ABBASI & JAHANIDEH

[2018] FamCA 1168

FAMILY COURT OF AUSTRALIA

ABBASI & JAHANIDEH [2018] FamCA 1168

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the respondent biological father is deceased – Where the applicants do not yet meet the criteria required for an adoption application under State legislation – Order that leave be granted.

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)

FIRST APPLICANT: Mr Abbasi

SECOND APPLICANT: Ms Jahanideh

RESPONDENT: Mr B

FILE NUMBER: BRC 6114 of 2018

DATE DELIVERED: 25 July 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25 July 2018

REPRESENTATION

THE FIRST APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Mr Abbasi and Ms Jahanideh, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child C born … 2008, by her stepfather, Mr Abbasi.

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 Abbasi & Jahanideh 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 6114 of 2018

Mr Abbasi

First Applicant

And

Ms Jahanideh

Second Applicant

And

Mr B

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Initiating Application filed in June of this year, Mr Abbasi asks the Court to make an order pursuant to s 60G of the Family Law Act 1975 (Cth) (“Family Law Act”), that he be granted leave to commence adoption proceedings for the adoption of Ms Jahanideh’s child, C born in 2008.  I shall refer to the child as “C” and to the mother as “Ms Abbasi” from here on.  The application for step-parent adoption that the applicants wish to proceed with is one that is made in the State Courts of Queensland. The subject child C, is now nine years of age.

2. Incorrectly, due to an administrative error in the Court’s filing processes, the person named as the respondent to the application is the child’s biological mother, Ms Abbasi.  Rather, the person named as the respondent to the application should have been Mr B, the subject child’s biological father. Mr B is however, sadly, now deceased. Whilst the certified and translated copy of the biological father’s death certificate filed in this Court does not provide the particulars of his death, it confirms that he passed away in mid 2012.  At the hearing of the application this morning, in response to some questions I asked of Ms Abbasi, the Court was informed that in fact, sadly, Mr B, C’s biological father, suffered a heart attack whilst playing football and subsequently passed away in the hospital after he was taken there, having suffered that heart attack.

3. C’s birth certificate, a certified and translated copy of which has been filed in this Court, records Mr B as her father. As no last name was recorded on the child’s birth certificate I have cross checked the father’s identification card number on C’s birth certificate with the identification card number on his death certificate. I am satisfied that Mr B was indeed C’s biological father. To correct this administrative error, I will amend the Court record so that Mr Abbasi is listed as the First Applicant, Ms Abbasi is listed as the Second Applicant and Mr B is listed as the Respondent. Accordingly, I will treat the application as being one where both applicants are seeking leave to commence adoption proceedings in the State Courts. 

4. It is also important to acknowledge that since the application was filed on 5 June 2018, the applicants have filed two Change of Name Certificates in this Court. These record that the Mother and child formally changed their surname to Abbasi on 4 June 2018 here in Australia. Whilst they will formally remain listed in the Court system as Ms Jahanideh and Ms B, I will respectfully refer to the Mother as Ms Abbasi and the child as C throughout the remainder of this judgment.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act2009 (Qld) (“Adoption Act”). It is a piece of Queensland legislation, it is not Commonwealth legislation.  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.

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. The child must be at least 5 years of age and not yet turned 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.

3. Section 60G of the Act sets out the basis upon which this court can proceed and give leave to applicants such as those who are before me, 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.

4. Section 61E of the Family Law 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.

5. 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.

6. 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, 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 Act.

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

8. Essentially, the effect of those critical sections of the 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 the State legislation, any pre-existing parental responsibility rights and rights in respect of the child spending time with or living with the other parent, immediately cease. 

9. In this particular case, there is no evidence of any parenting order being in place.  The evidence is that C’s biological father, is deceased and has been for some years now, and sadly, C has as a result, not seen her father since she was just three and a half years old.

10. Having regard to the evidence that I have just referred to, I do accept and make a finding, to the extent that it is necessary, that the child’s biological father is deceased and that consequently his consent to the making of an order pursuant to s 60G of the Act or indeed in respect of the application for Mr Abbasi to adopt the child in Queensland, is not and cannot be required.

11. The child’s biological mother Ms Abbasi has, being the only surviving parent of the child, all parental responsibility for the child pursuant to s 61C of the Family Law Act. Interestingly, I observe the fact there is a certified and translated Letter of Guardianship from the Country D Ministry of Justice which was filed in this Court that identifies the appointment of Ms Abbasi as C’s guardian on 27 October 2016. Such responsibility requires Ms Abbasi to observe what is best for C. This includes, fulfilling her legal obligations and annually submitting relevant invoices to the Public & Revolution Prosecutor’s Office in Country D.  What that means is not clear to me.

Best interests

1. The test for me to consider this morning is whether it is in the child’s best interests for leave to be granted for her stepfather, Mr Abbasi, to commence an adoption application with the support of his wife, Ms Abbasi. In the process of considering that question, I must have regard to, relevantly, the provisions of ss 60CC and 60CD of the Family Law Act as well.

2. Section 60CC(3) includes a list of many things that must be considered by the Court in determining what is the best interest of the child. It includes importantly any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that go to the weight that should be given to any of those views expressed by the child that the Court thinks are relevant.

