Meldrick and Meldrick

[2017] FamCA 28

FAMILY COURT OF AUSTRALIA

MELDRICK & MELDRICK [2017] FamCA 28

FAMILY LAW – ADOPTION – Application for leave to commence proceedings for adoption – where the children’s biological father is deceased – application granted.

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

APPLICANTS: Mr Meldrick and Ms Meldrick

FILE NUMBER: BRC 13012 of 2016

DATE DELIVERED: 23 January 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 January 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Nagel, John Nagel & Co

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the children, B, born … 1999 and C, born … 2002.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meldrick & Meldrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13012 of 2016

Mr Meldrick and Ms Meldrick

Applicants

EX TEMPORE

REASONS FOR JUDGMENT

1. I have today an Initiating Application filed 28 December 2016 by which the Applicants seek an order pursuant to s 60G of the Family Law Act 1975 (Cth) granting to them leave to commence proceedings for the adoption of the children B, born in 1999 and C, born in 2002.

2. The children’s biological mother was born in 1969 in Europe.  She married the children’s biological father, Mr D, in 1994.  They subsequently divorced in mid-July 2007. 

3. The children have lived with their mother and Mr Meldrick as a family unit since about February 2009.  The Applicants married in 2012. 

4. The children’s biological father, Mr D, died in 2015. 

5. I accept the evidence provided to the Court by the children’s mother (by way of annexure) of her communications with the children’s paternal grandmother who remains living in Europe.  It appears from those communications that their paternal grandmother is supportive of the application for adoption - in that sense, one can only conclude she is supportive of an order granting leave to the parties to commence proceedings for adoption. 

6. I also accept the evidence from the children’s maternal grandmother whereby she outlines her support for the adoption of the children by Mr Meldrick.

7. Adoption proceedings pursuant to State legislation have obviously not commenced. That is, no doubt, as a consequence of the effect of s 92 of the Adoption Act 2009 (Qld) which provides that a person may apply to the Chief Executive to arrange an adoption by that person of a stated child only if a number of matters that are specified are satisfied. Included within those matters, in particular at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth) and that a child, the subject of the proposed adoption is at least 5 years of age and has not yet turned 17 years of age.

8. Clearly, C falls within that age bracket (if I might refer to it in that way). Equally clearly, B does not. 

9. Any particular difficulty, though, in relation to B is ameliorated by the existence of s 92(2) of the Adoption Act 2009 (Qld), which, in essence, provides that the Chief Executive may accept an application for adoption for a child who has turned 17 if the Chief Executive considers that there is enough time to complete the process before that child turns 18 and the grounds for making an adoption order in favour of an applicant are likely to exist.

10. I accept as completely appropriate the submission to the effect that this Court should not, through the withholding of a grant of leave to commence proceedings in relation to B, act to prevent the Applicants from approaching the Chief Executive and persuading that person there is enough time to complete the process before B turns 18 in November of this year.

11. In determining whether to grant leave for parties to commence adoption proceedings, the Court must be satisfied of a number of things.  One is that the proceedings are by a prescribed adopting parent - I accept this condition is satisfied in this case.  This Court must also consider whether granting leave would be in the children’s best interests, having regard to the effects of s60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth) where they are applicable.

12. It is clear that the decision facing this Court is, of course, one that differs from the decision facing the Court charged with the obligation to make decisions about whether to permit adoption. 

13. The granting of leave to commence proceedings does not have the consequence outlined in the sections particularised in s 60G of the Family Law Act 1975 (Cth) - only the order for adoption made by the appropriate State Court has that effect. However, s 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters, which include that an order for adoption by a step-parent would better promote children’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any other Court order or no order at all.

14. It is, I think, obvious, therefore, that this Court ought not make an order granting leave to Applicants to permit proceedings in the State Court to commence if such proceedings are doomed to fail because of the absence of any mandatory State prerequisites.  Those prerequisites are, in my view, established in this case. 

15. It is also clear, I consider, from a reading of s 60G(2) of the Family Law Act 1975 (Cth) that, in these proceedings I must consider whether granting leave to commence proceedings is in the children’s best interests. Thus, consideration must broadly be given to the familiar “best interests” considerations (where those considerations are relevant) prescribed by s 60CC of the Family Law Act 1975 (Cth).

16. As I have already noted, B and C’s biological father is now deceased. 

17. The children have lived with the Applicants since February 2009: that is, from when they were about 9 years and 7 years of age respectively.  Given that length of time, I have no hesitation at all in concluding that, together with their mother, Mr Meldrick has likely fulfilled all the duties and responsibilities associated with parenting them.  Given the likely course of any life lived over the period of time since the children have lived with him, it is highly likely he will have undertaken many, many aspects of their day-to-day care and I accept as more likely than not that he has formed a relationship with them and loves them in the same manner as he would his own biological children.  I accept (as more likely than not) that both children have a strong relationship with Mr Meldrick.  I accept (as more likely than not) that he has, no doubt, joined with and supported their mother in meeting the children’s emotional, financial and practical needs since at least February 2009.

18. I accept the evidence that the children are supportive of the process the parties seek to undertake if leave is granted by this Court to commence adoption proceedings.  I also accept the evidence that Mr Meldrick and the children all feel, in essence, that such proceedings will complete their relationship.

19. I accept, as more likely than not, that the Applicants and the children together will likely gain addition emotional satisfaction if, after proper consideration by the State authorities, an adoption order is ultimately made.  This, it seems to me, can only be something – given the circumstances of this case and having the support of members of the children’s biological maternal and paternal families - which is in their best interests. 

20. Therefore, I have no hesitation in concluding that the proposed adoption is likely to be in the children’s best interests.

21. For these short reasons, delivered orally, I make the order that the Applicants have leave to commence proceedings for the adoption of the children.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 January 2017.

Associate:     

Date:              23 January 2017