Denton & Anor and Sittichai

[2017] FamCA 1002

FAMILY COURT OF AUSTRALIA

DENTON AND ANOR & SITTICHAI [2017] FamCA 1002

FAMILY LAW – ADOPTION – adoption by step-parent of child – leave granted to commence proceedings pursuant to Family Law Act 1975 (Cth) s 60G – application to change the surname of the child granted – order that the mother is authorised to apply to the Registrar of Births, Deaths and Marriages Victoria to register a change of the child’s name.

Adoption Act 1984 (Vic)
Births, Deaths andMarriagesRegistrationAct 1996 (Vic) s 28(2)

Family Law Act 1975 (Cth) ss 60G, 60CB, 60CC, 60CG, 61E, 69ZN(7)

Chapman v Palmer (1978) FLC 90-510

FIRST APPLICANT: Mr Denton

SECOND APPLICANT: Ms Sumalee

RESPONDENT: Mr Sittichai

FILE NUMBER: MLC 6605 of 2017

DATE DELIVERED: 8 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 4 & 13 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Lamplugh Mcintosh Lawyers

COUNSEL FOR THE APPLICANTS: Ms E Heggie

THE RESPONDENT: No Appearance

Orders

1. Pursuant to section 60G of the Family Law Act 1975 (Cth) leave is granted to the applicants to commence proceedings for the adoption of the child B SUMALEE born … 2008 (“the child”).

2. That the child previously known as B SUMALEE born on … 2008, now be known as B DENTON.

3. The applicant mother is authorised to apply to the Registrar of Births, Deaths and Marriages Victoria to register a change of the child’s name from B SUMALEE to B DENTON.

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 Denton and Anor & Sittichai 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 MELBOURNE

FILE NUMBER: MLC6605/2017

Mr Denton And Ms Sumalee

Applicants

And

Mr Sittichai

Respondent

REASONS FOR JUDGMENT

Introduction 

1. B  is a nine year old female child currently in Grade 3.  Her parents were married in Asia but separated when her mother was pregnant with her.  She was born in Asia and has never met her biological father.  Her biological father has never paid any child support or financially supported the child. 

2. Under s 60G of the Family Law Act1975 (Cth) (“the Act”) this Court may grant leave for proceedings to commence for the adoption of a child by prescribed adopting parents. The decision whether to grant leave is governed by a consideration of whether it is in the child’s best interests.

3. The child’s mother (“the second applicant”) and her husband (“the first applicant”) bring a joint application for leave to commence adoption proceedings in the County Court of Victoria. The applicants were married in 2013 and are defined as “prescribed adopting parents” under s 4(1) of the Act. The child lived with the maternal grandmother in Asia but came to Australia to live with her mother and the first applicant in November 2104 when she was aged six and she regards him as her father.

4. The applicants also bring an application to change the name of the child on her birth certificate. The child has a Asian birth certificate but Part 4 of the Births, Deaths andMarriagesRegistrationAct 1996 (Vic) governs applications for registration of change of a child’s name. Section 28(2) of that Act provides for a change of name to be registered if the change of name has been ordered by a court.

5. The applicants did not press other applications made in their Initiating Application filed 4 July 2017.

6. The respondent to the application is the child’s biological father who lives in Asia and who has been made aware of the applications. He did not attend the hearing or file any material with the Court.

7. The County Court of Victoria has jurisdiction under the Adoption Act 1984 (Vic) (“the Adoption Act”) to make an order for adoption.

Procedural fairness for the respondent

1. The second applicant mother deposed in her affidavit filed 4 October 2017 that she sent an email to the biological father on 11 May 2017 outlining her intention to apply for the child to be adopted by her husband Mr Denton. In her email she requested that the biological father provide his consent before she “proceed [sic] onto the next step” (Annexure SS1).

