Adoption and family law
Tilman and Anor & Baxter  FamCA 141 (9 March 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/141.html
- The mother married her co-applicant in 2007 and shortly thereafter they purchased a home with the child moving to a primary school at Suburb C. The child commenced high school in 2013.
- The child is currently in year 10 at high school, in good physical health save for having regular assessments for cognitive functioning. His overall abilities remain in the low to average range of cognitive functioning.
- The father currently makes no contribution to child support, not having paid child support since November 2014. The child is otherwise supported financially by the mother and her husband.
- The mother and stepfather wish to formally adopt the child in proceedings under the relevant state legislation. Should that application for adoption be successful it is the mother’s wish and the child’s wish that he be known B Tilman. The child has already adopted the use of that name informally.
The Family Report
- In the context of the application consideration was given to the Family Report dated 13 February 2016 prepared by Mr D, family consultant.
- The family consultant considered the documents filed in these proceedings and interviewed the child on 11 January 2016.
- The child presented to the family consultant as a tall, quietly spoken youth with a pleasant disposition. The family consultant reports that the child remembers very little about the father, knowing his name but not knowing his current whereabouts. He could not remember what his father looked like nor did he hold any recollection of the paternal grandparents.
- The child assumes that there has been no contact from his father because his father is not interested in him. He does not care about his father “because he doesn’t care about me”.
- The child spoke positively of the mother and her husband saying that they are deeply caring of him and his young siblings. He gave examples of that affection to the family consultant. The child confirmed to the family consultant that he wished to change his surname as sought by the mother saying that he felt identification with his mother’s new husband as his “dad” for many years. He reported to the family consultant that he himself had commenced using the proposed new surname.
- In evaluation the family consultant reported that the child impressed as an emotionally mature teenager, psychologically stable and apparently will cared for in the day-to-day sense. The child identifies strongly with his family and to all intents and purposes regards Mr Tilman as his father. The child showed a clear understanding of and support for the application before the Court.
- Overall the family consultant was of the view that the child’s wishes should be given significant weight.
- Section 60G provides that this Court may grant leave for proceedings to be commenced for the adoption of a child by a “prescribed adopting parent”. For the purposes of the Family Law Act 1975 (Cth) (“the Act”) a “prescribed adopting parent” means:
- A parent of the child; or
- A spouse of or a person in a de facto relationship with a parent of the child; or
- A parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
- The applicants are prescribed adopting parents for the purposes of the Act.
- Should the applicants not have sought leave as in the present application they would not have been precluded from obtaining an adoption order in relation to the child.
- However the Act provides that an adoption order with prior leave under s 60G of the Act:
- Ends parental responsibility for the child or children of the parent who is not the adoptive parent (s 61E(2));
- Renders the child the subject of the adoption order no longer a child of the marriage for the purposes of the Act (s 60F(4)(a));
- Ends the operation of any parenting order which was in force under the Act (s 65J).
- In proceedings for leave the Court must consider whether granting leave would be in the child’s best interests having regard to the effect of an adoption order as set out above.
- These considerations were considered in detail by Benjamin J in Prior & Prior  FamCA 592.
- Notwithstanding the granting of leave the mother and the respondent father will each continue to have parental responsibility for the child by reason of the provisions of the Act until such time as an adoption order is made.
- The determination of a child or children’s best interests is to be made having regard to the consideration set out in s 60CC of the Act.
- In qualitative and prospective terms the child has a significant and meaningful relationship with the mother who has been his primary carer throughout the whole of his life. That relationship is valuable, significant and important to the child.
- The child has no relationship with the father who has had no contact with him for about 10 years. There does not seem to be any reasonable prospect at least into the foreseeable future of the child’s relationship with their father being restored. However the child is of an age where he is able to form his own view as to whether he would make enquiries as to the father and seek to have some sort of relationship with him into the future.
- There are no protective concerns in relation to the subject child. Incidents of family violence as between the mother and father are of historical interest only but were regrettable.
