have effect.
It may be observed that a distinctly different effect flows from a step-parent adoption. Rather than causing, as is the case in a non-step-parent adoption, the parental status of both parents to be extinguished by the order, and a new parental status brought into existence, in the case of a step-parent adoption the same effects flow but not in relation to the partner parent. In such a case the effect is substitutionary in respect of one parent only, not both, and the relationship between the partner parent and the child is protected and preserved despite the adoption.
The proper understanding of the provisions
A plain reading of the FLA provisions would lead to the conclusion that, pursuant to s 61E, in a general case the parental responsibility of both parents would be extinguished, which in this case means that the parental responsibility of Ms Hanlon would be removed, despite Ms Hanlon remaining in a parental relationship with X. That is, while Ms Hanlon retains her status as X’s parent by operation of the Territory law, by operation of the Act it is a status that is stripped of parental responsibility. At the same time the current orders that provide for the sharing of parental responsibility between Ms Hanlon and Mr Hanlon would also dissolve by operation of s 65J of the FLA.
The effect of such a construction would be that Mr Hanlon, as a parent by virtue of the adoption pursuant to the Territory Act, would, by operation of s 61C of the FLA, have parental responsibility whilst Ms Hanlon, who remains a parent, would not, subject to a further parenting order being made. This is a somewhat perverse result.
This was, however, the outcome identified in a number of first instance decisions, including by Strickland J in Brock & Brock,[16] where, in relation to a step-parent adoption he said at [12]:
12. The effect of Section 61E I have addressed in some detail with Mr Frost and that led to the application to amend the orders sought. To repeat though, the effect of Section 61E is that, if I grant leave and the adoption order is made, the parental responsibility of any person who had parental responsibility for K immediately before the adoption ceases. That applies specifically to Mrs Brock who is the mother of K.
[16] [2007] FamCA 1594.
Similar concerns were expressed by O’Reilly J in Tanner & Cape,[17] where her Honour, expressing concern at such an effect, nonetheless dealt with the application on the basis that such an outcome may flow at [15]:
15. If s 61E be given its literal meaning, unless Mrs Tanner the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Tanner the child’s step father. Probably s 61E should be read down to exclude the biological parent who is the spouse or partner of the adopting step parent (if not amended to that effect) as it is an awkward proposition to think that one could apply to adopt one’s own child and indeed that is not the effect of the State Act, Part 5, Div 1, s 92. Other judges however have taken the view that the order should be made in favour of both the step parent and the biological parent who is the spouse or partner of the step parent on the basis that otherwise upon the making of an adoption order in favour of a step father the biological mother’s parental responsibility for the child would end. See, for example, Bacon & Bacon [2007] FamCA 1594 at [2] and [3] per Strickland J; Rohrlach, Rohrlach & Doddridge [2008] FamCA 518 at [2] per Strickland J; and as to the effect of s 61E: Beck & Major & Wright [2010] FamCA 75 at [12] per Murphy J. Although thus I doubt that the mother can apply to adopt her own child, the existence of s 61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.
[17] [2011] FamCA 665.
Hence it can be seen that a plain reading of the legislation has been, reasonably, taken to have the effect of removing parental responsibility in the manner identified above.
Respectfully, however, such a construction is incorrect.
Construing s 61E as stripping parental responsibility from Ms Hanlon is, at face value, a perverse or unreasonable outcome. It conflicts with the apparent purpose of the leave provisions to regulate the interaction of Commonwealth and Territory law in the case of a step‑parent adoption and to protect the operation of the FLA from being undermined, as it contrasts with the explicit operation of the Territory law that it interacts with that preserves her parental status untouched by the adoption.
Given what is at face value an unreasonable result, it is open to make reference to the Explanatory Memorandum, as s 15AB of the Acts Interpretation Act1901 (Cth) permits reference to such extrinsic material in the case of apparent unreasonableness. It is this Explanatory Memorandum that is of most assistance in determining the underlying statutory intent of the provisions as directed toward the ending of the parental responsibility of one parent on adoption by a step-parent, being that parent who is not partnered with the step-parent. Twice in that Memorandum to the Family Law Reform Act 1995 (Cth) there is reference to “the other parent.” It appears that the legislature was contemplating the stripping of parental responsibility from the “other parent” rather than from the parent partner of the applicant step-parent.
