Collingwood And Anor and Unknown

[2017] FamCA 704

FAMILY COURT OF AUSTRALIA

COLLINGWOOD AND ANOR & UNKNOWN [2017] FamCA 704

FAMILY LAW – ADOPTION – Application for leave to commence proceedings – Step-parent adoption – Where the biological father is unknown – Application granted.

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

APPLICANTS: Mr Collingwood and Ms Collingwood

RESPONDENT: Unknown

FILE NUMBER: BRC 6830 of 2017

DATE DELIVERED: 8 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 September 2017

REPRESENTATION

APPLICANTS: In person

Orders

IT IS ORDERED THAT

1. Pursuant to s 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 … 2003.

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 Collingwood and Anor & Unknown 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 6830 of 2017

Mr Collingwood and Ms Collingwood

Applicants

EX TEMPORE

REASONS FOR JUDGMENT

1. I have before me today an Initiating Application, filed 6 July 2017, by which the Applicants seek an order pursuant to s 60G of the Family Law Act 1975 (Cth) granting to them leave to commence proceedings for the adoption of the child B, a male, born in 2003. The child has been diagnosed with severe Asperger’s Syndrome and has what his mother describes as: “… very difficult social, emotional, physical, intellectual, practical and mental challenges”.

2. His mother was born in 1972.  The evidence as to his conception is contained in her affidavit material.  It is relevant only to note that I accept her evidence as to the circumstances which surrounded his conception.  I also accept that the identity of his biological father is unknown to his mother. 

3. It is obvious, then, that the child has always lived with his mother.  On occasion, as a consequence of circumstances of ill health, she has been assisted in his care by her mother, his maternal grandmother.  The child lived with his mother when she was well.  He has spent a great deal of time with Mr Collingwood (who was born in 1971) since about early 2006.

4. I say that because the evidence establishes that the Applicants met around November 2005, at which time the child was not quite two years of age.  The evidence also establishes that the child met Mr Collingwood on about Christmas Eve 2005:  it is also established that since that time (whenever the date actual cohabitation commenced) Mr Collingwood has formed an integral part of the child’s life. 

5. B has siblings, the children of the Applicants:  C who was born in 2007 and who is currently 10 years of age, and D who was born in 2010 and who will soon be seven years of age. 

6. I accept the information provided to me by Ms Collingwood from the bar table in relation to her previous marriage, separation and divorce.  In summary, it was that she was previously married in about 1995, separated in about 1996 and divorced from that person in about 1999.  Given the child’s birth date, it is obviously clear that, whoever that person is, there is no prospect of them being his biological parent. 

7. I also note, for the purpose of clarity in relation to the material, that I accept, also, the information provided by Ms Collingwood from the bar table in relation to her change of Christian name from E to F.

8. I accept the evidence given by Ms Collingwood that the child’s biological father is unaware of his existence.  It is obvious, therefore, that he has spent no time at all with him since birth.  I accept her evidence to the effect that she has not had any contact with the child’s biological father and, as I have said, I accept her evidence as to the circumstances surrounding his conception.  It is unnecessary in these reasons to record that evidence in any particular detail. 

9. It is clear that there are no parenting orders currently in existence in relation to the child.

10. It is obvious, because of this Application, that adoption proceedings pursuant to State legislation have not commenced. This is the very purpose of the Applicants’ Application to this Court. Such application is made necessary as a consequence of the terms of s 92 of the Adoption Act2009 (Qld) which provides that a person may apply to the chief executive to arrange an adoption by that person, the stated child, only if a number of specified matters are satisfied.

11. Included within these matters 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 five years of age and has not yet turned 17 years of age.

12. Clearly, the child falls within this bracket. 

13. 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.  I accept that this condition is satisfied in this case. 

14. This Court must also consider whether granting leave to commence adoption proceedings is something which is in the child’s best interests, having regard to the effects of sections 60F(4)(a), s 61E and s 65J of the Family Law Act 1975 (Cth) where those sections are applicable.

15. It is clear that the decision facing this Court differs from the decision facing the Court charged ultimately with the obligation to make decisions about whether to permit the child’s adoption. 

16. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections particularised in section 60G of the Family Law Act 1975 (Cth) - only the order for adoption made by the appropriate State Court has this effect.

