Benedetti and Anor and Milligan

[2018] FamCA 349

FAMILY COURT OF AUSTRALIA

BENEDETTI & ANOR AND MILLIGAN [2018] FamCA 349

FAMILY LAW – ADOPTION – Application for leave to commence proceedings – Step-parent adoption – Where the child has had limited contact with the biological father –Application granted.

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

1st APPLICANT: Ms Benedetti

2nd APPLICANT: Mr Benedetti

RESPONDENT: Mr Milligan

FILE NUMBER: BRC 2942 of 2018

DATE DELIVERED: 11 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 May 2018

REPRESENTATION

1ST APPLICANT: In person

2ND APPLICANT: In person

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the child, B, a male, born … 2001.

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 Benedetti and Anor & Milligan 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 2942 of 2018

Ms Benedetti and Mr Benedetti

Applicants

And

Mr Milligan

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have today an Initiating Application filed 15 March 2018 by which an order is sought pursuant to s 60G of the Family Law Act 1975 (Cth) granting leave to commence proceedings for the adoption of the child, B (the child) born in 2001. The child, therefore, has not long turned 17 years of age. This fact calls into operation the terms of s 92(2) of the Adoption Act 2009 (Qld). I note that the Application for leave to commence proceedings for adoption was filed about 15 days before the child’s 17^th birthday.  I note also that contained within the Initiating Application is the information that there are no ongoing cases in any other jurisdiction and that no orders, including any orders for domestic violence or protection orders, have been made as between the parties.

2. I have already determined to proceed to deal with the Application in the absence of Mr Milligan because I am satisfied he has notice of the proceedings.  I am so satisfied, as I have already said, because of the existence of the Acknowledgement of Service and the information provided to me by Mrs Benedetti from the bar table. 

3. Section 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of the stated child only if a number of matters are satisfied. Included within these matters in particular, at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth). In determining whether to grant leave for parties to commence adoption proceedings, the Court must be satisfied of a number of things. One is that the proceedings are by a prescribed adopting parent. This condition is clearly satisfied in this case.

4. The Court must also consider whether granting leave will be in a child’s best interests, having regard to the effects of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth) where those sections are applicable. The decision facing this Court is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of any particular child or not.

5. The granting of leave to commence proceedings does not have the consequences outlined in the sections particularised in s 60G of the Family Law Act 1975 (Cth). Only an order for adoption, if made by the appropriate State court, has that effect. However, s 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act, only if satisfied of a number of matters, included within which are that an order for adoption by a step-parent would better promote a child’s well being and best interests, than an order under the Family Law Act 1975 (Cth), any other Court order or no order at all. It is, therefore, obvious that this Court ought not make an order granting leave to Applicants to permit proceedings in the State court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites. I record that it is clear, in my view, that the mandatory legislative prerequisites are established on the evidence before me.

6. In determining, as I must, under s 60G(2) of the Family Law Act 1975 (Cth) whether granting leave to commence proceedings is in the child’s best interests, I must give broad consideration to the familiar “best interest” considerations (where relevant), as those considerations are prescribed by s 60CC of the Family Law Act 1975 (Cth). Any failure to mention specifically any particular consideration in these Reasons (delivered orally) does not mean that such consideration has not been the subject of consideration during my assessment of the evidence relied upon by the Applicants.

7. The child’s mother was born in 1984.  She and Mr Milligan, who was born in 1982, were in a relationship for a period of time until about 2006.  The child has lived at all times with his mother.  Chronology clearly establishes that, at the time of his biological parents’ separation, he was about – or certainly no older than about – five years of age. 

8. The Applicants before the Court have been in a relationship since about mid-2014.  They commenced cohabitation on 24 December 2014 and married in 2015.  It is obvious, therefore, that the child has lived with Mr Benedetti (and, of course, his mother) within a family unit since about the end of 2014. 

9. I am satisfied on the evidence before me that the child’s biological father, Mr Milligan, is aware of the Application.  Given the contents of the affidavits before me and the fact that Mr Milligan has not appeared to oppose the making of the order sought by the Applicants today, I am persuaded that he in fact supports the child’s adoption by Mr Benedetti. 

10. On the child’s mother’s evidence, it seems that, between 2006 and 2009 when Mr Milligan was incarcerated for a period, the child and his biological father spent time together on what she describes as a “semi-regular” basis.  Mrs Benedetti’s evidence is that, after Mr Milligan’s 2009 incarceration came to an end, albeit at a time not specified, the child’s time with Mr Milligan was minimal and spasmodic. 

11. Her evidence is that in 2015, she approached Mr Milligan with a request that he sign a passport application for the child.  This document was signed. The Applicants and the child travelled overseas for a period of about five weeks from March 2015.  On their return to Australia in about mid-April 2015, the mother says that the child called Mr Milligan.  The phone was on speakerphone.  She says that they spoke for about two minutes, at which time Mr Milligan told the child that he was busy and he would call him back.  This seems to have been, on her evidence, the last contact between the child and Mr Milligan until the Application before the Court was filed in March 2018. 

