Ingham and Ingham

[2019] FamCA 28

FAMILY COURT OF AUSTRALIA

INGHAM & INGHAM [2019] FamCA 28

FAMILY LAW – ADOPTION – Application for leave to commence proceedings – step-parent adoption – application granted.

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)

APPLICANT: Mr Ingham

RESPONDENT: Ms Ingham

FILE NUMBER: BRC 14433 of 2018

DATE DELIVERED: 25 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25 January 2019

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicant has leave to commence proceedings for the adoption of the child, X, a male born … 2002.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 14433 of 2018

Mr Ingham

Applicant

And

Ms Ingham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have today an application which was commenced, initially, by Initiating Application filed on 11 December 2018 and continued by an Amended Initiating Application filed on 18 January 2019. By that application, an order is sought pursuant to section 60G of the Family Law Act1975 (Cth) granting leave to commence proceedings for the adoption of the child, X, who was born in 2002 and who is, therefore, about 16 years and 10 months of age at present.

2. The Initiating Application contains the information that there are no ongoing cases in relation to the child in any other jurisdiction and that no orders, including any orders for domestic violence or protection orders, have been made as between the parties to this application. 

3. Section 92 of the Adoption Act2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of a stated child only if a number of matters have been satisfied. Included within these matters, in particular, at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act1975 (Cth).

4. In determining whether to grant leave for parties to commence adoption proceedings, the Court must be satisfied of a number of things. One is that the proceedings are by a prescribed adopting parent. That condition is clearly satisfied in this case. This Court must also consider whether granting leave will be in the child’s best interests, having regard to the effects of section 60F(4)(a), 60HA(3)(a), section 61E and section 65J of the Family Law Act1975 (Cth), where those sections are applicable.

5. The decision facing this Court is, of course, one that differs from the decision facing the court charged with the obligation to make a decision about whether to permit adoption of a particular child or not. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections particularised in section 60G of the Family Law Act1975 (Cth). Only an order for adoption, if made by an appropriate State court, has that effect. However, section 208 of the Adoption Act2009 (Qld) is to the effect that the court may make a final adoption order under that Act only if satisfied of a number of matters, included within which are that an order for adoption by a stepparent would better promote a child’s wellbeing and best interests than an order under the Family Law Act, any other court order, or no order at all.

6. It is, therefore, obvious that this Court ought not make an order granting leave to Applicant to permit proceedings in the State court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.  I record here my view that it is clear that, in this case, the mandatory legislative prerequisites are established on the evidence before me. 

7. In determining, as I must, under section 60G(2) of the Family Law Act1975 (Cth) whether granting leave to commence proceedings is in the child’s best interests, I must give broad consideration to the familiar “best interests” considerations (where relevant) prescribed by section 60CC of the Family Law Act1975 (Cth).

8. Any failure to mention specifically any particular consideration in these Reasons delivered orally does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon by the parties - which I had the opportunity to read prior to commencing this hearing. 

9. It is appropriate to record that the Applicant is the child’s stepfather.  It is also appropriate that I record that Mr and Ms Ingham married in 2008, at which time they commenced cohabitation.  At that time, the child was nearly six and a half years of age.

10. There are no existing parenting orders in relation to the child: that arises as a consequence of the manner of his conception, which is particularised in Ms Ingham’s affidavit. I think it unnecessary to detail that further for the purpose of these Reasons. 

11. It is clear that the Applicant and the Respondent who, in essence, have had two tranches to their relationship, recommenced the same toward the end of 2004; at that time the child was about two years and nine months of age.  They have three children together:  W, who was born in 2006; Y, who was born in 2009; and Z, who was born in 2010. 

12. It is established on the evidence before me that, when W was born in early 2006, the parties shared his parenting and also shared in parenting the child - this occurred whilst the children lived and stayed overnight with their mother.  The evidence is to the effect that both parties joined in parenting both children. I accept, on the evidence before me, that Mr Ingham joined with Ms Ingham in parenting the child; I infer that, together, they made whatever decisions were appropriate and necessary to be made in the exercise of the mother’s parental responsibility in relation to the child.

13. As I have already said, the parties married in 2008 and commenced their cohabitation then. Since that time, therefore, the child has lived with them in their household and has been joined, over the years, by his siblings following their respective births.

14. The evidence establishes – and I accept – that, in July 2011, Ms Ingham changed the child and W’s surnames from her maiden name to the surname “Ingham.”  At that time, the child was about nine years of age. 

15. I accept, from the evidence before me, that there have been several occasions in 2018 in particular on which the child has been asked to provide his Birth Certificate: I also accept that those requests have occasioned him some discomfort and concern because of the absence on that document of Mr Ingham’s name - a person whom, I accept, he clearly regards as his father.

16. I accept, as I have already conveyed to the parties, that the purpose of their application is, in essence, to bring into line in a legal way the manner in which they and their children - and their family unit constituted by all three of their biological children and the child whom, I accept, is clearly regarded by Mr Ingham as his son - have lived their lives. 

17. There could be no doubt on the evidence before me that Mr Ingham has discharged all the responsibilities of parenting the child.  There could be no doubt – and I conclude – that he and Ms Ingham have, together, undertaken all of those tasks and made all of those decisions associated with raising a child to the age at which the child now is.

18. I also accept, without hesitation, that Mr Ingham seeks to continue to discharge that role and that he is supported in that wish by both Ms Ingham and the child - whom I accept, as I have already said, regards him as his father and seeks to be able to hold him (Mr Ingham) out as having that role.  I accept, on the evidence before me, that, on occasions, the child has voiced his desire or view that he wants to be an “equal” member of the family - as he is in everything but “legal terms.” 

19. I have little hesitation in accepting that, as the oldest of his siblings, he is regarded (as the evidence established) by them as being an equal member of his family unit. I accept, therefore, that the family unit - constituted by the parties and the child - certainly feel, in essence, that the proceedings for adoption that the Applicant intends to commence, if granted leave to do so, will be, in essence, a further positive and outward demonstration and manifestation of the bonds that I have no doubt exist between the child and Mr Ingham. It will also be a further manifestation, and recognition, of Mr Ingham’s voluntary assumption of the responsibilities of parenting the child which he has undertaken to date.

20. I, therefore, accept that it is much more likely than not that together, the parties and the child will likely gain significant additional emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made. 

21. Therefore, for these reasons delivered orally, I have no hesitation at all in concluding that the commencement of the proceedings seeking adoption is something that is in the child’s best interests.

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 January 2019.

Associate: 

Date:  30 January 2019