Winkle and Goding

[2010] FamCA 732

FAMILY COURT OF AUSTRALIA

WINKLE & GODING [2010] FamCA 732

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s 60G – Leave granted

Family Law Act 1975 (Cth) ss 60G(1), 60G(2), 60F(4)(a), 60HA(3)(a), 61E, 65J, 60CC, 60CG
Adoption of Children Act 2009 (Qld) s 92(1)(d)

Saunders & Best [2010] FamCA 654

FIRST APPLICANT:	Mr Winkle
SECOND APPLICANT:	Mrs Winkle

RESPONDENT: Mr Goding

FILE NUMBER: BRC 3253 of 2010

DATE DELIVERED: 17 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 17 August 2010

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. Pursuant to s60G of the Family Law Act 1975 (Cth) Mr Winkle has leave to commence proceedings for the adoption of the children C born … February 1997 and B born … November 1999.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3253 of 2010

MR WINKLE

First Applicant

And

MRS WINKLE

Second Applicant

And

MR GODING

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 60G(1) of the Family Law Act 1975 (Cth) by Mr Winkle and Mrs Winkle that Mr Winkle have leave to commence proceedings for the adoption of C born in February 1997, thirteen and a half years, and B born in October 1999, nearly eleven years. Mrs Winkle is the children’s biological mother and Mr Winkle is their stepfather. Their biological father, Mr Goding, has been served with the application for leave to commence the adoption proceedings and supporting material and consents to the order being made and indeed to the adoption.

2. The Adoption Act 2009 (Qld) provides by s 92(1)(d) that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under s 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under s 60G(2) of the Commonwealth Act I am required to consider whether the granting of leave would be in the children’s best interests having regard to the effect of s 60F(4)(a) or s 60HA(3)(a) and ss 61E and 65J.

3. Section 60F(4)(a) has effect that if I grant leave for the adoption proceedings to be commenced, and the adoption proceeds, the children will cease to be the children of the marriage between Mrs Winkle and Mr Goding. That marriage occurred at Easter 1996 and was the subject of a divorce in April 2002. Section 60HA deals with de facto relationships. It is not applicable as Mrs Winkle and Mr Goding were not de facto partners. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been granted under s 60G for the adoption proceedings to be commenced. If I grant leave to commence adoption proceedings and an adoption order ultimately is made by the State Court then Mr Goding will cease to have parental responsibility for the children. Section 65J(2) provides that a parenting order stops being in force on the adoption of a child unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced. The evidence includes that a consent parenting order was made between Mrs Winkle and Mr Goding on 3 April 2002 for the children to live with her and spend time with him. However, the evidence includes also a written agreement between them dated 18 October 2004 the effect of which is that Mr Goding agreed not to enforce such provided that Mrs Winkle ceased all child support claims and that if the children expressed the wish to see Mr Goding then Mrs Winkle would allow and facilitate this. As events have transpired, the children have not seen Mr Goding since about Christmas 2004.

4. I turn then to the matter of the children’s best interests.  I will refer to the particular provisions of ss 60CC to 60CG of the Commonwealth Act which relate to the determination of a child’s best interests only to the extent as on the material may seem relevant.

5. The children have a close relationship not only with Mrs Winkle and Mr Winkle but also with Mrs Winkle’s parents, that is, the maternal grandparents.  It appears that the children presently have no relationship with Mr Goding, having not seen him since about Christmas 2004.  However the agreement between Mrs Winkle and Mr Goding dated 18 October 2004 leaves the door open for the children to spend time with Mr Goding if they should express the wish to do so.  Mrs Winkle and Mr Winkle have been married since August 2004 and the children have lived with them since.  At that time C was about six and a half years and B nearly five years.  The children were very involved in the marriage and indeed part of the wedding party.  Mr Winkle says that the children have called him Dad and treated him as their Dad for as long as he can remember and he loves them as his own sons. 

6. In July 2004, the month before the marriage between Mrs Winkle and Mr Winkle, Mr Goding had telephoned Mr Winkle and asked if he would like to adopt the children to which he replied “without a doubt”.

7. Soon after the marriage in August 2004 the children started using Mr Winkle’s surname by their own choice and have used that name since.  They hold passports in that surname. 

8. Mr Winkle has supported the children now for many years, Mr Goding not having paid child support since about 2004. 

9. The children, it appears, are achieving well at school and engage in several extra curricular activities. 

10. Mrs Winkle believes that the adoption would give the children security and stability. 

11. There is evidence that the children are well‑behaved, polite and pleasant children and that Mr Winkle is strict but fair with them. 

12. Mrs Winkle supports the adoption and says that the children are really happy about it.  As I have observed already, Mr Goding supports the adoption and willingly consents to it, it being he who first raised it as a possibility.

13. In all of the circumstances having carefully weighed all of the above matters I am satisfied for the purposes of the Commonwealth law that it is in the children’s best interests that I grant the leave sought and I will do so. 

14. I note that Mr and Mrs Winkle apply for Mr Winkle solely to have leave to commence the step-parent adoption proceedings.  I will, therefore, make the order in his name only.  In some other cases both the step-parent and the spouse have applied.  In relation to such cases I would refer to my observations in, for example, Saunders & Best [2010] FamCA 654 at [21]. However, in this particular case, as Mr Winkle solely has applied for leave to commence the proceedings that is the order which I will make.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:                 

Date:    19 August 2010