Hopling and Daubell

[2010] FamCA 966

FAMILY COURT OF AUSTRALIA

HOPLING & DAUBELL [2010] FamCA 966

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Leave granted

Family Law Act 1975 (Cth) s 60G
Adoption Act 2009 (Qld) s 92(1)(d)

Brock & Brock [2007] FamCA 1594
Reynolds & Donaldson [2008] FamCA 518
Berry & Wratten [2010] FamCA 75

APPLICANTS: Mr and Mrs Hopling

RESPONDENT: Mr Daubell

FILE NUMBER: BRC 8183 of 2010

DATE DELIVERED: 20 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 19 October 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Hopling and Mrs Hopling have leave to commence proceedings for the adoption of K born … August 1994.

IT IS NOTED that publication of this judgment under the pseudonym Hopling & Daubell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8183 of 2010

MR AND MRS HOPLING

Applicants

and

MR DAUBELL

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mr and Mrs Hopling that they have leave to commence proceedings for the adoption of K born in August 1994 now 16 years. Mrs Hopling is the child’s biological mother. Mr Hopling is her husband. K’s biological father is Mr Daubell. He supports the application and indeed offers his consent to it.

2. The Adoption Act 2009 (Qld) provides by section 92(1)(d) that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under section 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under section 60G(2) of the Commonwealth Act I am required to consider whether the granting of leave would be in K’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

3. K’s biological parents did not marry. It is not necessary, thus, to consider section 60F(4)(a). Section 60HA(3) has the effect that if I grant leave for the adoption proceedings to be commenced K would cease to be a child of her biological parents as partners. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been granted under section 60G for the adoption proceedings to be commenced. If I grant leave to commence adoption proceedings and an adoption order ultimately is made by the State court then Mr Daubell would cease to have parental responsibility for K. Section 65J(2) provides that a parenting order stops being in force on the adoption of a child unless the adoption is by a prescribed adopting parent and leave was not commenced under section 60G for the adoption proceedings to be commenced. There are no parenting orders agreements parenting plans or undertakings to the Court of any kind currently in force in relation to K.

4. I turn, then, to the matter of K’s best interests.  I will refer to the particular provisions of section 60CC to section 60CG of the Commonwealth Act, which relate to the determination of a child’s best interests, only to the extent as may seem relevant. 

5. Mr and Mrs Hopling commenced cohabitation when K was two years.  They have cohabitated continuously since August 1996 and were married in June 1999.  Mr Daubell has been and is the principal provider for both Mrs Hopling and K, as well as Mr and Mrs Hoplings biological children J 11 years and L 10 years.  K wishes to be adopted by Mr Hopling and to feel a “full family member.”  She has used the surname Hopling for many years.  The family had adoption proceedings on foot previously, indeed, commenced when K was 12 years.  However recent changes in the Commonwealth and State laws now have required this application.

6. I am satisfied having carefully considered all of the relevant matters that it is in K’s best interests that I grant the leave sought and I will do so.

7. The order will be in favour of both applicants, as sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Mrs Hopling leave, as the State Act, Part 5, Division 1, section 92 contemplates application for adoption only by the step parent and not a joint application with the opposite sex biological parent who is the step parent’s spouse or partner.  Section 61E however provides that in relation to a person who had parental responsibility immediately before the adoption, upon an adoption that person’s parental responsibility ends.  If section 61E be given its literal meaning, unless Mrs Hopling the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Hopling the child’s step father.  Probably section 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, Division 1, section 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, Brock & Brock [2007] FamCA 1594 at [2] and [3] per Strickland J; Reynolds & Donaldson [2008] FamCA 518 at [2] per Strickland J; and as to the effect of section 61E: Berrt & Wratten [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 section 61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 20 October 2010.

Associate:     

Date:              22 October 2010