Hurst And Anor and Chapman

[2014] FamCA 506

FAMILY COURT OF AUSTRALIA

HURST AND ANOR & CHAPMAN [2014] FamCA 506

FAMILY LAW – CHILDREN – application for leave to commence adoption proceedings – where the subject child has lived with the applicant since birth – where the defendant is deceased – where leave is granted.

Adoption Act2009 (Qld) ss 92, 208.
Family Law Act 1975 (Cth) ss 60G, 60CC, 60F, 60HA, 61E, 65J.

APPLICANTS: Ms Hurst and Mr Hurst

RESPONDENT: Ms Chapman

FILE NUMBER: BRC 3924 of 2014

DATE DELIVERED: 8 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 July 2014

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT:

Orders

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst and Anor & Chapman 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 3924 of 2014

Ms Hurst and Mr Hurst

Applicants

And

Ms Chapman

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. By Application filed 24 February 2014, the Applicants seek leave to commence adoption proceedings for D, (“the child”), born in 1999.  The Applicants commenced a de facto relationship in about July 1999 and married in May 2001.  The child and an older sibling, his sister who is now an adult, lived with the Applicants from about July 1999.  After the birth of the Applicants’ two biological children, S, born in 2000, and Q, born in 2002, the family unit consisted of the adults and the children.

2. The child’s biological mother died in 2005 after recurring brain tumours, the existence of which was first diagnosed in 1995. 

3. 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 that person of a stated child if a number of specified matters are satisfied.  Included within that, at subparagraph (1)(d), is that a person has been granted leave under the Family Law Act and that the child the subject of the proposed adoption is at least five years of age and has not yet turned 17.

4. The child clearly falls within that age bracket. 

5. The current Application for leave to adopt proceeds pursuant to s 60G of the Act, which provides as follows: the Court may grant leave for adoption proceedings by a prescribed adopting parent and, in proceedings for such leave, the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of s 60F(4)(a) or s 60HA(3)(a) and sections 61E and 65J of the Family Law Act. 

6. Ms Hurst is a prescribed adopting parent, as that term is defined in s (4) of the Family Law Act. 

7. 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 consequence outlined in the sections particularised in s 60G. Only the order for adoption made by the appropriate State Court has that. Section 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 wellbeing and best interests than an order under the Family Law Act, any other Court order or no order at all.

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

9. It is clear from a reading of s 60G(2) that in these proceedings I must consider whether granting leave would be in the child’s best interests. Thus, consideration must broadly be given to the familiar best interests considerations, where they are relevant in each particular case, as prescribed by s 60CC of the Family Law Act.

10. As already noted, the child’s biological mother is deceased.  He has lived with the Applicants since mid-1999.  That is, from when he was about two months of age.  I have no hesitation at all in concluding that, in combination with his biological father, Ms Hurst has fulfilled all the duties and responsibilities associated with parenting the child.  Given the likely course of any life of 15 years, she will have cared for him when he has been sick, and she has loved him as she would have loved, and has loved, her own biological children.

11. I have no hesitation in accepting Mr Hurst’s evidence that the child has always had a strong relationship with Ms Hurst and has treated her just like his mother, as she undoubtedly is.  I also accept that Ms Hurst has always treated the child as if he was, in fact, her own biological child and has not differentiated in her treatment of him and love for him when compared to her treatment of, and love for, her biological children.  I also accept that, together with the child’s biological father, Ms Hurst has met the child’s emotional, financial and practical needs since his birth.

12. I consider the proceedings for leave to adopt pursuant to s 60G of the Act are child-related proceedings within the meaning of the Act. They come, therefore, I consider, within the operation of Division 12A of the Act. Further, s 69ZT makes specific provision with respect to the rules of evidence, and in particular, as it might apply to this case, the rules relating to the receipt of hearsay evidence.

13. I accept that the Applicants asked the child, when he was 14 years of age, if he would like to proceed with an adoption process.  He agreed.  I accept Ms Hurst’s evidence that both she and the child feel that this will complete their relationship and that both of them want their relationship, for all intents and purposes mother and son, to be legally recognised in that manner.

14. I accept that the Applicants and the child will gain emotional satisfaction if an adoption order is made, and that this will also accord to the child and Ms Hurst the legal rights associated with the relationship of mother and son.  All of these matters can only be to the child’s benefit. 

15. I have little trouble concluding that the proposed adoption is in the child’s best interests and, for these short reasons, I make Orders in the following terms. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 July 2014.

Associate:                 

Date:    8 July 2014