Newman & Anor and Handke

[2016] FamCA 1142

FAMILY COURT OF AUSTRALIA

NEWMAN AND ANOR & HANDKE [2016] FamCA 1142

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the respondent biological father consents to the adoption – Order that leave be granted.

Family Law Act 1975 (Cth) s 60G, s 61E
Adoption Act 2009 (Qld)

1st APPLICANT: Mr Newman

2nd APPLICANT: Ms Hunter

RESPONDENT: Mr Handke

FILE NUMBER: BRC 7942 of 2016

DATE DELIVERED: 26 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Haidley
McNamara & Associates Solicitors

THE RESPONDENT: No Appearance

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Mr Newman and Ms Hunter, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child B (the child) born … 2009, by his step-father Mr Newman.

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 Newman & Anor and Handke 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 7942  of 2016

Mr Newman and Ms Hunter

Applicants

And

Mr Handke

Respondent

REASONS FOR JUDGMENT

1. By application filed on 15 August 2016, Ms Hunter and her husband, Mr Newman, seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth), they be granted leave to commence adoption proceedings for adoption of the child, B born in 2009, by his step-father Mr Newman. Ms Hunter is the child’s mother.

2. The respondent to the application is Mr Handke.  He is the child’s biological father.  He and Ms Hunter were in a relationship for approximately five years, but they never married. Mr Handke has filed an affidavit in these proceedings in which he says he consents to the adoption of the child the child by Mr Newman.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act 2009, which is a Queensland State law. 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 to arrange an adoption of his or her step-child if the step-parent is a spouse of the parent of the child; and the parent, the step-parent applicant and the child live together; and the adults have been spouses and both living together with the subject child for a continuous 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 spouse of the applicant must be an Australian citizen. They must also reside in Queensland, not be the same gender as their spouse, and the child must be at least 5 years of age and not yet turned 17. 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.

2. 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.

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

4. 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.

5. 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.

6. In this particular case, there is no parenting order currently in place. There has never been a parenting order in place. Accordingly, Ms Hunter and Mr Handke each currently has parental responsibility for the child pursuant to s 61C(1) of the Family Law Act, but Mr Handke’s parental responsibility in respect of the child would end if Mr Newman lawfully adopts the child.

Some history of the matter

1. The applicant mother, Ms Hunter, was born in 1985 and she is 31 years old. The respondent biological father, Mr Handke, was born in 1982 and he is 34 years old. They began their relationship in or about 2003 and they separated approximately five years later, in July 2008. Six months following their separation, Ms Hunter gave birth to the child.  

2. Mr Handke deposes to seeing the child on one occasion in February 2010 when he was a year old. He has not had contact with him since and does not have what he describes as a “relationship with the child as father and son”. Ms Hunter says that Mr Handke has paid child support from time to time though she is of the belief that she and Mr Newman are capable of supporting the child themselves. Neither party mentioned whether there is a paternal family outside the father that is interested in the case, nor whether the child has had any contact with them.  However, it seems that he has not.

3. Mr Newman is a public servant.  He was born in 1978 and is 38 years of age.  He began a relationship with Ms Hunter in 2010, when the child was approximately 14 months old, and they were married in 2011.  As such, Mr Newman has been a father figure for the child for most of the child’s life.  In fact the child refers to Mr Newman as ‘Dad’ and regards Mr Newman’s parents as his own grandparents. No doubt, Mr Newman’s parents regard the child as their own grandson.  The applicants have another child together, namely C, who was born in 2011 and is now 5 years of age.  She and the child have lived as a brother and sister since she was born.   

Best Interests

1. I must consider whether it is in the child’s best interests for leave to be granted for his step-father, Mr Newman, to commence an adoption application for him in the State Court with the consequence that if the adoption is granted (with Mr Handke’s consent) the child’s father, Mr Handke will cease to have any parental responsibility in respect of the child whatsoever.

2. 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.

3. One of those matters that I must consider is, of course, the benefit to the child of having a meaningful relationship with both of the child’s parents. In this case, that requires me particularly to consider the benefit to the child of having a meaningful relationship with his father, Mr Handke, and his mother, Ms Hunter. It also requires me to consider all of the matters set out in s 60CC(3), which list includes any views expressed by the child and any factors (such as his maturity or level of understanding) that the Court thinks are relevant to the weight to be given to the child’s views.

4. Both of the applicants depose to the fact that the child expresses the view that he wishes to be adopted by Mr Newman. Mr Newman also indicates that C is supportive of his adoption of her half-brother B. Due to the continued absence of Mr Handke from the child’s life, and the views that have been expressed by the child, the applicants do not believe the child would benefit from establishing a relationship with his biological father. The child has clearly a meaningful relationship with Mr Newman and Mr Newman’s parents and has never known any other paternal grandparents.

5. The applicants have always shared the responsibility for the long-term decisions in relation to the care of the child. They emphasise the fact that Mr Handke has not been a part of any decisions made regarding the child since 2009. Mr Handke understands that the successful adoption of the child would mean that he will no longer be the legal parent of the child and that he will be prevented from seeking any orders with respect to care arrangements for him in this Court or in the Federal Circuit Court of Australia. Mr Handke maintains his consent for the child to be adopted regardless.

6. The child attends the D School of Distance Education and Mr Newman and Ms Hunter jointly fund his education expenses. He  has been diagnosed with autism and Ms Hunter and Mr Newman depose to supporting the child both before and  since his diagnosis with autism. They have also committed to supporting the child by educating themselves about autism so that they can best provide for the child’s needs in the circumstances. Mr Newman has described the child as an “intuitive and bright young man who is very much mature enough to express his own well-considered opinion”.

Conclusion

1. In conclusion, I can say that I am satisfied on the evidence that is before me that Mr Newman takes the responsibility of parenting the child seriously. He regards himself as the child’s father and has to this point in time shown his commitment to undertaking and accepting all of the legal responsibilities and obligations that come with being a parent to a child.

2. Having regard to all of the evidence, and most particularly the evidence of the respondent, the child’s biological father Mr Handke, that he does not oppose leave to adopt being granted, I am indeed satisfied that it is in the child’s best interests to permit the applicants, Mr Newman and Ms Hunter, to commence proceedings in the State Magistrates Court seeking the adoption of the child, B born in 2009.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 September 2016.

Associate: 

Date:  20 January 2017