BELL & PERRY

[2015] FamCA 136

FAMILY COURT OF AUSTRALIA

BELL & PERRY [2015] FamCA 136

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – step-parent adoption – where the child has had no contact with the biological father – where the biological father consents to the adoption.

Adoption Act 2009 (Qld) ss 92, 208.
Family Law Act 1975 (Cth) ss 60C, 60CC, 60F, 60G, 60HA, 61E, 65J.

THE APPLICANTS: Mr Bell & Ms Bell

RESPONDENT: Mr Perry

FILE NUMBER: BRC 11655 of 2014

DATE DELIVERED: 2 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 March 2015

REPRESENTATION

THE APPLICANTS: In Person

THE RESPONDENT: No appearance

Orders

1. Pursuant to s 60G of the Family Law Act 1975 (Cth), leave is granted to the Applicants to commence adoption proceedings in relation to the child, B born … 2006.

2. The Applicant Mother and Respondent Father do all acts and things necessary to change the name of the child B born … 2006 to B Bell.

3. The Applicant Mother prepare and provide to the Respondent Father any forms necessary to change the child’s name with the Registry of Births, Deaths and Marriages.

4. The Respondent Father sign and return to the Applicant Mother any change of name forms within 14 days of receipt of the forms.

5. The Applicant Mother bear any costs with the Registry of Births, Deaths and Marriages regarding the proposed change of name.

6. In the event that the Respondent Father fails to comply with the terms of this Order then a Registrar of the Court is appointed pursuant to s106A(1) of the Family Law Act 1975 (Cth) to sign any such documentation in lieu of the Respondent Father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bell & Perry 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 11655  of 2014

Ms Bell

Applicant

And

Mr Bell
Applicant

And

Mr Perry

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an Application by the mother and her husband, Mr Bell, for leave to commence adoption proceedings in relation to the child, B, born in 2006. 

2. Additional orders are sought in relation to facilitating a change to the child’s name, such that, once affected, it will be the child B Bell. 

3. The mother and Mr Bell, who was present at the child’s birth, have been in a relationship since January 1998.  They married in 2010.  Their family unit is constituted by themselves, the child, and her brothers C, D, and E.  All the children consider themselves to be siblings - this is unsurprising, given the fact of their living arrangements to date.  It appears from the evidence contained in the affidavits relied upon by the applicants that the child’s brothers are unaware of the difference in their parenting, and that, until recently, or relatively recently, the child herself was unaware of this. 

4. Mr Perry, the child’s biological father, has indicated via affidavit that he consents to the applicants being granted leave to adopt the child, and for her surname to be changed to Bell. 

5. It is, I accept, clear on the evidence that the child has no relationship with Mr Perry.  She has not had any interaction with him at all. His affidavit contains no assertion to the contrary.  I accept the evidence given by the Bell’s that, until recently, the child believed Mr Bell was her biological father.  This, again, is unsurprising given his presence in her life and, I have no doubt in concluding, that he has met her psychological needs: he is, to all intents and purposes, her psychological father.  He is the only father the child has known. 

6. I accept the evidence to the effect that Mr Perry’s family is largely ignorant of the child’s existence.  As I’ve said, I also accept that she has only recently become aware of the reality of her biology.

7. I accept without hesitation that, for all of the child’s life, Mr Bell has discharged all of the actions and responsibilities of parenthood for and toward her.  He gives evidence of being involved in her school life, being involved in school runs, conveying her to sport and dancing.  He has been, I have no doubt, a solid, stable and present father figure, for her, for all of her life. 

8. It is against this background, then, that the application must be considered.

9. Section 92 of the Adoption Act2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by the person of a child if a number of specified matters are satisfied. Included within those matters is that the person has been granted leave pursuant to s 60G of the Family Law Act1975 (Cth) (“the Act”), and that the child is at least five years of age and has not yet turned 17 years of age. the child clearly comes within this “age bracket”, to use that phrase.

10. Section 60G(2) of the Act provides that, in proceedings for such leave, the Court must consider whether granting leave would be in a child’s best interests, having regard to the effect of section 60F(4)(a), and 60HA(3)(a), and sections 61E and 65J of the Act. It is evident from a consideration of sections 61E and 65J of the Act that the consequences of a child being adopted include the termination of all parental responsibility owed by a biological parent for that child, and the non-enforceability, in a sense, of any existing parenting order. That is of less relevance in this case, where there are no parenting orders relating to the child in existence. It is also, in a sense, less relevant – at least in practical terms - because there has been no exercise of parental responsibility by the child’s biological father (Mr Perry) to date.

11. However, as the consequence of Mr Bell adopting the child is that all parental responsibility afforded to Mr Perry as a matter of law would cease, the Court must take into account, in determining whether to grant leave to commence adoption proceedings, the familiar and relevant section 60CC considerations by which this Court determines orders which are in a child’s best interests.

12. The decision facing this Court differs to that which will face the Court charged with the decision whether to permit the adoption.  The granting of leave to commence proceedings to adopt does not have the consequence of a cessation of parental responsibility and a non-enforceability of parenting orders.  Only an order for adoption made by a State Court has that effect.

13. However, section 208 of the Adoption Act 2009 (Qld) provides 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 a child’s wellbeing and best interests than an order under the Act, any other Court order, or no Court order at all.

14. I consider that, having regard to the legislative framework provided by the Adoption Act 2009 (Qld), this Court ought not grant leave to applicants to commence proceedings in the State Court if those proceedings are doomed to fail because of the absence of mandatory prerequisites. It is, as I’ve said, clear that, in these proceedings, I must consider the familiar best interests considerations as prescribed in section 60CC of the Act.

15. It is clear that the child has no relationship with her biological father at all.  There has been no time between them.  Mr Bell has been her father for all intents and purposes.  There is no reason, given his past history and demonstration of support to her across aspects of her life – including providing financial and emotional support and being available to her - to conclude that he will do anything other than continue in such a manner. 

16. In the circumstances, I am left in no doubt whatsoever that the child’s best interests are met by an order permitting the applicants to have leave to commence adoption proceedings in relation to her.

17. The mother also seeks orders in relation to changing the child’s surname, such that it will no longer be F but will be Bell  - it will, therefore, mirror the surname she has taken.  Given the child’s part of the family unit, such an order seems to me to be one that is highly likely to be in her best interests: it may well eliminate for her a feeling of difference, and promote for her a continuation of her feeling (as demonstrated through her reported comments) that she is part of the family unit as it is currently constituted. 

18. For these reasons, then, I am persuaded that it is in her best interests that orders be made to facilitate the actions taken by her mother to change her name. Consequently, orders will issue in terms of paragraphs 1, 2, 3, and 4 of the initiating application filed 22 December 2014. 

19. In addition, in the event that there is any difficulty in obtaining Mr Perry’s signature, or that there is a delay, I intend also to make an order to the effect that a Registrar of this Court be empowered to sign such documents in Mr Perry’s stead. In that way, Ms Bell will be able to bring about the required change to the child’s surname as soon as possible, and that part of the process will then be complete.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 March 2015.

Associate:

Date:  6 March 2015