Winston & Anor & Neefs

[2020] FamCA 862

FAMILY COURT OF AUSTRALIA

WINSTON AND ANOR & NEEFS [2020] FamCA 862

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

Family Law Act 1975 (Cth)

FIRST APPLICANT: Ms Winston

SECOND APPLICANT: Mr Winston

RESPONDENT: Mr Neefs

FILE NUMBER: BRC 10116 of 2020

DATE DELIVERED: 12 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 October 2020

REPRESENTATION

THE FIRST APPLICANT: Self-represented

THE SECOND APPLICANT: Self-represented

THE RESPONDENT: Self-represented

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Ms Winston and Mr Winston, be granted leave to file an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, X Clifford (aka Winston) born in 2009, by her stepfather, Mr Winston.

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 Winston and Anor & Neefs 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 10116 of 2020

Ms Winston

First Applicant

And

Mr Winston

Second Applicant

And

Mr Neefs

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application filed on 30 July 2020 the applicants, Mr Winston and Ms Winston, both seek an order that pursuant to s 60G of the Family Law Act1975 (Cth) they be granted leave to commence adoption proceedings for the adoption of Ms Winston’s eldest daughter, X, legally known as Clifford, which was Ms Winston’s family name of birth, born in 2009. The application is for leave to make a stepparent application on behalf of Mr Winston to the State courts to adopt X.

2. The person named as the respondent in the application is Mr Neefs. He is X’s biological father.  He appears today, as all the parties do, by telephone on the hearing of this application. Not only does he tell the Court that he does not oppose the application, but he also speaks glowingly of Ms Winston and Mr Winston’s role as parents to X in wholeheartedly supporting the application for leave to be granted today. 

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act 2009. It is a piece of Queensland legislation, not Commonwealth legislation.  Under the State legislation, a stepparent of a child may apply to the Chief Executive of the Queensland Department of Child Safety, Youth and Women to arrange an adoption of his or her stepchild, provided that a number of preconditions are met. Those include that the stepparent is a spouse of a parent of the child; that the parent, the step-parent and the child all live together; that the adults have been spouses and both living together with the subject child for a continuous period of at least three years up to the time of the application.

2. They also include the requirement that the stepparent applicant be an adult and an Australian citizen, or at least the spouse of the applicant must be an Australian citizen. They must also reside in Queensland, which the Winston’s do. The child must be at least 5 years of age and not yet 17, though the Chief Executive of the Queensland Department responsible for adoptions may accept an application relating to a child who has turned 17 already if the Chief Executive considers there is enough time to complete the adoption process before the child turns 18 and the grounds for making an adoption order in favour of the applicant are likely to exist (see s 92(2) of the Adoption Act 2009 (Qld)). Finally, the stepparent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act. That is what this hearing today is determining.

3. I am satisfied that the stepparent and his wife, Mr and Ms Winston, are Australian citizens, that they reside in Queensland, that they have been living together  as spouses as that term is defined in the Acts Interpretation Act for 10 years now and that the child who is the subject of the application is 11 years of age.

4. Section 60G of the Family Law Act is 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.

5. Section 61E of the 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.

6. If this court grants leave to proceed to commence adoption proceedings pursuant to s 60G and then an adoption order is made in favour of Mr Winston and Ms Winston by a State court under the Adoption Act, any parental responsibility that pre-existed the adoption order in accordance with the provisions of the Family Law Act, immediately ceases. That is, the biological parents of the child, in this case, particularly Mr Neefs, will no longer have parental responsibility in any way in respect of the child pursuant to the Act and any orders that were already in place in respect of parenting matters would automatically cease.  In this case, that does not matter as there are no such orders in place.

7. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption order by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to s 60G.  A current parenting order stops being in force if the child is adopted. As I have just said there is no such current parenting order.

8. It is sufficient to say, I consider, that in an application for leave for proceedings to be commenced in the State court by a stepparent seeking the adoption of a child, that this Court must consider whether the granting of that leave would be in the child’s best interests, having regard to the effect of a number of other important sections of the Family Law Act.

9. Essentially, the effect of those critical sections of the Family Law Act to which regard must be had when considering the child’s best interests is that on the granting of an adoption order pursuant to State legislation, any pre-existing parental responsibility rights or rights in respect of the child spending time with or living with the other parent, immediately cease.

10. Mr Winston is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Act, a person within the definition contained. 

Some History

1. Ms Winston (or Ms Clifford, as she was then known) and Mr Neefs, were in a relationship as a couple as young adults, some years ago.  I have reason to believe that their relationship was not an entirely stable one and was “on and off” as Ms Winston described it. Towards the end of that relationship, Ms Clifford (as she was then known) fell pregnant with X.  The relationship having been an “on and off” one or one that was not entirely stable, did not survive, and during the pregnancy, Ms Clifford moved to Brisbane to live with her sister and Mr Neefs went to Adelaide for some time. 

