Reynolds & Donaldson

[2008] FamCA 518

FAMILY COURT OF AUSTRALIA

REYNOLDS & DONALDSON [2008] FamCA 518

FAMILY LAW – ADOPTION – joint application by mother and mother’s husband to adopt the child – biological father of the child consents to the application – discussion of effect on parental responsibility of granting leave and adoption order being made under Family Law Act 1975 ss 60F, 61E, 65J – whether best interests of child paramount consideration – consideration of relevant provisions of s60CC

Family Law Act 1975 (Cth) ss 60CC, 60G, 60F, 61E, 65J

Fogwell & Ashton (1993) FLC 92-429

APPLICANTS: Mrs and Mr Reynolds

RESPONDENT: Mr Donaldson

FILE NUMBER: ADC 1657 of 2008

DATE DELIVERED: 30 May 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Collins

SOLICITOR FOR THE APPLICANTS: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: In person

ORDER BY CONSENT

1. That leave is granted pursuant to section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of the infant child … born … January 1998 by the mother MRS REYNOLDS and her husband MR REYNOLDS.

2. That the Application for Final Orders filed on 29 April 2008 be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1657 of 2008

MRS AND MR REYNOLDS

Applicants

And

MR DONALDSON

Respondent

EX TEMPORE REASONS

1. This is an application filed on 29 April 2008 by the mother and her current husband seeking leave pursuant to section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of the infant child …born in January 1998.

2. I am pleased that the application is a joint one.  In some matters that I have heard of this nature, the application has been brought only in the name of the new partner.  I do not need to dwell on that, but that is problematic, in my view, because the effect of the ultimate adoption would mean that the mother herself would no longer have parental responsibility for the child.  That of course does not apply here because there is a joint application.

3. Mrs Reynolds is the child's mother, and Mr Reynolds is the child's stepfather, he being the current husband of the mother.  Mr Donaldson, who is the respondent, is the biological father of the child.

4. In support of the application there are two affidavits, one filed by the mother on 29 April 2008 and a second one filed by the stepfather on the same date.  There is an affidavit of service, but I do not need to concern myself about that because the biological father, the respondent, I am pleased to say, has taken the time and trouble to attend today's hearing by way of telephone link.  I note also that he has been kept informed of this application, and there is correspondence to that effect annexed to the affidavit of the mother.

5. The biological father’s position is that he consents to the application, and he has explained to me his reasons for that.  It has been some time since he has had anything to do with this child, and he does not consider there is any emotional attachment that he has with him.  He is keen for the child to be able to move on in the family environment that he has been living in for some time now, namely with his mother and his stepfather.

6. I am also told, importantly, that the father is aware of the effect of ultimate adoption, which is that he will no longer have parental responsibility for this child. He says, quite frankly, that he is prepared to accept that, in the knowledge that adoption in this case and in these circumstances - and these are my words - will be in the best interests of this child.

7. As I say, I am pleased that the father has taken the time and made the effort to be involved at this stage.  He has also been helpful in filling in some gaps in the evidence which, as I mentioned earlier to counsel, quite frankly concerned me, relating in particular to counselling that the mother says the child has had about this issue.

8. The application is made pursuant to Section 60G of the Act and that provides as follows:

   Section 60G

   (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 and 65J.

   I also set out the paragraphs and sections of the Act referred to in sub-section 60G(2) as follows:

   Section 60F(4)(a)

   (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;

   Section 61E

   (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.

   Section 65J

   (1)      This section applies if:

   (a)    a child is adopted; and

   (b)immediately before the adoption, a parenting order was in force in relation to the child.

   (2)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 section 60G for the adoption proceedings to be commenced.

9. In determining this matter, as has been put to me by counsel, 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), section 61E and section 65J. The effect of paragraph 60F(4)(a), if I grant leave, will be that the child will cease to be a child of the marriage of his mother and his father. That flows not only from the granting of leave but then ultimately the adoption order.

10. The effect of section 61E is that, if I grant leave and the adoption order is made, the parental responsibility of any person who had parental responsibility for the child immediately before the adoption ceases. As I said, that would have applied specifically to the mother if she was not an applicant in this matter. It obviously affects the position of the respondent, in that, as the position currently stands, he does have parental responsibility for his son. The effect, though, of granting leave and the adoption order being made is that that will cease. He will no longer have that parental responsibility.