3. The evidence that I have read in this matter, being affidavits filed by Mr Abbasi filed 5 June 2018 and 27 June 2018, and affidavits filed by Ms Abbasi filed 5 June 2018 and 27 June 2018, convinces me that C relates to Mr Abbasi in what can only be described as a father and daughter style relationship. Being the age C is and having regard to the questions she has already been asking of her parents, it is important and encouraging that C is aware of Mr Abbasi’s intention to adopt her and she is happy and supportive of this occurring. It is also very telling to learn that C wishes to say Mr Abbasi is her father when people ask her about the identity of her father.

4. In respect of other matters that are relevant, Mr and Ms Abbasi met in 2016. After dedicating time and resources to the determination of their compatibility, they married on 13 October 2016. Ms Abbasi and C moved permanently to Australia upon Mr Abbasi sponsoring them and Ms Abbasi being granted a spousal visa. Both applicants depose to happily living in Brisbane. Mr Abbasi provides evidence of an earlier marriage which ended in divorce soon after Mr Abbasi consented to a domestic violence order under his old name. I find it encouraging to know that Mr Abbasi believes that he and Ms Abbasi’s “effective problem solving ability” has prevented any problems in their relationship.

5. Mr Abbasi has no other children.  He deposed in his affidavit material an intention on his part and on Ms Abbasi’s part, to have more children in the future. Happily, as I have been informed this morning, the applicants learned only yesterday that Ms Abbasi is now pregnant with their child.  He believes that the process of him formally adopting C as his daughter will help to strengthen and unite their family and also help to make her feel reassured, safe and comfortable as they move forward as a family, particularly now that they are having another child. It was warming to learn that the applicants and C have already taken steps towards uniting and strengthening their family by all choosing to officially take on a new family name. As I have previously noted, evidence of Ms Abbasi and C’s name change certificates was filed in this court on 27 June 2018 and are part of Exhibit 1 in the proceedings today.

6. Mr Abbasi acknowledges that he is financially capable and personally willing and ready for this adoption. I am told that he is a mechanical engineer.  I am told that Ms Abbasi is a capable and intelligent person in her own right, also being a computer engineer.  I am also told that C’s deceased biological father was an engineer as well.  As I expressed in a conversation with the applicants this morning, it is therefore not surprising that C is as intelligent, bright and mature as the parties have portrayed her to be in their affidavit and oral evidence given today.  Mr Abbasi is confident that he can make the best father for C both “mentally and spiritually”. Ms Abbasi agrees with this and is confident that Mr Abbasi over the course of their relatively short marriage has shown that he can give C a “permanent home and family, along with a sense of belonging, security and identity”. Ms Abbasi also describes a happy family where the applicants share a strong bond and have a marriage based on trust and understanding. She speaks of them having achieved a degree of financial security in this country, provided by the stable income that is brought into the household.

7. In further support of this application, Ms Abbasi describes Mr Abbasi as someone who always cares for her and C’s needs and a person who would never mistreat or abuse them. She believes Mr Abbasi is a patient and sensitive to C’s emotions and she is glad that she has found someone like Mr Abbasi who she can rely on to look after C particularly when she is away from home. Ms Abbasi is also supportive of this adoption and the security it will give their family in the unfortunate event of her illness or death. Aside from Mr Abbasi, C and her mother have no other family members in Australia.

8. Despite Ms Abbasi and her daughter sharing a close bond, the mother sadly feels that C is missing parental support which would otherwise help C maintain her mental and emotional well-being. It is reassuring to hear Ms Abbasi’s evidence that C has accepted Mr Abbasi “so widely”.

9. Culturally, Mr Abbasi describes the importance of C having a father. He says that in Country D a father has a great role in creating a sense of belonging, security and identity. Mr Abbasi sadly believes that C missed out on having this role model in the four year period between her biological father’s passing and the applicant’s marriage. Mr Abbasi also deposes to how this adoption will encourage C to work and study harder at school given her commitment and ambition in demonstrating this to her immediate family. He believes the noticeable improvement in her piano is a recent example of this.

10. It was also heartening to read Mr Abbasi say how much C loves participating in activities with him and how he will spend significant time with C, exploring new things to do, providing play time with her friends from school and visiting neighbours and their children.

11. Finally, the applicants have dedicated much of their affidavits informing me of C’s questioning and complaining as to why she is not legally and officially identified as Mr Abbasi’s daughter and why she does not have a legal father like her friends and relatives. I hope that by granting leave to adopt to this family it will stop C feeling the need to question the applicants and seek verbal reassurances that Mr Abbasi loves her and wants her to be part of the family. I also hope it will calm any of C’s concerns about her security in this country.

12. Although it is not a matter I must necessarily consider, I observe that this family does not yet meet all of the mandatory conditions that someone who is seeking to adopt must meet. Although I am satisfied that it is C’s best interests, the applicants will have to have been living together for a continuous period of at least three years before they can submit an application in the State Courts of this State (s 92(1)(c) Adoption Act). Unfortunately, I must also point out that Mr Abbasi nor Ms Abbasi are Australian citizens, also an essential prerequisite for a successful stepparent adoption application in Queensland (s 92(1)(f)). Filing their application for adoption of C would, therefore, be slightly premature at this point.

Conclusion

1. In conclusion, having considered all of the matters that I have just referred to and considering all the principles that I have referred to, namely the fact that I must be satisfied that the granting of leave is in the best interests of C, I am satisfied on all of the evidence that it is in the child’s best interests for Mr and Ms Abbasi to be given leave to be able to commence proceedings in the State courts of this State for an order granting the adoption of C and I order accordingly.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 July 2018.

Associate: 

Date:  26 November 2019