Milly and O’Loan

[2010] FamCA 552

FAMILY COURT OF AUSTRALIA

MILLY & O’LOAN [2010] FamCA 552

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s 60G – Leave granted

Family Law Act 1975 (Cth) ss 60G(1), 60G(2), 60F(4)(a), 60HA(3)(a), 61E, 65J, 60CC, 60CG
Adoption of Children Act 1964 (Qld) [repealed]

Adoption of Children Act 2009 (Qld) s 92(d)

APPLICANTS: Mr and Mrs Milly

RESPONDENT: Mr O’Loan

FILE NUMBER: BRC 5171 of 2010

DATE DELIVERED: 16 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE:  16 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Kruger
Ryan Kruger Lawyers

THE RESPONDENT: DECEASED

Orders

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Milly has leave to commence proceedings for the adoption by him of M born … March 1993 and B born … February 1996.

IT IS NOTED that publication of this judgment under the pseudonym Milly & O’Loan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5171 of 2010

MR AND MRS MILLY

Applicants

and

MR O’LOAN

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 60G(1) of the Family Law Act 1975 (Cth) by Mr Milly and Mrs Milly for leave to commence proceedings for the adoption of M born in March 1993, now 17 years, and B born in February 1996, now 14 years.

2. The children’s biological father Mr O’Loan (deceased) died in January 1996.

3. Proceedings had been commenced in Queensland in 2008 for the adoption of the children by Mr Milly under the Adoption of Children Act1964 (Qld). However, that Act was repealed effective 1 February 2010 and replaced effective on the same date by the Adoption of Children Act 2009 (Qld). The 2009 Act provides, by s 92(d), that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under section 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under s 60G(2) of the Commonwealth Act, I am required to consider whether the granting of leave would be in the children’s best interests having regard to the effect of s 60F(4)(a) or s 60HA(3)(a) and ss 61E and 65J.

4. As to those matters, s 60F(4)(a) is not applicable as the children are not the biological children of Mr Milly and Mrs Milly. Section 60HA deals with de facto relationships and is not applicable as Mr Milly and Mrs Milly have been married for 10 years. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been granted under s 60G for the adoption proceedings to be commenced. In this case, as the children’s biological father is deceased, this provision is not applicable to parental responsibility concerning the children. Section 65J(2) provides that a parenting order stops being in force on the adoption of a child unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced. This provision also is not applicable as there are no parenting orders in place concerning the children.

5. I turn then to the matter of the children’s best interests.  I will refer to the particular provisions of ss 60CC to 60CG of the Commonwealth Act which relate to the determination of a child’s best interests only to the extent as on the material seems relevant.

6. On the material, the children have a close and loving relationship with Mr Milly and Mrs Milly as well as N, Mrs Milly’s older child, who lives with Mr Milly and Mrs Milly and the children, and with Mr Milly’s three biological children who are S, D and P who live in Melbourne with Mr Milly’s former wife.

7. Mr Milly and Mrs Milly have been married for 10 years.  The children are attending private schools in Brisbane and, according to the evidence, all of their needs are met by Mr Milly and Mrs Milly.

8. The children would benefit from adoption by Mr Milly, whom the children have regarded for most of their lives as their father, in the case of M since he was about three years and B since she was about one year.  Mr Milly has, with the mother, cared for them since then and with her provided for them.

9. Mrs Milly is very supportive of Mr Milly’s application so that if anything should happen to her the children will have a legally adoptive father.

10. I am satisfied on all of the evidence that the children’s best interests would be served by the grant of leave to commence the adoption proceedings.

11. As mentioned, the adoption process was commenced with the State authority in 2008 under the now repealed legislation.  The effect of the 2009 State Act has necessitated this application.  It is not for me to concern myself with the question whether the existing application under transitional provisions is continued or whether the existing application be treated as a new application under the 2009 Act or indeed whether Mr Milly and Mrs Milly will be required to bring a new application.  That is a matter for State law.

12. For the purposes of the Commonwealth Law, I am satisfied in all of the circumstances that it is in the children’s best interests that I grant the leave sought and I will do so.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.

Associate:     

Date:              5 July 2010