Ellis & Anor and Colborn

[2020] FamCA 956

FAMILY COURT OF AUSTRALIA

ELLIS AND ANOR & COLBORN [2020] FamCA 956

FAMILY LAW – ADOPTION – Leave to commence proceedings – step-parent adoption – application granted

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

Banks & Banks (2015) FLC 93-637

1st APPLICANT: Mr Ellis

2nd APPLICANT: Ms B Ellis

RESPONDENT: Mr Colborn

FILE NUMBER: BRC 11204 of 2020

DATE DELIVERED: 13 November 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13 November 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ryan Kruger Lawyers

RESPONDENT: Excused from attendance

Orders

IT IS ORDERED BY CONSENT 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, X, born … 2014, by Mr Ellis.

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 Ellis & Colborn 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 11204 of 2020

Mr Ellis

First Applicant

And

Ms B Ellis

Second Applicant

And

Mr Colborn

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have today an Application which was commenced by Initiating Application filed 19 August 2020. By that Application, an order is sought for leave, pursuant to section 60G of the Family Law Act (Cth), to commence proceedings for the adoption of the child, X, who was born in 2014.

2. I accept that there is evidence before the Court outlining the Respondent’s attitude to the Application currently before this Court.  I accept that Mr Ellis emailed the Respondent on 19 October 2019 to raise with him whether he would consent to him adopting X.  I accept that the Respondent replied on 22 October 2020 to advise that he would consent to the process of adoption, and that he also commented in his response that, in the circumstances, it was something that was in X’s best interests.

3. I note for the record that the Respondent subsequently filed a Notice of Address for Service, and that the joint application by the parties for his excusal from appearance today was granted in Chambers, and that decision conveyed to the parties by email.

4. I also note and accept that, as is apparent from regard to the affidavit of Mr Ryan filed in the Court on 19 August 2020, the Respondent signified his consent to the making of an order permitting the commencement of proceedings for the adoption by Mr Ellis of X by signing a consent order to that effect.

5. I turn now to a consideration of the Application itself. 

6. I accept that there are no ongoing cases in relation to X in any other jurisdiction; that there are no orders relating to domestic violence; and that there is no protection order currently in force between the Applicants and that there has not ever been one. I accept that there are no orders of that nature as between the Applicants and that there are no existing parenting orders in force in relation to X. 

7. 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 only if a number of matters are satisfied. Included within these matters, in particular at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth) – hence this application.

8. In determining whether to grant leave for a party or parties to commence adoption proceedings, this Court must be satisfied of a number of things.  One is that the proceedings are by a prescribed adopting parent, as that term is defined.  In this case, that condition is clearly satisfied.  This Court must also consider whether granting leave will be in X’s best interests, having regard to the effects of section 60F(4)(a), section 60HA(3)(a), section 61E and section 65J of the Family Law Act (Cth), where those sections are applicable in any particular case.

9. The decision facing this Court this morning is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of X or not. 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 (Cth) – only an order for adoption, if made by an appropriate State court, has that effect.

10. However, section 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. Included in these is that an order for adoption by a step-parent would better promote X’s well-being and best interests than an order under the Family Law Act (Cth), any Court order or no order at all. It is therefore apparent that this Court ought not make an order granting leave to an Applicant to permit proceedings in a State court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.

11. I record here my view that, in this case, I am satisfied that the mandatory legislative prerequisites are established on the evidence before me. 

12. In determining, as I must, under section 60G(2) of the Family Law Act (Cth), whether granting leave to commence proceedings is in X’s best interests, I must give consideration to the familiar “best interests” considerations where they are relevant, as those considerations are prescribed by section 60CC of the Family Law Act (Cth).

13. However, as is made clear by authorities such as Banks v Banks,[1] any failure to mention specifically any particular consideration in these Reasons delivered this morning orally does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon – being evidence that I have had the opportunity to read, together with Exhibit 2 (the Outline of Argument prepared on behalf of the Applicants) prior to commencing the hearing of this Application this morning.

