Cassidy And Anor

[2017] FamCA 25

FAMILY COURT OF AUSTRALIA

CASSIDY AND ANOR [2017] FamCA 25

FAMILY LAW – ADOPTION – Application for leave to commence proceedings – where the child was conceived through donor insemination – where the donor is unknown - where the donor has no parental rights – application granted.

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

APPLICANTS: Mr Cassidy and Ms Surif

FILE NUMBER: BRC 12245 of 2016

DATE DELIVERED: 23 January 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 January 2017

REPRESENTATION  

APPLICANTS: In person

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, born … 2006.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cassidy 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:  BRC 12245 of 2016

Mr Cassidy and Ms Surif

Applicants

EX TEMPORE

REASONS FOR JUDGMENT

1. There is before the Court an application commenced by Initiating Application originally filed on 30 November 2016 seeking an order pursuant to s 60G of the Family Law Act 1975 (Cth), granting the parties leave to commence proceedings for adoption in relation to the child, B (a male) born in 2006.

2. The male Applicant, Mr Cassidy, is a professional.  He was born in 1968.  the child’s mother (also an Applicant in the proceedings) is a health professional who was born in 1966. 

3. Mr Cassidy and Ms Surif met in about 2012, commenced living together in a de facto relationship in about March 2013 and later married in 2016. 

4. Mr Cassidy has two children from a previous marriage.  It appears these children live primarily with their mother.  They are 16 years and 14 years of age respectively.  C, the youngest child, spends overnight time with the parties - on the evidence he has a close relationship with the child. 

5. The child was conceived through a donor insemination procedure whilst Ms Surif was living in New Zealand.  The reality of the terms associated with that procedure are that the child’s biological father is unknown.  A consequence of the law as it is in New Zealand (and was at the time of his conception) is that the child’s biological father has no parental rights in relation to him.  Perhaps consistent with the law in New Zealand the name of the child’s biological father is not recorded on his Birth Certificate.

6. Ms Surif and the child moved from New Zealand to live in Australia in about 2011. 

7. The Applicants join today in seeking an order pursuant to s 60G of the Act for leave to commence adoption proceedings.

8. 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 a stated child if a number of specified matters are satisfied. Included within those matters, at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth) and that the child the subject of the proposed adoption is at least 5 years of age and has not yet turned 17 years of age. the child clearly falls within that age bracket.

9. The Court exercising power pursuant to s 60G of the Family Law Act 1975 (Cth) may grant leave for adoption proceedings by a prescribed adopting parent. In proceedings for such leave, the Court must consider whether granting leave will be in the child’s best interests, having regard to the effect of s 60F(4)(a), s 60H(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth).

10. It is clear that Mr Cassidy is a prescribed adopting parent as that term is defined in s 4 of the Family Law Act 1975 (Cth).

11. Whilst the decision facing this Court differs to that which will face the Court charged with whether to permit the child’s adoption, I consider that this Court ought not grant leave to Applicants to permit proceedings in the State Court to commence if such proceedings are doomed to fail because of the absence of the mandatory State prerequisites. 

12. The granting of leave to commence proceedings to adopt does not have the consequence outlined in the sections particularised in s 60G of the Family Law Act 1975 (Cth). Only an order for adoption made by the appropriate State Court has that effect.

13. Section 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order only if satisfied of a number of matters: included in these is that an order for adoption via step-parent would better promote a child’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any other Court order or no order at all.

14. It is clear from a reading of s 60G(2) of the Family Law Act 1975 (Cth) that, in these proceedings, I must consider whether granting leave is in the child’s best interests. Thus, consideration must broadly be given to the familiar “best interests” considerations (where relevant in each particular case) as prescribed by section 60CC of the Family Law Act 1975 (Cth).

15. As already noted, the child’s biological father is an unknown donor. 

16. Mr Cassidy is the only father the child has ever known.  He has, in that role, therefore, provided a male role model and assisted the child in his ongoing development.  I am satisfied on the material before me (taking into account the contents of the affidavits from each of Mr Cassidy and the child’s mother) and taking into account the contents of their submissions, that Mr Cassidy has, in combination with the child’s mother, fulfilled all of the duties and responsibilities associated with parenting the child since the parties commenced living together:  that is, since about March 2013 at the latest.

17. It is, I think, open to me to infer that, given this living arrangement, it is more likely than not that, since that time, Mr Cassidy will have provided day-to-day care to the child.  I have no hesitation in accepting the suggestion implicit in the material, and from the fact of this Application, that Mr Cassidy loves the child in the same manner he loves his own biological children.  It is, I think, more likely than not that the child has a strong relationship with Mr Cassidy.  Given the submissions made by Mr Cassidy and the child’s mother, it is clear that, from the child’s perspective, Mr Cassidy is the only father he has known.

18. I accept, at least by way of implication, that these two people have together met the child’s emotional, financial and practical needs since the commencement of their de facto relationship in about March 2013. 

19. I also accept Mr Cassidy’s evidence that his parents have established a loving and caring relationship with the child, that they cherish him and relate to him in the same way they relate to their other grandchildren.

20. I accept, in essence, the overall effect of Mr Cassidy’s evidence and submissions - as supported by the child’s mother - that proceedings for the child’s adoption will complete, in a sense, the relationship between the child and Mr Cassidy and will permit their relationship to be legally recognised.  I accept as more likely than not that the child will gain (perhaps more as he grows older) an emotional satisfaction if an adoption order is made.  I accept that, together with the legal rights associated with an adoption order, this is something which is to the child’s benefit and in his best interests.

21. For these short reasons, delivered orally, I have no hesitation in concluding that the proposed adoption is in the child’s best interests.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 January 2017.

Associate:     

Date:              23 January 2017