Alea and Anor and Unknown

[2016] FamCA 1140

FAMILY COURT OF AUSTRALIA

ALEA AND ANOR & UNKNOWN [2016] FamCA 1140

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the identity and whereabouts of the biological father is unknown – Where the child is already 17 years of age – Order that leave be granted

Family Law Act 1975 (Cth) s 60G, s 61E
Adoption Act 2009 (Qld)

FIRST APPLICANT: Mr Alea

SECOND APPLICANT: Ms Alea

RESPONDENT: Unknown

FILE NUMBER: BRC 2426 of 2016

DATE DELIVERED: 18 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Mr Page

Harrington Family Lawyers

Orders

1. That leave is granted pursuant to s 60G of the Family Law Act for proceedings to be commenced for the adoption of the child, B born … 1999, by his stepfather Mr Alea.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alea and Anor and Unknown has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2426 of 2016

Mr Alea

First Applicant

And

Ms Alea

Second Applicant

And

Unknown

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me for determination today is an application by Mr Alea and his wife Ms Alea for an order that leave be granted pursuant to s 60G of the Family Law Act for proceedings to be commenced in the Queensland State Courts by them for the adoption of the child, B.  Ms Alea is the child’s mother, and her husband, Mr Alea, is the child’s stepfather.  The child was born in 1999 and is therefore 17 years of age.

2. Ms Alea has deposed in her affidavit evidence to the fact that she does not know the identity or the whereabouts of the biological father of the child.  Ms Alea has given evidence that in 1998, when she was only 20 years of age, she was living in China with her family and whilst there, studying at University.  Apparently one night she went out to a party at a local club and there, she met a young man.  She only knows him as Mr C.  He told her that he was also a foreign student studying in China.  He told her that he was of mixed Japanese/American ethnic identity.  She did not know which university he attended and she did not know his surname.

3. Apparently, they hit it off pretty well and she accompanied him to his place of residence that evening and spent the night there with him.  A few months later, not having seen Mr C again since that night, the mother discovered that she was pregnant.  Ms Alea says that she knew the young man named Mr C was the father of the baby she was carrying. She was sure he was as she had not had sexual relations with anyone other than that young man around the time of conception of the baby.

4. Ms Alea deposes in her affidavit to her attempts to try to locate that young man, Mr C, so she could advise him of the pregnancy and the baby she was carrying.  She also deposes to the fact that given the little information that she had about him, she was unfortunately unable to contact him.  She, with the assistance of her parents, made the critical decision to maintain the pregnancy and to have the baby and raise him as hers alone without having the support of the biological father. 

5. Her parents gave her full support and she returned from China to Australia with her mother and gave birth to her baby boy in Suburb D in the State of New South Wales.  She called her boy B.  His birth was registered in New South Wales with there being no reference made to the identity of his biological father on his Birth Certificate.  Ms Alea made an application to the Australian government sometime soon after his birth for a passport to issue.  The Australian government, when determining the passport application, accepted Ms Alea’s signed declaration that she did not know the identity or whereabouts of the child’s father and therefore could not get his consent.  Accepting that, the Australian government issued a passport for the child.

6. Sadly for Ms Alea and her family, including the child and Ms Alea’s subsequent children, Ms Alea’s father passed away not long after the child’s birth.

7. On 13 April this year, a registrar of this court, Registrar Brooks, dispensed with the need for service of this application by the parties on the respondent father, again in my view, quite appropriately accepting the sworn evidence of Ms Alea that she had no way of being able to identify and find the whereabouts of the child’s biological father.

8. In Queensland, adoption of children is governed by the Adoption Act 2009. It is a Queensland Act, not a piece of Commonwealth legislation. Under that legislation, a stepparent of a child may apply to the Chief Executive of the Queensland Department of Communities, Child Safety and Disability Services to arrange an adoption of his or her stepchild, provided that a number of preconditions are met. They 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.