2. The biological father replied to this email on 12 May 2017, and wrote the following:

   I, [the respondent] allow the transfer of the daughter, Miss [B Sumalee], as per your request for the transfer of the daughter. Respectfully yours,

   [the respondent ][1]

   [1] Affidavit of the second applicant filed 4 October 2017, Annexure SS1.

3. The parties corresponded further by email about the documents required for the adoption application on 11 June 2017, 14 June 2017 and 12 July 2017. These emails are annexed to the mother’s affidavit filed 4 October 2017 at SS-2. The biological father stated in an email dated 12 July 2017 that he would sign the required documents that the mother was intending to send him if he did not have to enter into any child support arrangement.

4. On 17 July 2017, the mother sent an email to the biological father enclosing the Initiating Application and supporting material that had been mailed to him via international express post by way of service on her behalf by her solicitors. In the email, the mother requested that the biological father sign the necessary documents and return them to her. The mother also gave the biological father notice of the proceedings due to be held at this Court on 4 August 2017 and stated to the father in her email that “if you are not represented at the court, it can be decided in your absence”.

5. The mother sent a further email on 27 September 2017 to the biological father giving him notice of the date and time of Court proceedings on 4 October 2017, stating that in the event the father did not agree with the application, he must join the proceedings.

6. The mother gave oral evidence during the hearing on 4 October 2017 where she stated that she received an acknowledgment of service signed by the biological father. When asked by her counsel whether she recognised the handwriting and signature on the documents as that of the biological father, she agreed and stated it was indeed his signature.

7. I am satisfied that the biological father of the child has been notified of the proceedings and that he does not propose to participate.

Evidence in support of the application

1. The applicants relied upon the following documents in support of their application:

   ·Initiating Application filed 4 July 2017;

   ·Affidavit of the first applicant filed 4 July 2017;

   ·Two affidavits of the second applicant filed 4 July and 4 October 2017;

   ·Acknowledgement of service filed 25 August 2017;

   ·Affidavit of service filed 25 August 2017.

Evidence and Background

1. I am satisfied on the balance of probabilities of the following facts based on the unchallenged evidence.

2. The child’s parents were married in 2007 although the paperwork was completed on 20 June 2008.  They separated on a final basis in September 2008 when the second applicant mother was pregnant with the child. The child was born in 2008 and has never met the biological father, and the second applicant mother deposes that the biological father has never tried to see or contact the child despite knowing where the second applicant mother and child lived and where the maternal family continue to live in Asia. The second applicant mother deposes that despite an agreement for the biological father to pay child support, she has never received any child support nor has the biological father ever financially supported the child.

3. The parents were divorced on 6 May 2010 and on the evidence of the mother, she has been granted “sole parental power” of the child by the relevant District Registration Office in Asia.[2] The second applicant mother deposes that this enabled her to make decisions for the child without the need for the biological father’s involvement.

   [2] Affidavit of the second applicant filed 4 July 2017, par 20.

4. The applicants met in Asia on 10 October 2010 and the first applicant met the child in January 2011 when she was two years old.

5. The first applicant was born in Australia and is 43 years old. He is employed as a Director and is in good health.  The second applicant mother was born in in Asia and is aged 33 years.  She is engaged in home duties and works from home.  She is in good health.  The child is in good health and has no medical conditions.

6. The second applicant mother moved to Australia to live with the first applicant on 23 August 2012 leaving the child in Asia in the care of the maternal grandmother for 12 months whilst she settled in Australia.  Another period of 12 months elapsed before the second applicant mother could obtain a Visa for the child and the child continued to live with the maternal grandmother but had regular contact with the second applicant mother and the first applicant for holidays and daily by telephone.

7. The applicants were married in 2013 and the second applicant mother and child are now permanent residents of Australia and will be entitled to apply for citizenship in approximately 2021. The first applicant applied to sponsor the mother and child to Australia on 26 April 2013.

