O’Connell And Anor and Holding

[2016] FamCA 382

FAMILY COURT OF AUSTRALIA

O’CONNELL AND ANOR & HOLDING [2016] FamCA 382

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – step-parent adoption – where the adoption is opposed by the children’s biological father – where the children’s biological father has not spent time with the children since 2004, nor sought to exercise his parental responsibility for the children in that time – where the children express a strong desire for the adoption to proceed – best interests of the children – where leave is granted.

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

FIRST APPLICANT: Mr O’Connell

SECOND APPLICANT: Ms O’Connell

RESPONDENT: Mr Holding

FILE NUMBER: BRC 11546 of 2014

DATE DELIVERED: 23 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 17 May 2016

REPRESENTATION

THE FIRST APPLICANT: Self represented

THE SECOND APPLICANT: Self represented

THE RESPONDENT: Self represented

Orders

1. Pursuant to s 60G of the Family Law Act1975 (Cth) Mr O’Connell and Ms O’Connell are granted leave to commence adoption proceedings in respect of the children, B born … 1998 and C born … 2000.

2. All outstanding Applications be dismissed and removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Connell and Anor & Holding 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 11546  of 2014

Mr O’Connell and Ms O’Connell

Applicant

And

Mr Holding

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr O’Connell (“the stepfather”) and Ms O’Connell (“the mother”) pursuant to s 60G of the Family Law Act (“the Act”) seeking leave for proceedings to be commenced for the adoption of two children, B  born in 1998 and C born in 2000.

2. The application is opposed by Mr Holding (“biological father”) of the said children.

3. The biological father had sought orders in his Response relating to his spending time with B and C but did not press that at the hearing. He confirmed that the only matter for determination was the leave to adopt application.

4. None of the parties were represented.

5. The stepfather, with the consent of the mother, made submissions on behalf of himself and the mother.

Brief background

1. The stepfather and mother were married in 2004. At that time B was aged 6 years and C was aged 4 years. B and C have had no contact with their biological father since 2004. The reasons for this are in dispute but it is common ground that the biological father has not pressed the issue by commencing court proceedings in the past. It is also common ground that the biological father has not been involved in any way in the lives of B and C since 2004. There is dispute about the extent to which the biological father has contributed financially for the children but it is common ground that his child support is currently in arrears.

2. These proceedings were commenced by Application filed 19 December 2014. A child inclusive conference was facilitated by Ms D on 1 May 2015 and a family report was prepared by Ms E on 21 December 2015.

3. The stepfather has three children from his first marriage now aged 30, 23 and 22.

4. The mother has five children from previous relationships including B and C. Her other children are now aged 28, 23 and 22. Her 22 year old, Ms F, is the older biological sister of B and C.

5. The mother and biological father have three children together, namely, Ms F, B and C. 

6. The stepfather and mother have two children together, aged 10 and 4.

7. All children live or have lived at various stages with the mother and stepfather. At the time of hearing, B, C and the two youngest children lived with the mother and stepfather, although C is completing her final two years of school at a local boarding school, as has been the family tradition. B finished school last year and is now at university.

8. The biological father has maintained a relationship with one of the mother’s other children now aged 28 and he has some contact with his daughter Ms F.

9. The mother, B and C have all maintained a relationship with the biological father’s mother who lives in Sydney and they speak to her on the telephone regularly.

10. B and C had their surname legally changed to “O’Connell” in May 2009. At that time the biological father could not be located. The biological father disputes the likelihood of this.

11. There is no parenting order in place.

Relevant legislative provisions

1. Section 60G relevantly 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), …, and of sections 61E ….

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

2. ‘Prescribed adopting parent’ is defined in section 4(1) of the Act, that being:

   (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.

3. Section 60F(4)(a) provides:

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

4. Section 61E 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.

5. Section 92 of the Adoption Act 2009 (Qld)

   (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.

Evidence from the Ms D - child inclusive report

1. When B and C were interviewed for the child inclusive conference on 1 May 2015 neither of them wished to see their biological father.

2. B understood that her stepfather wished to adopt her and understood this related to difficulties that had been experienced in relation to passports and a concern that if anything happened to her mother, her biological father could have some parental rights over her and her sister. She said being adopted “wouldn’t affect her that much” and that the “legality doesn’t bother me”. She said that she didn’t need to be adopted to feel part of the family, stating that she already did feel a part of the family. In relation to her biological father she said “I don’t see him as my dad, I don’t want to hurt anyone’s feelings, but he shouldn’t have those rights.”

3. C also understood that her stepfather wished to adopt her and understood it would make it easier for her mother and stepfather to fill in documentation such as passports. She said that being adopted “made no difference” to her and commented that having her name changed several years ago had helped them all be recognised as the same family. She said “I wouldn’t want my dad ([Mr Holding]) making decisions for me, he doesn’t know me”. She also said she did not want to have any contact with her biological father currently but perhaps when she was older.

4. Ms D opined:

   From the children’s perspective, given their views, taking steps for them to be adopted by [Mr O’Connell] does not in any way change anything for them, nor does it signify anything for them, such as reflecting them as a family unit and therefore I do not think that for this reason the application is required.

   …

   … [T]he children were of the clear view that they would not want [Mr Holding] making decisions for them given that he does not know them. I think this is a valid point and one that was certainly important to [B] and [C] that the Court might consider.

