Aromdee & Anor and Balak and Anor

[2013] FamCA 538

FAMILY COURT OF AUSTRALIA

AROMDEE AND ANOR & BALAK & ANOR [2013] FamCA 538

FAMILY LAW – ADOPTION – By step-parent – Leave to commence proceedings – “prescribed adopting parent” – Best interest of the child
FAMILY LAW – – CHILDREN – Where the mother seeks to change the child’s surname.

Family Law Act 1975 (Cth) s4(1), s60A, s60CC, s60G, s60HA, s60IE, s65J, s61B, s69ZT, s106A.
Adoption Act 2009 (Qld) s92, s208.

FIRST APPLICANT: Ms Aromdee

SECOND APPLICANT:  Mr B

FIRST RESPONDENT: Ms Balak

SECOND RESPONDENT:  Mr Balak

FILE NUMBER: BRC 8386 of 2012

DATE DELIVERED: 1 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 1 July 2013

REPRESENTATION

FOR THE FIRST APPLICANT: Ms Aromdee In Person

FOR THE SECOND APPLICANT: Mr B In Person

FOR THE FIRST RESPONDENT: No Appearance

FOR THE SECOND RESPONDENT: No Appearance

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G of the Family Law Act, leave is granted to the applicants to commence adoption proceedings in relation to the child, C, born in 2008.

2. That within 30 days of the date of this order, the parties do all acts and things and sign all documents required for the Department of Justice and Attorney-General, Registry of Births, Deaths and Marriages for the child’s name to be changed and that, in order to facilitate this:

   (a)       The mother shall, within 7 days of the date of this order, post to the biological father, at his last known address, a form 4c Change of Name (child under 18 years) application (“the application form”);

   (b)       The biological father shall, following receipt by him of the application form, sign the application form and return to the mother the signed application form and all documentation required by the Department of Justice and Attorney-General, Registry of Births, Deaths and Marriages for the lodgement and processing of the application form; and

   (c)       Their mother shall be solely responsible for the payment of any fee required for lodgement of the application form.

3. Should the biological father fail to comply with clause 2 above within 14 days of the mother posting the documents, a Registrar of the Family Court of Australia at Brisbane is appointed, pursuant to section 106A of the Act, to sign the application form and to do all acts and things necessary to ensure that the application form is validly executed on behalf of the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aromdee and Anor & Balak and Anor 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: No. BRC 8386 of 2012

Ms Aromdee and Mr B

Applicants

And

Ms Balak and Mr Balak

Respondents

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed 18 January 2013, the applicant mother and Mr B seek the following orders:

   a)That Mr B have leave to commence adoption proceedings for C, born in 2008;

   b)That the child’s mother be able to file an application to change her name without the consent of the father.

2. C’s biological parents were married in 2007.  the child’s biological father was recorded as her father on the birth certificate, maintained pursuant to the Births, Deaths and Marriages Registration Act 1996 (Victoria).  On 6 May 2010, the Court ordered that a divorce order be made, with that order to take effect and, thereby, terminate the marriage on 7 June 2010. 

3. In her Amended Initiating Application, the child’s mother says that her biological father’s last known residential address was at D Street, Suburb E in Victoria. 

4. The child’s mother and Mr B commenced their relationship in about May 2009.  They commenced living together in about May 2010.  At that time, the child was about two years and four months of age.  The child’s mother says in her sworn material that Mr B started to have a really close relationship with the child, and that he picked her up from childcare, enjoyed outdoor activities together and that he took her to visit members of his family. 

5. In March 2011, the child’s mother and Mr B bought their first home in Victoria and they and the child moved to live in it in April 2011.  In September 2011, they also purchased an investment property.  In September 2012, the child’s mother, Mr B and the child moved to live in F Town, Queensland as a result of issues associated with their employment.  In the period from May 2009 until May 2010, the child’s biological father had no contact with her.  In the period from May 2010 until September 2012, the material establishes that the child’s biological father spent some time with her at a frequency of about once every two weeks from June 2010 to July 2010, and then, for one week a fortnight, from July 2010 until about December 2010, when he travelled overseas for a period of time. 