    [1](2015) FLC 93-637.

14. It is appropriate that I record that Mr Ellis is X’s step-father.  He and the mother met in April 1999 and married in 2003.  They have had four children together.  Whilst their relationship has undergone a separation for a period of time, during which time X was conceived, they reconciled their relationship in August or October of 2015.  I accept that, at the time of their reconciliation, X was about 14 months of age.  I accept that he has thereafter lived together with the Applicants and their biological children since about that time. 

15. I do not intend in these Reasons to go into some of the aspects of the evidence contained within the affidavits prepared by the Applicants.  This is in part because it is unnecessary, given the Respondent’s consent to an order finalising the Application before this Court.  I consider it sufficient to record that I am satisfied on the evidence before me that Mr Ellis has supported X’s mother during the time of her pregnancy and thereafter. 

16. I also accept on the evidence before me that the Respondent’s involvement with X may be summarised as follows: 

    a)that, save for occasional emails about financial support, X’s mother and biological father were not in contact during the pregnancy after the Respondent ended their relationship;  and

    b)that the Respondent conveyed an attitude to the payment of child support that was dependent upon the provision of paternity test results;  and

    c)that the Respondent declined to take up the offer of attendance to visit upon and meet X at the time of his birth;  and

    d)that the Respondent has met X on no more than four occasions and has not had any contact with him since October 2015, despite, I accept, the Applicants being supportive of the same;  and

    e)that the Respondent has never sent X any gifts for his birthday or Christmas and has not otherwise sought to spend time with him at any celebratory occasion;  and

    f)that, whilst the Respondent has continued to pay child support in an amount of about $1,500.00 per month pursuant to the terms of a private child support agreement, he has not exercised, in reality, any parental responsibility in relation to X and has not made any decision about him or his care.

17. In that sense, then, I am satisfied that, in reality, the Respondent has not played any active role in X’s life. 

18. In contrast, I accept that Mr Ellis has provided to X and X’s mother emotional and financial support, both during the mother’s pregnancy and thereafter.  I accept that Mr Ellis has, after X’s birth, been consistently involved in X’s life, including during the time prior to the Applicants resuming cohabitation.  I accept, on the evidence before me, that, from that time, Mr Ellis has provided to X all the support that any parent provides to a child in that parent’s care. 

19. I accept the evidence given by X’s mother that X has always called Mr Ellis “Dad” or “Daddy.”  I accept that the Applicants’ biological children have all treated X as their little brother.  I accept that the Applicants have informed X about his paternity.  I also accept their evidence to the effect that they have always intended to be honest with X and to facilitate him having contact with the Respondent, if that is something that he wishes to do.  I accept that Mr Ellis loves X.  I also accept that he has always treated him as if he was his biological child and, in case it is not already apparent, I accept the evidence of the Applicants about the role Mr Ellis has played in X’s life to date.

20. In summary, I accept therefore that Mr Ellis has fulfilled the role of being X’s father and has discharged all of the duties and obligations of being his parent. 

21. I also accept that Mr Ellis knows that, if the authorities charged with making an adoption order are persuaded that the same is in X’s best interests, the making of such order will end the Respondent’s financial obligations to X.

22. I am easily satisfied on the evidence before me that, from X’s perspective, Mr Ellis is his father for all intents and purposes.  I also accept that Mr Ellis is committed to loving and supporting X always, and I conclude that the application for adoption that will be commenced upon the grant of leave is simply a clear manifestation of that commitment.

23. On the evidence before me, I consider it open to infer that it is much more likely than not that X, his mother, Mr Ellis and, I suspect, X’s siblings, will also gain significant additional emotional benefit if, after proper consideration by the relevant state authorities, an adoption order is ultimately made.

24. For these reasons, then, delivered orally, I conclude that the commencement of proceedings seeking adoption is something that is in X’s best interests. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 November 2020.

Associate: 

Date:              13 November 2020