Tate & Anor & Jamieson

[2016] FamCA 151

FAMILY COURT OF AUSTRALIA

TATE AND ANOR & JAMIESON [2016] FamCA 151

FAMILY LAW – LEAVE TO ADOPT

Family Law Act (1975) (Cth)
Adoption Act 2009 (Queensland)

APPLICANTS: Mr Tate and Ms Tate

RESPONDENT: Mr Jamieson

FILE NUMBER: BRC 11512 of 2015

DATE DELIVERED: 14 March 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14 March 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Noble, Zande Law

RESPONDENT: By telephone

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G of the Family Law Act (1975) (Cth), leave is granted for the Applicants, Mr Tate and Ms Tate, to commence proceedings for the adoption of B, born … 2009. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tate and Anor & Jamieson 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 1151  of 2015

Mr Tate and Ms Tate

Applicants

And

Mr Jamieson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Mr Tate was born in 1984;  Ms Tate in 1985.  They commenced living together in September 2011 and married in 2014.  Ms Tate has a child from a previous relationship, six year old B (‘the child’), who was born in 2009. 

2. By Application filed 1 December 2015, Mr and Ms Tate seek leave to commence proceedings for the child’s adoption by Mr Tate.

3. It is an accepted fact, it seems, that the child’s biological father is Mr Jamieson, who is the Respondent to the proceedings.  He clearly has been served with the Initiating Application and supporting affidavits and appears on his own behalf this morning by telephone.  He confirms before the Court orally today that the position now is as was recorded by Registrar Brooks in the Notation included in the Order made 10 February 2016:  namely, that he consents to an order being made in the terms sought in the Initiating Application.

4. This information is consistent with the evidence contained within the affidavit material relied upon by the Applicants wherein they refer to a meeting with Mr Jamieson on 7 September 2015, at which time he signed a copy of a proposed consent order which made it clear that his position was that he agreed to an order being made for leave to commence proceedings for adoption. 

5. There is nothing to dispute the evidence contained within the affidavits of Mr and Ms Tate that, during this meeting, Mr Jamieson expressed the sentiment to them that Mr Tate was the child’s father, rather than him.

6. Given that on three occasions Mr Jamieson has made his position clear, I accept that he has consistently maintained this attitude for some not insignificant period of time.

7. The child has lived with her mother for the entirety of her life.  She was about 10 months of age when her mother began her relationship with Mr Tate.  She was not quite two years of age when they commenced living together.  On the evidence before me, she does not know that she is not Mr Tate’s biological daughter.  She does not, it seems, have a relationship with Mr Jamieson and last had contact with him at some time shortly before her first birthday.  The evidence is to the effect that she has not had any contact with any members of her extended biological paternal family, having not seen or had any contact with any of those persons since she was approximately one week old.

8. It is clear, on the evidence, that whilst in her mother’s and Mr Tate’s care, she spends time with her grandparents, aunties, uncles and cousins as part of her usual day to day routine and daily life. 

9. The only sensible inference available on the material is that the child’s financial, psychological, and social needs have been met by her mother and Mr Tate since they started to live together in September 2011.

10. Additionally, I can only sensibly conclude, from the comment made by Mr Jamieson during the September 2015 meeting that Mr Tate has contributed significantly to the child’s financial support as well as to her psychological and emotional needs and support. 

11. The only sensible conclusion is that, from the child’s perspective, Mr Tate is, in fact, her father - on the evidence before me I have no hesitation at all in concluding, without doubt, that he can only be seen by her as her psychological father.

12. The order pursuant to section 60G of the Family Law Act (1975) sought by the Applicants is necessary because s 92 of the Adoption Act 2009 (Queensland) provides that a person may apply to the Chief Executive to arrange an adoption if a number of specified matters are satisfied. Included within those matters is that a person has been granted leave pursuant to s 60G of the Family Law Act (1975) and that the child the subject of the application is at least five years of age and has not yet turned 17.  The child clearly falls within this category.

13. Section 60G(2) of the Act provides that, in proceedings for such leave. the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act (1975).  It is evident from the consideration of those sections, and in particular s 61E and s 65J, that the consequences for the child of being adopted include the termination of all parental responsibility owed by a biological parent for her and the non-enforceability, in a sense, of any existing parenting order.  In this case, there is no existing parenting order.

14. The decision facing this Court differs from that which will face the Court charged with the decision about whether to permit the child’s adoption or not.  The grant of leave to commence proceedings does not, of course, have the consequences of the cessation of parental responsibility or of the non-enforceability of parenting orders as only an order for adoption made by a State Court has that effect.  However, s 208 of the Adoption Act provides that the Court may make a final adoption order only if satisfied of a number of matters, included within which is that an order for adoption by a step-parent would better promote the child’s wellbeing and best interests than an order under the Family Law Act (1975), any other Court order, or no order at all.

15. I consider, therefore, having regard to the legislative framework provided by the Adoption Act, that this Court ought not grant leave to Applicants to commence proceedings in the State Court if those proceedings are doomed to fail because of the absence of mandatory prerequisites. It is clear, therefore, that in these proceedings, I must consider the familiar best interests considerations as prescribed by s 60CC of the Family Law Act (1975).  Many of those, in a sense, have less relevance as considerations because of the child’s age and the factual circumstances established by the evidence before me.

16. It is, I think, sufficient to record (as I have already) done that it is clearly established on the evidence that Mr Tate has in combination with the child’s mother – no doubt met all of the child’s emotional and psychological needs.  One can only conclude that he, for her, is very much her psychological father.  As the evidence clearly establishes, Mr Jamieson has had nothing more than the most limited of interactions with the child.  There is nothing in the material before me to suggest that he has evidenced any desire to enter into a relationship with her beyond the scope of that which has already taken place.

17. I accept, as more likely than not, that, upon the family unit of Mr and Ms Tate and the child constituting itself at the time of cohabitation in September 2011, they have since then lived as a family unit.

18. The only conclusion open, it seems to me, is one which leads me to express that I am satisfied that Mr Tate has discharged all of the responsibilities of parenthood as those responsibilities are envisaged under the Family Law Act (1975). He is, and has been, and by the Application evidences his intention to continue to be, the child’s father for all intents and purposes.

19. For these short Reasons, then, I am easily persuaded that it is in her best interests that an order be made to permit proceedings seeking to formalise the manner in which he regards her to commence.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 March 2016

Associate:                 

Date:    14 March 2016