Small and Anor and Jandow

[2011] FamCA 953

FAMILY COURT OF AUSTRALIA

SMALL & ANOR & JANDOW [2011] FamCA 953

FAMILY LAW – ADOPTION – By Step-parent – Whether it is in the child’s best interests to permit adoption proceedings – Where the biological father has not been involved in child’s life since the parties’ separation – Order that leave be granted.

Family Law Act 1975 (Cth) s 60G, s 61E, s 65J
Adoption Act Queensland 2009

Holden & Britten (2010) FamCA 197

1st APPLICANT: Mr Small

2nd APPLICANT: Ms Small

RESPONDENT: Mr Jandow

FILE NUMBER: ROC 241 of 2011

DATE DELIVERED: 14 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Lord

THE RESPONDENT: No appearance

Orders

1. That leave be granted pursuant to section 60G of the Family Law Act 1975 for proceedings to be commenced for the adoption of the child B, born … 2001, by the applicants, Mr Small and Ms Small.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  ROC 241 of 2011

Mr Small and Ms Small

Applicant

And

Mr Jandow

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me today is an application by Mr Small and Ms Small for leave to proceed with an adoption application in the Queensland State Courts. That leave is sought pursuant to section 60G of the Family Law Act 1975.  The proceedings are undefended.  Mr Jandow, the respondent biological father of the subject child, makes no appearance.  The applicants, Mr and Mrs Small, are represented by Ms Lord, solicitor, who appears today by telephone.

2. Adoption of children in the State of Queensland is governed by the Adoption Act Queensland 2009.  It replaced the Adoption of Children Act Queensland 1964.  Under the new adoption legislation, new criteria are applied to applications for adoption.  The Act requires prospective adopting step-parents, such as Mr Small in this case, to satisfy in addition to the pre-existing criteria, two new criteria, namely, that the relevant child is at least five years old and not yet 17 and, more importantly in respect of today’s application, that this Court has granted leave to apply for the adoption.  Further, a natural or biological parent must, in the absence of an order of the Court dispensing with same, give his or her consent to the adoption.  That is irrespective of whether the natural parents of the child were married. 

3. Section 60G of the Family Law Act was inserted into the Act in 1995. Subsection (2) of that section makes it absolutely plain that a decision whether to grant leave to an applicant to proceed with an adoption application in the State Courts is governed by a determination of the best interests of the subject child. The failure to obtain leave, as has already been observed by me, has consequences under the State adoption legislation. It also has consequences under the Family Law Act.

4. Section 61E of the Act provides that 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.

5. Section 65J of the Act provides that any parenting order stops being in force on the adoption of a child unless, of course, the adoption is via a prescribed parent and leave was not granted pursuant to section 60G.

6. As Murphy J of this Court in his decision in Holden & Britten (2010) FamCA 197 noted:-

   The question then, in my view, can be expressed this way.  Is it in the relevant children’s best interests to permit adoption proceedings to proceed in the State Magistrates Court with the potential consequences that a parent shall (with the consent of the other parent or absent consent by court order) cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from parenting orders being made in this Court that might involve the parent and the step-parent.

7. I respectfully agree with his Honour’s observation.

8. By way of factual background, the applicant, Ms Small, is the mother of the subject child, B, who was born in 2001 and who is now 10 years of age.  The respondent, Mr Jandow, is the biological father. Ms Small and Mr Jandow commenced an on-again off-again relationship in or around February 2000, started living together in November of 2001 after the birth of their child, the child, when he was about nine months old.  They finally separated in or around January of 2003 just before the child’s second birthday.  The child has always remained in the care of his mother, the applicant. 

9. Since the applicant and the respondent father separated in 2003, over eight years ago now, the respondent father has not been involved in the life of this young boy.  He apparently saw the child briefly on his second birthday, had an overnight visit with him not long thereafter, saw him for a couple of hours a few weeks after that and then has not spent any time with him, corresponded with him or spoken with him at all since April of 2003. 

10. There is evidence to suggest that initially the respondent father was attributing cause or responsibility for his lack of a relationship on an ongoing basis with the child to the mother, but the mother says, and I accept, that the father has made no effort to have a relationship or pursue a relationship with the child since that time.  The mother’s whereabouts, certainly her contact details, have been known to the father since then, and he has not availed himself of the opportunity to seek out the mother and therefore seek out contact and a relationship with his son. 

11. There are no parenting orders in place in respect of the child as between the mother and the respondent father. Clearly, he has made no attempt, although he has had the right to, to seek such orders in a Court having jurisdiction under the Family Law Act. The mother has not heard at all from the respondent in any way since November 2003.

12. Interestingly, since the parties separated, the father has been assessed as having a child support liability and an obligation to pay child support for the child to the Child Support Agency.  The mother’s evidence, which I accept, is that she has never received any financial support from the respondent father for the child. 

13. I accept that service of this application and this evidence on the father was proven and that he, in fact, signed an acknowledgement of service.  So clearly, he has had the opportunity to read all of the evidence that the mother relies upon, including these assertions that I have accepted, and he has chosen, for his own reasons, not to come here and make a case against the order that the applicants seek or to challenge in any way the evidence of the mother.

14. Now, in respect of the application that is before me, the relevant facts are that the mother then commenced a relationship with her present husband, the applicant Mr Small, in March of 2003.  They married in 2007.  They have a child together who was born in 2010.

15. The mother has been financially responsible for the child from the time of the child’s birth and, more particularly, since the separation from his father until the time that she married Mr Small in 2007.  Since that time, Mr Small, as her husband and the stepfather of the child, has shared financial responsibility with Ms Small for the child, but in 2010, Ms Small ceased work prior to the birth of their child, and Mr Small has been solely financially responsible for the child, his stepson, since then as well as for Ms Small and their child. 

16. Mr Small has been involved as a father figure in the child’s life since the child was two years of age.  They have, naturally, a very close and loving relationship.  Ms Small says that she and Mr Small provide a very stable and loving environment for the child and their other child.  The child, not surprisingly, calls Mr Small “dad” and has done so since he was about four years of age.  Mr Small is involved in every aspect of the child’s care through schooling, extracurricular activities and day-to-day life. 

17. Mr Small’s parents have a very close grandparental-type relationship with the child.  They regard the child as their grandson.  He, no doubt, regards them as his grandparents.  The child sees his – that is, Mr Small’s parents, grandparents on a regular basis.

18. B is already aware that Mr Small is not his biological father, but he has no memory of his biological father, because he has not seen him since he was two years of age.  Ms Small deposes to the fact that she has talked with the child, sensibly, in my view, about the process and effect of the adoption, and the child, as a 10 year old, at least expresses a desire for his stepfather to adopt him.  The child is, in fact, eager for Mr Small to legally take on the role of his father.  Mr Small has also deposed to evidence that is supportive or supports all that I have just said.  He is, indeed, very keen to become the lawful parent of the child to make this family a complete one.

19. In all the circumstances, having regard to those matters that I am required to consider before making such an order, particularly the best interests considerations in respect of this child B, I have no difficulty in determining that it is in the best interests of the child at this point to grant the application of the applicants to at least enable them to go forward in making an application to the State Courts of Queensland, the State Magistrates Court, for a formal adoption of the child B.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 July 2011.

Associate:

Date:  28 November 2011