EVANS & ZAHA

[2015] FamCA 954

FAMILY COURT OF AUSTRALIA

EVANS & ZAHA [2015] FamCA 954

FAMILY LAW – ADOPTION – Leave to adopt

Family Law Act 1975 (Cth)
Adoption Act 2009

APPLICANTS: Mr Evans and Ms Evans

RESPONDENT: Mr Zaha (Deceased)

FILE NUMBER: BRC 9637 of 2015

DATE DELIVERED: 2 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 November 2015

REPRESENTATION

APPLICANTS: In Person

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G of the Family Law Act 1975 (Cth), leave is granted for the Applicants, Mr Evans and Ms Evans, to commence proceedings for the adoption of B born … 2009.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Evans & Zaha 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 BRISBANE

FILE NUMBER: BRC 9637 of 2015

Mr Evans

Applicant

And

Mr Zaha

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern an application for leave to adopt the child, B born in 2009.  The child’s biological father is deceased.  He died in 2010 in a motorcycle accident. 

2. The Applicants commenced cohabitation in April 2012 and married in 2014.  They seek orders which would permit them to commence adoption proceedings in relation to the child. 

3. The material before the Court establishes that whilst it is possible that the child’s biological paternal grandmother may still be living, her whereabouts are unknown.  The Applicants deposed to the fact that they are not sure if she is deceased or not.  The Court has the additional evidence that, whilst the child’s biological father was alive, he and his mother (the biological paternal grandmother) did not have a relationship, that she did not maintain contact with him and that he was raised by his grandparents.

4. The evidence further establishes that the biological paternal grandmother has not met the child despite an opportunity or opportunities to do so.  She did not attend at the child’s biological father’s funeral.  The evidence also establishes that to the best knowledge of the Applicants or at least particularly, I suspect, Ms Evans, the biological paternal grandmother suffered a stroke about 10 years ago and was physically incapacitated as a consequence to the extent that she was unable to care for a child and, in fact, may have required assistance in self-care.

5. Those circumstances form those in which the application falls to be considered. 

6. Section 92 of the Adoption Act 2009 provides that a person may apply to the Chief Executive to arrange an adoption if a number of specified matters are satisfied. Included within those is that a person has been granted leave pursuant to s 60G of the Family Law Act 1975 (Cth) and that the child, the subject of the adoption proceedings, is at least five years of age and has not yet turned 17 years of age. the child clearly falls within this age range.

7. 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), 60HA(3)(a), 61E and 65J of the Family Law Act1975 (Cth). Section 61E and 65J provide, in essence, that the consequences of a child being adopted include the termination of all parental responsibility owed by any biological parent and the non-enforceability, in a sense, of any existing parenting order. Clearly in this matter, neither of those two considerations are, unfortunately for the child, operative in the circumstances.

8. It is clear that the decision facing this Court differs from that which will face the Court charged with the responsibility of determining whether to permit the child’s adoption. The grant of leave here does not, of course, have the consequences that follow from the making of the adoption order. However, because s 208 of the Adoption Act 2009 provides that the Court there may make a final adoption order only if satisfied of a number of matters which include that an order for adoption by a step-parent would better promote a child’s well-being and best interests than an order under the Act, any other court order or no order at all. 

9. It is, I think, relevant and appropriate that this Court ought not grant leave to Applicants to commence proceedings in a state Court if such proceedings are doomed to fail because of the absence of mandatory prerequisites. Consequently, it is clear that I must have regard to and consider the familiar best interest considerations prescribed by section 60CC of the Family Law Act 1975 (Cth) in determining whether or not to grant leave.

10. As I have said, the child was born in 2009 and is, therefore, currently six years of age.  He lives with his mother and Mr Evans and C, his sibling, who was born in 2015.  Their household is also complemented regularly by the presence of Mr Evans’ son from a previous relationship, D, who was born in 2012.  It is clear, as I have already outlined, that the child has had no interaction or time or relationship with members of his biological paternal family, perhaps, as a consequence of his father’s death, but also on the evidence, as a consequence of decisions perhaps made by his biological paternal grandmother.

11. He has lived entirely with his mother and has lived with Mr Evans and his mother in their household since the commencement of their relationship. 

12. I am easily satisfied on the evidence before me that Mr Evans has played a very significant role in the child’s life since the parties commenced living together.  He has clearly participated fully and been fully involved in caring for the child in his day to day life.  The evidence establishes that he has discharged all of the obligations associated with parenting in relation to the child and I have no doubt or difficulty in accepting the evidence that he has assisted fully in his care, for example, by assisting with homework, meals, engaging in play and otherwise supporting the child financially, socially, emotionally and psychologically.

13. It is completely understandable, in the context of the circumstances as I have outlined, that the child refers to Mr Evans as his father or “dad” or “daddy” and I have little doubt in concluding that, for the child, that is exactly the role Mr Evans has fulfilled. 

14. Given the Application, I also have no doubt whatsoever that it is a role Mr Evans seeks to undertake and to continue to undertake into the future.  The parties have already undertaken a step in demonstrating their ongoing desire to fully integrate the child into the family unit they constitute because, in February 2014, the child’s surname was changed to Evans. 

15. I accept without hesitation that Mr Evans and the child have a loving father/son relationship and that Mr Evans has taken all steps to ensure that the child is loved and treated equally to his “other sons”.  The fact that Mr Evans in his material refers to the child in that way is, I consider, a clear demonstration of how he regards the child and his view of the child’s importance to him and his inter-relationship with members of Mr Evans’ family.

16. In such circumstances, I have no hesitation in concluding that it is in the child’s best interests that an order be made pursuant to s 60G of the Family Law Act 1975 (Cth).

I certify that the preceding sixteen (16) 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