Newton

[2017] FamCA 842

FAMILY COURT OF AUSTRALIA

NEWTON AND ANOR [2017] FamCA 842

FAMILY LAW – ADOPTION – Application to commence adoption proceedings – biological father unknown – applicants have been in a long-term relationship – application considered to be in child’s best interest – application granted.  

Adoption Act2009 (Qld) s. 92
Assisted Reproductive Technology Act 2007 (NSW)

Family Law Act 1975 (Cth), ss. 4(1), 60CB, 60CG, 60F, 60G, 61E

FIRST APPLICANT: Mr Newton

SECOND APPLICANT: Ms Newton

FILE NUMBER: BRC 3514 of 2017

DATE DELIVERED: 16 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 October 2017

REPRESENTATION

SOLICITOR FOR THE FIRST & SECOND

APPLICANT:

Queensland Family Law Practice

Order

1. Pursuant to Section 60G of the Family Law Act 1975 (Cth) Mr Newton and Ms Newton are granted leave to commence adoption proceeding in respect 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 Newton  and Anor 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 3514 of 2017

Mr Newton

Applicant

And

Ms Newton

Second Applicant

EX TEMPORE REASONS FOR JUDGMENT

1. B born in 2016, whom I shall refer to as the child, is the subject of this application for leave to commence adoption proceedings pursuant to section 60G of the Family Law Act 1975(Cth) (as amended ‘the Act’). 

2. The child was born with the assistance of artificial insemination in New South Wales at a time prior to any legislative provision for details of the donor of the sperm to be recorded or registered.  The donor of the sperm is unknown.

3. About 10 months after the child’s birth, the applicant in these proceedings, Mr Newton, assumed the father role for the child and has at all times since then been, for all intents and purposes, the child’s father.

4. Mr Newton and Ms Newton, the child’s mother, commenced cohabitation in or about July of 2008 and married in 2008. The parties remain in what they both describe as a committed and stable relationship.  The child is, of course, the biological daughter of Ms Newton.  Although in these proceedings, Ms Newton is referred to as the respondent, she is, in fact, a joint applicant with Mr Newton.  There is no respondent because the biological father of the child is unknown. 

5. There is provision under the relevant New South Wales legislation, namely, the Assisted Reproductive Technology Act2007 for the child to, at some later stage, request some information as to the name of the donor involved in her creation, but that really is not a matter that concerns me greatly in terms of the application that is before me.  Suffice to say, the child is part of a family unit which consists of her mother and stepfather and has no relationship with the person who donated his sperm prior to her birth.

Relevant Legislative Provisions

1. Section 60G of the Act provides:

   (1)Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State 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.

   Note: Sections 60CB to 60CG deal with how a court determines a child's best interests.

2. A prescribed adopting parent is defined in section 4(1) of the Act:

   "prescribed adopting parent " , in relation to a child, means:

   a)a parent of the child; or

   b)the spouse of, or a person in a de facto relationship with, a parent of the child; or

c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

1. Section 60CB to section 60CG of the Act set out how a court determines what is in the child’s best interests. 

2. Section 60F(4)(a) of the Act provides:

   (4)The following provisions apply in relation to a child of a marriage who is adopted by a prescribed parent:

   a) if a court granted leave under section 60G for the adoption proceedings to be commenced- the child ceases to be a child of the marriage for the purposes of this Act.

3. Section 61E of the Act provides:

   (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.

4. Section 92 of the Adoption Act2009 (Qld) provides:

   (1)A person may apply to the chief executive to arrange an adoption by the person of a stated child if—

   a)   the person is the spouse of a parent of the child; and

   b)   the person, the person's spouse and the child are living together; and

   c)   paragraphs (a) and (b) have applied for a continuous period of at least 3 years up to the time of the application; and

   d)   the person has been granted leave under the Family Law Act 1975 (Cth), section 60G(1); and

   e)   the person is an adult; and

   f)    the person or the person's spouse is an Australian citizen; and

   g)     the person is resident or domiciled in Queensland; and

   h)     the person’s spouse is not the same gender as the person; and

   i)   the child is at least 5 years old and has not yet turned 17.

   (2)Despite subsection (1)(i), the chief executive may accept an application relating to a child who has turned 17 if the chief executive considers—

   a)   there is enough time to complete the adoption process before the child turns 18; and

   Note— An adult may not be adopted. See section 10(3).

   b)     the grounds for making an adoption order in favour of the applicant are likely to exist.

   (3)In this section—

   parent does not include guardian.

5. I have read the content of both Mr and Mrs Newton’s affidavits which describe a loving relationship between the child and her mother and stepfather. As noted earlier, Mr Newton is the only father that the child has ever known.  Whilst the applicants have not discussed their proposed adopted application with the child at this point, they propose to do so once leave is granted and prior to an application being made to the Supreme Court for adoption. I am satisfied with the reasons the parties have given as to why they have not done so to this point. 

6. I am satisfied on the evidence given by the applicants that it is in the child’s best interest for leave to be granted and whilst I may not have specifically discussed each subparagraph of each relevant section, I have considered them where relevant.  Accordingly, I make the order as sought in paragraph 2 of the application filed on 10 August 2017 as amended.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 October 2017.

Associate:

Date:  23 October 2017