8. The child is currently in Grade 3 at Suburb C Primary School. The first applicant deposes in his affidavit filed 4 July 2017 that he is actively involved in the child’s day to day care and helps with homework and taking the child to extra-curricular activities. The first applicant deposes that he and the second applicant mother make all important decisions about the child’s life, health and education together. The first applicant deposes that the child calls him “Dad” and has done so since she moved to Australia. He deposes that the child has a strong relationship with his extended family and with his parents in particular, who the child calls “Nan” and “Grandad”.

9. The first applicant deposes that the child has strong ties to her mother’s family in Asia. The child returns to Asia annually to visit the maternal grandmother and maternal extended family with the applicants and has regular communication with them, however does not share these ties with her biological father or his extended family. He deposes that the child has never met nor communicated with her biological father. He deposes that the child considers him as her father and does not in fact know that she has a different biological father as she has only known the first applicant to be her father. This is also deposed to by the second applicant mother.

10. The second applicant mother deposes that she has had no contact with the biological father since separation other than when she contacted him by phone in September 2013 to obtain his consent to the child’s Australian visa and by email to seek his consent to these proceedings.

11. The second applicant mother deposes that her sister posted the child’s visa paperwork to the biological father’s parents’ house, and the biological father signed the child’s visa application but did not seek to contact the child.

12. When the child was aged two, the second applicant mother changed the child’s family name to Sumalee so that it would be the same as her own name and extended maternal family name.

13. The mother now uses her married name of Denton in her personal life and intends to change her legal documents to reflect her married name.

Relevant law and findings

1. As previously outlined the applicants are within the definition of “prescribed adopting parent”.

2. The leave of this Court is a precondition to the making of an order for adoption in favour of the applicants.

3. It is the state court under state law which ultimately will be required to consider the general requirements relating to the best interests of the child for the making of a final adoption order.

4. Under s 60G(2) of the Act, in considering whether to grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent, the Court must consider whether granting leave would be in the child’s best interests.

5. This subsection provides that “the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J”. How a Court determines a child’s best interests is governed by ss 60CB to 60CG of the Act. Importantly s 60CC of the Act sets out the primary and additional considerations I am to have regard to in determining the best interests of the child.

6. Proceedings for leave to adopt under s 60G of the Act are “child-related proceedings” within the meaning of the Act and specifically within the meaning of Division 12A of the Act. That Division requires, amongst other things, that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible (s 69ZN(7) of the Act).

7. Having regard to the preliminary nature of this application, the history of this matter and the child’s age, it would be inappropriate to extend these proceedings by the appointment of an Independent Children’s Lawyer.  

8. Whilst the decision before this Court is different from the decision of the court which will ultimately determine the adoption application, it is appropriate to consider the question of whether it is in the child’s best interests to permit adoption proceedings to proceed in the state court.

9. The effect of adoption is that all parental responsibility for the child ceases, as do all other parenting orders. Parental responsibility is defined in s 61B of the Act as meaning “all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children.”

10. The granting of leave does not end the respondent’s parental responsibility because this does not occur until the adoption is finalised.[3] However as discussed above the Court must consider whether the grant of leave would be in the child’s best interests under s 60G(2) of the Act.

    [3] See Family Law Act 1975 (Cth) s 61E.

11. The evidence in this case is unchallenged and I accept the evidence of both applicants.

12. The applicants’ application to change the surname of the child is an application for a parenting order under Division 12 of the Act and accordingly I must also be satisfied that it is in the best interests of the child to make such an order.

13. The Full Court decision in Chapman v Palmer (1978) FLC 90-510 is often cited in relation to name change applications. The Full Court stated at 77,674 that in deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change of name. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.

14. The Full Court went on to state at pp 77,675-77,676:

    We believe that each such case should be approached in an even-handed manner with the object of making a decision that will promote the welfare of the child.

    To summarize, the factors to which the courts should have regard in determining whether there should be any change in the surname of a child include the following:

    (a)The welfare of the child as the paramount consideration.

    (b)The short and long term effects of any change in the child’s surname.

