Michaels and Anor and Betts

[2014] FamCA 1184

FAMILY COURT OF AUSTRALIA

MICHAELS & ANOR & BETTS [2014] FamCA 1184

FAMILY LAW – ADOPTION – Leave to commence proceedings – whether it is in the child’s best interests to grant leave to commence adoption proceedings– where the biological father gives consent – Order that leave be granted.

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

FIRST APPLICANT: Mr Michaels

SECOND APPLICANT: Ms Michaels

RESPONDENT: Mr Betts

FILE NUMBER: BRC 8977 of 2014

DATE DELIVERED: 8 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 8 December 2014

REPRESENTATION

FOR THE FIRST APPLICANT: The First Applicant in Person

FOR THE SECOND APPLICANT: The Second Applicant in Person

FOR THE RESPONDENT: The Respondent in Person

Orders

1. That pursuant to s 60G of the Family Law Act leave is granted for the applicants, Mr and Ms Michaels, to make application for the adoption of B born … 2013 pursuant to the Adoption Act 2009 (Qld), with the application to be made by Mr Michaels.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Michaels and Anor & Betts 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 8977 of 2014

Mr Michaels and Ms Michaels

Applicants

And

Mr Betts

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. Before me for determination today is an application by Mr Michaels and Ms Michaels for leave to be granted pursuant to s 60G(1) of the Family Law Act 1975 (Cth) for proceedings to be commenced by those two applicants in the State Children’s Court for the adoption of the child B, born in 2003, who is now, of course, 11 years of age. The respondent to the application before me today is the child’s biological father, Mr Betts.

2. On 18 November 2014, Mr Betts, filed an affidavit in this Court in which he deposed to his express support of the application of Mr and Ms Michaels for leave to be granted by this Court for them to proceed with the adoption proceedings in respect of his child, B.  Today, before me, the applicants appear in person and, pleasantly, the respondent father also appears in person and sits amicably and cooperatively at the bar table with his former partner, the mother of the child, and her husband.  All three of them ask the Court to grant the leave that is sought by the applicants.

3. In Queensland, adoption of children is governed by the Adoption Act 2009 (Qld). Under that legislation, a step-parent of a child may apply to the Chief Executive of the Department of Communities, Child Safety and Disability Services for an adoption of his or her step-child. The step-parent can do so if he or she is a spouse of the parent of the child; and also if the parent, the step-parent applicant and the child live together; and the adults have been spouses and living together with the subject child for a period of at least 3 years up to the time of the application. The step-parent applicant must also be an adult and an Australian citizen or the step-parent’s spouse must be an Australian citizen. They must also reside in Queensland and, interestingly, not be the same gender as their spouse. The child must be at least 5 years of age and not yet 17 and, finally, the step-parent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act.

4. Section 60G of the Family Law Act provides as follows:

   (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 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

1. The definition of prescribed adopting parent is contained in section 4 of the Family Law Act and includes “the spouse of a parent of the child”. Therefore, Mr Michaels is a prescribed adopting parent within the definition contained in s 4 of the Family Law Act.

2. Section 60F(4)(a) of the Family Law Act says that if a prescribed adopting parent adopts a child of a marriage and this Court had granted leave under s 60G for the adoption proceedings to be commenced, the child ceases to be a child of the marriage of the two biological parents. Accordingly, if I accede to the application in this matter and grant leave for the adoption proceedings to be commenced, and that adoption is ultimately approved, the child then ceases to be a child of the marriage of Mr Betts and Ms Michaels.

3. Section 61E of the Family Law Act provides as follows:

(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.

1. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to s 60G. A current parenting order stops being in force if the child is adopted.

2. In this particular case, there is no parenting order currently in place. Accordingly, Mr Betts and Ms Michaels each currently has parental responsibility for the child pursuant to s 61C(1) of the Family Law Act, but Mr Betts’s parental responsibility in respect of the child will end if Mr Michaels lawfully adopts the child.

3. Accordingly, I must consider whether it is in the child’s best interests for leave to be granted for her stepfather, Mr Michaels, to commence an adoption application for her with the consequence that if the adoption is granted (with Mr Betts’s consent or, absent that consent, by an order of a Queensland Children’s Court dispensing with the need for that consent), the child’s father, Mr Betts will cease to have any parental responsibility in respect of the child.

4. In the process of considering that question, I must have regard to, relevantly, the provisions of ss 60CC and 60CD of the Family Law Act.

5. Consideration of the matters set out in s 6CC includes any views expressed by the child and any factors (such as her maturity or level of understanding) that the Court thinks are relevant to the weight to be given to the child’s views.

6. B is 11 years old and is said to have been concerned when the subject of adoption was initially suggested because she was worried that she would no longer have contact with her biological father. Mr and Ms Michaels, on the evidence that I accept, have assured her that she would still be able to visit her biological father and that there would be no change in the amicable arrangements that have existed between them and her biological father for many years now.  The evidence is, and again I accept it, the child was content with that explanation and continuation of those arrangements.  She has apparently, and quite maturely, made a request she maintains the name Betts as part of her surname and this has been facilitated by her mother and her stepfather. 

7. Mr Betts and the applicant mother were previously married but following the breakdown of their marriage, Mr Betts has not lived with the child the child since January 2004, when she was some two months old.  Mr Betts and Ms Michaels divorced in October 2005.

8. In late 2004, the child and her mother commenced living with Mr Michaels. the child was just over 12 months old at that time.  From that time on, Mr Michaels has assumed the role of father to the child and ostensibly has represented a father figure in her day-to-day life from that period on.  Together with the child’s mother, Mr Michaels has been responsible for the day-to-day care, support and upbringing of the child. The family have always resided and continue to reside in a home in Suburb C, Queensland.  Mr and Ms Michaels are in their mid-forties and are both employed as public servants.  They married last year.

9. The evidence satisfies me that Mr Betts has an amicable relationship with the applicants and that he spends time with the child on a very regular basis, particularly each fortnight and sometimes that includes overnight visits. He said that he has had discussions with the applicants and that this arrangement will continue even if the adoption of the child by Mr Michaels goes through.  He is of that the view that she will be able to maintain her relationship with her extended paternal family with whom she has positive relationships. They also, I am told, have positive relationships with the two applicants. 

10. Mr Michaels seeks to adopt the child to lawfully assert his commitment as a father to the child, but also to particularly ensure continuity of parenting in the event of anything happening to the child’s mother that would prevent her from continuing to parent. 

11. I am satisfied on the evidence that is before me that Mr Michaels, takes the responsibility of parenting the child seriously and regards himself as her father and is committed to undertaking all of the legal obligations that come with parenting a child.

12. Having regard to all of the evidence that is before me, but most particularly the evidence of the biological father, Mr Betts, who consents to the adoption of his daughter the child by her stepfather, Mr Michaels, I am quite satisfied that it is in the child’s best interests to grant leave pursuant to s 60G of the Family Law Act for the adoption application to be made by her mother and her stepfather to proceed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 December 2014.

Associate:  L. Bui

Date:  23 December 2014