DICKENS & ZERB

[2015] FamCA 948

FAMILY COURT OF AUSTRALIA

DICKENS & ZERB [2015] FamCA 948

FAMILY LAW – ADOPTION – Leave to adopt

Family Law Act 1975 (Cth)
Adoption Act 2009

APPLICANTS: Ms Dickens and Mr Dickens

RESPONDENT: Mr Zerb

FILE NUMBER: BRC 7106 of 2015

DATE DELIVERED: 2 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Byrne, Steadfast Solicitors

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G of the Family Law Act 1975 (Cth), leave is granted for the Applicants, Ms Dickens and Mr Dickens, to commence proceedings for the adoption of the child B born … 1999.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Zerb 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

FILE NUMBER:

Ms Dickens and Mr Dickens

Applicants

And

Mr Zerb

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Mr Dickens and the child’s biological mother, Ms Dickens, seek leave to commence adoption proceedings in relation to B, who was born in 1999.  He is, therefore, now 16 years of age. 

2. Mr and Ms Dickens have been in a relationship since about mid-2005.  After approximately three years of maintaining what I will describe as a long-distance relationship, the child and his mother migrated to Australia in June 2008.  At that time, the child was nine years of age.

3. Mr and Ms Dickens married in 2008.  From the time the child and his mother lived with Mr Dickens, Mr Dickens has been fully involved in the child’s life.  He has borne all of the responsibilities for his financial support and has, no doubt, contributed significantly to his psychological and emotional support.  The evidence makes it clear that, from the child’s perspective, Mr Dickens is, in fact, his father, and I have little hesitation in concluding that, without doubt, he is certainly his psychological father.

4. The evidence before the Court establishes that, when asked by Mr Dickens about the issue of the application before the Court, the child told him that he would like it if he, Mr Dickens, adopted him.  Mr Dickens’s evidence makes it clear that he desires to adopt the child, so that every legal responsibility and right that attends that course is afforded to him and, of course, more importantly, afforded to the child.

5. Another relevant consideration is that the child has a sibling, his sister C, who was born in 2007.  She will be eight years tomorrow, and it is perhaps fitting, in a sense, that this Application is heard today, because, if made, the order will mark the commencement of a process by which her brother, known to her for the entirety of her life - will perhaps come to see himself, even more, as part of that family unit.

6. The Application before the Court was filed on 23 July 2015, and by it, the parties seek an order pursuant to s 60G of the Family Law Act 1975.  That course is necessary because s 92 of the Adoption Act 2009 (Queensland) provides that a person may apply to the Chief Executive to arrange an adoption if a number of specified matters are satisfied.

7. Included within those matters is that the person has been granted leave pursuant to s 60G of the Family Law Act 1975 (Cth) and that the child the subject of the Application is at least five years of age and has not yet turned 17 years of age. the child clearly falls within that category at this point.

8. Section 60G(2) of the Act provides that, in proceedings for such leave, the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of sections 60F(4)(a) and 60HA(3)(a) and sections 61E and 65J of the Act.

9. It is evident, from a consideration of those sections - in particular 61E and 65J of the Act - that the consequences for the child of being adopted include the termination of all parental responsibility owed by a biological parent for him and the non-enforceability, in a sense, of any existing parenting order.

10. The decision facing this Court differs from this that which will face the Court charged with the decision whether to permit the adoption.  The granting of leave to commence proceedings does not, of course, have the consequence of the cessation of parental responsibility or the non-enforceability of parenting orders, as only an order for adoption made by a state Court has that effect.

11. However, s 208 of the Adoption Act 2009 provides that the Court may make a final adoption order only if satisfied of a number of matters, included in which is that an order for adoption by a step-parent would better promote a child’s wellbeing and best interests than an order under the Act, any other Court order or no order at all.

12. I consider, therefore, having regard to the legislative framework provided by the Adoption Act 2009, that this Court ought not grant leave to Applicants to commence proceedings in a state Court if those proceedings are doomed to fail because of the absence of mandatory prerequisites.

13. It is clear, therefore, that, in these proceedings, I must consider the familiar best interest considerations as prescribed by section 60CC of the Family Law Act 1975 (Cth).

14. It is clear on the evidence before me that, as I have said, Mr Dickens has met all of the child’s emotional and psychological needs and, in that sense, is very much his psychological parent.

15. The evidence establishes that the child’s biological father has never met him, has not had any interaction with him and has evidenced no desire to do so despite, I accept, the attempts by his mother to make him (the biological father) aware of the child’s impending birth and, after that, his whereabouts.

16. It is clear that, upon the family unit constituting itself in Australia in mid-2008, they have, since then, lived as a family unit, supporting each other emotionally, financially and practically.  It is clear that Mr Dickens has, as I have said, discharged all of the responsibilities of parenthood as those responsibilities are envisaged under the Family Law Act 1975 (Cth).

17. He is and has been and, by this application, evidences his intention to continue to be the child’s father for all intents and purposes.  One of the indicia in relation to the child’s acceptance of Mr Dickens as his father is also made out by the fact that, in January 2013, the child changed his name to adopt Mr Dickens’s last name.  A clearer indication of the child’s willingness and desire to recognise how important Mr Dickens has been in his life could hardly be imagined.

18. I accept the evidence to the effect that the child’s wishes at this stage, as expressed to Mr Dickens, are very much to have the application for adoption commence and be prosecuted. 

19. For these reasons, albeit short, I am easily persuaded that it is in the child’s best interests that an order be made permitting that process to commence. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 November 2015.

Associate:     

Date:    2 November 2015