PETERS & ZIAN

[2011] FamCA 655

FAMILY COURT OF AUSTRALIA

PETERS & ZIAN [2011] FamCA 655

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Child’s best interests – Leave granted

Family Law Act 1975 (Cth) s 60G

Adoption Act 2009 (Qld) s 92(1)(d)

Bacon & Bacon [2007] FamCA 1594
Beck & Major & Wright [2010] FamCA 75
Rohrlach, Rohrlach & Doddridge [2008] FamCA 518

APPLICANTS: Mr Peters & Ms Yong

RESPONDENT: Mr Zian

FILE NUMBER: BRC 700 of 2011

DATE DELIVERED: 12 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 11 July 2011

COUNSEL FOR THE APPLICANTS:	Ms Hogan of Counsel
SOLICITORS FOR THE APPLICANTS:	Ms Honan Michael Lynch Family Lawyers

THE RESPONDENT: No appearance

REPRESENTATION

ORDERS

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Peters and Ms Yong have leave to commence proceedings for the adoption of B born in 1999.

IT IS NOTED that publication of this judgment under the pseudonym Peters & Zian 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 700 of 2011

Mr Peters and Ms Yong

Applicants

And

Mr Zian

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 60G(1) of the Family Law Act 1975 (Cth) (‘the Commonwealth Act’) by Mr Peters and Ms Yong that they have leave to commence proceedings for the adoption of the child B born in 1999, now 12 years old.

2. Ms Yong is the child’s biological mother.  Mr Peters is her husband. The child’s biological father is Mr Zian.

3. I am satisfied that the application for leave has been served in person by hand on Mr Zian and that such service accords in all respects with the requirements for good service.  I would refer without repetition to the brief reasons I gave yesterday in relation to service.

4. The Adoption Act 2009 (Qld) (‘the State Act’) provides by s 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 s 60G(1) of the Commonwealth Act 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 child’s best interests having regard to the effect of s 60F(4)(a) or s 60HA(3)(a) and ss 61E and 65J.

5. B’s biological parents were married in 1998 and divorced in 2000. As the child’s biological parents were not de facto partners it is not necessary to consider s 60HA(3)(a). Section 60F(4)(a) has effect that if I grant leave for the adoption proceedings to be commenced and an adoption order ultimately is made by the State court the child would cease to be a child of the marriage between his biological parents. 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. If I grant leave to commence adoption proceedings and an adoption order ultimately is made by the State court then Mr Zian would cease to have parental responsibility for the child. 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 proceeding to be commenced. In Country J in relation to the child, according to the divorce arrangements and orders, the child is to be raised by Ms Yong. There are no parenting orders, agreements, parenting plans or undertakings to the Court in Australia of any kind currently in force in relation to the child.

6. I turn then to the matter of the child’s best interests. I will refer to the particular provisions of s 60CC to s 60CG 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. B’s biological parents separated when he was about 21 months old.  Since then he has had no contact with Mr Zian who has not assumed responsibility.

8. When Mr Peters and Ms Yong commenced their relationship the child was seven years.  The child and Mr Peters quickly formed a bond.  When Mr Peters and Ms Yong decided to marry, and live partly in Australia and partly Country C, for Mr Peters’ work, it was necessary for Ms Yong to seek the consent of Mr Zian for the child to relocate from Country J to Australia.  He gave that consent.  In consequence, in July 2007 Ms Yong and the child left Country J and since then have lived with Mr Peters in Australia and Country C.

9. B enjoys a very close relationship with Ms Yong and Mr Peters.  Whilst Mr Peters and Ms Yong live in Australia, Mr Peters works in Country C. Hence, the child is a full time boarder at the D School, currently in year 3.  Mr Peters and Ms Yong travel from Country C to Australia to see the child each four to five weeks.  School holidays are spent either in Australia or in Country C.  During Christmas 2010-2011, the child travelled to Country J for three weeks to spend time with the maternal grandparents, Ms E and Mr F.  The child has his own bedroom at G Town, the family’s home in Australia, and also in Country C.  Mr Peters and the child engage in many activities together including golf, swimming, chess, computer games, bowling and movies. Further, at G Town there is a large yard and swimming pool.

10. As to cultural matters, there is evidence that if the adoption proceeds the child will become an Australian citizen and lose his Chinese citizenship.  However, there will not be any hiatus: see the affidavit of Ms H filed 8 July 2011, in particular paragraphs 3-6 and annexures AEH1 and 2.  He will, however, continue to have exposure to his Chinese maternal grandparents who customarily visit the family in Australia each year for about a month.

11. The child has developed a close relationship with Mr Peters’s mother, Ms I, who lives in Melbourne but travels to Queensland to G Town about twice each year to see and spend time with the family.

12. B, as I mentioned, is in year 3.  He is starting to excel at school.  He is in good physical health. Mr Peters financially supports the child including in relation to his private school fees and has done so since meeting Ms Yong whom he also supports.

13. Mr Peters treats the child as if his own son.  However, importantly, the child is aware that his “real dad” is in Country J, has remarried and “has another family with kids”.

14. Mr Peters, if the adoption proceeds, willingly would assume parental responsibility for the child. Mr Peters deposes, which I accept, that if in the future the child wishes to seek out and have a relationship with Mr Zian, his biological father, he would support that.

15. I am satisfied, having carefully weighed all of the above matters that it is in the child’s best interests that I grant the leave sought and I will do so.

16. The order will be in favour of both applicants, as sought in the application. Despite this, I have a reservation as to whether it is competent to grant Ms Yong leave, as the State Act, Part 5, Div 1, s 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 s 61E be given its literal meaning, unless Ms Yong the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Peters the child’s step father. Probably s 61E 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, Div 1, s 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, Bacon & Bacon [2007] FamCA 1594 at [2] and [3] per Strickland J; Rohrlach, Rohrlach & Doddridge [2008] FamCA 518 at [2] per Strickland J; and as to the effect of section 61E: Beck & Major & Wright [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 section 61E 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of O’Reilly J

Associate:

Date:14 July 2011