Denley and Anor and Ngo

[2017] FamCA 1181

FAMILY COURT OF AUSTRALIA

DENLEY AND ANOR & NGO [2017] FamCA 1181

FAMILY LAW – CHILDREN – ADOPTION – Application by step-parent – Whether to grant leave to commence proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the biological father consents to the adoption – Where the child is already 17 years of age – Where leave is granted.

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

FIRST APPLICANT: Mr Denley

SECOND APPLICANT: Ms Tran

RESPONDENT: Mr Ngo

FILE NUMBER: BRC 4853 of 2017

DATE DELIVERED: 24 July 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Ms Golightly

Marino Law

THE RESPONDENT: No Appearance

Orders

1. That pursuant to s 60G of the Family Law Act 1975, leave be granted to the first applicant to commence proceedings for the adoption of the child, B NGO (also known as C DENLEY) born … 2000.

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 Denley and Anor & Ngo 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 4853 of 2017

Mr Denley

First Applicant

And

Ms Tran

Second Applicant

And

Mr Ngo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me for determination today is an application by Mr Denley and his wife Ms Tran for an order that leave be granted pursuant to s 60G of the Family Law Act 1975 (Cth) (“Family Law Act”) for the First Applicant, Mr Denley, to be able to commence proceedings in the Queensland State Courts for the adoption by him of the child, B Ngo, also known as D Denley.  The child was born in 2000 and accordingly she is now 17 years of age.  The second applicant in today’s proceedings is the child’s mother.

2. The respondent father, Mr Ngo, is an Asian man who still, to the best of everybody’s knowledge involved in this case, resides in Country A.  He has, according to documents that the Court has sighted that are attached to the applicants’ affidavits, consented to the adoption of his daughter by the first applicant by signing this document headed “Application for Confirmation” on 14 January 2015.  That document says:

   In order to facilitate her study abroad, I agree to let her bear her stepfather’s surname and be adopted by her stepfather.

   Therefore, I am writing this letter to request the [government agency] to confirm that I totally agree to let my daughter bear her stepfather’s surname.

3. In Queensland, the adoption of children is governed by the Adoption Act 2009 (Qld) (“Adoption Act”).  Under that Queensland legislation, some new criteria were introduced in respect of the determination of applications for adoption, particularly, in respect of those such as this application, a step-parent adoption application.  The Adoption Act requires prospective adopting step-parents, such as Mr Denley in this instance, to satisfy the State Court in respect of a number of criteria.

4. Those include that the relevant child is at least five years of age and has not yet turned seventeen. Of course, the child in this case has already turned seventeen, as I have already mentioned, and that raises some questions about the prospects of the application being successful in the State Courts. However, having had a look at s 92 of the Adoption Act, which sets out the criteria that must apply for a person to adopt a stepchild, which includes that the child has not yet turned seventeen, there is provided for in the same section an exception to that particular requirement. In circumstances where the Chief Executive of the Department that includes Child Safety considers that there is enough time to complete the adoption process before the child turns eighteen, the application may be accepted. The Chief Executive must also be satisfied that the grounds for making an adoption order in favour of the applicant are likely to exist.

5. The applicants have also put before the Court evidence of communications between their solicitors in these proceedings and the Department in which the Departmental Officer sets out the Department’s position in respect of the application notwithstanding the fact that the child has already turned seventeen, namely that if the matter proceeds relatively quickly and without any hurdles, there is a reasonable chance of the adoption application going through before the child turns eighteen in January 2018.  Accordingly, the fact that the child is already seventeen is no bar to this Court’s consideration of whether or not leave to apply to the State Courts for the adoption ought to be granted.

6. Section 60G of the Family Law Act was introduced into the Act in 1995. Section 60G(2) of the Act makes it plain that a decision whether to grant leave for proceedings to be commenced for the adoption of a child is actually governed by a determination of the best interests of the child. Failure to obtain leave from this Court to apply to the State Court for adoption has consequences under the state legislation. It also has consequences under the Family Law Act. 

7. Essentially s 61E of the Family Law Act provides that if a child is adopted and immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent, that such parental responsibility ends on the adoption of the child by that child’s step-parent.

8. Section 65J of the Family Law Act similarly provides that such is the effect of an adoption order on any parenting order that exists under the Family Law Act.  In essence, if a child is adopted by a step-parent and immediately before that adoption a parenting order was in force, the parenting order stops being in force on the adoption of the child. 

9. Accordingly when this Court is considering whether to grant leave for the step-parent adoption application to proceed, it must consider having regard to the best interests of the child, whether or not it is appropriate to grant such leave bearing in mind that parental responsibility and any parenting orders in place in favour of the respondent, the biological father of the child in this case, are to be terminated by the adoption order.

