Harlow & Garey

[2021] FamCA 133

FAMILY COURT OF AUSTRALIA

Harlow & Garey [2021] FamCA 133

File number(s):	BRC 12372 of 2020
Judgment of:	BAUMANN J
Date of judgment:	4 February 2021
Catchwords:	FAMILY LAW – ADOPTION – Application for leave to bring an application for adoption under state law – Order made granting such leave
Legislation:	Family Law Act 1975 (Cth) s 60G
Number of paragraphs:	8
Date of hearing:	4 February 2021
Place:	Brisbane
First Applicant:	Self-represented
Second Applicant:	Self-represented

ORDERS

BRC 12372 of 2020

BETWEEN:

MR HARLOW
First Applicant

MS HARLOW
Second Applicant

AND:

MR GAREY (DECEASED)
First Respondent

MR HENTY (DECEASED)
Second Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	4 FEBRUARY 2021

THE COURT ORDERS:

1.That pursuant to s.60G of the Family Law Act 1975 the First Applicant, MR HARLOW be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the children, X born … 2010 and Y born … 2012.

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 Harlow & Garey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. These proceedings, brought by an Application filed by Mr Harlow (aged 36) on 9 September 2020 seek an order in the following terms:

   That leave is granted under s60G of the Family Law Act(Cth) 1975 to Mr Harlow as a prescribed adopting parent to commence proceedings for the adoption of the children of Ms Harlow being:

   (a)       X born in 2012; and

   (b)      Y, born in 2010.

   (As per original)

2. In support of the Application, the biological mother filed an affidavit sworn 20 August 2020 which in particular sets out the tragic circumstances arising from the death of two gentlemen who were individually the parents of each of the children and of her relationship with Mr Harlow. 

3. The Application is further supported by the affidavit of Mr Harlow, sworn 20 August 2020, setting out significant information about his relationship with Y and X and also providing some detail as to some of the challenges the boys have in relation to their functioning.  The parties have had the benefit of competent lawyers in the preparation of their material which deals with all of the factors that one might expect to see in an application of this nature, which must be determined on the basis of what is in the children’s best interests.  Of course, it seems that the parties are aware that I have no power to approve the adoption, but the Family Law Act 1975 (Cth) requires leave of this Court to undertake proceedings which are dealt with under state law.

4. A brief chronology is that the mother gave birth to Y in 2010.  The father of that child, Mr Henty, was in a short relationship with the mother.  It seems, from all of the evidence, he never acknowledged he was the biological father of the child and his death certificate relating to a drug related death on 5 November 2012 does not indicate an acknowledgement of Y being his son.  The mother formed, it would seem, a new relationship with Mr Garey, who is the father of X, born in 2012.  Sadly for this mother, Mr Garey died as a result of an epileptic occurrence at the age of 23, in 2012.  He died, as can be seen from this chronology, prior to the birth of his son. 

5. Mr Harlow, the Applicant, and the mother commenced co-habitation in or about June 2013.  They were blessed with the birth of a daughter, W, in 2014.  Mr Harlow has a child by another relationship, Z, born in 2010.  He has final Orders in relation to a parenting arrangement of that child but indicated he is not currently seeing the child.  He is undertaking some form of mediation in respect of that issue.  The biological mother and Mr Harlow married in 2017 and all of the material reveals they are a stable, committed couple. 

6. The mother has, in her life, had to deal with a number of tragedies relating to the deaths of fathers of the two children, Y and X.  She has also had to deal with a number of physical and mental health challenges that are identified in the material.  This has meant that at times during the course of their relationship, Mr Harlow has had to step up to be not only the carer of these two children who I accept, as Mr Harlow says, regard him as their father, even though they know he is not their biological father, but also as the carer of the mother from time to time. 

7. The boys’ school reports and other reports reveal that they had some challenges individually but are doing well at B School, with generally excellent effort, co-operation and courtesy, although X’s diagnosed ADHD has caused some difficulties in concentrating and behaving in class.  X is receiving the benefit of therapy under a mental health plan. 

8. In all respects, in my view, I accept the Applicant’s evidence that he is the only father that the boys have known.  My assessment is that the mother and the boys are lucky that he has entered into their lives and is taking on, in such a genuine and loving way, the responsibilities he does.  In all of the circumstances, I am satisfied that it is in the best interests of the children that I make an Order giving Mr Harlow leave to commence and pursue an application for adoption under state law.  I so order.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       12 April 2021