Inman & Yeo
[2021] FedCFamC1F 43
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Inman & Yeo [2021] FedCFamC1F 43
File number(s): BRC 15819 of 2020 Judgment of: CAREW J Date of judgment: 10 September 2021 Catchwords: FAMILY LAW – CHILDREN – Adoption – Where the applicants are granted leave to commence adoption proceedings. Legislation: Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)
Number of paragraphs: 12 Date of hearing: 10 September 2021 Place: Brisbane Applicants: Litigants in person Respondent: Litigant in person (did not participate) ORDERS
BRC 15819 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR INMAN First Applicant AND: MS GONG Second Applicant AND: MR YEO Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Leave be granted to the applicants to amend the order sought by the applicants to include Ms Gong having regard to the effect of adoption on a person having parental responsibility as provided for in s 61E of the Family Law Act 1975 (Cth).
2.Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Inman and Ms Gong be granted leave to commence adoption proceedings in respect to the child X born in 2004.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Inman & Yeo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
X was born in 2004, and he is the subject of this application by Mr Inman and Ms Gong, for leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) (as amended) (“the Act”).
Ms Gong is the biological mother of X, and she is 46 years of age and a manager. Mr Inman is 50 years of age and is a finance professional. The applicants have been in a relationship and living together for about five years now, and X has been treated as a child of Mr Inman since shortly after they commenced living together.
Mr Inman has a son, Mr C, who is 18, and is part of their family unit. X and Mr C are said to have a close relationship, and refer to each other as brothers. Mr Inman has been a father figure for X for some time now, and is registered with the school as a guardian. He attends parent teacher meetings and takes a keen interest in X’s sporting activities.
X’s biological father is Mr Yeo. He is 56 years of age, but he has never met or had any contact with X.
Service upon Mr Yeo was dispensed with by order on 17 August 2021.
The applicants have spoken to X about the proposed application for Mr Inman to become his adoptive father and he is said to support that application. X has no extended family members in Australia, they all being in Country B, and after Ms Gong recently underwent an operation, it was decided that for X’s benefit, it would be good to have the security of having a family member other than the mother in Australia. That was really the motivation for the application, it seems.
APPLICABLE LEGAL PRINCIPLES
Although adoption is a matter governed by State law, s 92 of the Adoption Act 2009 (Qld) makes an application for leave, pursuant to s 60G of the Act, a prerequisite to an application for adoption. At the time of the adoption application, the child must be at least five years old, and not yet 17 years old, although the application for adoption may still be made if the process can be completed before the child attains 18 years. In this case, X is of course already 17, and will turn 18 next year. However, the applicants have been informed that as long as their application is made upon the granting of leave, then the matter should proceed promptly.
An application for leave to commence adoption proceedings may only be made by a prescribed adopting parent, and prescribed adopting parent is defined in s 4(1) of the Act as being:
(a)a parent of the child; or
(b)the spouse of or a person in the de facto relationship with the parent of the child; or
(c)a parent of the child and either his or her spouse, or a person in a de facto relationship with that parent.
In considering whether or not to grant leave, pursuant to s 60G of the Act, the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of ss 60F(4)(e), 60HA(3)(a), 61E, and 65J. A note appearing under s 60G of the Act states:
Sections 60CB to s 60CG deal with how a court determines a child’s best interests.
Section 60CB to 60CG sets out an array of matters that must be considered where relevant. The consequences for the child upon adoption include:
(a) if the parents were married, the child will cease to be a child for the marriage for the purposes of the Act, after the adoption;
(b) if the parents were in a de facto relationship, the child will cease to be a child of the parties of the de facto relationship for the purposes of the Act after the adoption;
(c) a person with parental responsibility prior to the adoption, whether in full or to a limited extent, and whether because of s 61C or because of a parenting order, will cease to have parental responsibility after the adoption;
(d) if a parenting order is in force in relation to the child immediately before the adoption, the parenting order stops being in force after the adoption.
CONCLUSION
Leave has been granted to amend the order sought by the applicants to include Ms Gong as an applicant, having regard to the effect of adoption on a person having parental responsibility as provided for in s 61E of the Act. While it appears anomalous that a biological mother in these circumstances should need to be included, it seems to be required if she is to retain parental responsibility. In this case, the applicants are prescribed adopting parents within the meaning of the Act.
In determining the application for leave, I, of course, must consider what is in the best interests of X by reference to the sections I have already mentioned, and in particular, sections referred to in s 60G so far as they are relevant. While I may not specifically discuss each subsection, I have considered them where relevant. The background has already been noted in the summary set out above, and in those circumstances, I am satisfied that it would be in X’s best interests for leave to be granted. Accordingly, I propose to grant the applicants leave to commence adoption proceedings.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 10 September 2021
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