COURT GRANTS STEPFATHER’S APPLICATION SEEKING FOR LEAVE TO COMMENCE ADOPTION PROCEEDINGS
HEXTER AND ANOR & GABEL
FAMILY COURT OF AUSTRALIA
[2020] FamCA 619
This is an application for an order seeking for leave to commence proceedings for the adoption of a child.
FACTS:
Mr. Helex (the stepfather) commenced by Initiating Application an order seeking for leave pursuant to s 60G of the Family Law Act 1975 (Cth) to commence proceedings for the adoption of X (the child). The stepfather and Ms. Helex (the mother) married in 2019 after commencing cohabitation at about the beginning of 2016, at which time the child was about six months old. Since at least the time of cohabitation, the stepfather has taken up and assisted the mother to discharge all of the obligations that are associated with being a parent.
The mother separated from Mr. Gabel (the biological father) before discovering she was pregnant with the child. Since the child’s birth, the biological father has paid no child support through the Child Support Agency in relation to her support and, thus, has made no contribution to her financial support; and that his contact with her has been very limited and has not occurred for a significant period of time. The biological father only sought to have contact with the child only once. None of the child’s biological paternal family members have made any attempts to have any contact with her. The biological father has not filed any material in response to the Application.
ISSUE:
Whether or not the Court should grant leave for parties to commence adoption proceedings.
HELD:
Section 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the chief executive to arrange an adoption by that person of a stated child only if a number of matters are satisfied, including that a person has been granted leave under the Family Law Act 1975 (Cth). [1]
In determining whether to grant leave for parties to commence adoption proceedings, the Court must be satisfied that the proceedings are by a prescribed adopting parent. In this case, that condition is clearly satisfied. This Court must also consider whether granting leave will be in the child’s best interests, having regard to the effects of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth) where those sections are applicable in any particular case.
The granting of leave to commence proceedings for the child’s adoption does not have the consequences outlined in those sections particularized in s 60G of the Family Law Act 1975 (Cth) – only an order for adoption, if made by an appropriate State Court, has that effect. However, section 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters, which include that an order for adoption by a stepparent would better promote the child’s well-being and best interests than an order under the Family Law Act 1975 (Cth), any court order or no order at all. It is, therefore, apparent that the Court ought not make an order granting leave to an Applicant to permit proceedings in a State Court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites. In this case, the Court is satisfied that the mandatory legislative prerequisites are established on the evidence.
In determining whether granting leave to commence proceedings is in the child’s best interests, “best interests” considerations must be considered. [2] The Court is satisfied that the stepfather is the child’s father for all intents and purposes. The Court finds that the stepfather would be honored to adopt the child. The stepfather has committed to loving and supporting the always, and that the application for adoption that will be commenced (if leave is granted) is simply a manifestation of that desire and a desire to formalize the arrangements. The Court is satisfied that the child, the mother, and the stepfather will likely gain significant additional emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made. For these reasons, the Court held that the commencement of proceedings seeking adoption is something that is in the child’s best interests.
[1] Subparagraph (1)(d), Section 92 of the Adoption Act 2009 (Qld).
[2] s 60CC of the Family Law Act 1975 (Cth).