Werner & Anor & Oswald

[2014] FamCA 957

FAMILY COURT OF AUSTRALIA

WERNER AND ANOR & OSWALD [2014] FamCA 957

FAMILY LAW – CHLDREN – ADOPTION – application for leave to commence adoption proceedings – leave granted.

Family Law Act 1975 (Cth) s4(1), s 60CC, s 60G, s 60F(4)(a), s 60HA(3)(a), and 61B, s 61E and s 65J 60CC, 60G, 60HA, 61E, 651
Adoption Act 2009 (Qld) s92, s 208

APPLICANTS: Ms Werner and Mr Rollins

RESPONDENT: Mr Oswald

FILE NUMBER: BRC 6211 of 2014

DATE DELIVERED: 3 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 3 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Turnbull, Taylaw Solicitors

RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G of the Family Law Act 1975 (Cth), leave is granted to the Applicants to commence adoption proceedings in relation to the child J, born … 2008.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Werner and Anor & Oswald 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 6211 of 2014

Ms Werner and Mr Rollins

Applicants

And

Mr Oswald

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application filed 15 July 2014, the mother and Mr Rollins, the Applicants, seek that they have leave to commence adoption proceedings for the child J (“the child”), born in 2008.  The child’s biological father, who is the Respondent to the application, appears before the Court on his own behalf and consents to the application. 

2. Proceedings for leave to adopt pursuant to s 60G of the Act are, I think, child related proceedings within the meaning of the Family Law Act 1975 (Cth). Consequently, they are amenable to the application of Division 12A of the Act. Section 69ZT makes specific provision with respect to the rules of evidence and, in particular, as that might apply to the rules relating to the receipt of hearsay evidence.

3. The child’s biological parents were in a relationship between about February 2005 and about November 2007.  After their separation, the child’s mother discovered she was pregnant with the child.  The mother and Mr Rollins commenced their relationship in about January 2008 - during the mother’s pregnancy.

4. Mr Rollins has been the child’s only father figure, and I have no hesitation in concluding that he is, for all intents and purposes, her psychological father.  He has clearly contributed to her financial, emotional and physical support for all of her life.  Further, the child is not yet aware that he is not her biological father. 

5. I accept that the child’s mother has previously provided the Respondent with an opportunity to become involved in the child’s life and that, for whatever reason, he has determined not to take up that opportunity.  The evidence establishes that the child has only ever met the Respondent on one occasion:  namely, in about October 2013 when he met her and the mother at the Registry of Births, Deaths and Marriages to sign an application to change the child’s surname.

6. The Respondent has not contributed financially to her support, and it is clear from his absence from her life that he has not made a contribution to her emotional and physical support. 

7. The mother and Mr Rollins have a child together:  P, born in 2011.  There could be no doubt whatsoever that J and P must regard themselves as sisters - living with their parents in a loving and supportive family unit.  Thus, the mother, Mr Rollins and P together constitute the child J’s family.

8. Adoption proceedings, pursuant to State legislation, have not yet commenced. Section 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by the person of a child if a number of specified matters are satisfied. Included within that list of necessary prerequisites is that the person has been granted leave pursuant to s 60G of the Family Law Act 1975 (Cth), and that the child is at least five years of age and has not yet turned 17 years of age.

9. Clearly, the child falls within those age parameters. 

10. It is clear from the terms of s 60G of the Family Law Act 1975 (Cth) that, in proceedings seeking an order for such leave, the Court must consider whether granting leave would be in the child’s best interests having regard to the effects of s 60F(4)(a), s 60HA(3)(a), and s 61E and s 65J of the Family Law Act 1975 (Cth). It is relevant to note that if a child is adopted, and immediately before the adoption a person had a right of parental responsibility for that child, that person’s parental responsibility ends on the adoption unless the adoption is by a prescribed adopting parent and leave has not been granted under s 60G of the Act for proceedings to be commenced. Such is the effect of s 61E.

