Simons & Anor and Nixon

[2014] FamCA 504

FAMILY COURT OF AUSTRALIA

SIMONS AND ANOR & NIXON [2014] FamCA 504

FAMILY LAW – CHILDREN – application for leave to commence adoption proceedings – application by “prescribed adopting parent” – where consent orders were made between the biological parents that the father would have sole parental responsibility for the major long term and day to day care arrangements of the child shortly after birth – where the subject child’s biological mother has had no contact with the child since birth – whether granting leave would be in the child’s best interests – where leave was granted.

Adoption Act 2009 (Qld) ss 92, 208
Family Law Act 1975 ss 4, 60CC, 60E, 60F, 60HA, 60G, 61B, 61E, 65J, 69ZT

APPLICANTS: Ms Simons and Mr Lane

RESPONDENT: Ms Nixon

FILE NUMBER: BRC 1664 of 2014

DATE DELIVERED: 30 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 June 2014

REPRESENTATION

THE APPLICANTS: In Person

Orders

1. The requirement to serve the Respondent with the Application for Leave to Adopt and the supporting Affidavits is dispensed with. 

2. Pursuant to s 60G of the Family Law Act 1975, leave is granted to the Applicants to commence adoption proceedings in relation to the child Y, born … 2000.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons and Anor & Nixon 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: BRC 1664 of 2014

Ms Simons and Mr Lane

Applicants

And

Ms Nixon

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. By application filed 24 February 2014, Ms Simons and the father (the Applicants) seek that they have leave to commence adoption proceedings for Y, (“the child”), born in 2000. 

2. I consider proceedings for leave to adopt, pursuant to s 60G of the Act are child related proceedings within the meaning of the Family Law Act.  They come, therefore, I consider, within the meaning of Division 12A of the Act.  Further, s 69ZT makes specific provision with respect to the rules of evidence, and, in particular, as it might apply to this case, the rules relating to the receipt of hearsay evidence.

3. The child's biological parents had a short relationship and separated prior to his birth.  When the child was born, his biological mother’s ex-fiancé contacted his father to tell him that he had been born and was at B Hospital.  The child's father attempted to collect the child from the hospital, and was, ultimately, successful in that attempt some nine or so days later.  The child’s biological mother has had no contact with him since his birth.  Further, no members of his biological extended family, on the maternal side, have had contact with him.  The child’s father and the applicant, Ms Simons, have lived together since mid-2000.  Together, they have a child, S, who was born in 2001.  All three constitute The child’s family.

4. On 20 October 2000, a Consent Order was made in the Magistrates Court.  This Order provided that the child live with the father, who was to be solely responsible for all day-to-day and long-term decisions regarding and relating to his care, welfare and development. 

5. Adoption proceedings, pursuant to State legislation, have not, as far as I’m aware, commenced. Section 92 of the Adoption Act 2009 provides that a person may apply to the Chief Executive to arrange an adoption by the person of a child if a number of specified matters are satisfied. Included within that section, at subparagraph (1)(d), is that the person has been granted leave, pursuant to s 60G of the Family Law Act, and that the child is at least five years old and has not yet turned 17.

6. It is clear from s 60(G) of the Family Law Act that:

   In proceedings for such leave 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 60HA(3)(a) and sections 61E and 65J.

7. It is relevant to note that, if a child is adopted, and, immediately before the adoption, a person had a right of parental responsibility for that child, 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 of the Family Law Act for proceedings to be commenced:  s  61E of the Act.

8. The term “prescribed adopting parent” is defined in s 4(1) of the Act to include a person, such as Ms Simons, being a person in a de facto relationship with the child’s father. Section 65J of the Act provides that if a child is adopted, and immediately before the adoption a parenting order was enforced in relation to that child, the parenting order stops being enforced on the adoption, unless the adoption was by a prescribed adopting parent and leave was not granted pursuant to s 60G.

9. The consequence, then, of an adoption is that all parental responsibility held by the Respondent for the child ceases, as do all other parenting orders – parenting responsibility being defined in s 61B of the Act to mean all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children. 

10. The decision facing this Court differs to that which will face the Court charged with a decision whether to permit the adoption.  The granting of leave to commence proceedings to adopt does not have the consequences just described.  Only the order for adoption made by the State Court has that effect. 

11. It is, however, perhaps, relevant to note that s 208 of the Adoption Act is to the effect that the Court may make a final adoption order only if satisfied of a number of matters, included in which is that an order for adoption by a step-parent would better promote the child’s wellbeing and best interests than an order under the Family Law Act, any other Court order, or no Court order. 

12. I consider that this Court ought not grant leave to Applicants to commence proceedings in the State Court if those proceedings are doomed to fail because of the absence of the mandatory pre-requisites.

13. It is clear from a reading of s 60G(2) of the Family Law Act that, in these proceedings, I must consider whether granting leave would be in the child’s best interests, having regard to the effect of sections 60F(4)(a), 60HA(3)(a), 61E and 65J.  Consequently, I must consider the familiar best interests considerations prescribed in s 60CC of the Act. 

14. The child has never met his biological mother.  The only mother he has known is Ms Simons.  Together with his biological father, she has fulfilled all the duties and responsibilities associated with parenting the child.  She has cared for him when he has been sick, loved him as she would her own biological child and treated him as if he were, in fact, her own biological child. 

15. I also accept that, whilst the child’s biological mother has been assessed to pay child support towards the financial costs of his support, such amount is modest and has only been received very sporadically.  Thus, not only have the Applicants met the child’s emotional needs since his birth, they have also been jointly responsible for meeting the financial costs associated with caring for him.  There is nothing to suggest that they will be unable or unwilling, in any way, to continue to do so in the future.  I accept that the Applicants seek the current order to ensure that their current family unit can become even stronger.  The child can only benefit from this.

16. I accept the child’s father’s evidence that the child loves Ms Simons very much and is happy for her to adopt him.  I also accept without hesitation that, for the child, Ms Simons has also been his mother, and the only mother he has ever wanted.  Little more needs to be said.  Thus, for the child, an order in the terms sought will assist in achieving one of his wishes. 

17. There can be no doubt that the child has been and remains an integral part of a stable, financially viable, family unit constituted by the Applicants and the two children.  I have no hesitation, at all, in concluding, because of her presence in his life, that Ms Simons has supported the child emotionally to date.  There is nothing to suggest that she will not continue to do so in the future, to the very best of her ability.

18. Even cognisant of the consequence that successful adoption proceedings in the State Court shall have, I am well persuaded, in the circumstances as briefly described here, that it is in the child’s best interests that the Applicants have leave to commence adoption proceedings. 

19. Given her absence from his life thus far, and the terms of the October 2000 Order, there is nothing to suggest to me that the child’s biological mother is likely to seek, in the future, to discharge any of the obligations and responsibility that parental responsibility entails.

20. For these reasons, I have little trouble concluding the proposed adoption is in the child’s bests interests and I grant leave to adopt. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 June 2014.

Associate:                 

Date:    30 June 2014