Such an understanding is rather more consistent with the operation of s 60F of the FLA which deals with the identification of X as a child of a particular marriage. The effect here is not to remove Ms Hanlon from the description on adoption by Mr Hanlon, but rather to mean simply that X is no longer a child of the marriage between Ms Hanlon and Mr B, but a child of the marriage between Ms Hanlon and Mr Hanlon, a result that specifically preserves the connection of X with respect to Ms Hanlon.
The more brutalist literal understanding also sits uncomfortably with the implicit purpose of the provisions to prevent conflict between State and Territory adoption orders and Federal orders regarding parental responsibility, in that it effectively extends the effect and impact of the adoption order beyond that contemplated by the Territory Act, to impact on the parental responsibility of the partner parent. This, explicitly, is not contemplated under the Territory legislation.
The absurdity of an interpretation that removes Ms Hanlon’s parental responsibility for X may also be observed in that the adoption is by Mr Hanlon, who is a prescribed adopting parent by virtue of his relationship with Ms Hanlon. His relationship with X, and hence his application in relation to adoption is inextricably connected to Ms Hanlon, her relationship with X, and her status as X’s parent.
The unreasonable nature of these aspects of such a literal interpretation point toward the need, in order to capture the legislative intent, for s 61E to, in a manner consistent with Project Blue Sky, “be read in a way that does not correspond with the literal or grammatical meaning”. In this instance that requires an understanding that the mischiefs addressed by the provisions relate to potential inconsistency between a Territory adoption order and extant parental responsibility under the Act, and to the prevention of the undermining of the Act in allocation of parental responsibility by use of the Territory adoption legislation. Such an understanding requires a reading of s 61E(1)(b) such that the reference to “parental responsibility" is taken to be restricted to parental responsibility that is inconsistent with the adoption order.
Such an effect harmonises s 61E with the operation of both s 60F and s 60HA, which reflects the scope of effect of the adoption order that the Act interacts with and prevents a perverse result. It is consistent with the requirement for interpretation in context as described in Statutory Interpretation in Australia 9th Ed – Dennis Pearce, where the learned author identifies what was authoritatively stated by Edelman J in SAS Trustee,[18] at [64] where his Honour described:
64.… [T]his Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where “the clearer the natural meaning the more difficult it is to justify departing from it”, so too in statutory interpretation “questions of degree arise and it will be more difficult to displace an interpretation that “has a powerful advantage in ordinary meaning and grammatical sense”.
(Citations omitted)
[18] (2018) 265 CLR 137.
In summary here, a reading of s 61E that is not restrictive in the sense described above, so conflicts with the statutory context of the provision as to fail to reflect the legislative intent in the enactment. The brutalist literal meaning of the provision if taken at face value conflicts with the notion that the legislature was pursuing its purposes “by coherent means” as described by Gageler J in SAS Trustee. Such an understanding ought also be applied to the reading of the definition of “parent” at s 4 of the Act. Again it should be construed, consistently with the above reasoning, as referring to the adoptive parent as opposed to the displaced parent.
The consequence of these conclusions is that no buttressing order is required to restore the parental responsibility of Ms Hanlon on the making of an adoption order in favour of Mr Hanlon, as Ms Hanlon and Mr Hanlon will, on adoption of X, each hold the full extent of parental responsibility as described at s 61C of the FLA.
THE ADOPTION APPLICATION
The substantive application in relation to the adoption is dealt with by this Court exercising the jurisdiction of the Supreme Court of the ACT pursuant to the cross-vesting scheme, as conferred on this Court by s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).Accordingly, this Court is empowered to hear and determine the application for Mr Hanlon to adopt X pursuant to the Adoption Act.
The evidence established that X was under 18 years of age when the application was made, and in the ACT, meeting the requirements of s 9 of the Adoption Act. Mr Hanlon is ordinarily resident in the ACT as required by s 13.
