Turner and Smyth

[2009] FamCA 277

FAMILY COURT OF AUSTRALIA

TURNER & SMYTH [2009] FamCA 277

FAMILY LAW – ADOPTION – leave to commence proceedings – mother and step-father seeking leave – biological father has had little to do with the child and supports the application - order for leave is in the best interests of the child

Family Law Act 1975 (Cth) ss 60G, 60F, 61E, 65J

Fogwell & Ashton (1993) FLC 92-429

APPLICANTS: Mr and Mrs Turner

RESPONDENT: Mr Smyth

FILE NUMBER: ADC 762 of 2009

DATE DELIVERED: 8 April 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 8 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS HORVAT

SOLICITOR FOR THE APPLICANT: GERMEIN REED MILDWATERS

COUNSEL FOR THE RESPONDENT: NOT APPLICABLE

SOLICITOR FOR THE RESPONDENT: RESPONDENT IN PERSON

Orders

1. That leave is granted pursuant to Section 60G of the Family Law Act 1975 as amended for proceedings to be commenced for the adoption of … born … June 2000 by Mrs and Mr Turner.

2. That all Applications be otherwise dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA  AT  ADELAIDE

FILE NUMBER: ADC 762  of 2009

MR AND MRS TURNER

Applicants

And

MR SMYTH

Respondent

REASONS FOR JUDGMENT

1. I have before me today for determination, the Initiating Application of Mrs Turner and Mr Turner seeking leave pursuant to Section 60G(1) of the Family Law Act 1975 as amended to commence proceedings for the adoption of the child born in June 2000 and who is thus almost 9 years of age.  The leave of this Court is required before Mr and Mrs Turner can pursue their application for adoption.  The reason for that is that the child is the child of the Applicant mother Mrs Turner and the Respondent father Mr Smyth.  Indeed Orders between those parties were made in the Federal Magistrates Court on 26 September 2001 in which they, by agreement, retained joint responsibility for the long term care, welfare and development (as it was then called) of the child.  Orders were also made that the child reside with the Applicant mother and there were various arrangements put in place for Mr Smyth to see the child.

2. As I said, the application is made pursuant to Section 60G of the Act and that Section provides as follows:-

   Section 60G

   (1)Subject to subsection (2), the Family Court, 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) and of sections 61E and 65J.

3. The sections of the Act referred to by 60G(2) are as follows:-

   Section 60F(4)(a)

   (4)The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent:

   (a)if a court granted leave under section 60G for the adoption proceedings to be commended – the child ceases to be a child of the marriage for the purposes of this Act;

   Section 61E

   (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.

4. In support of the Application I have three Affidavits, one being sworn by the Applicant mother Mrs Turner, one by her husband and the other Applicant Mr Turner and one by the Respondent Mr Smyth, who as I said is the biological father of the child. 

5. In determining this matter, the Court must consider whether granting leave would be in the best interests of the child, having regard to the effect of paragraphs 60F(4)(a), Section 61E and Section 65J of the Act.

6. I have dealt with Sections 60F(4)(a) and 61E as to their effect on both my granting of leave and upon any ultimate adoption being granted for the child. Section 65J is as follows:-

   Section 65J

   (1)This section applies if:

   (a)a child is adopted; and

   (b)immediately before the adoption, a parenting order was in force in relation to the child.

   (2)The parenting order stops being in force 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.”

7. There is, as I said, a parenting order in place made in the Federal Magistrates Court and whilst the Initiating Application filed on 2 March 2009 seeks Orders that those Orders of the Federal Magistrates Court (and I note the error in that they suggest that they were Orders made by this Court) be discharged.  It is my understanding on the reading of the provisions that it is not necessary for me to make that Order and that indeed it might be sensible that those Orders remain in place and in force and effect for the benefit of the child and the Applicant mother in these proceedings until any adoption proceedings have been concluded.  Then by effect of the legislation, the Orders that they seek in that paragraph will ultimately come into effect.

8. The other preliminary matter that I need deal with is in reference to the relevant paragraphs and sections to the adoption of a child by a prescribed adopting parent.  The definition of “prescribed adopting parent” is in subsection (4)(1), and a prescribed adopting parent in relation to a child means (a) a parent of the child – and obviously Ms Turner falls into that category or (b) the spouse of or a person in a de facto relationship with parent of the child.  That clearly applies to Mr Turner, the other Applicant.

9. Turning now to the issue of whether or not granting leave would be in the child’s best interests, I note that interestingly Section 60G does not specifically provide that the child’s best interests are to be the paramount consideration unlike Section 60CA, which is the provision which applies in most child related proceedings in this Court. However I do not believe that there is any specific import to be derived from that observation. In my view, there is nothing else identified in Section 60G and there is also some authority of this Court about this in relation to the section which preceded Section 60G, namely Section 60AA wherein there is no reference to “best interests” whatsoever. 

10. In the case of Fogwell and Ashton (1993) FLC 92-429, it was held that given that the child’s welfare was paramount in connection with proceedings under the Family Law Act and also under the Adoption of Children Act, which was the relevant Act in that case in New South Wales (but the relevant Act in this State as I understand it is the Adoption of Children Act) it is difficult to imagine any significantly different principle should apply to applications for leave under Section 60AA.  In any event, I do not believe it is necessary for me to go beyond what the Act suggests under Section 60CA and Section 60CC as to what would represent the child’s best interests in determining this application.