9. 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; they must not be of the same gender as their spouse; and the child must be at least 5 years of age and not yet 17. In this case, the child is 17 already. That of course though brings into play the operation of s 92(2) of the Adoption Act.  It says, that despite the requirement for a child who is the subject of an adoption application to be at least 5 years of age and not yet have turned 17, the Chief Executive may accept an application relating to a child who has already turned 17 if the Chief Executive considers (a) there is enough time to complete the adoption process before the child turns 18; and (b) the grounds for making an adoption order in favour of the applicant are likely to exist. 

10. Referencing that particular subsection, the applicants have caused to be filed and relied upon in their application this morning, a further affidavit of Ms E who is a graduate clerk working at the firm of solicitors who represent the applicants in the case this morning. In short she deposes to communication with an officer of the Department in which she is assured that all things going to plan, an application by the mother and the stepfather for the adoption of the child, notwithstanding the fact that he is 17, is likely to be able to be heard and determined before the child’s 18th birthday when he reaches his adulthood in 2017.

11. Section 60G of the Family Law Act provides 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.

12. 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.

13. 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 and Ms Alea 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 the unknown biological father, will no longer have parental responsibility in respect of the child pursuant to the Family Law Act and any orders that were already in place in respect of parenting matters would automatically cease. 

14. In the circumstances of this case of course, that will not matter because the biological father has played no part in the child’s life for its entirety to this point in time and he has exercised no parental responsibility in respect of the child, probably not even knowing of the child’s existence.  Additionally, there are no orders in place under the Family Law Act that provide him with any rights in respect of the child spending time with him or communicating with him in any way. Ms Alea has, being the only known surviving parent of the child, all parental responsibility for the child pursuant to s 61C(1) of the Family Law Act.

15. 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 Family Law Act.

16. Mr Alea is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Family Law Act, a person within the definition so contained. 

17. Ms Alea met Mr Alea in early 2003, at a time when the child was just three years of age.  As Mr Page, the solicitor who appears for Mr and Mrs Alea in today’s proceedings has already observed, theirs is a good news story.  Good news stories like theirs are, as Mr Page has also said, relatively infrequent in this place.  Indeed, the affidavit evidence of the parties establishes that Mr Alea’s relationship with his stepson, B, virtually began the same day that his relationship with his wife, Ms Alea, did.

18. They met a salsa dancing lesson in New South Wales and as Mr Alea seemingly with great pride said in his affidavit, he was immediately attracted to Ms Alea and sought to pursue the relationship with her straight away.  They had their first date, as I understand the evidence, at a beach somewhere in the Region F area of New South Wales.  On that day, Mr Alea met three year old B for the first time and immediately took to him as well. 

19. At this time when their relationship was just commencing, Mr Alea had already had plans to travel to the US to take up a job opportunity that he had been offered there.  What I have not said at this point in time is that Mr Alea was born and raised to adulthood in South America, with what I understood from his evidence, was a loving and caring family who worked hard to make sure that their children could make the most of their opportunities and were able to advance even further in life than the parents of that family had, which is something that I say is to their full credit.  As I understand the evidence, in or around 1999, Mr Alea emigrated as an adult man, already educated and trained in his profession, to live and work in Australia.  Interestingly, I took from Mr Alea’s affidavit evidence, that he is a professional in a technical field undergoing a boom at the time he migrated to Australia in 1999..  I note now that he works for a company associated with the G University and is also studying and working towards the completion of a PhD there. 

20. I digressed a little there, so I return to where I was.  Mr Alea had, at the time he met Mrs Alea, determined to take up employment in the United States of America.  Soon after he moved there, still wishing to pursue the relationship with Ms Alea and the child, he maintained contact with her and invited her and the child to visit him there in the United States, paying for the cost of their airfares to visit, not once but twice in the early months of his stay there, thereby demonstrating no doubt to Ms Alea the strength of his commitment and determination to have a relationship with her and her son, B.