Section 14 of the Adoption Act imposes other requirements also met by Mr Hanlon. He is on the Register of Suitable Persons and, as an applicant for an order in favour of one person only, is a step-parent of X. Further, he has received leave from the then Family Court of Australia to commence proceedings for the adoption of X.
It may be observed that unless there is an amendment to s 14 of the Adoption Act in the future there is a potential gap between the requirement for leave under the Adoption Act and the giving of leave under the FLA. Section 14 refers to leave given by the Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia) whereas, pursuant to s 60G of the FLA such leave will, since the 2021 amendments, now only be given by Division 2 of the Federal Circuit and Family Court of Australia.
Section 28 of the Adoption Act dispenses with the requirement for consent where a person whose consent is otherwise required is an applicant for the order. That is the case here. Further Ms Hanlon’s involvement as a co-applicant meets the notice requirements at s 39B of the Adoption Act.
A report (“the Report”) has been given by the Director-General as required by s 39D of the Adoption Act.
On consideration of the Report, I am satisfied that Mr Hanlon is of good reputation, is able to fulfil the responsibilities of a parent of X, and is suitable to adopt her as described at s 39F(1)(c)(ii) of the Adoption Act.
Further, it is in X’s best interests, on consideration of the matters set out at s 5 of the Adoption Act to be adopted by Mr Hanlon.
As identified in the previous judgment in these proceedings, X’s father Mr B died in 2017. Ms Hanlon and Mr Hanlon have since married and X lives with them and with Mr Hanlon’s son C. Mr Hanlon is highly involved in X’s parenting.
X has asked to be called “Hanlon” so that they can all be a family together. She calls Mr Hanlon “dad”. She has said that he is a “good father” and that his children are “lucky to have him as a dad”, Mr Hanlon was allocated equal shared parental responsibility with Ms Hanlon by consent in February 2021.
Understandably, X has expressed her fear of being an orphan should her mother also die. Ms Hanlon and Mr Hanlon pursue the application to give X stability, protection and reassurance to support her well-being.
The adoption further enmeshes X within her family, in a context where both Ms Hanlon and Mr Hanlon have shown commitment to maintaining X’s links with her identity insofar as it is connected to her deceased father and his family. Although aged eight at the time of the application X has expressed a strong view that she understands that the adoption connects her further with her family. X’s views are in support of the adoption.
Ms Hanlon and Mr Hanlon both show a capability to provide for X’s physical, emotional intellectual and educational needs, as seen in the evidence given as to her interests and schooling arrangements, as well as the manner in which each provides parental care for her.
X’s relationship with Mr Hanlon appears caring, nourishing and loving, and one in which he is able to, and does, provide care for her in the role of a parent. Assessment by the Director-General indicated that the relationship between X and Mr Hanlon appeared to be “positive and caring,” consolidating since the marriage of Ms Hanlon and Mr Hanlon, and corresponding with a diminishing of X’s separation anxiety that was related to fears of her mother also dying. X was described as increasingly reliant on Mr Hanlon and enjoying having two parents.
The adoption appears likely to enhance X’s sense of security and belonging.
The Report has identified arguments between Mr Hanlon and his ex-partner in the presence of their children. It indicated that Mr Hanlon has considered such reflectively and is committed to civil interactions with his ex-partner. There is no indication that the adoption will expose X to harm.
In conclusion, the Report provided by the Director-General considered that the adoption is in X’s best interests, and is preferable to other orders under the FLA.
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.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 June 2022
MATERIAL RELIED UPON BY THE APPLICANTS
The applicants relied upon the following material:
(a)Affidavit of Mr Hanlon filed 9 September 2021;
(b)Affidavit of Ms Hanlon filed 9 September 2021;
(c)Affidavit of Mr Hanlon filed 27 April 2021;
(d)Affidavit of Ms Hanlon filed 27 April 2021;
(e)Report in relation to the proposed adoption of X prepared by the Director-General of Community Services pursuant to s 39D of the Adoption Act 1993 (ACT);
(f)Written submissions filed 13 September 2021; and
(g)Minute of Final Declarations and Orders filed 13 September 2021.
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