Horrigan and Anor and Ingram

[2013] FamCA 642

FAMILY COURT OF AUSTRALIA

HORRIGAN & ANOR & INGRAM [2013] FamCA 642

FAMILY LAW – CHILDREN – ADOPTION – Where the mother and her de facto partner seek leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the de facto partner is included in the definition of ‘spouse’ by way of the Acts Interpretation Act 1954 (Qld) – Where the child has not yet reached the age of 4 years – Where leave granted

Family Law Act 1975 (Cth) s 4, s 60G
Acts Interpretation Act 1954 (Qld) s 32DA(6)
Adoption Act 2009 (Qld) s 92

Holden & Britten (2010) FamCA 197
Rees and Anor & Doren [2012] FamCA 180

FIRST APPLICANT: Ms Horrigan

SECOND APPLICANT: Mr Lowe

RESPONDENT: Mr Ingram

FILE NUMBER: BRC 4715 of 2013

DATE DELIVERED: 26 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 August 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Black
MacDonnells Lawyers

FOR THE RESPONDENT: Mr Ingram in Person

Orders

1. Pursuant to s 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings in the State Courts in respect of the child, B born 13 May 2009.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Horrigan and Anor & Lowe 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 4715  of 2013

Ms Horrigan

First Applicant

And

Mr Lowe

Second Applicant

And

Mr Ingram

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before the Court today is an application by Ms Horrigan and Mr Lowe seeking leave pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”) for proceedings to be commenced by them under State legislation for the adoption of Ms Horrigan’s daughter the child B born in 2009.

2. The child’s mother and the applicant, Mr Lowe, have been living together as a couple since January 2010 and they currently intend to marry some time in 2015.

3. The respondent biological father, Mr Ingram, responds to the application having filed an affidavit in which he makes it clear that he consents to leave being granted by the Court as sought by the applicants.  Mr Ingram has also this morning appeared by telephone and orally confirms again that he consents to leave being granted by the Court as the applicants seek.

Can these parties apply for leave to commence adoption proceedings?

1. The application is made to this Court pursuant to s 60G of the Act. This section empowers the Court to grant leave to a “prescribed adopting parent” to commence proceedings for adoption of a child in a State court. A “prescribed adopting parent” is defined in s 4(1) of the Act to include the spouse or de facto partner of a parent of the child.

2. The parties have been cohabitating on a genuine domestic basis for a period of more than two years, and have had a baby of their own, born in May this year. Clearly, these parties are in a de facto relationship and Mr Lowe is the de facto partner of the child’s mother.

3. As the parties reside in Queensland, the adoption of the child is governed by the Adoption Act 2009 (Qld) (“the Adoption Act”). Section 92 of the Adoption Act sets out who may apply to adopt.   While there is no express reference to “de facto partner” in the section, by reference to the Acts Interpretation Act 1954 (Qld), ‘de facto partner’ is included in the definition of a “spouse”.[1]

   [1]          Acts Interpretation Act 1954 (Qld) s 32DA(6)

4. I am satisfied that as the de facto partner of the child’s mother, Mr Lowe is a “prescribed adopting parent” and a person who may apply for adoption pursuant to s 92 of the Adoption Act. He is, therefore, entitled to apply to this Court as he does now.

How is the application to be determined?

1. Section 60G(2) provides that, in an application of this nature, the Court must consider whether granting leave for applicants to commence proceedings for adoption in the State courts would be in the child’s best interests.

2. Section 65J of the Act provides, under the heading “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.

3. In a decision of Holden & Britten (2010) FamCA 197 his Honour Justice Murphy stated at paragraph 11of that decision, the following:

   The question then, in my view, can be expressed this way.  Is it in the relevant children’s best interests to permit adoption proceedings to proceed in the (State) Magistrates Court with the potential consequences that a parent shall (with the consent of the other parent or absent consent, by court order) cease to have any of the duties, powers, responsibilities, and authority in respect of his or her child, as distinct from parenting orders being made in this Court that might involve the parent and step-parent?

4. The Applicants commenced their relationship in 2010 when the child was approximately seven months old.  On the evidence of both the mother and the biological father of the child, there has been a limited relationship between the father and the child, for a variety of possible reasons that I do not need to go into in these reasons. I do not need to determine those matters upon which there is disagreement between about those things.   

5. If leave is granted pursuant to s 60G, and an adoption order is made in relation to the child, any parental responsibility that existed prior to the making of such an adoption order is extinguished. In this case, that would mean that the child’s biological father, Mr Ingram, will no longer have any parental responsibility in relation to the child.

6. In his affidavit filed 16 July 2013, he says he understand and accepts this.  In his affidavit he states:

   I would like to give my consent for [Ms Horrigan] and [Mr Lowe] to proceed with the Application to seek leave for [Mr Lowe] to formally adopt the child for the following reasons:-

   I believe that it is in the best interest of the child that she is to be adopted by [Mr Lowe].

   I have sought legal advice and understand the adoption proccess [sic].

   I understand the consequences of the adoption and understand the effect that adoption would have on my parenting rights.

7. The mother deposes to a good relationship between the child and the second applicant, Mr Lowe.  She states that the child is also considered part of Mr Lowe’s extended family.

8. Apart from some child support paid to the mother by the father, the applicants have principally financially supported the child, as well as providing her day to day care for most of her life.  The child calls Mr Lowe “dad” and apparently considers him to be her father.  That is not surprising given he has been caring for her most of her life, along with her mother.

9. Mr Lowe says that he believes that it is in the child’s best interest that he is permitted to apply to adopt this child as, in the event of something occurring to the mother, he would be able to make major long term decisions in relation to the child.  He also asserts that the child would be able to remain in his care, in a familiar environment in such circumstances.  I am, I must say, satisfied that Mr Lowe understands the responsibility he is seeking to take on by wanting to legally adopt the child.

State preconditions for Applying to Adopt

1. Section 92(1)(i) of the Queensland Adoption Act restricts adoptions to children who are between the ages of 5 and 17.  The child in this matter is only 4 years, and 3 months of age.  Again Justice Murphy stated in Rees and Anor & Doren[2] that although a child may not have reached the age prescribed by the State act for adoption, the age of the child is but one of the preconditions that, in conjunction with the leave of this Court, need to be met for the adoption to take place. 

   [2] [2012] FamCA 180

2. This is not an application for adoption, but an application for leave to commence adoption proceedings in the State court, which in itself is one of the preconditions of s 92 of the Adoption Act. Justice Murphy found that the preconditions listed in s 92 of the Queensland Adoption Act do not prevent this Court from hearing and determining an application of this nature even if the child concerned is not yet five years of age.  I respectfully agree with his Honour’s determination in that respect.  I expect that I do not need to remind Ms Black who represents the applicants that, of course, they will only be able to get an adoption order from the State courts once the child has turned five years of age.

Conclusion

1. Having regard to all of the evidence that is before me, and particularly the fact that the child’s biological father gives his consent to the orders that the applicants seek, that is, for Ms Horrigan and Mr Lowe to commence adoption proceedings in respect of the child, I am satisfied that it is in the child’s best interest to grant them the leave they seek to commence proceedings in the State court seeking her adoption.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 August 2013.

Associate:

Date:  26 August 2013