Balbi & Anor and Anton

[2020] FamCA 828

FAMILY COURT OF AUSTRALIA

BALBI AND ANOR & ANTON [2020] FamCA 828

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the children’s best interests to permit adoption proceedings – Where the biological father has had a limited presence in the children’s upbringing and consents to the application – Where one of the children is already 17 years of age – Where leave is granted

Family Law Act 1975 (Cth)

FIRST APPLICANT: Ms Balbi

SECOND APPLICANT: Mr Dassila

RESPONDENT: Mr Anton

FILE NUMBER: BRC 6915 of 2020

DATE DELIVERED: 22 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 and 22 September 2020

REPRESENTATION

THE APPLICANTS: Self-Represented

THE RESPONDENT: No Appearance

Orders

1. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Ms Balbi and Mr Dassila, be granted leave to file an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the children, X born … 2003 and Y born … 2005, by their stepfather, Mr Dassila.

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 Balbi & Anton 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 6915 of 2020

Ms Balbi

Fist Applicant

And

Mr Dassila

Second Applicant

And

Mr Anton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an application filed on 9 June 2020, Ms Balbi and her husband, Mr Dassila, both seek an order that pursuant to s 60G of the Family Law Act 1975 (Cth), they be granted leave to commence adoption proceedings for the adoption of Ms Balbi’s children, X born … 2003 and Y born … 2005, by Mr Dassila, the stepfather of the two girls. The girls are currently 17 and 14 years of age respectively.

2. The person named as the respondent is Mr Anton, who is the children’s biological father. According to Ms Balbi’s evidence, Mr Anton is currently living somewhere overseas, most likely in Country B, and has done so since he separated from Ms Balbi as long ago as 2008.  In that period of time, he has had little contact at all with the children.

3. In an Affidavit of Service filed by Ms Balbi, she attaches an email which she sent to Mr Anton on 20 August 2020 attaching sealed copies of the court documents and inviting him to file a response and to participate in the proceedings. There is a response email from Mr Anton which simply states: “I have received your email and read throu. (sic) Shortly I will respond to it. Regards Mr Anton”. 

4. Ms Balbi also attaches to her supporting affidavit an email exchange between them where they discuss the issue of adoption.

5. My Associate has advised me that she forwarded an email invitation to the Respondent to attend the hearing today, which is being conducted via the electronic videoconferencing platform, Microsoft Teams. Such an invitation was sent to all of the parties, including Mr Anton.

6. I am satisfied that although Mr Anton has not filed any material or participated in the proceedings in any way, that he is aware of the proceedings and in particular of the hearing today and that he has simply chosen not to participate. Indeed, when the matter was mentioned last week and adjourned for further hearing today I told the applicant mother to send another email to the respondent biological father and advise him that the matter was adjourned for further hearing today and that if he wanted to oppose the application he should appear at the hearing today. The mother did that and she received a response from the biological father in which he said that he would not be appearing and in which he told the mother that the girls had his consent.

7. The biological father has not appeared this morning via Microsoft Teams when the matter was called on, though, as I have said, I am satisfied that he clearly knew of the hearing and could have appeared if he wished to.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act 2009. It is a piece of Queensland legislation, not Commonwealth legislation.  Under the State legislation, a step-parent 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 step-child, provided that a number of preconditions are met. Those include that the step-parent is a spouse of a parent of the child; that the parent, the step-parent 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 step-parent 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 17, though the Chief Executive of the Queensland Department responsible for adoptions may accept an application relating to a child who has turned 17 already if the Chief Executive considers there is enough time to complete the adoption process before the child turns 18 and the grounds for making an adoption order in favour of the applicant are likely to exist (see s 92(2) of the Adoption Act 2009 (Qld)). Finally, the step-parent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act. That is what this hearing is determining.

3. I note that the eldest child, X, has already turned 17 years of age.  The mother states in her affidavit filed in support of the application that she had been advised by “Adoptive Services” that provided an application was filed prior to the child turning 17, that the application for adoption would be accepted and the process expedited in order for it to be finalised before the child turns 18 years of age.  I note that the Application was filed just before X’s 17th birthday. The mother may have been so advised by the Department, but I simply say that it is a matter for the Chief Executive to determine, as I have said. Simply put though, the fact that the eldest child is already 17 is not an obstacle to the granting of leave by this Court for the stepparent adoption application to proceed.