6. The child’s mother says that, even during this period of time, the biological father was unreliable in his care of the child, in that he failed to collect her from childcare, failed to return her on time and told his then partner not to allow the child to see her mother on an occasion.  As I have said, in December 2010, the child’s biological father travelled overseas for a period that he asserted was to end in January 2011.  However, as the child’s mother did not hear from him at the end of 2011, she decided to apply for an order so as to regulate the parenting arrangements between the two parents.  As I understand the material, the child did not spend any time with her father, nor did he communicate with her, in the period from December 2010 until April 2011. 

7. On 5 April 2011, Hughes FM, as her Honour then was, made various interim orders by consent.  At that time, both the mother and the biological father were present in Court.  These orders provided, amongst other things, that the child’s biological parents have equal shared parental responsibility for her and that, until further order, she live with each of them on a week about basis.  Her Honour also made further orders of a directive kind and listed the mother’s application, to allow international travel with the child, for hearing in November 2011.  The Federal Magistrate also ordered that the child’s biological father file a Notice of Address for Service before leaving the country.

8. The interim orders, made by consent, on 5 April 2011 also required each party to keep the other informed of their respective addresses and telephone numbers as well as provide details, such as name, address and contact number, of any childcare facility at which the child attended.  The child’s mother says that her father failed to attend to spend time with her at the time and location agreed between the two of them.  She also says that she received a letter from him in about late April 2011, in which he told her that he had to return overseas for two weeks due to his father’s medical condition.

9. On 22 July 2011, the child’s mother filed an Application for Contravention, asserting that, on 16 July 2011, the child’s father, without notice, failed to collect the child at the nominated time and place.  The child’s mother contacted the father’s brother on 21 July 2011.  She says that his brother told her on that occasion that he had no idea when the father would return to Australia and he was not sure when he had, in fact, left Australia.  He did, however, also tell the child’s mother that the child’s biological father had packed up her belongings and asked him – her paternal uncle – to provide them to her mother. 

10. Annexure 10 to the child’s mother’s affidavit, filed 22 July 2011, in support of her Application for Contravention, is a copy of the correspondence received by her on 20 July 2011.  That correspondence records the father telling the child’s mother that because of his father’s state of health, he was “compelled” to depart for overseas for a period of two weeks.  He also asks the child’s mother to care for the child in his absence and requests that she allow his brother to have contact with the child.  The child’s mother says that her paternal uncle visited the child on three occasions in the period from July 2011 until September 2012. 

11. On 10 August 2011, Hughes FM, as her Honour then was, adjourned the mother’s Contravention Application to the hearing of the trial, suspended the order which provided for the child to live with each parent on a week about basis and ordered, instead, that the child live with her mother and spend time with her father only as agreed in writing between the parties.  Her Honour also restrained the parties from removing the child from the Commonwealth of Australia and placed her name on the airport watch list.  She noted that there has been no contact between the child and her father since 12 July 2011. 

12. In November 2011, the child’s mother appeared again before Hughes FM.  On that occasion, there was no appearance at all by the biological father.  Her Honour ordered that the mother have leave to proceed in the absence of the father and granted the mother liberty to make an oral application for a passport for the child without her father’s consent.  Her Honour also ordered that the mother have sole parental responsibility for her and that she live with her mother and spend time with her father at times and as agreed between the parties in writing.  Her Honour requested the removal of the child’s name from the airport watch list and discharged those earlier orders which prevented the parties from removing the child from the Commonwealth of Australia.  Her Honour made other orders, facilitative of the child’s mother’s ability to apply for a passport and to make arrangements which would enable the child to travel internationally without the consent of her father. 

13. The Federal Magistrate’s order also provided that the child’s biological father have liberty to apply to have the orders varied or set aside, provided he filed an application to do so, supported by an affidavit explaining his non-attendance at Court that day.  The Court ordered that the child’s mother advise her father of the orders that the Court had then made as soon as practicable after that date and when his whereabouts became known to her.  The Court also noted that the child’s father had failed to attend at Court that day and that her mother believed him to remain overseas.  It was satisfied that the mother’s intention was to live, permanently, in Australia. 

14. As noted above, the current Application was filed 18 January 2013.  On 2 April 2013, Registrar Stoneham ordered that service upon the biological father be dispensed with and listed the matter before me in the duty list today.  The Registrar noted that the paternal uncle had informed the Court in writing that he would have no further involvement in the proceedings before the Court. 

