Occo and McAllen

[2010] FamCA 929

FAMILY COURT OF AUSTRALIA

OCCO & MCALLEN [2010] FamCA 929

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Leave granted

Family Law Act 1975 (Cth) ss 60G(1), 60G(2), 60F(4)(a), 60HA(3)(a), 61E, 65J, 60CC, 60CG

Brock & Brock [2007] FamCA 1594
Berry & Wratten [2010] FamCA 75

Reynolds & Donaldson [2008] FamCA 518

APPLICANTS: Mrs and Mr Occo

RESPONDENT: Mr McAllen

FILE NUMBER: BRC 5411 of 2010

DATE DELIVERED: 6 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly

HEARING DATE: 6 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Ms McKinnon

Slater & Gordon

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. The attempted service by postage on 21 June 2010 to the respondent at his last known address … NSW be deemed good service on him and further service or attempted service otherwise be dispensed with.

2. Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Occo and Mr Occo have leave to commence proceedings for the adoption of Y born … September 2000.

IT IS NOTED that publication of this judgment under the pseudonym Occo & Occo & McAllen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5411 of 2010

MRS AND MR OCCO

Applicants

And

MR MCALLEN

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mrs Occo and Mr Occo that they have lave to commence proceedings for the adoption of Y born in September 2000 now 10 years. Mrs Occo is the child’s biological mother. Mr Occo is her husband.

2. The child’s biological father is Mr McAllen. Mrs and Mr Occo have not been able to locate him for service.  On 18 August 2010, I ordered:

   1    The applicants take the following steps to endeavour to identify an address in Australia to which documents posted and addressed to the respondent may be likely to come to his attention:

   a.   Electoral roll and White Pages electronic searches in the respondent’s name

   b.   Electoral roll and White Pages electronic searches in the name/s of any male sibling/s of the respondent known to the mother.

   2    The applicants, following the taking of those steps, post in envelope/s addressed to the respondent to such address/es as may be obtained by that process, by prepaid post, copies of the documents filed in this matter and this order.  

   3    Such steps, when taken, be deemed to be good service on the respondent and service otherwise be dispensed with.

3. Since then, in compliance with those orders, I am satisfied that all possible steps to locate Mr McAllen have been taken.  See the affidavit of JG filed 10 September 2010.  For context, see also the earlier affidavit of HM filed 20 August 2010 which deposes to earlier posting of the application and material in support as it was at 21 June 2010 to Mr McAllen to his last known address.  The steps taken are exhaustive and in those circumstances despite my order 18 August 2010 I will order that the attempted service by postage on 21 June 2010 to Mr McAllen at his last known address … New South Wales be deemed good service on him and that further service or attempted service otherwise be dispensed with.

4. The Adoption Act 2009 (Qld) provides by section 92(1)(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 section 60G(2) of the Commonwealth Act, I am required to consider whether the granting of leave would be in Y’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

5. Y’s biological parents married in 1999. They separated prior to her first birthday and were divorced on 1 May 2003. Section 60F(4)(a) has effect that if I grant leave for adoption proceedings to be commenced Y would cease to be a child of the marriage of the biological parents. Section 60HA does not apply to Y’s biological parents as they were not de facto partners. 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 section 60G for the adoption proceedings to be commenced. If I grant leave to commence adoption proceedings and an adoption order ultimately is made by the State Court then Mr McAllen would cease to have parental responsibility for Y. 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 section 60G for the adoption proceedings to be commenced. Mrs Occo has deposed that there are no parenting orders agreements parenting plans or undertakings to the Court of any kind currently in force between the parties or otherwise relating to the child.

6. I turn then to the matter of Y’s best interests. I will refer to the particular provisions of section 60CC to section 60G of the Commonwealth Act, which relate to the determination of a child’s best interests, only to the extent as on the material may seem relevant.

7. Y has no relationship with Mr McAllen.  There has been no contact since July 2003, when she was less than three years.  Mrs Occo sought the assistance of the Child Support Agency for child support assessment and payment. The Child Support Agency advised her in July 2007 that Mr McAllen at that stage had ceased to reside in Australia. He has shown no interest in parental responsibility.

8. Y attends the local State Primary School and is achieving well.  It is proposed that subsequently she will attend the local State High School.

9. Mr and Mrs Occo were married in 2005.  Y has a sibling, N, born of the marriage in July 2008 now two years.

10. Y has expressed that she would like to have the same surname as N rather than McAllen.

11. Mr Occo is a teacher at the local State High School.  Mrs Occo is a counsellor.

12. Mr Occo deposes that he has always treated Y as his daughter and that since the first year of his marriage with Mrs Occo Y has called him Daddy.

13. He deposes that he is willing to accept formal parental responsibility for her.

14. For the purposes of the Commonwealth law I am satisfied in all of the circumstances that it is in Y’s best interests that I grant the leave sought and I will do so.  The order will be in the terms sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Mrs Occo leave, as the State Act, Part 5, Division 1, section 92 contemplates application for adoption only by the step parent and not a joint application with the opposite sex biological parent who is the step parent’s spouse or partner.  Section 61E however provides that in relation to a person who had parental responsibility immediately before the adoption, upon an adoption that person’s parental responsibility ends.  If section 61E be given its literal meaning, unless Mrs Occo, the biological mother is a co applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Occo, the child’s step father.  Probably s61E should be read down to exclude the biological parent who is the spouse or partner of the adopting step parent (if not amended to that effect) as it is an awkward proposition to think that one could apply to adopt one’s own child and indeed that is not the effect of the State Act, Part 5, Division 1, section 92.  Other judges however have taken the view that the order should be made in favour of both the step parent and the biological parent who is the spouse or partner of the step parent on the basis that otherwise upon the making of an adoption order in favour of a step father the biological mother’s parental responsibility for the child would end.  See, for example, Brock & Brock [2007] FamCA 1594 at [2] and [3] per Strickland J; Reynolds & Donaldson [2008] FamCA 518 at [2] per Strickland J; and as to the effect of s61E: Berry & Wratten [2010] FamCA 75 at [12] per Murphy J. Although thus I doubt that the mother can apply to adopt her own child, the existence of s61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 6 October 2010.

Associate:     

Date:              15 October 2010