Tanner & Cape

[2011] FamCA 665

FAMILY COURT OF AUSTRALIA

TANNER & CAPE [2011] FamCA 665

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Child’s best interests – Leave granted

Family Law Act 1975 (Cth) s 60G, s 60F(4)(a), s 60HA(3)(a), s 61E, s 65J

Adoption Act 2009 (Qld) s 92(1)(d)

Bacon & Bacon [2007] FamCA 1594
Beck & Major & Wright [2010] FamCA 75
Rohrlach, Rohrlach & Doddridge [2008] FamCA 518

APPLICANTS: Mr Tanner and Ms Tanner

RESPONDENT: Mr Cape

FILE NUMBER: BRC 2073 of 2011

DATE DELIVERED: 18 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 18 July 2011

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No appearance

Orders

1. Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Tanner and Ms Tanner have leave to commence proceedings for the adoption of the child B(the child) born … 1997.

IT IS NOTED that publication of this judgment under the pseudonym Tanner & Cape 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 2073 of 2011

Mr Tanner and Ms Tanner

Applicants

And

Mr Cape

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 60G(1) of the Family Law Act 1975 (Cth) (‘the Commonwealth Act’) by Mr Tanner and Ms Tanner that they have leave to commence proceedings for the adoption of the child B born in 1997 now 14 years.  Mrs Tanner is B’s biological mother.  Mr Tanner is her husband.  The child’s biological father is Mr Cape.

2. Mr Cape has been served with the filed material and has provided an affidavit in which he states his consent to the application.  Mr Cape has preferred not to appear today. Earlier, the court officer telephoned him and it has been placed on the record that he does not wish to be involved this morning although he has consented to the application.

3. The Adoption Act 2009 (Qld) (‘the State Act’) provides by s 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 s 60G(1) of the Commonwealth Act and other matters. Under s 60G(2) of the Commonwealth Act I am required to consider whether the granting of leave would be in the child’s best interests having regard to the effect of s 60F(4)(a) or s 60HA(3)(a) and ss 61E and 65J.

4. B’s biological parents, that is, Mrs Tanner and Mr Cape, were married in 1996 and divorced in 2002. As the child’s biological parents were not de facto partners it is not necessary to consider s 60HA(3)(a). Section 60F(4A) has effect that if I grant leave to commence adoption proceedings and an adoption order ultimately is made by the State court the child would cease to be a child of the marriage between his biological parents. 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. If I grant leave to commence adoption proceedings and an adoption order ultimately is made by the State court then Mr Cape would cease to have parental responsibility for the child. 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 s 60G for the adoption proceedings to be commenced. There are no parenting orders agreements parenting plans or undertakings to the Court in Australia of any kind currently in force in relation to the child.

5. I turn then to the matter of the child’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.

6. Mr and Mrs Tanner were married in 2007.  The child has lived with them, however, for about 10½ years, that is since he was about 3½ years.

7. Mr and Mrs Tanner and the child live as a family unit.  The child has a very close relationship with Mr Tanner who, in effect, has been his stepfather for 10½ years.

8. Mrs Tanner and Mr Cape have a very respectful and friendly relationship which in recent years has enabled the child to see and spend time with Mr Cape accompanied either by Mr or Mrs Tanner or both.

9. B has expressed that he would like Mr Tanner to adopt him because of his love for him as his father figure.  The child’s wish in this regard was first expressed about 4 years ago, and continually he has affirmed that wish.  The child has called Mr Tanner “Dad” from the age of about 5 years.  The child frequently uses “Tanner” as his surname.

10. Mr and Mrs Tanner do not approach the matter of the adoption lightly, and plainly have given great consideration to it, including, properly, the matter of the child’s best interests and including in this regard the seeking of counselling on that subject.

11. Mr Tanner has 2 daughters from a previous marriage and pays regular child support.

12. I am satisfied that Mr Tanner is aware of the duties of parental responsibility he would assume if the adoption proceeds.

13. I am satisfied also that Mr Cape’s consent to the leave to proceed application is genuinely given and, indeed, that it is his intention to concede ultimately to adoption if that proceeds to fruition.

14. I am satisfied, having carefully weighed all of the above matters, that it is in the child’s best interests that I grant the leave sought and I will do so. 

15. 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 Tanner leave, as the State Act, Part 5, Div 1, s 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 s 61E be given its literal meaning, unless Mrs Tanner the biological mother is a co-applicant for adoption she would lose her parental responsibility upon an adoption in favour of Mr Tanner the child’s step father. Probably s 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, Div 1, s 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, Bacon & Bacon [2007] FamCA 1594 at [2] and [3] per Strickland J; Rohrlach, Rohrlach & Doddridge [2008] FamCA 518 at [2] per Strickland J; and as to the effect of s 61E: Beck & Major & Wright [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 s 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 18 July 2011.

Associate:     

Date:              4 August 2011