The application for leave to adopt

1. Adoption proceedings, pursuant to State legislation, have not yet commenced. Section 92 of the Adoption Act 2009 (Qld) (“the Adoption Act”) provides that a person may apply to the chief executive to arrange an adoption by the person of a stated child if a number of specified matters are satisfied. Included within that, at subparagraph 1(d), is that the person has been granted leave under the Family Law Act 1975 (Cth) (“the Act”), s 60G(1) and that the child is at least five years old and has not yet turned 17.

2. The current application for leave to adopt proceeds, pursuant to s 60G of the Act. Section 60G of the Family Law Act provides as follows and asserts that:

   The Court may grant leave for adoption proceedings by a prescribed adopting parent –

3. and that –

   in proceedings for such leave, 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 sections 61E and 65J.

4. It is clear from a reading of s 60G(2) that in these proceedings, I must consider whether granting leave would be in the child’s best interest, having regard to the effect of paragraph 60A(4), paragraph 60HA(3) and ss 60IE and 65J.

5. Consequently, I must consider the familiar best interest considerations, prescribed in s 60CC of the Act.

6. It is relevant also to note that if a child is adopted and, immediately before the adoption, a person had a right of parental responsibility for that child, the person’s parental responsibility ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced: see s 61E of the Act.

7. The term “prescribed adopting parenting” is defined in s 4(1) of the Act to include a person such as Mr B, being a person in a de facto relationship with the child’s mother.

8. Section 65J of the Act provides that if a child is adopted and, immediately before the adoption, a parenting order was in force in relation to the child, the parenting order stops being in force on the adoption unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G to the adoption proceedings to be commenced: see s 65J of the Act.

9. The consequence, then, of an adoption is that all parental responsibility for the child ceases, as do all other parenting orders – parenting responsibility being defined in s 61B of the Act to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. I consider that proceedings for leave to adopt, pursuant to s 60G of the Act, are child related proceedings within the meaning of the Act. They come, therefore, I consider within the meaning of division 12A of the Act. Further, s 69ZT makes specific provision with respect to the rules of evidence and in particular, as it might apply to this case, the rules relating to the receipt of hearsay evidence.

10. The decision facing this Court differs to that which will face the Court charged with the decision whether to permit the adoption – the State Court.  The granting of leave to commence proceedings to adopt does not have the consequence just ascribed - only the order for adoption made by that State Court has the consequences as previously discussed. 

11. It is, perhaps, relevant to note that s 208 of the Adoption Act is to the effect that the Court may make a final adoption order only if satisfied of a number of matters, included in which is that an order for adoption, by a step-parent, would better promote the child’s wellbeing and best interests than an order under the Family Law Act, any other Court order or no Court order.

12. I consider that this Court ought not grant leave to applicants to permit proceedings in the State Court to commence, if those proceedings are doomed to fail because of the absence of the mandatory State prerequisites. 

13. The child’s mother swears in her affidavit, filed 18 January 2013, that the child has not seen or heard from her biological father since 8 July 2011.  She also says that the child’s biological father has never paid any child support to her for the child.  I accept her evidence.

14. The child’s mother says that the child loves and respects Mr B as her father.  She raises, also, assertions of physical violence, perpetrated against her by the child’s biological father, on several occasions, to the extent that police were called to the scene, but no further proceedings followed.

15. The child’s mother says, in support of the seeking of leave from the Court today, that she and Mr B plan to expand their family in the near future and do not want the child to feel differently in any way from any of their family members.  She also says that the child commences school in January 2013 and from this time forward, her surname would be on documents.  She says that she and Mr B believe that it would be in the child’s best interests if her family name is the same as any other child that they may have. 

16. Mr B has sworn an affidavit, filed on 18 January 2013.  In that, he says that he has known the child since she was 15 months of age and has “been with her through each stage of her development”.  He says that he would very much like this to continue, with more involvement and more responsibility on his behalf.  I accept his evidence.

17. Mr B says, and I accept, that the child is considered, very much, as part of his family.  He also says that having a common surname would only reinforce this feeling of belonging for the child.

