Sturt and Hanlon

[2010] FamCA 1084

FAMILY COURT OF AUSTRALIA

STURT & HANLON [2010] FamCA 1084

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

Family Law Act 1975 (Cth) s 60G
Adoption Act 2009 (Qld) s 92(1)(d)

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

APPLICANTS: Mrs and Mr Sturt

RESPONDENT: Mr Hanlon

FILE NUMBER: BRC 8657 of 2010

DATE DELIVERED: 19 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 19 November 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Sturt and Mrs Sturt have leave to commence proceedings for the adoption of B born … January 1995.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8657  of 2010

MRS AND MR STURT

Applicants

And

MR HANLON

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mr Sturt and Mrs Sturt that they have leave to commence proceedings for the adoption of B born in January 1995, now 15 years nearly 16 years.

2. Mrs Sturt is B’s biological mother.  Mr Sturt is her husband.  B’s biological father is Mr Hanlon.  He supports the application, and indeed offers his consent to it, qualified by reference to this being on the basis of a verbal agreement he made with Mrs Sturt in mid 2008 that he not be responsible for child support for B from that time.

3. 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 B’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

4. B’s biological parents were married in 1992 and divorced on 13 January 1997. Section 60F(4)(a) has effect that if I grant leave for adoption proceedings to be commenced and the adoption proceeds B would cease to be the child of that marriage. Section 60HA(3)(a) does not apply because Mrs Sturt and Mr Hanlon were not de facto partners. 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 section 60G for the adoption proceedings to be commenced. If I grant leave for adoption proceedings to be commenced and an adoption order ultimately is made by the State Court, then Mr Hanlon would cease to have parental responsibility for B. 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 commenced under section 60G for the adoption proceedings to be commenced. There are no parenting orders agreements parenting plans or undertakings to the Court of any kind currently in force in relation to B.

5. I turn then to the matter of B’s best interests.  I will refer to the particular provisions of section 60CC to section 60CG of the Commonwealth Act which relate to the determination of a child’s best interests only to the extent as may seem relevant.

6. Mr and Mrs Sturt met in April 1997, when B was two years and two months.  They married in 2000, when B was just five years.  Since then B has lived continuously with Mr and Mrs Sturt, that is, for the period now of more than 10 years, nearly 11 years. In July 2000, shortly after the marriage, B’s surname was changed by deed poll to Sturt.  Mr Hanlon consented to the name change. 

7. B does not have any contact with or relationship with Mr Hanlon, and has not since she was about six years.  The marriage between Mrs Sturt and Mr Hanlon ended in December 1995 when B was 11 months.  As mentioned, they were divorced on 13 January 1997 when B was nearly two years.

8. Mr and Mrs Sturt have a son L born in April 2001, now nine and a half years.  B and L have a happy sibling relationship and regard each other as natural brother and sister.  Mr and Mrs Sturt treat B and L equally and the family operates as a cohesive unit. 

9. Since Mr and Mrs Sturt were married, B has called Mr Sturt Dad.  Mr Sturt is desirous of wanting B formally to be his daughter by adoption of her to reflect the true father/daughter relationship he has with her. 

10. There are no current cases concerning parenting or child support for B. 

11. Mr Hanlon paid assessed child support for B from the separation of Mrs Sturt and Mr Hanlon in December 1995 until Mr and Mrs Sturt married in March 2000.  He paid $650 monthly until April 2000, leading to the change of B’s surname by deed poll, when by agreement between Mrs Sturt and Mr Hanlon it was reduced to $350 monthly subject to CPI.  In mid 2008 this ceased by agreement between Mrs Sturt and Mr Hanlon on the basis that Mr Hanlon would consent to Mr Sturt adopting B. 

12. Mr Hanlon has two other children from two subsequent marriages.  There is no relationship between B and those two children.

13. Presently, B has not expressed interest in seeing or spending time with Mr Hanlon.  That door, however, will not be closed in the future if she should express such interest. 

14. B is aware of the proposed adoption proceedings, and has said “That would be good” and “I would like that.”

15. I am satisfied having carefully considered all of the relevant matters that it is in B’s best interest that I grant the leave sought and I will do so. 

16. The order will be in favour of both applicants, as sought in the application.  Despite this, I have a reservation as to whether it is competent to grant Mrs Sturt 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 Sturt the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Sturt, the child’s step father.  Probably section 61E 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 section 61E: 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 section 61E 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 19 November 2010.

Associate:     

Date:              1 December 2010