Madewell and Director-General, Child and Youth Protection Services

[2017] FamCA 569

FAMILY COURT OF AUSTRALIA

MADEWELL & DIRECTOR-GENERAL, CHILD & YOUTH PROTECTION SERVICES [2017] FamCA 569

FAMILY LAW – ADOPTION – Adoption by step-parent of child – leave granted to commence proceedings pursuant to section 60G of the Family Law Act 1975 – where the child’s biological father is deceased – application granted.

Adoption Act 1993 (ACT)
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987

APPLICANT:	Mr Madewell
SECOND APPLICANT:	Ms Madewell

RESPONDENT: Community Services Directorate, Director-General, Child & Youth Protection Services

FILE NUMBER: CAC 886 of 2017

DATE DELIVERED: 14 July 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms S Leslie, Dobinson Davey Clifford Simpson

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Pursuant to s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (ACT) the Family Court of Australia has jurisdiction to hear the application for adoption filed 22 May 2017.

2. Leave be granted pursuant to s 60G of the Family Law Act 1975 (Cth) for these proceedings to be commenced.

3. Pursuant to s 14 of the Adoption Act 1993 (ACT) I make an adoption Order in favour of the applicant Mr Madewell in relation to the child, B, born … 2006.

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 Madewell 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 CANBERRA

FILE NUMBER: CAC 886 of 2017

Mr Madewell

Applicant

And

Ms Madewell
Second Applicant

And

Community Services Directorate, Director-General, Child & Youth Protection Services

Respondent

REASONS FOR JUDGMENT

1. In this matter leave is required pursuant to s 60G of the Family Law Act 1975 (Cth). That leave will be granted for the reasons that I will set out later.

2. In this case that concerns the adoption of the child B, both Ms and Mr Madewell lost their previous spouses, Ms Madewell in 2008 and Mr Madewell in 2009.  In 2010 they moved in together having known each other through work and they married in 2012.  They have what is apparently a stable and well-functioning marriage.  They have common interests, they have an appreciation of each other, they have good communication. 

3. B is the child that the Application concerns, he was born in 2006 and is now 11 years old.  The information before me particularly as presented by the Director-General, and supported by the affidavit material of each the parties, demonstrates that he has a secure relationship with Ms and Mr Madewell.  He also wishes that he could see more of Mr C and Mr D, Mr Madewell’s adult sons.  They have approved of B calling their father “Dad” and they fully accept the child as their brother.  The child calls Mr Madewell “Dad” or “Dada” and he appears to be relaxed with Mr Madewell.  Together they form future plans as a family. 

4. Ms Madewell and the child’s previous family is such that neither Ms Madewell nor the child have a very active relationship with the child’s other half siblings that is.  They are not incorporated into that family despite the fact that there is ongoing contact.  That does not appear to be a closed-door to the child regardless of the outcome today.   

5. The child has some understanding about what is going on today.  He understands that he will today become one of Mr Madewell’s children.  Mr Madewell has been shown to exhibit good insight into what is it to be a parent.  He is experienced, in that he has two other sons.  He has demonstrated that he is thoughtful about how he should go about parenting, including how he should deal with issues of discipline.  He is reflective about his own background and his own childhood. 

6. Most important in this case Mr Madewell loves the child.  He currently functions as the child’s father and adoption would legally reflect what is practically already the fact, a practical fact that is very much in the child’s interest to have in place.

7. Moving then to the statutory criteria.  the child is under 18 years old and is currently present in the Australian Capital Territory.  The applicants are ordinarily resident in the Australian Capital Territory. 

8. Mr Madewell is on the register of suitable people. He is a step parent and leave is granted pursuant to s 60G of the Family Law Act having regard to the provisions that that provision requires me to have regard to that deal with the consequences of adoption. I make the determination that leave should be granted because that is in the child’s best interest, primarily considering consequent to s 60CC of the Family Law Act the nature of the relationships between the child and Mr Madewell that I have referred to previously and the capacity of Mr Madewell to provide emotionally and otherwise for the child. 

9. This is not a matter in which consent is required as Ms Madewell is an applicant in the proceedings and Mr E is sadly deceased.   

10. There is no need to serve any further persons with the Application.  I have received a report from the Director-General.  The Director-General is supportive of the adoption and says that it promotes the child’s welfare and interest.  The Director-General has given the child appropriate information and enabled him to express his view.  The child is supportive of today’s Application.

11. Section 39F of the Adoption Act gives the criteria by which I should decide an adoption.  The applicant is of apparently good reputation, is able to fulfil the responsibilities of parenthood, he has demonstrably been doing so as I have previously set out.  He is suitable to adopt.  His age is appropriate, he has sufficient education and his attitude is highly supportive of the relationship with the child. 

12. The Application is focused on the child’s well-being so that the child truly has a sense that Mr Madewell is his father and the child is truly a part of this family. 

13. The physical, mental and emotional health of Mr Madewell, as recorded by the Director-General, are all sufficient to enable a nurturing of the child and they done so far. 

14. Finally, I turn to the factors that I have already discussed, outlining the circumstances of the family and the child’s place in it.  Mr Madewell’s role in fathering the child, his love for the child, combined with the fact that this step would mean that the legal status reflects the reality of the relationship of the child and Mr Madewell means that it is definitely in the child’s interests that I make the order.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 July 2017

Associate: 

Date:  7 August 2017