Schmidt & Gunn and Anor

[2008] FamCA 792

FAMILY COURT OF AUSTRALIA

SCHMIDT & GUNN AND ANOR [2008] FamCA 792

FAMILY LAW – CHILDREN – ADOPTION – application by biological father and biological mother for leave to commence proceedings for adoption by biological mother and her partner – leave to institute proceedings to pursue adoption of child in the child’s best interests.

Family Law Act 1975 (Cth) ss 60CB, 60CG, 60F(4), 60G, 61E, 65J

Fogwell & Ashton (1993) FLC 92-429

APPLICANT: MR SCHMIDT

RESPONDENT:	MS GUNN
OTHER PARTY:	MR WOLTER

FILE NUMBER: ADC 2946 of 2007

DATE DELIVERED: 12 SEPTEMBER 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 12 SEPTEMBER 2008

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

FOR THE OTHER PARTY: In person

Orders

1. That leave be granted pursuant to Section 60G of the Family Law Act 1975 (as amended) for proceedings to be commenced by the mother and the other party for the adoption of … (“the child”) born … December 2000.

2. That all applications be dismissed and removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2946  of 2007

MR SCHMIDT

Father

And

MS GUNN

Mother

And

MR WOLTER
Other Party

REASONS FOR JUDGMENT

1. I have before me today an Application filed on 5 August 2008 in relation to the issue of adoption of the child, a son, born in December 2000. That Application is made pursuant to Section 60G of the Family Law Act 1975 (as amended) and unusually is made in this matter by the child’s biological father Mr Schmidt. However today I have also accepted the oral application of the child’s biological mother Ms Gunn and her de facto partner Mr Wolter. Hence, the application before the Court is for leave to commence proceedings for the adoption of the child by Ms Gunn and Mr Wolter.

2. Whilst it has always appeared to me as a matter of a somewhat unusual nature that the leave of this Court is required before then State processes are pursued for the adoption of a child, it nonetheless is a requirement of the legislation imposed by Section 60G. That section enables me to grant leave for proceedings to be commenced for the adoption of the child by “a prescribed adopting parent”.  That definition in the Act means “a parent of the child” and hence that clearly applies both to the biological father who makes the formal application and the biological mother whose oral application I have accepted today.  A “prescribed adopting parent” is also defined as “the spouse of, or a person in a de facto relationship with, a parent of the child” and hence that clearly applies to Mr Wolter.

3. As I have made plain to the biological father and as he has made plain to me that he understands, the impact of me granting leave to adopt and hence the ultimate adoption of the child if approved by the State Authorities will be that he forgoes all of his legal entitlements in relation to the child henceforth and the legal effect is identified in a number of sections of the Act.  Section 60F(4) indicates that a child of the marriage who is adopted by a prescribed adopting parent once this leave is granted, ceases then to be a child of the marriage for all purposes of the Act.

4. Section 61E describes the effect of adoption on parental responsibility and if the processes of adoption are concluded in relation to the child, the effect will be that the biological father will lose his parental responsibility in respect of the child.

5. Section 65J indicates that the effect of adoption will be that any parenting order in force prior to that order ceases to have effect.   That does not seem to be an issue in this matter as on 10 June 2008, Federal Magistrate Brown made orders clearing the way for this application and discharging all of the orders that were applicable in relation to the biological father in terms of his role in the child’s life.

6. I have read the affidavit of the biological father which was filed in these proceedings on 5 August 2008.  In it he canvasses all of the relevant materials that I need consider in determining whether or not I should grant the application.  In short the points he makes are:-

   6.1.that he accepts unreservedly that Mr Wolter is the child’s father figure;

   6.2.that he acknowledges that Mr Wolter is the best person to be the child’s father figure;

   6.3.that he acknowledges the number of years that the child and Mr Wolter have spent together and has clearly identified the closeness which exists between the child and Mr Wolter;

   6.4.that he acknowledges that Mr Wolter dearly loves the child;

   6.5.that he identifies that the whole family comprises a close and loving family unit;

   6.6.that he perceives that the granting of this application is an essential element of supporting the stable family environment that the child presently thrives in;

   6.7.that he is conscious of the evidence of the child’s autism and commends the mother for her consistent and dedicated approach to the many issues that surround the child’s autism;

   6.8.that he acknowledges that the child’s autism requires significant family stability for the child to realise his full potential;

   6.9.that he acknowledges that the child has made it very plain to him that he much prefers his present family unit in preference to spending any time with the biological father;

   6.10.that he has not come to this decision lightly in that, among other things, he has undertaken a number of appointments with Uniting Care Wesley in order to be counselled through the process and understand all of the emotional and other issues that flow therefrom;

   6.11.that consequent upon all that counselling and being made fully aware of all of the issues, he still enthusiastically supports the adoption of the child by the biological mother and Mr Wolter;

   6.12.that his relationship with the child has been increasingly distanced since he first saw him at 6 months of age and it is noted in that context that the child is now 7 ½ years of age and hence the biological father has had very little to do with the child’s upbringing and welfare for the entirety of the child’s life, a role which has fallen to the mother and for the past 3 years, Mr Wolter also;

   6.13.that he acknowledges that his opportunities to bond with the child have effectively been very limited to the point of being non-existent;

   6.14.that he acknowledges a close bond by the child with a number of the mother’s extended family members;

   6.15.that he accepts the mother and Mr Wolter as the appropriate loving, caring and valid parents.

7. I have dealt with the principles of the legislation in terms of what impact upon the status of each of the parties any order I might make will have. However, the legislation also requires me before granting any application for leave, to consider the provisions of Sections 60CB and 60CG which require this decision also to reflect the best interests of the child. That factor is clearly made evident by Section 60G(2) which requires the Court to consider “whether granting leave would be in the child’s best interests …”.  Interestingly though the legislation provides no guidance as to how those issues of best interests ought to be considered and in fact, draws no connection with Section 60CC which delineates the many factors that need to be taken into account by the Court in determining best interests when making a parenting order under the legislation.

8. In a decision of this Court in Fogwell and Ashton (1993) FLC 92-429 it was held that in light of the fact that the child’s welfare (as it was then expressed) is paramount in connection with proceedings under the Act (and indeed under the South Australian Adoption Act 1988) it is difficult to imagine that any significantly different principle would apply to applications for leave under these mentioned sections. In any event, it is my view that I need not go outside of the question of the child’s best interests in determining this application. Nor in my view is it appropriate to consider all of the individual sub-sections delineated in Section 60CC which constitute both primary and additional considerations. I have regard to all of those provisions and given the significant and almost sole role that the mother, and in the last three years Mr Wolter, have taken in relation to attending to the child’s needs, and given the significant support provided to that position by the biological father, I have no difficulty in concluding that me granting leave for the mother and Mr Wolter to institute proceedings to pursue adoption of the child would be in the child’s best interests.

9. I require no other material than the Affidavit material filed by the biological father and the intimations given from the bar table by the mother and Mr Wolter.  I am well and truly satisfied that the latter parties have the capacity to provide for all of the child’s needs and that they have, over a lengthy period, demonstrated a proper attitude to the child and to the responsibilities of parenthood.

I certify that the preceding nine (9) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  12 September 2008.