Evidence from Ms E – family report

1. B and C again refused to meet with their biological father when their interview took place on 30 November 2015.

2. Ms E interviewed B for one hour fifteen minutes. Ms E reports inter alia:

   [B] said that although she was very young when her parents separated, she still thinks of [Mr Holding] as her Dad, more so than her younger sister, [C], does. She described feeling particularly upset on Father’s Day and hearing other children speak affectionately about their fathers, and wondering why her Father does not see them.

   [B] said that she has a really good relationship with [Mr O’Connell] and refers to him as Dad. …

   When asked about the adoption, [B] said that it was not her idea that she and [C] be adopted, however, she does want it to happen. [B] said, “It makes sense because [Mr O’Connell] is my Dad and yet he’s never been seen as my father legally. He deserves it. He deserves to be recognised, he’s raised us up.” She said that if she were adopted it would provide a greater sense of security, especially if her Mother was to die, as she would not want [Mr Holding] to be making decisions about her.

   [B] denied that she was unsure about the adoption idea, and emphasised that if she did not want to be adopted, then she would most certainly say so. [B] said that she is quite sure [C] wants to be adopted. [B] said that [C] gets quite upset when on occasions her younger sister, [G], makes comments such as “You’re not my sister” or says things like, “he’s not your father”. She said that [C] becomes really upset about these comments because she sees herself as being [Mr O’Connell’s] daughter and very much part of the family.

   … [B] acknowledged that it might be quite upsetting for [Mr. Holding] to consider that they want to be adopted by [Mr. O’Connell]. She said that she would not be surprised if [Mr Holding] felt upset, however, if he did this would not change her mind about the issue, because it is not about whether she spends time with him, it is about their family.

   … “…Now that we have asked for this, the adoption, it’s the only thing we’ve asked for, and now he says no”

   When asked how she thought her Mother and [Mr O’Connell] would react if she decided she did not want to be adopted, [B] said that it would not make any difference. [B] said, “Mum wants us to do what is best for us”. [B] denied that she is worried that she would disappoint her Mother or [Mr O’Connell] and said that [Mr O’Connell] is a very understanding person and always supportive of them.

3. Ms E interviewed C and reports inter alia:

   When asked to rate on a scale between 1 and 10 how much she wanted to be adopted by [Mr O’Connell], [C] did not hesitate in nominating 10.

4. Ms E assessed both B and C as being “mature, articulate and emotionally balanced in their presentation.” While acknowledging the girls’ strongly held views to be adopted, Ms E expressed some reservation about the impact the proposed adoption may have on the girls’ other sibling relationships. Ms E did not however interview any of the girls’ siblings.

Assessment

1. The mother and stepfather are prescribed adopting parents within the meaning of the Act.

2. In determining the application for leave I must consider what I find to be in the children’s best interests by reference to the relevant parts of s 60CB – 60CG and the particular sections referred to in s 60G so far as they are relevant. While I may not specifically discuss each subsection I have considered them where relevant.

3. B and C have lived most of their lives with the mother and stepfather jointly. They were very young at the time of their biological parents’ separation. It is common ground that they have a close and loving relationship with their mother and stepfather and that they have no relationship with their father. Both girls declined to meet with their biological father in the course of these proceedings but did not rule out doing so in the future. In this regard I note that their older sister Ms F has connected with the biological father.

4. The girls have a close and loving relationship with their other siblings and also have a relationship with their paternal grandmother.

5. The biological father has played no part in their lives since 2004. That is a fact that is not in dispute. He has not exercised parental responsibility for over ten years.

6. B and C impressed Ms E as confident, articulate and mature young women. They expressed their views strongly and responded clearly to a number of very pointed questions posed by Ms E. There are clearly a number of reasons for the girls’ strongly held views about the adoption, which they discussed in some detail with Ms E. Whether or not all of those views are valid or rational, matters not in my view. They have clearly stated that they support the adoption. Their views have only strengthened over time.

7. The biological father’s opposition is a relevant matter but not a determinative matter in the circumstances of this case.

8. Whether or not the children have a relationship with their biological father in the future is not, in my view, going to be determined by whether or not the adoption proceeds. Given the comments made by B, the prospect of her seeking out her biological father in the future may even be enhanced if the father does not oppose the adoption but that can be no more than speculation and is not a matter upon which I have placed any weight. 

9. The mother and stepfather submitted that but for the girls’ strongly expressed views they would not have persisted with the application for leave. I accept that to be the case.

10. The biological father opposed leave being granted because he submitted that it was not clear why the girls were expressing these views. He submitted that it was more likely to be because of influence brought to bear on them by the stepfather and mother. I reject that submission.

11. Section 92 of the Adoption Act 2009 (Qld) provides that a person cannot seek to adopt a child who has attained the age of 17 unless it is likely the adoption can be completed before the child attains 18. There is no evidence before me about the time any adoption application might take but that is a matter for another jurisdiction. It is not a matter that would cause me to refuse leave in this case.

12. If the girls are ultimately adopted they will cease to be ‘children of the marriage’ as between the mother and biological father for the purposes of the Act and the biological father will no longer have parental responsibility in relation to the children. Given the circumstances of this case those matters are not factors weighing against leave being granted.

13. Overall, I find that it is in the girls’ best interests for leave to be granted.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 May 2016.

Associate: 

Date:  23 May 2016