11. The term “prescribed adopting parent” is defined in s 4(1) of the Family Law Act1975 (Cth) to include a person such as Mr Rollins, being a person in a de facto relationship with the child’s mother. The consequence, then, of an adoption order being made is that all parental responsibility held by the Respondent for the child will cease - as would other parenting orders if such were in effect. Parental responsibility is defined in s 61B of the Act to mean all the duties, powers, responsibilities and authority which by law parents have in relation to children.

12. The decision I make today is different to that which will face the Court charged with the decision whether to permit the adoption. The granting of leave to commence proceedings to adopt does not have the consequence just described - only the order for adoption made by the State Court will have that effect. It is, however, relevant to note that s 208 of the Adoption Act2009 is to the effect that the Court acting under that Act 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 will better promote a child’s wellbeing and best interests than an order under the Family Law Act1975 (Cth), any other Court order or no Court order at all.

13. I consider that this Court ought not grant leave to the Applicants to commence proceedings in the State Court if such proceedings would be doomed to fail because of the absence of the mandatory prerequisites. 

14. It is clear from a reading of s 60G(2) of the Act that, in determining these proceedings for leave, I must consider whether granting the same will be in the child’s best interests. I must therefore consider the familiar best interests considerations prescribed in s 60CC of the Family Law Act1975 (Cth).

15. As noted above, the child J has only met her biological father on one occasion for a brief period of time. That being the case, I am confident in concluding that she has no relationship with him.  In fact, the only father she knows is, as I have said, Mr Rollins.  I have no hesitation in concluding that he has fulfilled all the duties and responsibilities associated with parenting the child.  I have no doubt in concluding that he has and does love her as he does his own biological child, her sister.  I have no hesitation in concluding that he has in the past and will in the future treat both the child J and P as they are:  in effect, his daughters. 

16. Not only have the Applicants met the child’s emotional needs since birth, they have also been jointly responsible for meeting the financial costs associated with caring for her. There is nothing in the material to suggest that they will be unable or unwilling in any way to continue to do so into the future.

17. It is also clear that, despite the Respondent’s absence from her life, the child’s mother has supported and fostered her relationship with his parents, the biological paternal grandparents.  Further, she has clearly taken steps, no doubt with Mr Rollins’ support also, to ensure that the child is known to and knows all of her extended family, whether these be from a maternal, paternal or psychological viewpoint.  The mother’s actions are to her great credit, and without doubt, are likely to be significantly beneficial to and for the child as she matures towards adulthood.

18. Mr Rollins’ support of this engagement with extended family is also to his great credit and, I consider, a likely reflection of his capacity to put the desirability of the child having such opportunities ahead of any other consideration.  Against this background then, I am confident that the child’s mother and Mr Rollins will deal with the issue of the child’s knowledge of her biological paternity appropriately and at an appropriate time and in appropriate manner that is supportive of her.  I consider it likely that the Applicants seek the current order to ensure that their family unit can become even stronger – the child, of course, can only benefit from this.

19. There can be no doubt that the child J has been and remains an integral part of a stable, financially viable family unit constituted by the Applicants and the two children.  She also now shares her sister’s last name after the Respondent’s consent to such change last year.  I have no hesitation at all in concluding, because of his presence in her life, that Mr Rollins has supported the child emotionally to date, and there is nothing to suggest he will not continue to do so in the future to the very best of his ability.

20. Even cognisant of the consequence that successful adoption proceedings in the State Court shall have, I am well persuaded, in the circumstances briefly outlined here, that it is in the child’s best interests that the Applicants have leave to commence adoption proceedings. 

21. Given his absence from her life thus far, there is nothing in the material before me to suggest that the Respondent is likely to seek, in the future, to discharge any of the obligations and responsibilities that parental responsibility entails. 

22. For these short reasons then, I have no doubt in concluding that the proposed adoption is in the child’s best interests and I grant leave to adopt. 

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 3 November 2014.

Associate:                 

Date:    3 November 2014