LANGE & SPARKS

[2020] FamCA 1121

FAMILY COURT OF AUSTRALIA

LANGE & SPARKS [2020] FamCA 1121

FAMILY LAW – ADOPTION – Leave to commence proceedings – Where the applicants are prescribed adopting parents – Where it is in the child’s best interest for leave to be granted to commence adoption proceedings.

APPLICANT: Ms Lange

2^nd APPLICANT: Mr Sparks

RESPONDENT: Ms Bartram

FILE NUMBER: BRC 13442 of 2020

DATE DELIVERED: 22 December 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 22 December 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Cherry as town agent for Swanwick Murray Roche Lawyers

FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Order:

1. Pursuant to section 60G of the Family Law Act 1975 (Cth) to Ms Lange and Mr Sparks be granted leave to commence adoption proceedings in respect to the child, X born on … 2015.

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 Lange & Sparks 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 13442 of 2020

Ms Lange and Mr Sparks

Applicants

And

Ms Bartram

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. X was born on … 2015. He is the subject of this application by his stepmother, Ms Lange and his biological father, Mr Sparks, for leave to commence adoption proceedings pursuant to s 60G of the Family Law Act1975 (Cth) (“the Act”).

2. Ms Lange and Mr Sparks have been in a de facto relationship since 2014 and they have cared for X since shortly after his birth.   Ms Lange is 31 and works as a therapist in City C and Mr Sparks is 40 and works in the resources industry.

3. X’s biological mother, Ms Bartram, is 26 and has either completed or is about to complete her university degree.  She lives in City D with her partner and his two children.  Ms Bartram relinquished care of X shortly after his birth. She was 21 and felt, it seems, overwhelmed by the thought of becoming a mother on her own at that time.  She has remained in touch, though, with X, and both Mr Sparks and Ms Lange have supported a continuing relationship between X and his biological mother. However, for all intents and purposes, X has been part of the family consisting of Ms Lange and Mr Sparks, and they have provided for him throughout his life. 

4. Recently, Ms Bartram consented to a final parenting order granting sole parental responsibility to Ms Lange and Mr Sparks. The application for final orders dealing with the parenting order also included the application for leave to commence adoption proceedings and I am satisfied that Ms Bartram was aware and consented to the process and, indeed, consented to the final parenting order, which was made yesterday.

5. X appears to be a much loved member of the household of Ms Lange and Mr Sparks and seems to be doing well. 

6. Although adoption is a matter governed by State law, s 92 of the Adoption Action Act (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.

7. An application for leave to commence adoption proceedings may only be made by a prescribed adopting parent. The 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 a de facto relationship with, a 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 the parent.

8. 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)(a), 60HA(3)(a), 61E, and 65J. A note appearing after s 60G states:

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

9. Sections 60CB to 60CG set 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 of 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 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 pursuant to 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

1. Although Ms Lange and Mr Sparks are named as applicants, the order sought by them initially only sought leave for Ms Lange to commence proceedings for adoption. Leave was granted to amend the order sought so as to include Mr Sparks having regard to the effect of adoption on a person having parental responsibility as provided in s 61E of the Act. While it appears anomalous that a biological father, in these circumstances, should need to be included, it seems to be required if he is to retain parental responsibility.

2. In this case, Ms Lange and Mr Sparks are prescribed adopting parents within the meaning of the Act. In determining the application for leave, I have considered what will be in X’s best interests by reference to ss 60CB to 60CG and the particular sections referred to in s 60G so far as relevant.

3. In the circumstances, I am satisfied it would be in X’s best interests for leave to be granted.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 December 2020.

Associate: 

Date:  25.01.2021