Sooter and Bunton

[2010] FamCA 614

FAMILY COURT OF AUSTRALIA

SOOTER & BUNTON [2010] FamCA 614

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

Family Law Act 1975 (Cth) s60G
Adoption Act 2009 (Qld) s92(1)(d)

Brock & Brock [2007] FamCA 1594
Berry & Wratten [2010] FamCA 75
Reynolds & Donaldson [2008] FamCA 518

APPLICANTS: Mr and Mrs Sooter

RESPONDENT: Mr Bunton

FILE NUMBER: BRC 3848 of 2010

DATE DELIVERED: 13 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 13 July 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr and Mrs Sooter have leave to commence adoption proceedings for the adoption of the child J born … December 1994.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3848 of 2010

MR AND MRS SOOTER

Applicants

And

MR BUNTON

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mrs Sooter and Mr Sooter that they have leave to commence proceedings for the adoption of J born in December 1994, now fifteen and a half years. J’s biological father, Mr Bunton, has been served with the application and supporting material and he supports the application.

2. The Adoption Act 2009 (Qld) provides by section 92(1)(d) that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under section 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under section 60G(2) of the Commonwealth Act, I am required to consider whether the granting of leave would be in J’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a), and sections 61E and 65J.

3. As to section 60F(4)(a) and section 60HA(3)(a), the material does not depose that Mrs Sooter and Mr Bunton either were married or in a defacto relationship. 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 commenced under section 60G for the adoption proceedings to be commenced. Today I have explained to Mr Bunton, and I am satisfied that he understands, that if I grant leave for the adoption proceedings to be commenced and they proceed to result in an adoption, his parental responsibility for J will cease. Further, I am satisfied from Mr Sooter’s affidavit that willingly he would assume parental responsibility for J and, indeed, responsibility for child support. 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 section 60G for the adoption proceedings to be commenced. Mr and Mrs Sooter depose that there are no orders, agreements, parenting plans or undertakings to the Court of any kind currently in force between the parties or otherwise relating to J and no ongoing or previous cases concerning her.

4. I turn, then, to the matter of J’s best interests. I will refer to the particular provisions of section 60CC to section 60G of the Commonwealth Act, which relate to the determination of a child’s best interests, only to the extent as on the material may be seem relevant. J, on the material, has a close relationship not only with her biological mother, Mrs Sooter, and also with Mr Sooter, but with J’s two half siblings born of that marriage E four years and M two years. Mr and Mrs Sooter have been in a relationship now for nearly eight years and have been married for six years. J sees her biological father, Mr Bunton, about once each year for a full day, and they speak by telephone each few months. However, J has no real relationship with Mr Bunton’s new wife and their two children born of that marriage. The material includes that J is keen to have the adoption proceed. She has lived with Mr and Mrs Sooter since the commencement of their relationship in 2002. She has been known by the surname “Sooter” since shortly after Mr and Mrs Sooter’s marriage, with Mr Bunton’s knowledge and consent. J has explained that she will feel part of a complete family if the adoption is permitted to proceed.

5. For the purposes of the Commonwealth law I am satisfied in all of the circumstances that it is in J’s best interests that I grant the leave sought and I will do so.  The order will be in the terms sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Mrs Sooter leave, as the State Act, Part 5, Division 1, section 92 contemplates application for adoption only by the step parent and not a joint application with the opposite sex biological parent who is the step parent’s spouse or partner.  Section 61E however provides that in relation to a person who had parental responsibility immediately before the adoption, upon an adoption that person’s parental responsibility ends.  If section 61E be given its literal meaning, unless Mrs Sooter the biological mother is a co applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Sooter the child’s step father.  Probably s61E should be read down to exclude the biological parent who is the spouse or partner of the adopting step parent (if not amended to that effect) as it is an awkward proposition to think that one could apply to adopt one’s own child and indeed that is not the effect of the State Act, Part 5, Division 1, section 92.  Other judges however have taken the view that the order should be made in favour of both the step parent and the biological parent who is the spouse or partner of the step parent on the basis that otherwise upon the making of an adoption order in favour of a step father the biological mother’s parental responsibility for the child would end.  See, for example, Brock & Brock [2007] FamCA 1594 at [2] and [3] per Strickland J; Reynolds & Donaldson [2008] FamCA 518 at [2] per Strickland J; and as to the effect of s61E: Berry & Wratten [2010] FamCA 75 at [12] per Murphy J. Although thus I doubt that the mother can apply to adopt her own child, the existence of s61E in its present form dictates that as a precaution I include her in the order, as indeed was sought in the application.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate: 

Date: