Tanner & Cape

In *Tanner & Cape* [2011] FamCA 665, the Family Court of Australia considered an application by Mr Tanner and Ms Tanner for leave to commence proceedings for the adoption of the child B, born in 1997. Ms Tanner is B’s biological mother, and Mr Tanner is her husband and B’s stepfather. The child’s biological father, Mr Cape, had been served with the application and provided an affidavit consenting to the proceedings, though he did not appear at the hearing.

The primary legal issue before the court was whether to grant leave under s 60G(1) of the *Family Law Act 1975* (Cth) for the adoption proceedings to commence. This required the court to consider whether granting leave would be in the child’s best interests, having regard to the provisions of s 60F(4)(a) and s 61E of the Commonwealth Act, as well as s 92(1)(d) of the *Adoption Act 2009* (Qld). The court also considered the implications of an adoption order on the parental responsibility of the biological parents under ss 61E and 65J of the Commonwealth Act.

Justice O’Reilly reasoned that the child, who had lived with Mr and Ms Tanner as a family unit for approximately 10½ years and had a close relationship with Mr Tanner, whom he regarded as his father figure and called "Dad," had consistently expressed a wish to be adopted by Mr Tanner. The court noted that Mr Cape’s consent was genuinely given and that he intended to concede to the adoption. Having weighed these factors, including the child’s expressed wishes and the established family dynamic, the court was satisfied that granting leave was in the child’s best interests. The court granted leave to both Mr and Ms Tanner, acknowledging a potential reservation about the mother’s ability to apply to adopt her own child under the Queensland Act, but including her in the order as a precaution due to the wording of s 61E of the Commonwealth Act.