Linch and Anor and Anderson

[2016] FamCA 935

FAMILY COURT OF AUSTRALIA

LINCH AND ANOR & ANDERSON [2016] FamCA 935

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – step-parent adoption – where the adoption is consented to by the biological father – where the biological father has not spent time with the child for at least three years – where the step-father acts as the child’s father in all relevant respects – 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

1st APPLICANT: Ms Linch

2nd APPLICANT: Mr Linch

RESPONDENT: Mr Anderson

FILE NUMBER: BRC 7751 of 2016

DATE DELIVERED: 31 October 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 31 October 2016

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Self-represented

COUNSEL FOR THE 2ND APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Self-represented

Orders

1. Pursuant to s 60G of the Family Law Act1975 (Cth) Ms Linch and Mr Linch are granted leave to commence adoption proceedings in respect of the child B Linch (formerly known as B Anderson) (“the child”) born … 2008.

2. Pending the making of the adoption order, Ms Linch and Mr Linch have equal shared parental responsibility for the child.

3. All outstanding Applications are otherwise dismissed and removed from the pending cases list.

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 Linch & Anor & Anderson 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 7751 of 2016

Ms Linch

First Applicant

And

Mr Linch

Second Applicant

And

Mr Anderson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. B Linch (formerly known as B Anderson) (“the child”) was born in 2008 and is currently eight years of age. She is the subject of this application by her step-father, Mr Linch (“the step-father”) and her mother, Ms Linch (“the mother”) for leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”) and for what is described in the application as the mother and step-father having ‘full parental responsibility’. The application was filed on 9 August 2016.

2. Mr Anderson is the biological father of the child and the respondent to this application.  He and the mother previously lived in a de facto relationship.  He did not appear today.  He was called three times.  When this matter came before Registrar Coutts on 8 September 2016, Mr Anderson appeared by telephone and the Order made that day notes as follows:

   The Father advised the Court today he consents to the proposed leave to adopt, does not propose to appear at the hearing however will file and serve an affidavit evidencing his consent.

3. At the time this matter came before me, no such affidavit was filed.  Ms Linch gave oral evidence before me in which she was able to identify Mr Anderson’s signature on firstly the parenting agreement that was annexed to her affidavit filed 9 August 2016 in which the leave to adopt, the child’s change of name and parental responsibility were all dealt with.  She was also able to identify his signature on the Acknowledgment of Service signed by him and filed 31 August 2016 in which he acknowledges receipt of the application and the two affidavits upon which she relies in these proceedings, being one by herself and one by the step-father.  Further, Ms Linch stated that she spoke to Mr Anderson on a number of occasions last week when he confirmed his consent to the application and that he would post his affidavit to the Court last Thursday.  I accept her evidence in relation to these matters.

4. Mr Anderson has not had any contact or communication with the child since in or about 2012 although there were proceedings relating to the child before the Court in 2013.  With his consent, the child’s name was changed from ‘Anderson’ to ‘Linch’.  The parenting agreement annexed to the mother’s affidavit includes a provision under the heading ‘care arrangements’ as follows:

   1. Both parents consent to the adoption of the child by [Ms Linch] and [Mr Linch] and they give consent to the application to the courts to Obtain Leave to start full adoption proceedings.

   2. [Mr Anderson] will sign all forms and documents required to change the child’s last name from [Anderson] to [Linch].

   3. [Mr Anderson] consents to appoint full parental Responsibility to [Ms Linch] and [Mr Linch] immediately.

   [errors in original]

5. The mother and step-father commenced to live in a de facto relationship in or about 2012 and were married in 2015.  the child refers to the step-father as ‘dad’ and he is actively involved in all her activities and provides significant financial and emotional care for her.

Relevant legislative provisions

1. Section 60G relevantly provides:

   (1)  Subject to subsection (2), the Family Court, … 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 60HA(3)(a), …, and of sections 61E ….

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

2. ‘Prescribed adopting parent’ is defined in section 4(1) of the Act, that 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.

3. Sections 60CB to 60CG set out how a Court determines what is in a child’s best interests.

4. Section 60HA(3)(a) provides:

   (3) The following provisions apply in relation to a child of current or former de facto partners who is adopted by a prescribed adopting parent:

   (a) if a court granted leave under section 60G for the adoption proceedings to be commenced--the child ceases to be a child of the those partners for the purposes of this Act;

5. Section 61E provides:

   (1)      This section applies if:

   (a)      a child is adopted; and

   (b)      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.

   (2) The person's parental responsibility for the child 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.

6. Section 92 of the Adoption Act 2009 (Qld) relevantly 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 ‘spouse’ includes de facto partner – Acts Interpretation Act 1954 (Qld) 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 (Cwlth), 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 person's spouse is not the same gender as the person; and

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

   …

Discussion

1. As Chisholm J remarked in Fogwell & Ashton (1993) FLC 92-429 at 80,390:

   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.

2. In this case the mother and step-father are prescribed adopting parents within the meaning of the Act.

3. In determining the application for leave I must consider what I find to be in the child’s best interest by reference to the relevant parts of ss 60CB to 60CG of the Act and the 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.

4. The child has lived with the mother and step-father for a continuous period of more than three years.  She regards the step-father as her father and refers to him as ‘dad’.  She nevertheless knows who her biological father is.  The step-father acts in all relevant respects as her father.  He provides emotional and financial support for the child.

5. The child knows of the application for adoption and is said to be fully supportive of it.  Her surname has been changed from ‘Anderson’ to ‘Linch’ with Mr Anderson’s consent.

6. I find that Mr Anderson consents to the application for leave.

7. I am satisfied that it would be in the child’s best interest for leave to be granted.

8. The application before me also seeks that the mother and step-father have equal shared parental responsibility for the child.  While Mr Anderson will cease to have any parental responsibility upon the adoption occurring, the application is pressed.  The parenting agreement records Mr Anderson’s agreement to the mother and step-father having ‘full parental responsibility’.  It was apparent from submissions that what was envisaged by the mother and step-father was equal shared parental responsibility, although the application also refers to them having ‘full parental responsibility’.  Upon the adoption order being made they will have parental responsibility for the child.  In the circumstances of this case, given the child’s living circumstances, the involvement of the step-father in her upbringing and decisions relevant to her upbringing, his financial and emotional support for her, the mother’s consent, and indeed the biological father’s consent as indicated in the parenting agreement annexed to the mother’s affidavit, I find that such an order pending an adoption order is the appropriate order to make.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 31 October 2016

Associate: 

Date:  31 October 2016