18. Mr B says that, as the mother’s extended family lives in Thailand and the child’s biological father’s extended family lives in Country G, he thinks it would be in her best interests, if she continues to remain living in Australia as is planned, that should something untoward happen to her mother, there be a person, such as himself, available to provide care for her and to ensure that she reaches her full potential.  He considers, and I agree, that for the child, it can only be a positive that there is another adult, in addition to her mother, willing and able to look after her and provide for her needs, particularly given that her father has made little effort to continue to establish or maintain a relationship with her.  Mr B considers that his continued presence would “ease any sense of abandonment” that the child might experience as a consequence of her father’s determination to cease having time with her.  I agree.

19. I consider that Mr B has been a constant in the child’s live since she was a very young child.  Save for the very few occasions, as outlined above, that she has spent time with her biological father, he, (Mr B), has been, in effect, the only father that she has known.  There is, I consider, sufficient evidence before me to enable me to conclude that Mr B and the child have a close relationship.  The evidence before me reveals a stable, financially viable family relationship between the child, her mother and Mr B.  I have no hesitation in concluding, because of his presence in her life and financial support, that Mr B has supported the child both financially and emotionally. 

20. Given that the child’s biological father has not seen her for a considerable period and has played no part at all in these proceedings and that, in fact, her mother brought a contravention application in an attempt to enforce the orders that provided he spend time with their daughter, I consider, for the reasons already outlined above, that it is in the child’s best interests that adoption proceedings proceed in the State Magistrates Court, albeit with the consequences such proceedings have – namely, the potential consequence that the child’s biological father shall cease to have parental responsibility for her.  I consider that, given his absence from her life thus far, there is nothing to suggest to me that the child’s biological father has discharged any of the obligations and responsibility that parental responsibility entails.

21. For these reasons, I have little trouble concluding that the proposed adoption is in the child’s best interests and for these short reasons, I grant leave to adopt. 

The Application for Change of the Child’s Name

1. The child’s mother also seeks, in the amended Initiating Application, filed 18 January 2013, that she be able to file an application to change the child’s name without the consent of her father.  As noted above, the order of Registrar Stoneham, made 2 April 2013, dispensed with the requirement for service upon the child’s biological father and listed the application before me.  I consider, given the biological father’s lack of involvement in these proceedings and in the child’s life, that it is appropriate that I deal today with the application for a change of name. 

2. I do so because I consider that there is little benefit to the child in the Court requiring her mother to file further documents in the Court and appear again.  I do so, also, because I consider, given that this is the first year, in one sense, of the child’s formal education, any change of name be effected as soon as possible because this will be in her best interests.  I see no benefit to her, whatsoever, of further delay, given her biological father’s failure to take on parental responsibilities for her. 

1. I consider, for many of the reasons already discussed and outlined above, that it is in the child’s best interests that her mother be able to take steps to change her name.  I do so, again, because of the lack of involvement in her life by her biological father, the reality of the situation and her living circumstances, living, as she does, with her mother and Mr B, as she has for a significant period of her life, and Mr B’s express desire to commence a family with her mother and to have their own biological children in the near future. 

2. I accept the evidence of both the mother and Mr B that it is more likely than not that the child would benefit from having the surname as any siblings that she may come to have.  I consider that the existing relationship between Mr B and the child’s mother, which has survived difficulties with employment and a move of States in order to facilitate continued employment, appears to be stable and likely to continue into the future.  I consider, therefore, that the mother should have leave to commence proceedings in relation to the child’s surname and that, in the exercise of her sole parental responsibility, she be able to take all steps necessary, without the consent of the biological father, to put that decision into effect.

3. Given, as I have said, that the biological father has had no involvement in the proceedings and has not seen or communicated with either the mother or the child since 8 July 2011, I take into account the order made by Registrar Stoneham also. I consider that the appropriate course, in these proceedings, in order to best assist in the implementation of the order that I make, is to make an order which requires the child’s mother to post to her biological father, at his last known postal address, a copy of the relevant documents necessary to facilitate the change of the child’s name. I also intend to make an order that, should the biological father fail to respond within 14 days of the posting of the documents, a Registrar of this Court be appointed, pursuant to s 106A of the Act, to sign all documents necessary to facilitate the change of the child’s surname.

4. Unless it is not otherwise clear from the reasons, thus far, I am well satisfied, given the stability of the relationship between the child’s mother and Mr B, Mr B’s involvement in the child’s life and his acceptance of that significant responsibility to act as her father that such orders are in her best interests. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 1 July 2013.

Associate: 

Date: 1 July 2013