Wing and Anor and Avery

[2016] FamCA 707

FAMILY COURT OF AUSTRALIA

WING & ANOR & AVERY [2016] FamCA 707

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – step-parent adoption – where the child’s biological father consent’s to the adoption – where the child’s biological father has not spent time with the child since 2001, nor sought to exercise his parental responsibility for the child in that time – best interests of the child – where leave is granted.

Family Law Act 1975 (Cth)
Adoption Act 2009 (Qld)

Fogell & Ashton (1993) FLC 92-429

1st APPLICANT: Mr Wing

2nd APPLICANT: Ms Wing

RESPONDENT: Mr Avery

FILE NUMBER: BRC 6844 of 2016

DATE DELIVERED: 25 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 August 2016

REPRESENTATION

FOR THE 1ST APPLICANT: Mr Millwater

SOLICITOR FOR THE 1ST APPLICANT: McNamara & Associates

FOR THE 2ND APPLICANT: Mr Millwater

SOLICTOR FOR THE 2ND APPLICANT: McNamara & Associates

COUNSEL FOR THE RESPONDENT: Self-represented

Orders

1. Pursuant to s 60G of the Family Law Act1975 (Cth) Mr Wing and Ms Wing are granted leave to commence adoption proceedings in respect of the child B born … 2000.

2. All outstanding Applications be otherwise dismissed and removed from the pending cases list.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6844 of 2016

Mr Wing

First Applicant

And

Ms Wing

Second Applicant

And

Mr Avery

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. B (“B”) was born in 2000 and is currently 16 years of age. She is the subject of this application by her step-father, Mr Wing (“the step-father”) and her mother, Ms Wing (“the mother”) for leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”).

2. Mr Avery (“the biological father”) is the biological father of B and he consents to this application. 

3. The mother and biological father were married in 2000 and shortly thereafter they separated.  The biological father has not had any contact with B since early 2001 and deposes in his affidavit of 8 August 2016 to having no relationship with his daughter. 

4. The mother and step-father were married in 2003 and have been the joint primary carers of B since October 2000. B refers to the step-father as ‘dad’.

5. The step-father and mother have a child together, C, born in 2002. C is said to be supportive of the adoption.

Relevant legislative provisions

1. Section 60G relevantly provides:

   (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 ….

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

2. ‘Prescribed adopting parent’ is defined in section 4(1) of the Act, that being:

   (a)a parent of the child; or

   (b)the spouse of, or a person in a de facto relationship with, a 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 the parent.

3. Sections 60CB to 60CG set out how a Court determines what is in a child’s best interests.

4. Section 60F(4)(a) provides:

   (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 commenced--the child ceases to be a child of the marriage for the purposes of this Act;

5. Section 61E provides:

   (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.

6. Section 92 of the Adoption Act 2009 (Qld) relevantly provides:

   (1) A person may apply to the chief executive to arrange an adoption by the person of a stated child if—

   (a) the person is the spouse of a parent of the child; and

   (b) the person, the person's spouse and the child are living together; and

   (c) paragraphs (a) and (b) have applied for a continuous period of at least 3 years up to the time of the application; and

   (d) the person has been granted leave under the Family Law Act 1975 (Cth), section 60G(1); and

   (e) the person is an adult; and

   (f) the person or the person's spouse is an Australian citizen; and

   (g) the person is resident or domiciled in Queensland; and

   (h) the person's spouse is not the same gender as the person; and

   (I) the child is at least 5 years old and has not yet turned 17.

   …

Discussion

1. As Chisholm J remarked in Fogell & Ashton (1993) FLC 92-429 at 80,390:

   It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter court’s ordinary jurisdiction.  Nevertheless, that is the consequence of the provisions of the Family Law Act1975.

2. In this case the mother and stepfather are prescribed adopting parents within the meaning of the Act.

3. In determining the application for leave I must consider what I find to be in B’s best interests by reference to the relevant parts of s 60CB – 60CG and the particular sections referred to in s 60G so far as they are relevant. While I may not specifically discuss each subsection I have considered them where relevant.

4. B is now sixteen and has lived all her life, as she would remember it, with her mother and step-father. She has no relationship with her biological father. He has not seen her since she was a baby. She has informed her mother that she wants her step-father to adopt her.

5. She has a close and loving relationship with her mother and step-father and brother, C.

6. The biological father consents to the application for leave.

7. I am satisfied that it would be in B’s best interests for leave to be granted.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 25 August 2016.

Associate:

Date:  25 August 2016