12. The evidence before me is to the effect that, in about mid-March 2018, the child contacted Mr Milligan about the issue of his adoption by Mr Benedetti and the adoption process.  There was between them, I am told, conversation about the child wanting this to occur and about the reasoning that underpinned his desire:  that is, why it was important to him.  The evidence before me is that Mr Milligan informed the child that he would agree to such a process and to the child’s adoption by Mr Benedetti. 

13. I note that the consequences of an order for the child’s adoption by Mr Benedetti will, if made, in essence extinguish Mr Milligan’s parental responsibility for the child.  He will cease to have parental responsibility for him as otherwise accorded to him by law. 

14. The evidence before me clearly establishes that Mr Milligan has not exercised, in real terms, parental responsibility for making decisions about the child or making decisions about major long term issues relating to the child at any time during the child’s life. 

15. The paucity of time that Mr Milligan has spent with the child since his separation from the child’s mother in about 2006 is such that it could not be concluded otherwise than that the child has no meaningful relationship with him.  It also could not be concluded that Mr Milligan has participated in any way meaningfully in the child’s life at any time since the 2006 separation. 

16. Additionally, save for the discussions (to which I have referred briefly) between the child and Mr Milligan in relation to the issue of the child’s adoption by Mr Benedetti, it could not be thought that Mr Milligan has communicated with his biological child in any particularly meaningful way. 

17. As I have said, he does not seem to me, on the evidence, to have participated at all in decision-making in relation to issues about the child’s care, welfare and development generally.  Such decisions have been borne entirely by the child’s mother – at least until the time of the commencement of her cohabitation with Mr Benedetti.  I am satisfied that, since that time, to the extent and in the manner agreed between the Applicants, they have been shared in by Mr Benedetti. 

18. The evidence also establishes that, in relation to Mr Milligan’s payment of child support for the child, whilst there have been, on occasions, payments made by him, at present there is an amount of $11,893.90 outstanding.  It seems the last payment was received on 28 March 2018 – the assessed amount is, at least at present, in the sum of $24.26 per week. 

19. This evidence establishes, I think, without doubt, that the only logical conclusion can be that the child’s financial support has been met by the combined efforts of his mother and Mr Benedetti who, it seems on the evidence before me, has, for all intents and purposes, fulfilled the role of the child’s father and male parenting figure since coming into his life and certainly since no later than the end of 2014. 

20. Given the extent of Mr Benedetti’s participation in the child’s life (as outlined in the affidavit material filed by the Applicants), I have no hesitation at all in concluding that, since the cohabitation of the child’s mother and Mr Benedetti in late December 2014, Mr Benedetti has likely fulfilled all of the duties and responsibilities associated with parenting the child and sharing in his parenting with his mother. 

21. It is highly likely that, in that time, Mr Benedetti has undertaken many, many aspects of the child’s day-to-day care.  It is also highly likely that, as a consequence of Mr Benedetti’s interactions with the child, the two have formed a close and loving relationship.  It is clear – and I accept – on Mr Benedetti’s evidence that he has formed great affection for the child and that he loves him in the same manner as he will love his own biological child in the event that that occurs.  I also accept that the child wishes to be regarded as part of the family unit constituted by his mother and Mr Benedetti.  I also accept that the child has been accepted as a member of Mr Benedetti’s family by members of that extended family. 

22. The evidence before me persuades me that it is much more likely than not that Mr Benedetti has joined with and supported the child’s mother in meeting the child’s emotional, financial and practical day-to-day needs since their cohabitation commenced in late December 2014.  I accept, on the evidence before me, that the child is supportive of the process that his mother and Mr Benedetti are seeking to undertake if leave to commence such proceedings is granted. 

23. I also accept on the evidence before me that it is much more likely than not that the family unit that they constitute feel, in essence, that the proceedings for adoption they intend to commence, if granted leave, will be, in essence, a further positive and outward demonstration and manifestation of the bonds between the child and Mr Benedetti; it will also be a manifestation by Mr Benedetti voluntarily of his willingness to undertake the responsibilities for the child which are associated with, and follow upon the making of, an order for adoption if that is ultimately made. 

24. I also accept as more likely than not that the Applicants and the child together will likely gain a significant additional emotional satisfaction if, after proper consideration by the relevant State authorities, an adoption order is ultimately made. 

25. Therefore, I have no hesitation at all in concluding that the commencement of proceedings seeking adoption is something that is highly likely to be in the child’s best interests. 

26. For these reasons delivered orally, I make an order that the Applicants have leave to commence proceedings for the adoption of the child, B, a male born in 2001. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 May 2018.

Associate: 

Date:              11 May 2018