Fells and Fells

[2016] FamCA 199

FAMILY COURT OF AUSTRALIA

FELLS & FELLS [2016] FamCA 199

FAMILY LAW – ADOPTION – Leave to Adopt

Family Law Act 1975 (Cth)
Adoption Act 2009 Qld

APPLICANTS:	Mr Fells and
Ms Fells

RESPONDENT: Unknown

FILE NUMBER: BRC 702 of 2016

DATE DELIVERED: 29 March 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 March 2016

REPRESENTATION

APPLICANTS: In person

Orders

IT IS ORDERED THAT

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fells & Fells 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 702 of 2016

Mr Fells & Ms Fells

Applicant

And

Unknown

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. There is before the Court an application commenced by Initiating Application filed 29 January 2016 for an order pursuant to s 60G of the Family Law Act 1975 (Cth) granting the parties leave to commence proceedings to adopt B who was born in 2009.

2. B (the child) is the mother’s biological child and is the stepchild of the Applicant, Mr Fells.  The child’s birth surname was Lopez, but, in August 2015, this was changed by his mother to Fells. 

3. The child was born in Country C and lived there for a period of time.  His biological father is said in the material before the Court to be unknown other than that he is a Country C man with whom his mother had an extremely limited liaison.  The child’s mother gives evidence to the effect that her attempts to have this person sign the child’s birth certificate application failed and that, consequently, he abandoned his rights as the child’s parent pursuant to Country C custom and law.  That, of course, is not the case under Australian law.

4. It appears that the child’s mother met his stepfather (the Applicant) when he participated in lessons she advertised to learn Country C.  Mr Fells subsequently travelled to Country C in about Easter 2010 after participating in those lessons and, during that journey conveyed some presents and gifts from Mrs Fells to members of her family.  He met the child there for the first time because, at that time, the child’s mother was in Australia studying. 

5. At some time between, I think, about Easter 2010 and December 2010, Mr and Mrs Fells became involved in a relationship.  Subsequently, both travelled to Country C for Christmas 2010 at which time Mrs Fells retrieved the child from her family.

6. The parties subsequently returned to Australia without the child and embarked upon the process of applying for a visa so as to facilitate his travel to, and residence in, this country.  The evidence suggests he arrived in Australia on 3 September 2011 and has lived in this country since then with his mother and stepfather. 

7. The evidence suggests that the mother and, at least, some members of her family (that is, the child’s extended maternal family) are estranged.  It would appear that this reality makes the child’s adoption by Mr Fells more important - not only for the child’s mother, but, also, in one sense, for the child.  The strength with which the child’s mother holds this view (namely, that it is important and beneficial to him to be the adopted child of Mr Fells) is strengthened by her view as to the unsuitability of certain members of her extended family in terms of their ability (should it be ever necessary into the future) to provide care for the child and/or for him to live with them.

8. It is clear, then, on the material that, since September 2011, the child has lived with and been cared for by his mother and stepfather.  The evidence establishes that Mr Fells is significantly involved in his day-to-day care during periods when his mother, who is a nurse, is at work and periods when Mr Fells is working from home.  The evidence also establishes that the child has been accepted as a member of Mr Fells’ extended family.  It is clear on the evidence he is referred to and treated as a grandson.  It is also established on the material that Mr Fells’ adult son accepts the child as a member of his father’s family and, no doubt, of his own. 

9. There is nothing in the material to suggest that the child has ever met his biological father.  There is no basis for any conclusion that there is any relationship between them.  It is clear on the evidence that, whilst in the care of both his mother and his stepfather, the child engages in what might be thought of as usual day-to-day activities for a child of his age.  It is clear he has been involved and welcomed into Mr Fells’ extended family, as I have said, and there is no reason to doubt that he feels anything other than part of that extended family. 

10. The Applicants rely on the affidavits filed by each of them on 29 January 2016 and the contents of submissions provided this morning which I have marked as Exhibit “A” in the proceedings. 

11. The current Application is necessary because s 92 of the Adoption Act 2009 Qld 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 application, is at least five years of age and has not yet turned 17 years of age. the child clearly falls within this category.

12. Section 60G(2) of the Act provides that, in proceedings for such leave, the Court must consider whether granting it would be in the child’s best interests having regard to the effect of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth). It is evident from a consideration of those sections and, in particular, s 61E and s 65J that the consequence for the child of being adopted includes 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. In this case, there is no existing parenting order.

13. The decision facing this Court differs from that which will face the Court charged with the responsibility of deciding whether to permit the child’s adoption or not.  The grant of leave to commence proceedings does not, of course, have the consequence of the cessation of parental responsibility nor of the non-enforceability of parenting orders, as only an order for adoption made by a State Court has that effect. 

14. However, s 208 of the Adoption Act 2009 Qld provides that the Court may make a final adoption order only if satisfied of a number of matters, included within which is that an order for adoption by a stepparent would better promote the child’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any other Court order or no order at all.

15. I consider, therefore, that, having regard to the legislative framework provided by the Adoption Act 2009 Qld, this Court ought not grant leave to Applicants to commence proceedings in the State Court if such proceedings are doomed to fail because of the absence of evidence relevant to the mandatory prerequisites.

16. It is clear, therefore, that, in these proceedings, I must consider the familiar best interests considerations as prescribed by s 60CC of the Family Law Act 1975 (Cth). Many of those, in a sense, perhaps, have less relevance because of the child’s age and the factual circumstances established by the evidence before me.

17. I accept the thrust of the contents of Exhibit “A” prepared by the Applicants. 

18. The only sensible conclusion, I think, on the material is that the child’s financial, psychological and social needs have been met by his mother and Mr Fells since they started to live together in September 2011.  The only sensible conclusion, I think, is that from the child’s perspective, Mr Fells is, in fact, his father.  On the evidence before me, I have no hesitation at all in concluding that, from the child’s perspective, Mr Fells is clearly his psychological father.  It is, I think, sufficient to record, perhaps as I have already done, that it is clearly established that together, the Applicants, without doubt, have combined through their joint efforts to meet all of the child’s emotional, psychological and physical needs.

19. There is nothing in the material before me at all to suggest that the child’s biological father has ever evidenced any desire whatsoever to be involved in his life or to undertake and discharge the responsibilities of parenthood for him. 

20. The only conclusion open, it seems to me, is one which leads me to express that, on the evidence before me, I am satisfied that Mr Fells has discharged all of the responsibilities of parenthood, as those responsibilities are envisaged under the Family Law Act 1975 (Cth), in relation to the child’s care: he is and has been and, by the Application before the Court, evidences his intention to continue to be the child’s father for all intents and purposes.

21. For these short reasons, then, I am easily persuaded that it is in the child’s best interests that an order to be made to permit proceedings seeking to formalise the manner in which he is regarded by Mr Fells (and, no doubt, members of his extended family) to commence.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 March 2016.

Associate:                 

Date:    29 March 2016