11. The effect of section 65J is that, upon the adoption order being made and leave prior to that being granted for proceedings to be commenced, any parenting order that is in force in relation to the child ceases. As I understand it, there is no parenting order that is currently in place, so I do not need to concern myself with the effect of section 65J.

12. A preliminary matter that I should mention is the reference in the relevant paragraphs and sections to adoption of the child by a prescribed adopting parent.  The definition of "prescribed adopting parent" is in subsection 4(1) of the Act and a "prescribed adopting parent" in relation to a child means (a) a parent of the child - and obviously the mother is in that category - or (b) the spouse of or a person in a de facto relationship with a parent of the child.  That obviously includes the child's stepfather.

13. Turning to the issue of whether granting leave would be in the best interests of the child, I have commented in the past on the fact that section 60G does not specifically provide that the child's best interests are to be the paramount consideration, unlike section 60CA which is relevant to most matters that are heard by this court in relation to children. Although I make that observation, I do not consider it has any specific import on whether I grant the leave today. As I have said before, it is just an observation as to why that is not the case and whether it means that there are other factors which the court should have regard to. Nothing else is identified in section 60G, and there is also some authority in this court about this in relation to the section which preceded section 60G, namely section 60AA, wherein there was no reference to best interests whatsoever. That is the case of Fogwell and Ashton (1993) FLC 92-429. In any event, I do consider I need go outside what is in the best interests of the child in determining this application.

14. Another interesting observation, at least for me, is that, in referring to best interests, there is no reference in section 60G(2) to the relevant section in the Family Law Act 1975, which is section 60CC, which sets out what factors the court must consider in determining what is in the best interests of the child. Again, I do not know why that is, but logically, in determining this issue of best interests, I should have regard to and consider the provisions of section 60CC. If nothing else, it is a convenient guide to what factors bear upon a child's best interests.

15. Turning to section 60CC of the Act, I do not propose to deal with each paragraph of subsections 60CC(2), (3) or (4) seriatim. I propose to deal with it in a global sense, because it seems to me that a number of matters referred to in section 60CC are not relevant to this case.

16. The factors which counsel has drawn my attention to as establishing that the order that I am asked to make is in the best interests of this child are these, in summary:  firstly, that the biological parents of the child separated before the child's birth; secondly, that the father has had limited contact with the child, and indeed has had no contact for some time; thirdly, that the mother has been in a relationship with her current husband, the child's stepfather, since the child was approximately 10 months' old.  The mother and the stepfather married in 2006, and I am told that the child's surname was changed to that of his stepfather in April 2001; fourthly that the child considers his stepfather to be his father, and he calls him dad.  Importantly, though, I am told - and I accept - that he understands that he has a natural father and he has had counselling in relation to the fact that he has a natural father and a stepfather, and I am also told and accept that that counselling has extended to the effect of the order that I am being asked to make.

17. It seems from what the father has told me that that counselling has taken place in the last 12 months or so, and I am comforted by that because that was a gap in the evidence that was before me from the mother.  The father has been helpful in also identifying that he understands it was counselling that continued throughout that 12 month period.

18. The child has a close relationship with his stepfather and, importantly also, with his mother, because his mother is a joint applicant in this case.  I am also satisfied that the mother and the stepfather have the capacity to provide for the needs of the child and I am satisfied that they have demonstrated a proper attitude to the child and to the responsibilities of parenthood.  The child has lived in their household now for some time and there is nothing of any concern that has been put to me today, nor that is apparent in the affidavit material, about either the relationship or the attitude of the mother and the stepfather to the child during that period of time.  I note that there is no issue of family violence and there are obviously therefore no family violence orders to take into account.

19. Finally, and just to reiterate, this process will end in a significant change in the child's circumstances, and I am satisfied that that change is in his best interests.  In my view, the evidence satisfies me that the effect of granting the application would be in accordance with, and consistent with, the child's best interests.

I certify that the preceding 21 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 30 May 2008

Associate