Watson and Anor and Summers

[2015] FamCA 261

FAMILY COURT OF AUSTRALIA

WATSON & ANOR & SUMMERS [2015] FamCA 261

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the respondent biological father consents to the adoption – Order that leave be granted

Family Law Act 1975 (Cth) s 60G, s 61E
Adoption Act 2009 (Qld)

1st APPLICANT: Ms Watson

2nd APPLICANT: Mr Watson

RESPONDENT: Mr Summers

FILE NUMBER: BRC 1634 of 2015

DATE DELIVERED: 13 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 April 2015

REPRESENTATION

THE FIRST APPLICANT: In Person

THE SECOND APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Ms Watson and Mr Watson, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child B born … 2008, by his step-father Mr Watson.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson and Anor & Summers 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 1634 of 2015

Ms Watson

First Applicant

And

Mr Watson

Second Applicant

And

Mr Summers

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed in February of this year, Ms Watson and her husband, Mr Watson, seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth), they be granted leave to commence adoption proceedings for adoption of the child, B born in 2008, by his step-father Mr Watson. Ms Watson is the child’s mother.

2. The applicants also seek an order that the requirement for the consent of Mr Summers, who is the child’s biological father, be dispensed with. However, given the fact that Mr Summers has actually sworn an affidavit that has been filed in these proceedings in which he deposes to the fact that he does not oppose the adoption of his child by Mr Watson, I will not consider this particular part of the application any further. Finally, the applicants seek an order that the child’s surname be changed and recorded on the relevant State register as “Watson”. This is a matter that I will say something about briefly a little later in these reasons.

1. The respondent to the application, Mr Summers, is the child’s biological father.  He and Ms Watson were in a relationship for a number of years but never married.

1. In Queensland, the adoption of children is governed by the Adoption Act 2009, which is a State law. Under that legislation a step-parent of a child may apply to the Chief Executive of the Department of Communities, Child Safety and Disability Services to arrange an adoption of his or her step-child if the step-parent is a spouse of the parent of the child; and the parent, the step-parent applicant and the child live together; and the adults have been spouses and both living together with the subject child for a continuous period of at least 3 years up to the time of the application. The step-parent applicant must also be an adult and an Australian citizen or the spouse of the applicant must be an Australian citizen. They must also reside in Queensland, not be the same gender as their spouse, and the child must be at least 5 years of age and not yet 17. Finally, the step-parent must have been granted leave to proceed with the adoption application pursuant to s 60G(1) of the Family Law Act.

1. Section 60G of the Family Law Act provides as follows:

(1)Subject to subsection 2 the Family Court 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.

1. The definition of prescribed adopting parent is contained in section 4 of the Family Law Act and includes “the spouse of a parent of the child”. Therefore, Mr Watson is a prescribed adopting parent within the definition contained in section 4.

1. Section 61E of the Family Law Act provides as follows:

(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.

1. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to section 60G. A current parenting order stops being in force if the child is adopted.

1. In this particular case, there is no parenting order currently in place. There has never been a parenting order in place. Accordingly, Ms Watson and Mr Summers each currently has parental responsibility for the child pursuant to section 61C(1) of the Family Law Act, but Mr Summers’s parental responsibility in respect of the child would end if Mr Watson lawfully adopts the child.

1. Accordingly, I must consider whether it is in the child’s best interests for leave to be granted for his step-father, Mr Watson, to commence an adoption application for him with the consequence that if the adoption is granted (with Mr Summers’s consent or, absent that consent, by an order of a Queensland Children’s Court dispensing with the need for that consent), the child’s father, Mr Summers will cease to have any parental responsibility in respect of the child.

1. In the process of considering that question, I must have regard to, relevantly, the provisions of sections 60CC and 60CD of the Family Law Act.

1. One of those matters that I must consider is, of course, the benefit to the child of having a meaningful relationship with both of the child’s parents. In this case, that requires me particularly to consider the benefit to the child of having a meaningful relationship with his father, Mr Summers, and his mother, Ms Watson. It also requires me to consider all of the matters set out in section 60CC (3), which list includes any views expressed by the child and any factors (such as his maturity or level of understanding) that the Court thinks are relevant to the weight to be given to the child’s views.

Some history of the matter

1. The applicant mother, Ms Watson, was born in 1987 and she is 27 years old. The respondent, Mr Summers, was born in 1985 and he is 29 years of age. They met at high school in 2004 and were in a relationship that was on and off, as Ms Watson says, for about four years.  During that time, Ms Watson fell pregnant with the child, however that was an unplanned pregnancy.

2. The parents, Ms Watson and Mr Summers, agree that Mr Summers has had no contact with his son, the child, who is now six years of age, for approximately the last three years. The mother says that before then, Mr Summers would visit the child for a few hours most fortnights. Mr Summers’s own evidence is that he has not established what he described to be a paternal bond with his son and that his extended family has never had a personal relationship with the child. Mr Summers is currently paying child support in respect of the child, in the amount of about $64 per week.

