Thomson & Barnes

[2022] FedCFamC1F 504

Federal Circuit and Family Court of Australia (DIVISION 1)

FIRST INSTANCE

Thomson & Barnes [2022] FedCFamC1F 504

File number(s):

BRC 1445 of 2021

Judgment of:

CAREW J

Date of judgment:

15 July 2022

Catchwords:

FAMILY LAW – LEAVE TO COMMENCE ADOPTION PROCEEDINGS – Where the applicants are the step-father and the biological mother – Where the applicants seek leave to commence adoption proceedings in relation to a fourteen year old child – Where the biological father opposes leave being granted – Where leave is granted  

Legislation:

Adoption Act 2009 (Qld)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth)  

Cases cited:

Brock & Brock [2007] FamCA 1594

Cahill & Fryer [2008] FamCA 1245

Hanlon & Hanlon [2022] FedCFamC1F 435

Nevins & Urwin (2022) 64 Fam LR 640

Orr & Leach [2022] FedCFamC1F 217

Tanner & Cape [2011] FamCA 665

Number of paragraphs:

24

Date of hearing:

15 July 2022

Place:

Brisbane

Counsel for the Applicants:

Ms Barnes

Solicitor for the Applicants:

Michael Lynch Family Lawyers

Counsel for the Respondent:

Mr Page QC

Solicitor for the Respondent:

My Legal Crunch

ORDER

BRC 1445 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR THOMSON

First Applicant

MS THOMSON

Second Applicant

AND:

MR BARNES

Respondent

order made by:	CAREW J
DATE OF ORDER:	15 July 2022

THE COURT ORDERS THAT:

1.Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Thomson and Ms Thomson be granted leave to commence adoption proceedings in respect to the child X born in 2008.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomson & Barnes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CAREW J:

1. X is 14 years of age and is the subject of this application by Mr Thomson and Ms Thomson for leave to commence adoption proceedings. For convenience, I will refer to all relevant parties by their first name. No disrespect is thereby intended.

2. When this matter first came before me on 17 December 2021, X’s biological father, Mr Barnes, opposed the granting of leave to commence adoption proceedings, and continues to do so. Although Mr Barnes has not seen X since he was about two years of age and X was less than 12 months old when Ms Thomson and Mr Barnes separated, Mr Barnes contends that he was excluded from X’s life by Ms Thomson and then they lost touch. While Mr Barnes opposes the grant of leave to commence adoption proceedings, he previously indicated his consent to an order that X live with Mr Thomson and Ms Thomson. An order was made by consent on 17 December 2021 that X attend upon a psychologist to discuss the proposed adoption and the matter was adjourned. The matter was further adjourned by consent in April 2022 and returns for hearing today.

   applicable legal principles

3. Although adoption in Queensland is a matter governed by the Adoption Act 2009 (Qld), s 92 of that Act makes an application for leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”), a prerequisite to an application for adoption.

4. Until 1 September 2021, s 60G of the Act provided that the Family Court of Australia (as this Court was then known) had the jurisdiction to grant leave to commence adoption proceedings.

5. Despite the importance of adoption matters, the original jurisdiction to grant leave to commence adoption proceedings was removed from this Court (now known as the Federal Circuit and Family Court of Australia (Division 1)[1] on 1 September 2021 and now vests in the Federal Circuit and Family Court of Australia (Division 2) (formerly known as the Federal Circuit Court of Australia).[2]  Contrary to some misperceptions, the two courts continue to exist as separate courts. This Court remains a superior court of record[3] and the Federal Circuit and Family Court of Australia (Division 2) remains a court of record.[4]

   [1] See ss 8(1) and (9) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”).

   [2] See ss 8(2) and (1) of the FCFCOA Act.

   [3] See s 9(1)(a) of the FCFCOA Act.

   [4] See s 10(1)(a)) of the FCFCOA Act.

6. Section 60G of the Act now provides as follows:

   Leave may be granted for adoption proceedings by prescribed adopting parent

   (1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2)In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

   Note:        Sections 60CB to 60CG deal with how a court determines a child's best interests.

7. Notwithstanding that this amendment applies even to applications that were already filed in this Court prior to 1 September 2021[5] (as in the present case) and notwithstanding the absence of any transitional provisions for matters already in this Court as at 1 September 2021, the Full Court in Nevins & Urwin[6] (Alstergren CJ, McClelland DCJ, Austin, Bennett, Cleary JJ) recently held that this Court has jurisdiction to determine matters pending in it as at 1 September 2021.[7] Prior to that decision, the Chief Justice of this Court had established a practice of transferring proceedings pending in this Court to the Federal Circuit and Family Court of Australia (Division 2) and back to this Court in order to overcome what was then viewed as a conundrum with the amending legislation. The Full Court in Nevins & Urwin[8] found it unnecessary to determine whether such the practice was within the jurisdiction of the Chief Justice.

   [5] See item 229 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth).

   [6] Nevins & Urwin (2022) 64 Fam LR 640.

   [7] Ibid.

   [8] Ibid.

8. As already noted, an application for leave to commence adoption proceedings may only be made by a prescribed adopting parent (s 60G(1)), and a prescribed adopting parent is defined in s 4(1) of the Act as meaning:

   (a)       a parent of the child; or

   (b) the spouse of or a person in the de facto relationship with the parent of the child; or

   (c) a parent of the child and either his or her spouse, or a person in a de facto relationship with that parent.