11. Thus in my view it is simply more helpful to turn to the provisions of Section 60CC which is divided into “primary considerations” and “additional considerations”.  I do not consider it necessary to go through each of these provisions seriatim and an appropriate way to deal with it is simply to approach it in a global manner dealing with all of those issues that arise for consideration of a Court under that Section.  In that regard, I turn to the factual information that is provided in the three affidavits that I previously mentioned.

12. The Applicant mother was born in the coastal South Australia area and is currently 32 years of age.  The second Applicant, her husband, was also born in the coastal area and is also 32 years of age.  They have been partners since mid-2001 and were married in August 2005.  The child, as I said, is almost 9 years of age having been born on 24 June 2000 to a relationship between Ms Turner and the Respondent biological father Mr Smyth.  The relationship between Mrs Turner and Mr Smyth was brief and lasted no longer than about six months.  During the course of that relationship Mrs Turner fell pregnant but very shortly thereafter the relationship between her and the Respondent biological father terminated.  The Respondent Mr Smyth acknowledges that he was unable emotionally or for other reasons to provide any support for Mrs Turner financially or emotionally during the pregnancy and Mrs Turner moved back home to live with her parents and remained there until after the child’s birth.

13. The Respondent Mr Smyth visited the mother in hospital after the child was born but only on one occasion.  The mother then moved to rented premises.  Mr Smyth had some contact with the child for a period of time but that ceased when the child was about 18 months of age.  There was some contact between Mr Smyth’s parents and the child but after a period of time they deemed it was appropriate that they discontinue that contact, clearly because it might simply confuse the child and make it more difficult for her to establish what was her essential family base. 

14. After a time Mrs Turner had saved enough money to purchase her own home and she and Mr Turner and the child still reside there to this day.  When the child was about 18 months of age Mrs Turner and Mr Turner began seeing each other on a more committed basis.  They had known each other for some time, having both attended the same school in Year 12.  From there their relationship developed until they married in August 2005.  There were no children of either of the Applicants other than the subject child.  Mr Turner had no children of his own at the time that their relationship was formed.  Not surprisingly a short time after Mr Turner began staying rather more regularly and permanently at Mrs Turner’s house, the child started to call him “Dad” and the child was joined by a little brother who is a child of both Mr and Mrs Turner. The child’s brother was born in July 2004 and thus is approaching 5 years of age.

15. I accept the evidence of Mrs Turner, not refuted or disputed by Mr Smyth, that Mr Turner is a devoted father to both children.  I note that he is in full time employment as an Apprentice based in regional South Australia but on a two week on - one week off basis.  He has no bad habits that would cause the Court any concern and his essential interests are devoted to his young family. I note that he and the children enjoy a number of activities together which are clearly fun and beneficial to both children and they include visiting Mr Turner’s parents’ farm.  That entails a number of interesting and child focussed activities.  The affidavits also list a number of other activities that they enjoy, including the occasional holiday.

16. Mr Turner is actively involved in all parenting tasks when he is at home including bathing the children, reading them stories, putting them to bed, cooking for the family, getting up in the middle of the night if either of the children need settling and attending to other day to day tasks in assisting Mrs Turner who clearly has the primary role in that regard, specifically because of Mr Turner’s work arrangements.  There is also mention of extended family members with whom the child is involved.  The child is presently in Year 3 at Primary School and the affidavit of the mother deposes that she is doing well and enjoys a number of extra curricular activities.  The child is in good health and she and her younger brother enjoy an excellent relationship.  I note that Mr Turner is able to financially support the family.  Perhaps just as significant, if not more significant, is that Mrs Turner acts as a full time mother to both of the children but she does intend to pursue some work once the younger child commences school.  She is currently studying a Certificate in Education at TAFE so that she can work as a Teacher’s Assistant.  Clearly that would enable her hours to fit comfortably within the children’s school hours.

17. We have heard from Mr Smyth today in his evidence that he acknowledges that Mr Turner is the appropriate person to be the father in all senses of the subject child - legally, emotionally and financially.  Not only does he not oppose the application - he supports the application.  He intends not to interfere in the family life of the Turners and to leave them to the task that they have warmly embraced of nurturing and raising the children.

18. I note that the Applicants have responsibly already taken on board the task of explaining to the child that Mr Turner is not her biological father but that in every other sense of the word he is clearly fulfilling that role and loves being her father.  The Applicant mother did not shirk from her responsibility of explaining who Mr Smyth was and I am satisfied that she will answer any questions that the child might have in the future about her biological father.

19. The Applicant mother also quite responsibly asked the child whether or not she was happy to retain her surname of …, given that it would identify her as having a different surname from that of her adoptive and natural parents being the Applicants, but the child indicated that she was used to it and that she wanted to keep it.

20. As I said Mr Turner gave evidence in support of the information contained in his wife’s Affidavit and confirmed his willingness to take on the important and significant role of being a parent for the child.  Mr Smyth, to his credit, acknowledged the importance to the child of Mr Turner being able to assume this new legal role, although in terms of her day to day experience the child is unlikely to notice any difference.

21. I am satisfied therefore that the Applicants have met all criteria set by the Act.  I am satisfied that the Order that they seek for leave absolutely represents the child’s best interests.  Thus I am satisfied that the evidence is overwhelmingly to the effect that granting the Application would be in accordance with and consistent with the child’s best interests.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  8 April 2009