Jillet & Anor & French

[2017] FamCA 670

FAMILY COURT OF AUSTRALIA

JILLET AND ANOR & FRENCH [2017] FamCA 670

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – Step-parent adoption – Where the biological father has not spent time with the child since he was a baby – Where the step-father has a close and loving relationship with the child – Where it is in the best interests of the child for leave to be granted – Where leave is granted.

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

Fogwell & Ashton (1993) FLC 92-429; [1993] FamCA 113

FIRST APPLICANT: Ms Jillet

SECOND APPLICANT: Mr Jillet

RESPONDENT: Mr French

FILE NUMBER: BRC 5701 of 2017

DATE DELIVERED: 21 August 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 21 August 2017

REPRESENTATION

SOLICITOR FOR THE FIRST AND

SECOND APPLICANT:

Cherry Family Lawyers

FOR THE RESPONDENT: No Appearance

Order

1. Pursuant to Section 60G of the Family Law Act 1975 (Cth) Ms Jillet and Mr Jillet are granted leave to commence adoption proceedings in respect to the child, B, born on … 2007.

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 Jillet & French 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 5701 of 2017

Ms Jillet

First Applicant

And

Mr Jillet

Second Applicant

And

Mr French

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. B, whom I will refer to as the child, was born in 2007. He is the subject of this application by Ms Jillet and Mr Jillet for leave to commence adoption proceedings pursuant to section 60G of the Family Law Act 1975 (Cth).

2. Mr French was personally served with the application and supporting material on 28 June 2017, and a copy of the order made setting this matter down for hearing today, and some further supporting material was served upon him by post at the address of his parents, the address at which he was personally served with the application.  There is no appearance by or on behalf of the respondent, Mr French, today.

3. Ms Jillet is the biological mother of the child, and she is a 32 year old who married Mr Jillet, a 40 year in 2015, they having commenced a de facto relationship in 2011.  Mr French is the biological father of the child.  He and Ms Jillet were in a brief relationship from 2005 until 2008.  Unfortunately, that relationship was marred by domestic violence perpetrated, allegedly, upon Ms Jillet by Mr French.  Mr French has not seen the child since separation, and has not had any communication with him.  Mr French pays minimal child support of about $35 per month, but it is generally not paid until the end of the financial year when the amount owing is confiscated by the Australian Taxation Office upon Mr French lodging his tax return.

4. At separation Ms Jillet deposes to having invited Mr French’s family to have a relationship with the child, but that offer has not been taken up by them.  The child has only ever known Mr Jillet as his father, and he has referred to him as dad since he was about three years of age.  The child is known by the surname Jillet, although, formally, his surname is still French.  He has been noted to become upset at school if he is referred to by the latter surname.

5. The child has a close and loving relationship with Mr Jillet, and Mr Jillet describes many activities that he and the child enjoy together.  Ms Jillet and Mr Jillet have a son together, C, born in 2012.  Mr Jillet has two other sons, namely, D, aged 16, and E, aged 13.  While D and E live with their mother, Ms F, in Sydney, the boys all have a close and loving relationship, and they spend regular time together during the holidays.  C and the child in particular have a close relationship.  Ms F and Ms Jillet have a good relationship, as does Mr Jillet and Ms F.  Ms F has provided an affidavit in support of their application. 

Relevant Legislative Provisions

1. Section 60G of the Family Law Act 1975 (Cth) (“the Act”) provides:

   (1)Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2)In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

   Note:          Sections 60CB to 60CG deal with how a court determines a child's best interests.

2. A prescribed adopting parent is defined in section 4(1) of the Act as being:

   a)A parent of the child.

   b)The spouse of or a person in a de facto relationship with a parent of the child.

   c)A parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

3. Section 60CB to section 60CG set out how a court determines what is in the child’s best interests.  Section 60F(4)(a) provides:

   The following provisions apply in relation to a child of a marriage who is adopted by a prescribed parent:

   a)If a court granted leave under section 60G for the adopting proceedings to be commenced the child ceases to be a child of the marriage for the purposes of this Act.

4. Section 61E provides:

   This section applies if a child is adopted, and, immediately before the adoption, a person had parental responsibility for the child whether in full or to a limited extent, and whether because of section 61C or because of a parenting order, and (2) the person’s parental responsibility ends 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.

5. Section 92 of the Adoption Act2009 (Qld) provides:

   (1)A person may apply to the chief executive to arrange an adoption by the person of a stated child if—

   (a)the person is the spouse of a parent of the child; and

   (b)the person, the person's spouse and the child are living together; and

   (c)paragraphs (a) and (b) have applied for a continuous period of at least 3 years up to the time of the application; and

   (d)the person has been granted leave under the Family Law Act 1975 (Cth), section 60G(1); and

   (e)the person is an adult; and

   (f)the person or the person's spouse is an Australian citizen; and

   (g)the person is resident or domiciled in Queensland; and

   (h)the child is at least 5 years old and has not yet turned 17.

   (2)Despite subsection (1)(h), the chief executive may accept an application relating to a child who has turned 17 if the chief executive considers—

   (a)there is enough time to complete the adoption process before the child turns 18; and

   Note—

   An adult may not be adopted. See section 10(3).

   (b)the grounds for making an adoption order in favour of the applicant are likely to exist.

   (3)In this section—

   parent does not include guardian.

Discussion

1. As Chisholm J once remarked in Fogwell & Ashton[1]

   It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter court’s ordinary jurisdiction.  Nevertheless, that is the consequence of the provisions of the Family Law Act1975 (Cth).

   [1] (1993) FLC 92-429 at [80390]; [1993] FamCA 113 at [14]

2. In this case Ms Jillet and Mr Jillet are prescribed adopting parents within the meaning of the Act. In determining the application for leave I must consider what will be in the child’s best interests by reference to the relevant parts of section 60CB through to section 60CG, and the particular sections referred to in section 60G so far as they are relevant. While I may not specifically discuss each subsection I have considered them where relevant.

3. The child is now 10 years of age and has lived all his life, as he would remember it, with Ms Jillet and then, from age 3 with Ms Jillet and Mr Jillet.  He has no relationship with Mr French.  He has not seen him since he was a baby.  The child has a close and loving relationship with Mr Jillet.  They have told the child of their intention for Mr Jillet to adopt him, and he is receptive and excited by the proposed adoption.  I am satisfied in the circumstances that it would be in the child’s best interests for leave to be granted, and, accordingly I make the order as set out above.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 21 August 2017.

Associate:

Date:  29 August 2017