Henne and Anor and Clay

[2014] FamCA 771

FAMILY COURT OF AUSTRALIA

HENNE AND ANOR & CLAY [2014] FamCA 771

FAMILY LAW – CHILDREN – application for leave to commence adoption proceedings – leave granted.

Family Law Act 1975 (Cth) ss 4, 60CC, 60G, 60HA, 61E, 65J.
Adoption Act 2009 (Qld) ss 92, 208.

APPLICANTS: Ms Henne and Mr Bailey

RESPONDENT: Mr Clay

FILE NUMBER: BRC 5690 of 2014

DATE DELIVERED: 25 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Murray of VAJ Byrne & Co Lawyers

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G of the Family Law Act 1975 (Cth), leave is granted to the Applicants to commence adoption proceedings in relation to the child M Henne born … 1999.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5690 of 2014

Ms Henne and Mr Bailey

Applicants

And

Mr Clay

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed 30 June 2014, Mr Bailey and Ms Henne, the Applicants, seek leave to commence adoption proceedings for the child M Henne (“the child”), born in 1999.  When the child was born, her birth certificate noted her surname as “[Clay-Henne]”.  However, on 26 September 2002, the Director-General, Department of Families, as it was then known, gave consent to a change to her surname.  Consequently, from that date forward, the child’s surname has been that of her mother’s only. 

2. On 8 July 2014, the child’s biological father was served with the Initiating Application, a copy of the affidavit material of both Applicants relied on at this hearing, and a copy of the relevant brochure.  I am satisfied that the child’s biological father is aware of the proceeding today, and that he has had the opportunity to appear to be heard in relation to it.  I am strengthened in this conclusion by the evidence, which I accept, given by the applicant’s solicitor Ms Erridge.  She spoke with the child’s biological father in about February 2013, at which time he indicated his intention to consent to the adoption proceedings. 

3. The child has always lived with her mother.  When she was about ten months of age, her biological parents entered into Consent Orders relating to her.  These Orders, made on 20 March 2000, provided that the mother be solely responsible for the child’s supervision;  that the mother have the day to day care, welfare and development, or responsibilities, for the child;  that the mother be responsible for the child’s long-term care, welfare and development;  that the child’s biological father have contact with her in the mother’s presence, and at times agreeable to both parties and that her biological father have telephone contact with her at what was termed an “age appropriate” time. 

4. On 12 December 2013, the Order made on 20 March 2000 was varied in the manner outlined within that document.  It is pertinent to record that the child’s biological father did not appear on 12 December 2003, when the Order was varied.

5. It is also pertinent to record, that despite the terms of the Orders, the child’s biological father has not spent any time or communicated with her since her birth. 

6. The Applicants commenced a relationship in 2002.  After dating for about 12 months, the mother and the child moved to live with Mr Bailey in about October 2003.  At this time, the child was about four years of age.  In September 2004, the child’s mother and Mr Bailey married. 

7. Adoption proceedings pursuant to State Legislation have not yet commenced. Section 92 of the Adoption Act 2009 provides that a person may apply to the Chief Executive to arrange an adoption by the person of a child if a number of specified matters are satisfied. Included within those matters is that a person has been granted leave, pursuant to s 60G of the Family Law Act 1975 (Cth), and that the child, in respect of whom the order is sought, is at least five years of age and has not yet turned 17.  Clearly, the child is at least five years of age, and she has not yet turned 17. 

8. Mr Bailey is a prescribed adopting parent as defined in s 4(1) of the Family Law Act 1975 (Cth).

9. Section 60G (2) of the Family Law Act1975 (Cth) provides that, in proceedings for leave, the Court must consider whether granting leave would be in a child’s best interests, having regard to the effect of paragraph 60F(4)(a) or 60HA(3)(a) and s 61E and s 65J of the Act.

10. It is relevant to note that, if a child is adopted and immediately before the adoption a person had a right of parental responsibility for that child, the person’s parental responsibility ends on the adoption, unless the adoption is by a prescribed adopting parent, and leave was not granted under s 60G of the Act.

11. Section 65J of the Act provides that if a child is adopted and immediately before the adoption a parenting order was in force in relation to that child, then the parenting order stops being in force on the adoption, unless the adoption was by a prescribed adopting parent and leave was not granted pursuant to s 60G of the Act.

12. The consequence, then, of an adoption is that all parental responsibility held by the child’s biological father for her ceases, as does the operation of all parenting orders. 

13. The decision facing this Court differs to that which will face the Court charged with the decision whether to permit the adoption. The granting of leave to commence proceedings to adopt does not have the consequences just described. Only the order for adoption made by the State Court has that effect. It is, however, perhaps relevant to note that s 208 of the Adoption Act is to the effect that the Court may make a final adoption order only if satisfied of a number of matters, included in which is that an order for adoption by a step-parent would better promote the child’s well-being and best interests than an order under the Family Law Act1975 (Cth), any other Court order, or no Court order.

14. I consider that this Court ought not grant leave to Applicants to commence proceedings in the State Court if those proceedings are doomed to fail because of the absence of the mandatory prerequisites. 

15. It is clear that, in these proceedings, I must consider the familiar best interests considerations prescribed in s 60CC of the Act.

16. I accept that when the matter was raised with her by the Applicants, the child indicated a wish to be adopted by Mr Bailey.  Such expression of wish or view no doubt flows from the fact that he has, I accept, always treated her as if she is his biological child.  As the child’s mother is, to use her words, a stay at home mother, I accept that Mr Bailey has provided financially for the child and has ensured that all her reasonable needs for support - be they financial, emotional or otherwise - have been met.

17. I conclude that, by virtue of his ongoing involvement in her life since she was about four years of age, Mr Bailey has been, for all intents and purposes, the child’s psychological father.  I accept that, for both the child and Mr Bailey, their relationship over the years has been one of father and daughter. 

18. I accept that Mr Bailey’s intention in proceeding with formal adoption proceedings is so that he and the child’s mother can complete their family unit.  I accept the mother’s evidence, that she has consulted with Mr Bailey in relation to and in respect of decisions about major long-term issues, as that term is defined in the Family Law Act1975 (Cth) about the child. He has clearly been fully involved in her parenting to date.

19. I have no reason to doubt that, as Mr Bailey says, “An order facilitating the adoption application will make [the child] very pleased.” 

20. For these brief reasons, I am well persuaded that it is in the child’s best interests that an order is made pursuant to s 60G of the Act.

21. Given his absence from her life thus far, and the terms of the parenting order, as originally made, there is nothing to suggest that the child’s biological father is likely to seek, in the future, to discharge any of the obligations and responsibilities that parental responsibility entails. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 25 August 2014.

Associate:    

Date:    25 August 2014