4. 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.

5. Section 61E of the 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.

6. 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 Dassila and Ms Balbi 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 Anton, will no longer have parental responsibility in respect of the children pursuant to the Act and any orders that were already in place in respect of parenting matters would automatically cease.

7. 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.

8. In this case that is relevant because in early 2009 Ms Balbi and Mr Anton signed a draft minute of consent which became Orders of the Court made by a Registrar on 10 February 2009.  Those orders provided for the children to live with their mother and to spend time with their father, Mr Anton, as agreed between the parents. Most importantly, they provided for the parents to have equal shared parental responsibility for the children. If a stepparent adoption application is granted, that Order will cease to have any effect whatsoever.

9. From the evidence it seems that the children have had very little contact with their father since he left and at least have not spent any time physically with him at all as he has not returned to Australia since 2008.  Ms Balbi has also deposed in her affidavit evidence to not having received much in the way of financial support from Mr Anton to support the children since their separation either.

10. I consider it sufficient to say that in an application for leave for proceedings to be commenced in the State court by a step-parent 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.

11. Essentially, the effect of those critical sections of the Family Law Act to which regard must be had when considering the children’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 children spending time with or living with the other parent, immediately cease.

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

13. The evidence about Mr Dassila and Ms Balbi living together with the children for a continuous period of at least three years is that they all moved in to live together in the same house in or around May 2016. They were married on … 2018.  They are clearly spouses as that term is understood under the State legislation having regard to provisions of the Acts Interpretation Act 1954. They were once they were lawfully married. They were as partners before they were lawfully married when they lived in a de facto marital relationship, living together as a couple from May 2016.  Accordingly, they meet the requirement for three years of continuous living together up to the time of the application when it was made in the middle of this year.

Some history of the matter

1. Ms Balbi and Mr Anton were married and in a relationship of around 11 years in total.  The two children were born of that relationship. When the marriage broke down and Mr Anton left the family home in 2008, the two children were just five and two years of age.

2. Orders in relation to the parenting of the two children were made by consent as I have said, by a Registrar of the Court on 10 February 2009.  Those orders provided for the children to live with their mother and to spend time and communicate with their father, as agreed.  They also provided for the parents to have equal shared parental responsibility.

3. Interesting though, at sometime between then and when the divorce order was made on 8 December 2009, the children’s surnames were changed from Anton to the mother’s surname, Balbi.  I have no evidence as to how that came about.

4. Ms Balbi deposes to Mr Anton never returning to Australia and never seeing the children since he left Australia in 2008.  Apart from some phone calls and gifts sent to the girls, there has been minimal contact between them.  No matter what Mr Anton could say or would say, it is apparent from that history that he has not played the role of father in the lives of these girls ever since he left in 2008.

5. Ms Balbi and Mr Dassila have no children together and Mr Dassila has no children of his own to the best of my knowledge.

6. Mr Dassila says he has taken on the role of being the girls’ father since they were 12 and 9 years of age respectively, and that at their own election they regularly refer to him as “Dad”.  He supports them both financially and emotionally and he enjoys a close and loving bond with them.  Ms Balbi and Mr Dassila both say that they like to spend their time going boating, going on picnics, eating out and going to the movies.  In that respect they sound like the average all Australian happy family.  Mr Dassila says he is currently teaching X how to drive a car.  I hope that is a happy experience for both of them as well.

7. The applicants each say in their affidavits that on 22 May this year, the children approached them and asked if Mr Dassila would adopt them and they said that the children told them that they had been thinking about this for a long time.  Apparently the children said they wanted the family unit to formally represent the relationship that they share and that they would be proud to have Mr Dassila as their father.

8. In all the circumstances outlined, I am satisfied that it is in the best interests of these two young women for the Order sought by their mother and stepfather to be made and I will make it.

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 22 September 2020.

Associate: 

Date:  29 September 2020