Sedgley & Anor & Pollack

[2018] FamCA 109

FAMILY COURT OF AUSTRALIA

SEDGLEY AND ANOR & POLLACK [2018] FamCA 109

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – step-parent adoption – where the biological father consents to the application – where the biological father has not seen the child for approximately 12 years – where the step-father acts as the child’s father in all relevant respects – where it is in the best interests of the child for leave to be granted – where leave is granted

Family Law Act 1975 (Cth)
Adoption Act 2009 (Qld)

Fogwell & Ashton (1993) FLC 92-429; [1993] FamCA 113

1st APPLICANT: Mr Sedgley

2nd APPLICANT: Ms Sedgley

RESPONDENT: Mr Pollack

FILE NUMBER: BRC 13176 of 2017

DATE DELIVERED: 19 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 19 February 2018

REPRESENTATION

FOR THE 1^ST APPLICANT:

FOR THE 2^ND APPLICANT:

Self-represented

Self-represented

FOR THE RESPONDENT: Self-represented

Order

1. Pursuant to section 60G of the Family Law Act 1975 (Cth) Mr Sedgley and Ms Sedgley are granted leave to commence adoption proceedings in respect to the child, B, born … 2001.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Sedgley and Anor & Pollack has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13176  of 2017

Mr Sedgley

1^st Applicant

And

Ms Sedgley

2^nd Applicant

And

Mr Pollack 

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The child B was born in 2001. She is the subject of this application by Mr Sedgley and Ms Sedgley for leave to commence adoption proceedings pursuant to section 60G of the Family Law Act 1975 (Cth).

2. Ms Sedgley is the biological mother of the child and she is a 41 year old who married Mr Sedgley, a 39 year old, in 2007, they having met in June 2006. Mr Sedgley has provided an affidavit in support of their application.

3. Mr Pollack is the biological father of the child. Mr Pollack and Mr Sedgley have never met. Mr Pollack has also provided an affidavit supporting the application. He and Ms Sedgley were not in a relationship when the child was born and he had a limited presence in the child’s life when she was young. The last time Mr Pollack saw the child was in or about April 2006, some 12 years ago. Mr Pollack has always paid child support and currently pays $350 per month.

4. Ms Sedgley and Mr Sedgley have a daughter together, C born in 2007. Mr Sedgley has treated the child as his daughter since the time he met her. In June 2008 upon the child’s request, her surname was changed to Sedgley so that it aligned with the rest of her family.

5. In late 2012 the child asked her mother if she could be adopted by Mr Sedgley, however Ms Sedgley and Mr Sedgley decided to wait until the child was older. In mid-2016 Ms Sedgley contacted Mr Pollack about the child’s requested to be adopted by Mr Sedgley. After considering the request at length with his parents, Mr Pollack agreed that it would be in the child’s best interests as he had not seen her for almost 12 years.

6. Ms Sedgley and Mr Sedgley now make this application in accordance with the child’s wishes.  

Relevant Legislative Provisions

1. Section 60G of the Family Law Act 1975 (Cth) (“the Act”) provides:

   (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), or paragraph 60HA(3)(a), and of sections 61E and 65J.

   Note:          Sections 60CB to 60CG deal with how a court determines a child's best interests.

2. A prescribed adopting parent is defined in section 4(1) of the Act as being:

   (1)    A parent of the child.

   (2)    The spouse of or a person in a de facto relationship with a parent of the child.

   (3)    A parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

3. Section 60CB to section 60CG set out how a court determines what is in the child’s best interests.  Section 60F(4)(a) provides:

   The following provisions apply in relation to a child of a marriage who is adopted by a prescribed parent:

   a)If a court granted leave under section 60G for the adopting proceedings to be commenced the child ceases to be a child of the marriage for the purposes of this Act.

4. Section 61E provides:

   This section applies if a child is adopted, and, 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, and (2) the person’s parental responsibility 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.

5. Section 92 of the Adoption Act2009 (Qld) provides:

   (1)A person may apply to the chief executive to arrange an adoption by the person of a stated child if—

   (a)the person is the spouse of a parent of the child; and

   (b)the person, the person's spouse and the child are living together; and

(c)paragraphs (a) and (b) have applied for a continuous period of at least 3 years up to the time of the application; and

(d)the person has been granted leave under the Family Law Act 1975 (Cwlth), section 60G(1); and

(e)the person is an adult; and

(f)the person or the person's spouse is an Australian citizen; and

(g)the person is resident or domiciled in Queensland; and

(h)the child is at least 5 years old and has not yet turned 17.

(2)Despite subsection (1)(h), the chief executive may accept an application relating to a child who has turned 17 if the chief executive considers—

(a)there is enough time to complete the adoption process before the child turns 18; and

Note—

An adult may not be adopted. See section 10(3).

(b)the grounds for making an adoption order in favour of the applicant are likely to exist.

(3)In this section—

“parent” does not include guardian.

Discussion

1. In this case Mr Sedgley and Ms Sedgley are prescribed adopting parents within the meaning of the Act. In determining the application for leave I must consider what will be in the child’s best interests by reference to the relevant parts of section 60CB through to section 60CG, and the particular sections referred to in section 60G so far as they are relevant. While I may not specifically discuss each subsection I have considered them where relevant.

2. The child is now 16 years of age and has lived the majority of her life with Mr Sedgley and Ms Sedgley and her sister, C. She has not seen Mr Pollack in about 12 years. This application was made on the child’s request which she first raised with her mother approximately 5 years ago. There is no opposition from the child’s biological father. Indeed he supports the application having determined that the adoption would be in the child’s best interests.

3. I am satisfied in the circumstances that it would be in the child’s best interests for leave to be granted, and, accordingly I make the order as set out above.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 February 2018.

Associate:

Date:  19.02.2018