2. Around the time of X’s birth Mr Neefs returned and I heard evidence that he was present at her birth. Indeed, I heard evidence that satisfied me that in the first year of her life, he certainly saw her some five or six times. Sometimes, the mother facilitated that by taking X to visit his mother, that is the biological paternal grandmother, and that extended family, when Mr Neefs was there at the home. Sometimes he visited the mother and baby in Brisbane. 

3. There was clearly some dispute between the two parties about the parenting of X, particularly Mr Neefs’ involvement in X’s parenting and I have some evidence that he sought more time with X when she was around one year old. The mother, Ms Clifford, wanted some family dispute resolution mediation to assist them in working out some arrangements.  That did not happen and the child stopped seeing Mr Neefs and really has not seen him at all since. That is for about ten years. 

4. The evidence satisfies me that Mr Neefs for whatever reasons, (I do not know and I do not judge him in this respect) did not see lawyers to have letters written to the mother to pursue time and a relationship with X and he did not bring any proceedings in the Federal Circuit Court or the Family Court under the Family Law Act.  Accordingly, there are no parenting orders or a parenting agreement in place in respect of the child and only the parental responsibility conferred on biological parents of a child through the Family Law Act would still exist. 

5. The mother soon thereafter, when X was still a baby/toddler, formed a relationship with Mr Winston whom she had known in the past. They commenced dating, she tells me, in 2010 and started living together in 2011.  They married in 2012 and she changed her name on that marriage to have the same family name as Mr Winston.  X, who was approaching three years of age at the time they married, took part in their wedding ceremony and in fact was the flower girl, to her total delight I understand and accept.  As one could imagine, X not having spent any time with or seen her biological father has grown from that time to the young 11 year old girl that she is now, only knowing and experiencing the parenting and fathering of Mr Winston. 

6. Mr and Ms Winston have since had two children of their own, now seven and four years of age, and they are raising these three as a family.  Unsurprisingly, for all intents and purposes, although not legally on any register, X goes by the name X, particularly at school.  She is, I am told and accept, a child who suffers from Asperger’s Syndrome to some degree and it makes it easier for her to have the same name as her mum, dad and siblings.  That is not surprising at all.   

7. The simple fact is that for those ten years Mr Winston, who is a tradesman by occupation, has been Ms Winston’s partner and co-parent in raising X and their other two children. On the evidence, according to Ms Winston, who might very well be the best person to judge, Mr Winston has been doing a sterling job as a father. As I have already said, Mr Neefs has equally praised Mr Winston’s role as a father to X in those years since he has been living with her. No doubt his mother has filled him in with her knowledge of this matter.

8. Mr Winston satisfied me that he understands the obligations that he seeks to take on in making this application. Clearly, it is something that he and Ms Winston have decided to do themselves. I understand that X supports the application to the extent that she can as an 11 year old with Asperger’s, although she knows that she has a different biological dad and she has photos of her and him as a baby and she still has a relationship with her biological paternal grandmother and other members of the biological father’s family. However, I cannot imagine that she would have been the driving force herself behind the application. 

9. I am quite satisfied that Mr Winston willingly and voluntarily seeks to take on this responsibility knowing entirely all of the lawful obligations that he is taking on. I am satisfied having spoken with Mr Neefs this morning that he understands this and he understands the extinguishment of his rights of parental responsibility in respect of X that will happen upon the making of an adoption order, not today’s order, but the actual making of a stepparent adoption order if it is subsequently made, after I have given leave pursuant to s 60G of the Family Law Act. 

10. I do not consider there is any need to go on and say anything more apart from congratulations to Mr and Ms Winston for the job that they are doing in respect of the three children, and congratulating Mr Neefs for taking what is an honourable and respectful position in respect of this. I get a sense, without taking it up with any of the parties, from the evidence I have heard about Ms Winston and her children having a good relationship with Mr Neefs’ mother, that indeed there is every chance that in the future as X grows she may indeed be able to see and spend a little time with her biological dad and may have some sort of reasonable relationship with him as a biological dad.  

11. I expect that these three relatively young adults would all appreciate that identity for each of us human beings is very important as we grow into adulthood. We all need to know where we come from, what our past is, who our ancestors were, what part of the world they came from, what part of the world our DNA comes from, what sort of people our DNA comes from. Sometimes we need to know it for our own personal health reasons, but also it really is essential for each of us in coming to terms with who we are as people and where our position fits in this wonderful world. 

12. So having said all that, again I congratulate all of the three parents, and I make the order that is sought by the applicants.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 October 2020.

Associate:

Date:  12 October 2020