10. In this particular case there is no parenting order in place that would be terminated by the adoption order.  However, pursuant to the Family Law Act the simple fact of biological parenthood confers on each parent of a child parental responsibility, unless a court order is made that somehow excludes or restricts the parental responsibility of one or both of those parents.  Accordingly, to this point in time, the child’s father, the respondent to the proceedings, has pursuant to the Family Law Act, maintained lawful parental responsibility in respect of the child, although according to the evidence that I accept, he has taken no steps towards exercising that parental responsibility in many, many years. 

11. The following matters of evidence are to be considered in this case.  In the mother’s affidavit evidence, she says she separated from the child’s father and divorced him in 2005 when the child was only about five years old.  She deposes to the fact that the father has had little, if any, contact with the child at all since then.

12. Not long after the mother separated from and divorced the child’s biological father in Country A, she went on a trip for a holiday in Country E.  It was there in 2007 on that holiday that she and Mr Denley met.  They formed a relationship after meeting and carried on that relationship, albeit with Mr Denley for some time living in other countries and travelling to Country A to spend time and further the relationship with the mother, before ultimately marrying her in 2010.

13. Mr Denley and the mother have, since they married, had a child together, a boy named D who was born in 2011. He is accordingly a brother, or at least a biological half-brother, to the seventeen year child who Mr Denley seeks leave to be able to proceed to adopt.

14. Mr Denley, the mother and the family, consisting of them and the child the subject of this application and their son, D, were living for some time in or around City G in Country A before moving to some town/suburb in or around City F in Country A where they lived for some time. 

15. Some few years ago they decided that it would be better for their family and for their children to move to live permanently in Australia.  I understand that they agreed that the lifestyle here and the educational and lifestyle opportunities that were available for their daughter who they call C, and for their son as he grows up, would be far more beneficial than continuing to live in Country A.

16. On the evidence, I am satisfied that when they decided to move from Country A to Australia for the Country A Government purposes, they required the respondent father of the child C to be contacted and to be allowed to consider his position in respect of parental rights and parental contact with his child.  I am satisfied that he was contacted, was given the opportunity to consider his position and seemingly was happy enough and satisfied to sign official Country A Government documents that facilitated the Country A Government giving their authority to Mr Denley and his wife to bring the child C from Country A, notwithstanding her father was to remain living in Country A.  As I have said, he signed a document whereupon he effectively consented to the child C taking on her step-father’s family name of Denley and consented to Mr Denley and the mother bringing C to Australia to live permanently. In that same document, he consented to the idea of Mr Denley adopting the child C.

17. Both Mr Denley and the mother depose in further affidavits to the lack of any contact or communication that they have had with the respondent biological father of the child for some time now since they left Country A. I am satisfied, notwithstanding the fact that he has not been personally served with the documents in these proceedings, that by signing the document that was required by the Country A Government to allow the child to leave the country of Country A, that the respondent father expressed that he was happy for an adoption of C by Mr Denley to go ahead. I am satisfied in these circumstances that he did not need to be personally served with the documents in this application for the matter to be heard and determined. To the extent that it is necessary, I dispense with the need for service.

18. The mother has deposed in her affidavit to having left the relationship with the respondent father due to the ongoing physical abuse and domestic violence he perpetrated against her.  She says that whilst he did not particularly abuse their little girl when they we living together, that he abused her and she determined to leave him because she could not tolerate the abuse anymore and she could not stand having their little girl brought up in a family where she was exposed to violence perpetrated by her father against her mother.

19. All of the evidence that is before me, which I accept, is that Mr Denley has taken on the role of partner and husband to the mother, and as a father to his step-daughter C and his son D, with a great deal of enthusiasm, a great deal of commitment and a great deal of love and determination to provide for his wife and family a good future.  I am quite satisfied that in all of the circumstances C is thriving and doing well in the care of her mother and Mr Denley, and that for the family’s sake, but most importantly for C’s sake, that Mr Denley and the mother be given the leave to proceed to make their application for the step-parent adoption of C.

20. Most significantly, I have regard to the evidence which I accept unreservedly, that C herself is very enthusiastic and desirous of being adopted by Mr Denley and is looking forward to lawfully being his daughter and living as such and spending the rest of her life in Australia as Mr Denley’s lawful daughter.

21. In all the circumstances I am satisfied it is in C’s best interests for the application to be allowed to proceed and I order accordingly.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 July 2017.

Associate: 

Date:  26 November 2019