Gosper and Anor and Neville

[2015] FamCA 215

FAMILY COURT OF AUSTRALIA

GOSPER AND ANOR & NEVILLE [2015] FamCA 215

FAMILY LAW – LEAVE TO ADOPT

1st APPLICANT: Mr Gosper

2nd APPLICANT: Ms Gosper

RESPONDENT: Mr Neville

FILE NUMBER: BRC 106 of 2015

DATE DELIVERED: 23 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 March 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Ms Booth, Ramsden Lawyers

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, Mr Gosper and Ms Gosper, to commence proceedings for the adoption of B, born … 2005.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gosper and Anor & Neville 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 106  of 2015

Mr Gosper and Ms Gosper

Applicants

And

Mr Neville

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. These proceedings concern an application filed on 7 January 2015 for leave to commence adoption proceedings in relation to a child, B, born in 2005.  He is the product of a short relationship between his mother and biological father whilst both were living in Country C.  Their relationship ended before his birth, at which time, to the best of the mother’s knowledge, his biological father returned to live in Australia.  Since this time, there has been no contact between the child’s biological parents and there has been no contact between the child’s biological father and the child.  There is evidence that his biological father has not attempted to contact either his mother or him. 

2. The mother gives evidence that, upon finding out she was pregnant, the child’s biological father’s first response was to deny that he was his father - he refused, thereafter, to take any responsibility for him.  It is well-established, as I have said, that there has been no contact between the child and his biological father, nor has there been any attempt on the part of his biological father to make contact with the child or to locate him. 

3. The mother commenced her relationship with the Applicant in about May 2008. They commenced cohabitation relatively shortly thereafter.  At that time, the child was about two and a half years of age.  They married in 2012.  They have a child together, the child’s half-sister D who was born in 2013, and they are expecting a further addition to their family in November of this year. 

4. It is clear on the evidence that Mr Gosper has played a significant role in the child’s development from a young age and has taken an active and participatory role in caring for the child from the commencement of his cohabitation with the child’s mother. 

5. I have no doubt that the Applicant has participated fully and has been fully involved in caring for the child, including when he was obviously much younger, as well as participating with him in all of the events and activities, joys and disappointments that are a part of the life and development of a child. 

6. It is clear on the evidence that the child’s mother made significant efforts to attempt to locate his biological father.  Those attempts were, in part, necessitated by proceedings in Country C which were necessary before the immigration of the child and his mother to Australia as part of her relationship with Mr Gosper.  It is clear, as I have said, that all of those attempts have been unsuccessful and the Registrar earlier this year dispensed with the necessity for service given those significant attempts that had already taken place. 

7. Really, no other conclusion could be reached other than that the child and Mr Gosper have a very close and loving relationship.  Mr Gosper has taken on all of the responsibilities – financial, social and, in a sense, psychological - in supporting the child during his development.  Understandably in such a context, the child refers to Mr Gosper as “Dad”.  There could be no doubt that he is, for all intents and purposes, the child’s psychological father:  the child has known no other person to fulfil all of the obligations of such a role. 

8. There is no doubt that, within their family unit, the child clearly plays a very significant and important part.  There is nothing to suggest other than that he has been welcomed into and accepted as part of Mr Gosper’s extended family.  The evidence clearly establishes that he is regarded as part of Mr Gosper’s extended family - as he should be, given the length of time within which he has been involved in their lives.

9. It is against this background, then, that the application before the Court falls to be considered. 

10. Section 92 of the Adoption Act2009 provides that a person may apply to the Chief Executive to arrange an adoption by a person of a child if a number of specified matters are satisfied. 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 is at least five years of age and has not yet turned 17 years of age. the child clearly comes within that age bracket (to use that colloquial phrase).

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

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

13. There are no existing parenting orders arising out of proceedings in Australia in relation to the child.  It is also relevant to note that orders of the National Court of Justice of Country C, made 15 November 2011, afforded the child’s mother sole and legal custody for him.  It is also, of course, relevant to record, that there is no evidence to suggest that, at any time prior to the making of the order by the National Court of Justice in Country C, the child’s biological father ever exercised parental responsibility in relation to him.

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

15. 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 in which 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. 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. 

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

17. The evidence leaves me in no doubt whatsoever that it is more likely than not that the child has a well-established emotional relationship with Mr Gosper.  It is clear that Mr Gosper has discharged all of the obligations of parenthood by way of financial and emotional support for the child for the vast majority of his life.  It is also clear that the child has been welcomed into and made to feel part of Mr Gosper’s extended family in a manner that is consistent, no doubt, with Mr Gosper’s love for and concern about the child and his wellbeing. 

18. The evidence establishes quite clearly that Mr Gosper has supported the child and his mother financially and there is absolutely nothing in the material to suggest that he will do anything other than continue to discharge those obligations into the future. 

19. It is clearly established that Mr Gosper has, as I have said, been actively involved in the child’s parenting since he was about three years of age.  He is, without doubt, his psychological father - this Application clearly reflects Mr Gosper’s ongoing desire to acknowledge and recognise the child’s importance to him:  as part of his life and part of his family and the family he constitutes with the child’s mother. 

20. All of these matters make it clear that an order permitting the commencement of adoption proceedings is one which is in the child’s best interests.  For these reasons, shortly expressed, I make an order in these terms.

I certify that the preceding twenty (20) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 23 March 2015.

Associate:                 

Date:    23 March 2015