17. 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. These matters include that an order for an adoption by a step-parent would better promote the 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.

18. It is obvious, therefore, that this Court ought not make an order granting leave to permit proceedings in the State Court to commence if such proceedings could be thought doomed to fail because of the absence of evidence to establish the necessary and mandatory prerequisites under State legislation. 

19. Such prerequisites are, in my view, established in this case. 

20. It is clear, I consider, that s 60G(2) of the Family Law Act 1975 (Cth) requires that I consider whether granting leave to commence proceedings is in the child’s best interests. Therefore, consideration must broadly be given to the familiar best interests considerations, where these are relevant, as those considerations are prescribed in s 60CC of the Family Law Act 1975 (Cth).

21. As I have already remarked, the child’s biological father is unknown.  He has not spent any time at all with the child.  The child has lived with his mother and, for the vast majority of his life, with his mother and Mr Collingwood as a family unit.  He has done so, on the evidence before me, from when he was about two years of age. 

22. Given the length of time that has passed since then, I have no hesitation at all in concluding that it is highly likely that, together with his mother, Mr Collingwood has fulfilled all the duties and responsibilities associated with parenting the child.

23. Given the likely course of a life lived over the period of time from Mr Collingwood’s involvement in, and cohabitation with, the child until the present, it is also, I think, highly likely that, insofar as the child is concerned, Mr Collingwood will have undertaken many, many aspects of his day-to-day care and parenting.  He has done so in the circumstances where the child is asked, as a consequence of his Asperger’s Syndrome, to deal with a number of additional challenges. 

24. It can be thought, therefore, that Mr Collingwood has discharged his obligations to, and care of, the child fully cognisant of those issues and, I have no doubt, supportive of both the child and the child’s mother in meeting and dealing with them as a family unit.

25. It seems to me, on the evidence of the Applicants which is detailed and thorough, that a conclusion other than that Mr Collingwood has formed a well-bonded and loving relationship with the child would be almost perverse:  it is certainly inconceivable to me. 

26. One can only conclude, on the basis of the evidence, that it is much more likely than not that the child has a very strong and well-established relationship with Mr Collingwood.  The strength of this relationship is, on the evidence before me, manifested by the fact that, on occasion, the child has asked that he be known by Mr Collingwood’s surname and the parties’ actions in relation to that request.

27. As I have said, the child is joined in his family by his siblings.  On 6 January 2015, the Applicants registered a change of surname for all of their children in an outward manifestation of the unification of their family unit. 

28. Given the ongoing presence of Mr Collingwood in the child’s life since about early-2006, the only logical conclusion open on the evidence before me is that, from the child’s perspective, Mr Collingwood is his father for all intents and purposes and has fulfilled that role and discharged the responsibilities associated with it since that time.

29. There could be no conclusion, in my view, other than that it is obvious that, together with the child’s mother, Mr Collingwood has supported the child emotionally, financially, psychologically:  he has joined in meeting his practical needs since about early-2006. 

30. I accept that, even in the child’s personal circumstances, as I have briefly summarised them, I think it much more likely than not that, given the length of time over which Mr Collingwood has discharged parenting-type obligations and made significant contributions to the child’s development and growth, that the child may well feel a significant benefit, in a personal sense, if proceedings for his adoption by Mr Collingwood are able to be commenced.

31. I also accept, without hesitation, that both adult Applicants more likely than not feel that such a result would, in a sense, continue to complement their relationship and deal with some of the issues which have given rise to anxieties and concerns: those being summarised within their affidavit material.  Again, it is unnecessary that I detail these in these short reasons. 

32. I accept that both Applicants identify that there are only positive benefits and outcomes for the child - and all of their family - if leave to commence adoption proceedings is granted.  I also accept, in a sense, that the child’s mother’s assessment of such positive benefits should be accorded greater weight in the circumstances where she was adopted by her parents.

33. I accept that it is highly likely that the child and each of the Applicants will gain an additional emotional satisfaction if, after proper consideration by the relevant State authorities, an adoption order is ultimately made. 

34. That being the case and for the reasons I have expressed orally, I conclude that leave to commence proceedings for adoption is something that is in the child’s best interests. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 September 2017.

Associate:

Date:              8 September 2017