- There are strong views expressed by the child as referred to above. They should be afforded significant weight.
- The child has a well-established and settled relationship with his mother and a well-established relationship with his stepfather. The child regards the stepfather as his father and refers to him accordingly. He has no relationship with his father as referred to above.
- The mother has engaged in making long-term decisions in relation to the child and has been his primary carer in the absence of the father since the child was six years of age. The father has in effect abandoned his responsibilities in this regard to the child’s mother and stepfather.
- The mother and her husband have undertaken the obligation to maintain the child in the absence of any meaningful financial contribution by the father.
- The mother has demonstrated an appropriate capacity in conjunction with her husband to provide for the needs of the child including his emotional and intellectual needs. There is no evidence of any such capacity in the father.
- The mother has demonstrated an appropriate attitude to the child and her responsibilities of parenthood in particular in seeking to formalise the present arrangements in which the child lives with her and her husband. The father on the other hand has abdicated these responsibilities completely to the mother.
- There has been historical violence as referred to above as between the mother and father, being the subject of police intervention and an apprehended domestic violence order.
- There is no ongoing family violence order involving the child or a member of the child’s family.
- There are no other relevant factors for the Court’s consideration.
- In circumstances where the applicants are likely to be successful in an application for the adoption of the child, the Court is satisfied that it is in the best interests of the child that leave be granted having regard to the consequences of that leave being granted under the Act as referred to above.
- Otherwise the applicants seek an orders that they have equal shared parental responsibility for the child and that the child live with them.
- The presumption of equal shared parental responsibility does not apply as the second applicant is not a parent. The issue is determined by the child’s best interests.
- In the light of the discussion of the child’s best interests set out above it is appropriate that such orders be made.
Change of Name
- The nature of orders relating to a child’s surname was considered by the Full Court of the Family Court in Flanagan v Handcock  FamCA 150. It is apparent from the Full Court’s decision that whichever way one analyses a change of name issue, that is by reference to a s 68B injunction or a s 65D parenting order, either directly or indirectly the paramountcy principle as to the child’s best interests is applicable.
- There are numerous decisions that pre-date the 1995 amendments to the Act relating to a child’s surname.
- In Foocks v McCarthy  FamCA 117 Warnick J held at :
There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.
- The factors frequently considered in determining whether there should be any change to a child’s name include:
- Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
- Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
- The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
- The effect of frequent or random changes of name;
- The contact that the non-custodial parent has had and is likely to have in the future with the child;
- The degree of identification that the child or children have with their non-custodial parent; and
- The degree of identification which the child or children have with the parent with whom they live.
- A consideration of relevant factors is indicative of an order as sought by the applicants.
- The order for equal shared parental responsibility carries with it responsibility for name. However for the sake of clarity and to facilitate the name change a facilitating order will be made.
Section 66M Order
- The applicants seek an order that the second applicant Mr Tilman has a duty to maintain the child under s 66M of the Act. The application for such an order Division 7 of the Act is ill-founded.
- In Mulvena & Mulvena & Butler & Edwards  FamCA 280 it was said:
The purpose of the Division is to make provision for child maintenance and it places upon parents the primary duty to be responsible for the financial support of their children. The purpose of s 66M is to provide for those cases in which a parent cannot meet this duty and it is appropriate, in the circumstances of the case, to impose a secondary duty on a step-parent. It can be said, then, that if there is no application for child maintenance, there can be no duty imposed under s 66M. That is to say, the duty only exists in conjunction with an application asserting a right to child maintenance.
This conclusion is supported by the words of s 66N which clearly assume there is an application under Division 7. The same result can be reached by asking what right corresponds to the duty in s 66M and the answer to that is an application for child maintenance. That is because a determination under s 66M(2) is preliminary to an enquiry into what financial support, if any, the step – parent ought to provide. Therefore, the application fails at this point. If I am wrong in that view, the application still does not satisfy the provisions of s 66M(3).
- The order will be refused.
- Otherwise orders will be made accordingly.