   Discussion

9. Ms Thomson is the biological mother of X and a joint applicant with her husband, Mr Thomson, for leave to commence adoption proceedings. While it might seem strange for Ms Thomson to be an applicant, it appears to be necessary given the consequences of an adoption order, i.e. parental responsibility vesting in any person ends once an adoption order is made.[9]

   [9] See s 61E of the Family Law Act 1975 (Cth) (“the Act”).

10. Section 61E of the Act is in the following terms:

    61E      Effect of adoption on parental responsibility 

    (1)       This section applies if: 

    (a)       a child is adopted; and 

    (b)  immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order. 

    (2)  The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

11. Section 61C provides that each parent has parental responsibility for a child who is not 18 years of age subject to any order made by a court. No order has been made affecting each parent’s parental responsibility.

12. In a number of previous decisions of this Court, it has been concluded that the application for leave to adopt must include both the step-parent and the biological parent who is married to or in a de facto relationship with the step-parent.[10] In a recent decision of Hanlon & Hanlon[11] (“Hanlon”) Gill J rejected that view in what I observe, respectfully, to be a well-reasoned decision. Unfortunately, the issue was not one that was addressed by Counsel or Queen’s Counsel before me.

    [10] Brock & Brock [2007] FamCA 1594; Cahill & Fryer [2008] FamCA 1245; Tanner & Cape [2011] FamCA 665; Orr & Leach [2022] FedCFamC1F 217.

    [11] Hanlon & Hanlon [2022] FedCFamC1F 435 (anonymised name).

13. While I do not necessarily disagree with Gill J’s suggestion that a plain reading of s 61E leads to a perverse result, the remedy in my view lies not in a contorted interpretation of the plain meaning of the section but with legislative amendment. I remain of the tentative view that s 61E means what it says, notwithstanding what some may regard as a perverse outcome. My view is fortified by the definition of ‘prescribed adopting parent’ in s 4(1) that includes a parent of a child. I note that no mention was made of this definition in Hanlon.

14. Turning then to consider the best interest provisions, I note that Ms Thomson is an educator and Mr Thomson works in commerce. Mr Thomson and Ms Thomson have been in a relationship since 2009 and Mr Thomson is the only father X has ever known. He has always called him “dad” and was not aware until about age 11 that Mr Thomson was not his biological father. He apparently took the information in his stride and is eager for the adoption proceedings to proceed. Mr Thomson and Ms Thomson have three other children together aged 11, nine and eight years respectively. X is known informally by the surname Thomson.

15. Mr Barnes is married and has two young children. Mr Barnes and his family live in New South Wales. He has no relationship with X.

16. I am assisted by independent evidence of X’s wishes from a Child Inclusive Conference which was conducted on 23 August 2021 and more recently X has spoken (on three separate occasions) to the jointly appointed psychologist, Ms B.

17. Ms B notes that X explicitly stated that he would like to be adopted by Mr Thomson, whom he has always regarded as his father. That said, X spoke positively and respectfully about Mr Barnes and indicated a mature assurance that he could contact him in the future if he so desired. While unable to articulate the finer points of his wishes, Ms B opined that X’s wishes are perhaps related to “themes of belonging, identity, and family cohesion”. In her view, “[f]rom X’s perspective, Mr Thomson … is his psychological father”. Ms B recommends that significant weight be given to X’s wishes.

18. X conveyed similar wishes to the Family Consultant during the Child Inclusive Conference in August 2021.

19. Ms Thomson and Mr Thomson support X being able to contact Mr Barnes in the future if he wishes to do so.

20. Mr Thomson and X share a keen interest in many outdoor pursuits and Mr Thomson is very involved in X’s activities, both at school and outside of school. It seems they have a very close relationship.

21. Ms B opines that a refusal of leave to commence adoption proceedings may adversely impact on any prospects of X’s future relationship with Mr Barnes, in that he may blame Mr Barnes for the adoption not proceeding. Currently, it seems the delay in the adoption progressing is having some adverse impact on X’s relationship with at least one of his siblings, whom X explained to Ms B was aware that something was going on to which he was not privy.

22. At her second session with him, Ms B explained in some considerable detail to X the potential legal and psychological consequences of adoption, which she sets out on page 2 of her report. Ms B explained that:

    ·[Mr Barnes] would not have rights regarding parental responsibility (e.g., access to information or decisions about healthcare, education etc.);

    ·Any issues around estate and inheritance might be impacted (e.g., if [Mr Barnes] were to pass away [X] might not have automatic rights to any possible inheritance);

    ·[Mr Thomson] would have rights regarding parental responsibility (e.g., [Mr Thomson] could access information about him and make decisions about religion, education, healthcare);

    ·[Mr Thomson] would be his guardian if his mother were to pass away/become impaired, as opposed to his biological father; and,

    ·If his parents were to separate, he would have the right to maintain a meaningful and significant relationship with [Mr Thomson], akin to the rights of his siblings.

23. Ms B noted that X was able to repeat this information back to her at the third session suggesting, in her view, that he had retained and understood those points.

24. Overall, I am satisfied that commencing adoption proceedings are in X’s best interests and I propose to grant leave accordingly. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated:       15 July 2022