21. By Easter of 2004, unable to stay the distance away from Ms Alea and the child, Mr Alea resigned from the job, returned to live in Australia and was fortunate enough to get work, I understand in H Town, not too far away from where Ms Alea and the child were still living. 

22. What I have also passed over was something admiral and to the credit of Ms Alea.  She deposed in her affidavit to the fact that when her father passed away, as a young single mother of a young child, she realised that her circumstances left to themselves were not going to be as rosy as they might otherwise have been.  As a young single mum, though no doubt with the love and support of her own mother, she decided to take up university studies. She went to university, was able to work hard and obtain a degree and then subsequently took up studying towards another degree which she was undertaking at the time that she met Mr Alea.

23. It seems, from my memory of the material, that she said in her affidavit she started work in a professional occupation in the same year she and Mr Alea married.

24. They then commenced life as a married couple and a family with the child, and before too long, had two more children of their own relationship - two daughters.  The eldest child,  J, is ten years of age and the youngest, K, is seven years of age.  Included in the affidavit evidence before me is what can only be described as a beautiful family portrait of all five of them, demonstrating what a great looking family they are, but more particularly, how happy and close they obviously all are.

25. The evidence that I have read, the affidavit of Ms Alea and the affidavit of Mr Alea, convinces me without a doubt that young the child, who is here today with his parents and, with my leave, in court listening to this extemporaneous judgment, relates to Mr Alea in a father and son way, that could only be considered a normal, healthy, happy father and son relationship. 

26. In May 2009, the Alea family moved from New South Wales to live in Queensland, here in Brisbane.  The child attends I School and this year is in year 12.  In year 10 he achieved an award for overall academic excellence.  In year 11 he was awarded first in his Certificate III in Business Administration.  His mother says in her affidavit that his grades have slipped a little of late, which I can say to Mr and Mrs Alea, is sometimes not surprising, particularly with young men as they reach year 12 and they are getting towards adulthood.  Nevertheless, she says he is working very hard to correct this and do better this year in his final year, with his intention being to emulate his parents to attend university next year.

27. In April 2013, the child’s surname was changed from Walters to Alea-Walters, the same surname as his two younger sisters, so as to more appropriately reflect the family environment that he was growing in, and as Ms Alea says in her affidavit, “so that everyone would know that [Mr Alea] was his father”.

28. Fortunately for the child, he has had, and continues to have, as I read the material, a very loving, caring father in Mr Alea who has played and continues to play a very active and important role in his life.  The child will no doubt grow to realise that the decision that his mother made in choosing to partner for the rest of her life with Mr Alea and to bring him into the child’s life as his stepfather was indeed an excellent choice. 

29. I was particularly impressed with the affidavit evidence that said that 98 out of 100 hours of compulsory driving supervision that young the child has had to have in order to be able to sit his driving license exam, were actually supervised and signed off on by Mr Alea.  That certainly demonstrates not only a loving, caring relationship, but one that no doubt exudes patience, understanding and total commitment to being the child’s father on Mr Alea’s part. 

30. I was also impressed in this case with Ms Alea’s evidence that the child’s relationship with Mr Alea is such that in family matters, Mr Alea is the parent to whom the child most often turns for the advice and assistance, care and loving guidance, that young people at the child’s stage of life look to from their parents as they approach the growing independence that young adulthood brings.  There is a lot more I could say about the circumstances of this case, but there is no need. 

31. Considering all of the matters that I have just referred to and considering all the principles that I have referred to earlier, namely the fact that I must be satisfied that the granting of leave is in the best interests of the subject child, I am more than happy to say in this case that I am completely satisfied that it is in the child’s best interests for his mother and his stepfather to be given leave to be able to commence, as soon as they possibly can, proceedings in the State courts of this State for an order granting the adoption of the child and I order as follows.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 April 2016.

Associate: 

Date:  20 January 2017