Pinnick & Hamblin
[2023] FedCFamC1F 482
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) FIRST INSTANCE
Pinnick & Hamblin [2023] FedCFamC1F 482
File number(s): BRC 6277 of 2023 Judgment of: CAREW J Date of judgment: 15 June 2023 Catchwords: FAMILY LAW – LEAVE TO COMMENCE ADOPTION PROCEEDINGS – Where the applicants are the step-father and mother and they seek leave to commence adoption proceedings in relation to a 16 year old child – Where the respondent biological father does not oppose the adoption– Where leave is granted.
FAMILY LAW – JURISDICTION – where the Court has jurisdiction
Legislation: Adoption Act 2009 (Qld) s 92
Family Law Act 1975 (Cth) ss 4(1), 60CB, 60CG, 60G, 60F(4)(a), 60HA(3)(a), 61E, 65J
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 9(1)(a), 10(1)(a), 25
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Sch 2, Item 29.2A
Cases cited: Brock & Brock [2007] FamCA 1594
Cahill & Fryar [2008] FamCA 1245
Hanlon & Hanlon [2022] FedCFamC1F 435
Orr & Leach [2022] FedCFamC1F 217
Tanner & Cape [2011] FamCA 665
Thomson & Barnes [2022] FedCFamC1F 504
Number of paragraphs: 21 Date of hearing: 15 June 2023 Place: Brisbane Solicitor for the applicants Honan Family Law For the respondent Litigant in person ORDER
BRC 6277 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PINNICK
First Applicant
MS PINNICK
Second Applicant
AND: MR HAMBLIN
Respondent
order made by:
CAREW J
DATE OF ORDER:
15 JUNE 2023
THE COURT ORDERS THAT:
1.Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Pinnick and Ms Pinnick be granted leave to commence adoption proceedings in respect of the child, X born 2006.
NOTATION:
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J:
X is 16 and happily the application before me is cause to celebrate. Her step father, Mr Pinnick, wishes to adopt her and although that process occurs through the State system of adoption (in this case Queensland), a necessary first step is to seek leave to adopt from this Court. X’s mother, Ms Pinnick, is married to her step-father and is in fact a joint applicant and consents to the proposed adoption. X’s biological father, Mr Hamblin, also consents to the proposed adoption.
APPLICABLE LEGAL PROVISIONS
The application for leave to commence adoption proceedings is made pursuant to s 60G of the Family Law Act 1975 (Cth) (“FLA”) even though, as already noted, the adoption proceedings themselves are determined under the law of Queensland, where the applicants live. Obtaining leave pursuant to the FLA is a prerequisite under s 92 of the Adoption Act 2009 (Qld)).
Since 1 September 2021, the jurisdiction of this Court to determine an application for leave to commence adoption proceedings is dependent upon the proceedings being transferred from an inferior court, namely the Federal Circuit and Family Court of Australia (Division 2) (formerly known as the Federal Circuit Court of Australia), a court of record, to this Court (formerly known as the Family Court of Australia), a superior court of record (see s 9(1)(a) and s 10(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”)). Since 1 September 2021, the proceedings can no longer be instituted in this Court, but as a result of a protocol between the Courts, such applications are generally transferred, such is the importance given to the jurisdiction relating to adoption.
Section 60G of the FLA relevantly provides as follows:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), … 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.
Section 25 of the FCFCOA Act relevantly provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
A “family law or child support proceeding” is defined in s 7 of the FCFCOA Act and means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132.”
The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) relevantly includes “matters in respect of which proceedings may be instituted under the Family Law Act 1975”.
The application for leave to commence adoption proceedings was filed in the Federal Circuit and Family Court of Australia (Division 2) on 19 May 2023 and transferred to this Court by a Registrar pursuant to a delegated power to do so (see Item 29.2A to Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021) on 13 June 2023.
Accordingly, this Court has jurisdiction to determine the application.
In considering whether or not to grant leave, the Court must consider whether granting 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 of s 61E and s 65J of the FLA.
Section 60CB to 60CG deal with how a Court determines a child’s best interests.
Pursuant to s 61E of the FLA, if a child is adopted and immediately before the adoption a person had parental responsibility, the person’s parental responsibility ends on the adoption “unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced”. Further, pursuant to s 65J, if a child is adopted and immediately before the adoption a parenting order was in force in relation to the child, the parenting order stops being in force on the adoption of the child “unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced”.
