The Adoption Pathway in Queensland and its interaction with the Family Law Act
- In Queensland, the adoption of children is governed by the Adoption Act 2009. It is a piece of Queensland legislation, not Commonwealth. Under that 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 stepparent 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.
- 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 and, interestingly, not be of the same gender as their spouse. The child must be at least 5 years of age and not yet 17. 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.
- 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.
- Section 61E of the Act provides as follows: (1)(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.
- 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 Church and Ms Baxter 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 Baxter, will no longer have parental responsibility 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.
- Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption 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.
- I consider it sufficient to say that in proceedings 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.
- 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.
- However, in the circumstances of this case, that will not matter insofar as parental responsibility is concerned for Mr Baxter, because Ms Baxter already has sole parental responsibility for the child under orders made pursuant to s 61C(1) of the Act. Interestingly, since the parties separated, Mr Baxter has been assessed as having a child support liability and an obligation to pay child support for the child to the Child Support Agency. Ms Baxter’s evidence, which I accept, is that she has never received any financial support from Mr Baxter for the child.
- Mr Church is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Act, a person within the definition contained.
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Sunshine Coast / Brisbane / Gold Coast / Townsville
