Rose & Anor and Morton

[2012] FamCA 433

FAMILY COURT OF AUSTRALIA

ROSE AND ANOR & MORTON [2012] FamCA 433

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

Family Law Act 1975 (Cth) s60G

FIRST APPLICANT: Ms Rose

SECOND APPLICANT: Mr Mitchell

RESPONDENT: Mr Morton

FILE NUMBER: LEC 246 of 2009

DATE DELIVERED: 4 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 4 June 2012

REPRESENTATION

SOLICITOR FOR THE FIRST APPLICANTS: Ms Binney

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. Pursuant to s 60G of the Family Law Act 1975 (Cth) Ms Rose and Mr Mitchell have leave to commence proceedings for the adoption of J born … May 2005.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rose and Anor & Morton 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: LEC 246 of 2009

Ms Rose

First Applicant

And

Mr Mitchell

Second Applicant

And

Mr Morton

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application under s 60G(1) of the Family Law Act 1975 (Cth) (the Commonwealth Act) by Ms Rose and Mr Mitchell for leave to commence proceedings in the State of New South Wales for the adoption of J (“the child”) born in May 2005 now 7 years.  Ms Rose is the child’s biological mother and the de facto partner of Mr Mitchell.  The child’s biological father is Mr Morton.  He supports the application and, indeed, in a letter to the Federal Magistrates Court dated 5 April 2012, annexure G to Ms Rose’s affidavit filed 17 May 2012, offers his consent to it.

2. 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.

3. The child’s biological parents married in April 2004.  They were divorced in April 2011.  Section 60F(4)(a) has effect that if I grant leave for 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 of her biological parents.  Section 60HA does not apply as the child’s biological parents were not de facto partners. 

4. 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 Mr Morton would cease to have parental responsibility for the child.

5. 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 proceedings to be commenced. A parenting order was made on 14 September 2009 in the Federal Magistrates Court that the child live with Ms Rose and that she have sole parental responsibility for the child for the major long-term issues defined in the Commonwealth Act as issues in relation to a child about the care, welfare and development of the child of a long-term nature including but not limited to issues about the child’s education both current and future, the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangements that may make it significantly more difficult for the child to spend time with a parent. The order provided that the child spend time with Mr Morton as agreed between the parties from time to time conditioned as set out in that order, and for telephone communication. Other orders provided for exchange of information concerning the child and facilitation orders.

6. I turn now to the matter of the child’s best interests. I will refer to the particular provisions of s 60CC of the Commonwealth Act as relate to the determination of what is in a child’s best interests only to the extent as on the material seems relevant.

7. Mr Morton, at the time the parenting orders were made, and now, lived and lives in the United States of America.  He was born in the USA in 1961.  He is 51 years.

8. Ms Rose was born in Australia in 1975.  She is now 36 years.

9. Mr Mitchell was born in Australia in 1977.  He is 35 years.

10. Prior to Ms Rose’s and Mr Morton’s divorce in April 2011, they had been separated since May 2007.

11. Ms Rose deposes that Mr Morton and the child have had no physical contact since the separation in May 2007 and that Mr Morton does not provide financial support for her.

12. At the time of the separation the child was just 2 years.

13. Ms Rose and Mr Mitchell met in June 2007 and commenced cohabitation in 2009.  They have a strong and loving relationship which has produced a son, B, born in June 2011, now 1 year.

14. Ms Rose deposes that since the commencement of cohabitation with Mr Mitchell he has taken on the role of father to the child and that Mr Mitchell has provided full financial support for herself and the child.

15. Ms Rose deposes that the child is aware that Mr Mitchell is not her biological father, but that she is a happy, loving and well adjusted little girl living in a stable, loving and complete family environment.

16. Mr Mitchell deposes similarly including (original text):

    6.From the time that [Ms Rose] and I commenced our relationship I have always treated [the child] as though she was my biological child.  I have provided financial and emotional support to both [Ms Rose] and [the child] throughout our relationship.

    7. The respondent, [Mr Morton], has not had any physical contact with [the child] since I commenced my relationship with [Ms Rose].

    8.[The child] is aware that I am not her biological Father but since the end of 2007 I believe I have done all things with [the child] as if I were her Father.  I have provided:

    a)Provided financial support both day to day and for medical, schooling, dental and other expenses.

    b)Been involved with her education in attending school events to which parents are normally invited and assisting with her education with helping with home reading and homework duties.

    c)Providing day to day care for her if [Ms Rose] has been unavailable and in conjunction with [Ms Rose].

    d)Participating in recreational activities with [the child] such as taking her to the park, riding pushbikes, going to the beach.

    9.[The child] calls me “Dad” and I believe that I fulfil the role as her Father.

    10.It is my strong wish to formally adopt [the child] and I am seeking the Court’s consent for leave to be granted to commence adoption proceedings in the Supreme Court of New South Wales.

17. A series of emailed correspondence between Ms Rose and Mr Morton, and between Ms Rose’s solicitor and Mr Morton, show that Mr Morton favours the adoption and grants his permission for it and consent to it.  Unfortunately, Mr Morton is ill with cancer.  The emails from Mr Morton contain advice to Ms Rose as to health history of various members of his extended family for Ms Rose’s and Mr Mitchell’s awareness in relation to the child’s future health, and provide information as to musical and arts interests on his biological side, again, for Ms Rose’s and Mr Mitchell’s awareness in relation to the child as to where her potential later interests and talents might lie.  In one email Mr Morton said:

    It’s important to me that [the child] knows that it was my wish for her to have the best life possible so I want my signature on these papers for her to see that while I wasn’t a part of her life, I did love her.  Its my moral obligation I do believe.

18. 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.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 4 June 2012.

Associate:     

Date:              4 June 2012