In Cahill & Fryar[1] Stickland J said at [13]:
The effect of section 61E of the Family Law Act is that if I grant leave and an adoption order is made, the parental responsibility of any person who had parental responsibility for the child immediately before the adoption ceases. That applies to both Mrs Cahill and Mr Fryar. Mr Fryar understands that that will be the effect of an ultimate adoption order. This is the issue that led me to raise with Mrs Cahill whether she wanted to become an applicant rather than a respondent, namely, that on that basis, if an adoption order is made in favour of both Mr and Mrs Cahill, then they will thereafter have parental responsibility for the child. In other words, although the effect of section 61E is that Mrs Cahill would nominally lose her parental responsibility for the child, upon the adoption, the effect of the adoption would be that she gets it back.
[1] [2008] FamCA 1245.
While it seems counterintuitive for the mother in this case to apply for leave to adopt her own child, it does seem that the effect of s 61E would be to end her parental responsibility for the child if she is not an applicant and the adoption is later granted. In a number of previous decisions of this Court (save one),[2] it has been concluded that the application for leave to adopt must include both the step-parent and the biological parent who is married to or in a de facto relationship with the step-parent. In this context, I also note that the definition of a “prescribed adopting parent” in s 4(1) of the FLA contemplates a parent of the child being an applicant as well as the spouse or de facto spouse of a parent.
[2] Brock & Brock [2007] FamCA 1594; Tanner & Cape [2011] FamCA 665; Orr & Leach [2022] FedCFamC1F 217; cf Hanlon & Hanlon [2022] FedCFamC1F 435.
I considered this rather counterintuitive requirement in a decision of Thomson & Barnes[3] and I include below some observations made in that case at [13] and [14]:
In a number of previous decisions of this Court, it has been concluded that the application for leave to adopt must include both the step-parent and the biological parent who is married to or in a de facto relationship with the step-parent. In a recent decision of Hanlon & Hanlon (“Hanlon”) Gill J rejected that view in what I observe, respectfully, to be a well-reasoned decision. Unfortunately, the issue was not one that was addressed by Counsel or Queen’s Counsel before me.
While I do not necessarily disagree with Gill J’s suggestion that a plain reading of s 61E leads to a perverse result, the remedy in my view lies not in a contorted interpretation of the plain meaning of the section but with legislative amendment. I remain of the tentative view that s 61E means what it says, notwithstanding what some may regard as a perverse outcome. My view is fortified by the definition of ‘prescribed adopting parent’ in s 4(1) that includes a parent of a child. I note that no mention was made of this definition in Hanlon.
(Footnotes omitted)
[3] [2022] FedCFamC1F 504.
DISCUSSION
Turning then to consider the relevant facts in this case, I note that the biological father has not had any contact or communication with the child since mid-2010 when the child was about 4 years old. The mother and biological father separated in late 2006 when the child was less than one year old and the biological father spent very limited time with the child between early 2007 and 2010; the mother estimates a total of five occasions.
The mother was born in 1983 and is currently 39 years old. She is a homemaker and has two other children with the step-father, aged 6 and 2.
The step-father was born in 1984 and is currently 39 years old. He is self-employed and currently lives with the mother, the child, and his two children with the mother in B Town, Queensland. The step-father appears to have a close and loving bond with the child, whom he supports financially and emotionally. He is very much involved in her life and he and the child enjoy activities together, such as fishing and other sports. The child refers to the step-father as ‘dad’, though she is aware that he is not her biological father and the adoption process is one that has been commenced at the child’s request.
The mother and step-father were married in 2017 after meeting in 2010 and commencing a relationship in 2011. In early 2018, the mother and step-father applied for the child’s surname to be changed to the step-father’s surname, and the application was granted by the Rockhampton Magistrates Court in 2018. The child’s surname had previously been changed in 2011 from the biological father’s surname to the mother’s surname at the time (I note that the child’s birth certificate records the mother’s surname as one name however, the mother used another surname at the time the child’s name was changed).
The biological father has not filed a Response but has participated in the proceedings and signed a Minute of Consent to the application being granted which will be marked exhibit 1 in the proceedings. The biological father is also present at today’s hearing and indicated his willingness to cooperate in all respects with the proposed adoption proceedings.
While an application for adoption is generally required to be filed prior to the child turning 17, (see s 92(1)(h) of the Adoption Act 2009 (Qld)) an application for adoption may be made even where the child has already turned 17 if there is enough time to complete the process before the child turns 18, which in this case will be in 2024.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 15 June 2023
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