1. The mother says that she and Mr Summers have kept a civil relationship and that the child has never experienced any conflict or animosity between the two of them. Ms Watson, who works as a production worker, has been the primary carer of the child since his birth. She says that the child enjoys close and loving relationships with his maternal extended family.

1. B is said to have very little recollection of his biological father, which is not surprising considering the child’s young age and the fact that he has not seen his father now for three years, that being half of his life.

2. In March 2009, the mother met and began a relationship with Mr Watson, who she then went on to marry in October 2012.  Mr Watson is 28 years of age, he was born in 1986 in City C, Country D. He is now an Australian Citizen and has been since August 2004.  He is a tradesman who works on a one week on, one week off rotational basis at in E Town in Queensland.

3. Mr Watson was introduced to the child during the first year of the child’s life. Since that time, he has developed a loving and caring relationship with the child and has been assisting the child’s mother in caring and providing for the child, including, importantly, in a financial sense. the child looks to Mr Watson as his father figure and he has done so, I accept, for at least all of his life that he can remember so far.

4. Mr and Ms Watson have a child together, an eight month old baby girl. The family of Mr and Ms Watson and the two children now live in a four bedroom home in Suburb F in which they have lived since February 2011. The child attends the local state school. Mr Watson deposes that he and Ms Watson are, “not perfect but our relationship is full of love and commitment and not just for each other but for our children”.

5. Mr Summers deposes that he understands that Mr Watson has been a good step-father and has helped to raise and care for the child since he was about eight and a half months old. Mr Summers gives his consent for Mr Watson to commence these adoption proceedings in the State Courts and he has actually sworn an affidavit in which he deposes to this. Mr Summers is not legally represented today but he deposes to having investigated the legal consequences of the adoption and other alternatives through a lawyer and he maintains his wish for Mr and Ms Watson to proceed with the adoption of the child. His evidence is that after some great consideration, he has decided that it would be in the child’s best interests to give his consent to Mr and Ms Watson adopting the child and for him to surrender his paternal rights to Mr Watson through this proposed adoption of the child.

1. Ms Watson describes the child as, “a friendly, happy child who is talkative and playful, who will make friends with anyone and prospers at school.” She says that she and Mr Watson maintain a routine at home and provide the child with a loving, caring and safe environment.

1. The child is said to share a healthy paternal relationship with his step-father who he refers to as ‘dad’. This includes the child regularly seeing and interacting with members of Mr Watson’s extended family.  the child and Mr Watson share common interests in video games, playing sports and watching movies and they spend much of their free time together. Mr Watson deposes that Mr Watson takes great pride in being the father figure for the child and that he does everything he can to live up to that standard.

1. Mr and Ms Watson have explained to the child of their intention for him to be adopted by his step-father and they have also explained to the child that the respondent, Mr Summers is actually his biological father.  Ms Watson has deposed that the child understood those matters explained to him as best a child of his age possibly could.  It appears, according to Ms Watson, that it has caused the child no concerns to be given this information.

1. Mr and Ms Watson seek an order that should the adoption proceed, that the child’s last name be changed from “Summers” to “Watson”. The mother considers that this is in the child’s best interests as he knows that his mother and step-father and half-sister all share a last name that is different to his last name.

1. Mr Summers actually agrees, deposing that should the adoption proceed, he considers that it would be in the child’s best interests to lawfully have his name changed to “Watson” and he actually says he gives his consent for that to happen.

1. Under s 215 of the Adoption Act 2009 (Qld) a final adoption order for a child may include an order that the child have the same surname as an adoptive parent and that order will be made in consideration of promoting the child’s wellbeing and best interests as well as the court having regard in the process of determining that to the child’s right to preserve his or her identity. Therefore, I have determined that the application to have the child’s surname changed will be an issue to be considered in the State Court’s determination at the time of the determination of their adoption application and I will not make any orders in relation to this part of the application.

1. Both of the applicants consider that it is in the child’s best interests for leave to be granted for the adoption proceedings to commence. Mr Watson deposes to the fact that he fully understands the responsibilities and the legal obligations that would come with the adoption of the child.  In addition, the mother says that she understands the outcome of this adoption and understands the responsibilities she shares with her husband will become legal and binding responsibilities.  She says that Mr Watson is a wonderful father and that it is in the child’s best interests that the relationship of father and child becomes official so that the foundation that they have already created can not only have legal standing but provide permanent security for the child in the future. Mr Watson says that it is in the child’s best interests that they build on the foundation of their relationship and make it official in the eyes of the law.

2. In conclusion, I can say that I am satisfied on the evidence that is before me that Mr Watson, takes the responsibility of parenting the child seriously and regards himself as the child’s father and has to this point in time shown his commitment to undertaking all of the legal obligations that come with parenting a child.

1. Having regard to all of the evidence that is before and most particularly the evidence of the respondent father, Mr Summers, that he does not oppose leave to adopt being granted, I am indeed satisfied it is in the child’s best interests to permit the applicants, Mr and Mr Watson, to commence proceedings in the State Magistrates Court seeking the adoption of the child, B born in 2008.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 April 2015.

Associate: 

Date:  15 April 2015