Woodbury and Anor and Fowler (No 3)

[2020] FamCA 205

FAMILY COURT OF AUSTRALIA

WOODBURY AND ANOR & FOWLER (NO. 3) [2020] FamCA 205

FAMILY LAW – ADOPTION – Adoption granted – Withdrawal of Amended Initiating Application – Oral Amendment to Amended Initiating Application to reinstate orders sought – Application to amend registration of child’s surname.

Adoption Act 1993 (ACT) s 4, 5, 9, 13, 14, 39D, 39E, 39F, 45, 60
Family Law Act 1975 (Cth) s 60G

APPLICANT: Ms Woodbury

SECOND APPLICANT: Mr Woodbury

RESPONDENT: Mr Fowler

FILE NUMBER: CAC 2580 of 2018

DATE DELIVERED: 26 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 26 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

SOLICITOR FOR THE SECOND APPLICANT: Evans Family Lawyers

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. I grant leave to the Applicants to withdraw their Amended Initiating Application as set out in orders 3 and 4 of that Amended Initiating Application.

2. Leave is granted to the Applicants to orally amend the Amended Initiating Application to reinstate applications 3 and 4 of the Amended Initiating Application as filed with the Court on 25 September 2019.

3. That X, born … 2010, is adopted by Mr Woodbury.

4. That the Registrar of Births, Deaths and Marriages of the Australian Capital Territory be requested to amend the registration of the child’s surname on the appropriate register to that of X, noting her name to have formally been X, born … 2010.

5. That the balance of the proceedings are otherwise dismissed.

6. Pursuant to s 60 of the Adoption Act 1993 (ACT) no one can inspect the Court file, in relation to the adoption proceedings, without leave of a judge.

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 Woodbury & Fowler 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 CANBERRA

FILE NUMBER: CAC 2580 of 2018

Ms Woodbury

Applicant

And

Mr Woodbury

Second Applicant

And

Mr Fowler

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an application by Mr Woodbury, supported by Ms Woodbury and supported by Mr Fowler for an adoption order to be made such that Mr Woodbury would become the parent along with Ms Woodbury of X, born … 2010. 

2. Although the application was expressed as adoption by the applicants, being both Ms Woodbury and Mr Woodbury, I have been informed that the application is only in respect of Mr Woodbury as Ms Woodbury is the Mother and would remain the parent of X following such an order being made. 

3. It is important to acknowledge at the commencement of these reasons that full support for this application is being given by Mr Fowler, who at present is the Father of X.  The circumstances of Mr Fowler’s relationship with X and with the Mother are set out in the affidavit material and also referenced in the s 39D Adoption Report which is exhibit M1 of these proceedings. 

4. Mr Fowler’s support is indicated both by his attendance in Court today, in which he orally expresses his support for the adoption, and also in his execution of the relevant consent, which is contained at exhibit M2.

5. In determining whether or not an adoption order ought to be made I am to take into account the objects of the Adoption Act 1993 (ACT) as set out in s 4 and am to bear in mind that the paramount consideration in determining whether or not to make an adoption order is X's best interests as set out in s 5 of the Adoption Act. 

6. There are residency and age requirements for an adoption order being made, set out at ss 9 and 13 of the Act, all of which are met in this case, as indicated both by the affidavit material and by the Adoption Report. 

7. The Applicant, Mr Woodbury, is on the register of suitable people as he is required to be by s 14 of the Adoption Act. He is currently X's stepfather and has obtained leave pursuant to s 60G of the Family Law Act 1975 (Cth) to commence these proceedings. I am to be satisfied that appropriate consultation has taken place with X, pursuant to s 39E of the Adoption Act.  By virtue of the report has been prepared by the Director-General, I am so satisfied.

8. I am to consider the matters set out at s 39F of the Adoption Act.  I am satisfied that the relevant consent, being the consent given by Mr Fowler, has been made as shown at exhibit M2 of the adoption proceedings.

9. I am further satisfied that the period within which the consent may be revoked has expired without the consent having been revoked.  On consideration of the material before me, and in particular consideration of the s 39D Report I consider that Mr Woodbury is a person of good reputation and able to fulfil the responsibility of the parent of X, including protecting her well-being, both physically and emotionally and I conclude that he is a person who is suitable to adopt X, in particular in virtue of the nature of the relationship that he has with X, which is demonstrative of the fact that he loves and supports X. 

10. I also conclude that the adoption is in the best interests of X for reasons which I will shortly turn to.  In determining that an order should be made I note that X, as expressed in the s 39D Report, has expressed her full support of the order being made and also her clear understanding of the ramifications of an adoption order, meaning that she will legally now have Mr Woodbury as her Father and no longer have Mr Fowler as her Father. 

11. I note the contents of the adoption plan contained within that Adoption Report. As noted before, I am required to determine that the adoption order is in X's best interests. Considerations that I am to take into account in determining X's best interests and as set out at s 5 of the Adoption Act.  I am to consider the likely effect of the decision on X's life course.  At present X lives within a well-settled and loving family being the Woodbury family.  It is likely that she will continue to do so.  The making of an adoption order formalises her status as not only the stepdaughter of Mr Woodbury, but Mr Woodbury's daughter.  That reflects the practical reality of what it is that X currently enjoys.  I am to consider X's age, level of understanding, level of maturity, gender, and personal characteristics.  These are referred to in the s 39D Report.  They are indicative that X has a good understanding of the effects of such an order being made and that she supports such an order being made.  They are also indicative that her needs in respect of her age, understanding, maturity, gender and personal characteristics are being met by the current domestic relationships that she enjoys, being Mr Woodbury being her stepfather and living with her mother. 

12. I am to consider her physical, emotional and educational needs.  These are indicated to be being well met which can be seen in X's appropriate development.  I am to consider her views.  I have already referenced those.  X's relationships with the Woodburys and with her sister are supportive of the order being made.

13. The lack of relationship with Mr Fowler is also indicative that the order should be made and as noted I have noted the suitability and capacity of Mr Woodbury as an adoptive parent.

14. I am to consider alternatives to an adoption.  I note that these proceedings commenced initially with an application pursuant to the Family Law Act that would not have the effects of an adoption.  It I am told was not supported by Mr Fowler, who until the making of the adoption order is X's Father, while he supports the making of an adoption order.  The adoption order is the most satisfactory order to be made in the promotion of X's best interests.

15. Having considered these matters, I order that X, born in 2010 is adopted by Mr Woodbury.

16. An application is made pursuant to s 45 of the Adoption Act 1993 (ACT) seeking to change the name of X, born in 2010, to X. In determining this matter I am to consider the matters set out at s 45 of the Adoption Act which included the best interests of the child or young person and the child's or young person's right to retain his or her name and identity. 

17. I have before me a report pursuant to s 39D which deals with the proposed name change and X’s circumstances including her best interests.  It has been identified that X's Mother bears the name Woodbury, along with X's Father pursuant to the adoption order that I have just made.  Woodbury is also the surname of X's younger sister.  What is sought is a change in X's name so that it would reflect that of the rest of her family.  This is a matter which accords with her views of the matter.  In coming to those views X has demonstrated a maturity of understanding of the effects of an adoption order.  It is appropriate and in her best interests that, in accordance with her views and in accordance with the structure of her family, that such an order be made.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 March 2020.

Associate: 

Date:  30 March 2020