Watson & Anor and Gibbs

[2015] FamCA 1050

FAMILY COURT OF AUSTRALIA

WATSON AND ANOR & GIBBS [2015] FamCA 1050

FAMILY LAW – ADOPTION – Leave to adopt

Family Law Act 1975 (Cth)
Adoption Act 2009

APPLICANTS: Ms Watson and Mr Watson

RESPONDENT: Mr Gibbs

FILE NUMBER: BRC 8765 of 2015

DATE DELIVERED: 23 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Catton, Schultz Toomey O’Brien

SOLICITOR FOR THE RESPONDENT: Ms Kruger, Ryan Kruger Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act 1975 (Cth) as amended, the Applicants be granted leave to commence adoption proceedings for adoption of the child B (also known as B Watson) born … 2008 by his step-parent Mr Watson.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Gibbs 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 8765 of 2015

Ms Watson and Mr Watson

Applicants

And

Mr Gibbs

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The application before the Court (filed on 11 September 2015) by which Mr Watson and the child’s biological mother, Ms Watson, seek leave to commence adoption proceedings in relation to B, born in 2008 (also it seems, known by the name B Watson) is necessary because s 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption if a number of specified matters are satisfied.

2. Included within those matters is that a person has been granted leave pursuant to s 60G of the Family Law Act 1975 (Cth) and that the child the subject of the application is at least five years of age and has not yet turned 17 years of age. B clearly falls within this category.

3. Section 60G(2) of the Act provides that, in proceedings for such leave, the Court must consider whether granting leave would be in a child’s best interests having regard to the effect of s 60F(4)(a) and s 60HA(3)(a) and s 61E and s 65J of the Family Law Act 1975 (Cth).

4. It is evident from a consideration of those sections and, in particular, s 61E and s 65J of the Act, that the consequences for a child of being adopted including the termination of all parental responsibility owed by a biological parent for that child; that is, once an adoption order is made, all of the parental responsibility owed by a biological parent to a child, by virtue of that fact, will be terminated.  Whilst an adoption order also results in the non-enforceability, as it were, of any parenting order, there are no current parenting orders in place in relation to the child and his biological father, Mr Gibbs.

5. Mr Gibbs has clearly been served with the application and appears today via legal representation. Ms Kruger, who appears on his behalf, informs the Court that he consents to an order for leave pursuant to s 60G of the Act to commence adoption proceedings for the child’s adoption by his step-parent, Mr Watson. Mr Gibbs also makes it clear in his material that he consents to an adoption order being made, although that is, of course, not a matter for today.

6. The decision facing this Court differs from that which will face the Court charged with a decision whether to permit the adoption.  The granting of leave to commence proceedings does not, of course, have the consequence of cessation of parental responsibility or the non-enforceability of parenting orders, as only an order for adoption made by a state Court has that effect. 

7. However, s 208 of the Adoption Act 2009 (Cth) provides that the Court may make a final adoption order only if satisfied of a number of matters included in which is that an order for adoption by a step-parent would better promote a child’s wellbeing and best interests than an order under the Act, any other Court order or no order at all.

8. I consider, therefore, having regard to the legislative framework provided by the Adoption Act 2009, that this Court ought not grant leave to Applicants to commence proceedings in a 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 Act as well as the matters already addressed. 

9. Save for participation in DNA sampling to establish the child’s paternity, Mr Gibbs has never met him and has played no part at all in his day-to-day parenting.  Mr Gibbs does not envisage meeting the child in the future.  None of Mr Gibbs’s family have ever met the child and it appears that Mr Gibbs and the child’s mother have only spoken on a few occasions since his birth. 

10. Whilst Mrs Watson’s former husband, Ms C, has, it seems, some relationship with the child, their time together appears to have continued on something of an ad hoc basis via arrangement and in circumstances agreed between the adults.  It appears from the material that Ms C has no opposition to an order for leave to commence proceedings being made on the basis that he continues to have some opportunity to spend some time with the child as agreed with the child’s mother.  He also, it seems, in written documentation, commits to continuing to financially support the child to some extent by making some financial contribution to education and medical costs “so far as is practicable” - to use his term.

11. The Applicants commenced their relationship in late November 2010, at which time the child was about two years and nine months of age.  They commenced cohabitation in 2011 when he was about three years of age and married in 2013.  They have a child together, D, born in 2014. 

12. Since they commenced their cohabitation, both Applicants have contributed to the child’s financial support.  I accept that Mr Watson has supported the child emotionally and considers him his son.  I accept that the child has called Mr Watson “dad” for the last few years.  I accept that the child has been included in all of the activities undertaken by Mr Watson’s extended family.  I also accept that the child knows that Mr Watson is not his biological father and is aware, to some extent at least, of the difference between a biological parent and a parent standing in the shoes of such person.  I consider it much more likely than not, however, that, for the child, the reality is that Mr Watson is his psychological father - a person from whom he has received support and who he looks to for such support. 

13. I accept the child’s mother’s evidence that the child and Mr Watson are closely bonded, affectionate toward each other, play together, and that Mr Watson has supported the child by attending at school and sporting activities and in disciplining him where appropriate. 

14. I also accept the evidence to the effect that Mr Watson does not distinguish between the child and D in the manner in which he regards his responsibility as a parent;  that is, to support and be responsible for each child’s care, welfare and development.  I also accept that Mr Watson and the child’s mother are motivated to undertake proceedings for his formal adoption by Mr Watson because they believe this will formalise the child’s place in their family and manifest how he already regards himself, namely: it seems, as a “Watson”. 

15. The evidence makes it clear that, from the child’s perspective, Mr Watson is, in fact, the person who fulfils all of the roles associated with parenting.  Accepting the child’s mother’s evidence, I accept that Mr Watson has discharged all of the responsibilities of parenthood as those responsibilities are envisaged under the Family Law Act1975 (Cth). His application for an order for leave to commence adoption proceedings in relation to the child is a visible demonstration of his intention to continue to be the child’s father, for all intents and purposes, into the future.

16. For these reasons, I am easily persuaded that it is in the child’s best interests that an order be made permitting the adopting proceedings to commence.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 November 2015.

Associate: 

Date:              23 November 2015