Steele and Wade

[2010] FamCA 269

FAMILY COURT OF AUSTRALIA

STEELE & WADE [2010] FamCA 269

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Child’s biological father consents to adoption – Child’s best interests – Existing adoption proceedings affected by recent commencement of the Adoption of Children Act 2009 (Qld)—Leave granted

Family Law Act 1975 (Cth) ss 60G(1), 60G(2), 60F(4)(a), 60HA(3)(a), 61E, 65J, 60CC, 60CG
Adoption of Children Act 1964 (Qld) [repealed]
Adoption of Children Act 2009 (Qld) s 92(d)

APPLICANT: Mr and Mrs Steele

RESPONDENT: Mr Wade

FILE NUMBER: BRC 1017 of 2010

DATE DELIVERED: 10 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 10 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Suthers Lawyers

THE RESPONDENT: No appearance

Orders

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Steele has leave to commence adoption proceedings for the adoption of the child M born … February 2000.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1017 of 2010

MR AND MRS STEELE

Applicant

And

MR WADE

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 60G(1) of the Family Law Act 1975 (Cth) by Mr Steele for leave to commence proceedings for the adoption of M, born in February 2000 who is now 10 years.

2. M’s biological father, Mr Wade, has been served with the application and supporting material and has filed an affidavit on 29 January 2010 stating that he consents to the adoption.  Mr Wade, in short, has said that he has had no involvement with the child since her birth, that he has not seen her since she was three weeks old and has no current relationship with her.  He says that he is satisfied that M’s biological mother, Mrs Steele, is a good mother to the child, and that having chosen to repartner with and have another child with the applicant, Mr Steele, he is confident that the mother would ensure that he is an appropriate person to be a father figure in M’s life.  He deposes that the mother has offered to keep his family informed of issues in relation to the child, and he appreciates that one day M may wish to meet him.  He deposes that he understands that by consenting to an order that Mr Steele adopt M he would be losing his right to have parental responsibility as defined in the Family Law Act 1975 (Cth). He deposes further that before swearing his affidavit he was forwarded information in relation to parental responsibility, that being forwarded to him by Mr and Mrs Steele’s solicitors, and that he has considered what that means for both himself and M. Further, he says that in all of the circumstances he gives his consent to Mr Steele adopting M, and that he has been informed of his right to take legal advice in relation to the matter.

3. In 2007, Mr Steele commenced proceedings in Queensland for M’s adoption under the Adoption of Children Act 1964 (Qld). However, that Act was repealed, effective 1 February 2010, and replaced, effective on the same date, by the Adoption of Children Act 2009 (Qld). The 2009 Act provides, by s92(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 s 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under s 60G(2) of the Commonwealth Act, I am required to consider whether the granting of leave would be in M’s best interests, having regard to the effect of s 60F(4)(a) or s 60HA(3)(a), and ss 61E and 65J.

4. As to those matters, s 60F(4)(a) is not applicable as M is not the biological child of the applicant and M’s mother. Section 60HA deals with de facto relationships and is not applicable as the applicant and M’s mother have been married for five years. 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 granted under s 60G for the adoption proceedings to be commenced. I have mentioned already that Mr Wade, M’s biological father, has deposed that he understands that by consenting to the adoption he would be losing his right to have parental responsibility, as defined in the Commonwealth Act, for M. Further, Mr Steele has deposed that he has read what it means to have parental responsibility for a child in accordance with the Commonwealth Act and he wishes to take on that role in M’s life. S 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 s 60G for the adoption proceedings to be commenced. M’s mother, in an affidavit filed 25 February 2010 in compliance with directions given by Registrar Kane on 16 February 2010, has deposed that there are no parenting orders, agreements, parenting plans or undertakings to the Court of any kind currently in force between the parties or otherwise relating to M.

5. I turn then to the matter of M’s best interests.  I will refer to the particular provisions of s 60CC to s 60CG of the Commonwealth Act which relate to the determination of a child’s best interests only to the extent as on the material may seem relevant.  M, on the material, has a close relationship not only with her biological mother but with Mr Steele and also her stepsister, N, born in July 2005.  M’s mother and Mr Steele have been in a relationship now for several years and have been married for five years and depose that they are in a committed relationship. 

6. As mentioned already, M has, in effect, no relationship with Mr Wade, her biological father.  However, that door is open to her if in the future she should wish to contact him.  There is reference to a modest amount of child support which Mr Wade pays for M.  However, the mother deposes that she understands he is presently not in employment.

7. Mr Steele deposes that M has told him that she wants him to adopt her.  Though M is only 10 years old, she is of appropriate age for her stated wish to be taken into account. Otherwise, Mr Steele deposes that M has known him as the only paternal figure in her life and refers to him as Dad.  He deposes that one day M will be in the position to meet with Mr Wade, her biological father, and that he would never stand in the way of that, nor of her knowing Mr Wade’s extended family.  It is plain, by Mr Steele’s application, that willingly he has agreed to M’s wish, and is prepared to take responsibility for her.

8. As mentioned, the adoption process was commenced with the State authority in 2007 under the now repealed legislation.  The effect of the new 2009 State Act has necessitated this application.  It is not for me to concern myself with the question whether the existing application, under transitional provisions, is continued or whether the existing application be treated as a new application under the 2009 Act or indeed whether Mr and Mrs Steele will be required to bring a new application.  That is a matter for State law.  For the purposes of the Commonwealth law I am satisfied in all of the circumstances that it is in M’s best interests that I grant the leave sought, and I will do so.

9. I will add that Mr Steele deposes that M has told him that she wants to be known as Steele and that it has become apparent to him that she feels uncomfortable about the fact that N is known as Steele and she is known as Wade.  However, that is a matter separate from the adoption matter. 

10. This will be the order: Pursuant to s 60G of the Family Law Act 1975 (Cth), Mr Steele has leave to commence adoption proceedings for the adoption of the child M born … February 2000.

_____________________________________________________________________
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.

Associate:     

Date:              13 April 2010