    (c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

    (d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

    (e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

    (f)The effect of frequent or random changes of name.

15. I have taken into account the primary and additional considerations pursuant to s 60CC(2) and (3) of the Act to the extent that they are relevant to the specific circumstances of this matter.

Primary considerations

1. The primary considerations are set out under s 60CC(2) of the Act.

2. I am satisfied on the basis of the unchallenged evidence before me that the child has never met the respondent and has not developed any relationship with him or a meaningful relationship with him. The child does not have any knowledge of the respondent.  The child has a good “father daughter” relationship with the first applicant and on all the evidence regards him as her father. I am also satisfied that this relationship has been of some duration in that the child has been living with the second applicant for approximately three years and has known him since she was two years of age.

3. The email correspondence between the second applicant mother and the respondent indicates that the respondent does not seek to have a meaningful relationship with the child.

4. There is no evidence of any need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional considerations

1. Turning to the additional considerations pursuant to s 60CC(3) of the Act.

2. The child has not expressed any view and has no knowledge of her biological father.  On all the unchallenged evidence she is settled living with the applicants.  She regards the first applicant as her father and taking into account her young age at nine years, no weight should be placed on her wishes.  The reality is that there is no other proposal for consideration.

3. There is no evidence as to the view of the child about the change of surname.

4. On the unchallenged evidence there is no evidence that the biological father or the extended paternal family has any relationship with the child.  There is therefore no evidence of any relationship which might be impacted on the change of surname for the child.

5. Other than signing a Visa application the biological father has not participated in making any decisions about the major long-term issues regarding the child. He has never met the child or sought to spend any time with the child or communicated with the child.  In correspondence it would appear that he has no objection to the child being adopted.

6. The respondent has not fulfilled any obligation to maintain the child and has never met the child.  The second applicant mother has fulfilled all of her obligations to maintain the child with the assistance of the first applicant and the maternal extended family.

7. There is no evidence that the biological father or the paternal grandparents in Asia have the capacity to provide for the needs of the child including emotional and intellectual needs.  Although the child has met the paternal grandparents on one occasion when she was 18 months old she has not otherwise spent time or communicated with her extended paternal family. None of the child’s paternal family have sought to spend time or communicate with her.

8. On all the evidence the applicants have the capacity to provide for the needs of the child including emotional and intellectual needs.  There is also evidence that the maternal extended family has the capacity to provide for the child’s emotional and intellectual needs when she spends time with them.

9. On the unchallenged evidence there is no evidence that the biological father seeks to have any responsibility for parenthood in relation to the child.

10. There is evidence of the child’s culture being recognised through her contact with the maternal family in Asia and this will continue to be maintained on all the evidence.

Name change application

1. The child has been known by her mother’s maiden surname since she was two years of age.  She has not known her biological father’s name.  It is proposed to change the child’s surname to be consistent with that of the applicants.

2. I am satisfied that at nine years of age and with the parenting arrangements which have been in place since the child met the first applicant and came to Australia, that it is in her best interests to bear the same surname as the applicants, particularly as she regards the first applicant as her father.  There is unlikely to be any confusion for the child in this surname change because she will identify with the only family unit she has known since living in Australia.

3. I do not regard this as a frequent surname change because the child has been known by her mother’s maiden name since the age of two. If her surname is changed this will be the only change of which she is aware and it will occur at the same time as her mother changes her surname which is consistent.  This also has the advantage of minimising any possible embarrassment for the child in having a different surname from her mother and the first applicant whom she regards as her father.

Conclusion

1. For the reasons previously outlined, I am satisfied on all of the unchallenged evidence that it is in the best interests of the child for leave to be granted to the applicants to commence adoption proceedings pursuant to s 60G of the Act.

2. I am also satisfied that it is in the best interests of the child for her surname to be changed in accordance with the application so that her surname is consistent with the surname of her primary carers, the applicants.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 8 December 2017

Associate: 

Date:  8 December 2017