HABIB & FARAHANI

[2018] FamCA 680

FAMILY COURT OF AUSTRALIA

HABIB & FARAHANI [2018] FamCA 680

FAMILY LAW – CHILDREN – Best Interests – Where the applicants seek parental responsibility of the child and that the child live with them – Where the applicants are not the biological parents of the child – Where the applicants and child are on bridging visas – Where the applicants informally adopted the child in their country of origin – Where the biological father of the child is dead – Where the biological mother has not seen the child in over eight years, presently resides in the applicant’s and child’s country of origin and is not participating in these proceedings – Where the child has a meaningful relationship with the applicants – Where the Single Expert is of the view that the child would be at some risk if she were to return to her country of origin because of cultural stigmas surrounding adoption – Where it is in the best interests of the child to live with the applicants and for the applicants to have parental responsibility for the child – Orders made.

FAMILY LAW – LEAVE TO ADOPT – Where the applicants seek leave to adopt the child – Where it is appropriate in the circumstances for leave to be granted – Orders made.

Adoption Act 2000 (NSW) s 28
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60G, 61DA, 65C, 65DAA
Status of Children Act 1996 (NSW) s 11

Aldridge & Keaton [2009] FamCAFC 229
Bernieres and Anor & Dhopal and Anor [2017] FamCAFC 180,(2017) FLC 93-793,(2017) 57 Fam LR 149
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Potts & Bims [2007] FamCA 394
Prior & Prior [2008] FamCA 592
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

FIRST APPLICANT: Mr Habib

SECOND APPLICANT: Ms Farahani

FILE NUMBER: PAC 1319 of 2017

DATE DELIVERED: 4 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 1 June 2018

REPRESENTATION

SOLICITOR FOR THE FIRST AND SECOND APPLICANTS: Mr Layson of Sarah Bevan Family Lawyers

Upon noting the family report dated 11 May 2018, Orders were made on 1 June 2018 that

1. MR HABIB and MS FARAHANI have equal shared parental responsibility for the child X born … 2009.

2. The child X live with the said Applicants.

3. Pursuant to s 60G(1) of the Family Law Act 1975, leave is granted to the Applicants MR HABIB and MS FARAHANI to commence proceedings for the adoption of the said child.

4. Leave is granted to the Applicants to provide a copy of the family report dated 11 May 2018 to the Secretary of the Department of Immigration and Border Protection.

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 Habib & Farahani 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 PARRAMATTA

FILE NUMBER: PAC 1319  of 2017

Mr Habib

First Applicant

And

Ms Farahani

Second Applicant

REASONS FOR JUDGMENT

1. The applicants, Mr Habib (“the father”) and Ms Farahani (“the mother”) (collectively “the applicants”) seek leave of the Court pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”) to make application to adopt the child the X born in 2009 (“the child”). They also seek orders for equal shared parental responsibility of the child and that the child live with them.

Context and procedural fairness

1. The applicants, who were both born in Country C and are aged 46 and 45, were married in 2002 their marriage having been arranged by their families.

2. The applicants were unable to conceive a child and in 2010 took over the care of the subject child of these proceedings by arrangement with the widowed biological mother.

3. Due to difficulties associated with their informal adoption of the child and fear of political persecution in Country C the applicants moved to Australia in July 2012 with the child.

4. On 24 March 2017 the applicants initiated proceedings in this Court seeking parenting order and leave to adopt.

5. On 16 May 2017 the matter came before the Registrar who noted that the biological father of the child is deceased and directions were made for the applicants to attempt to serve the biological mother and file an application in the case with respect to orders for an expert report to be prepared.

6. On 29 August 2017 the Registrar was satisfied that service on the biological mother in Country C had been effected and there was no appearance by her or on her behalf. Orders were made for the applicants to advise the biological mother of the next listing date for the matter and of the consequences of her non-attendance.

7. On 12 December 2017 there was no appearance by or on behalf of the biological mother. On that date interim orders were made granting the applicants equal shared parental responsibility for the child pending further order and appointing Dr B to prepare a family report as to the issues of parental responsibility and the best interests of the child.

8. The family report was released to the parties on 17 May 2018. The biological mother did not participate in the preparation of that report.

9. On 1 June 2018 there was again no appearance by the biological mother. On that date in light of the biological mother’s non-engagement in the proceedings and the recommendations in the family report it was appropriate to determine the matter to finality in her absence.

10. On 1 June 2018 orders were made for the applicants to equally share parental responsibility for the child and for the child to live with the applicants. Leave was also granted to the applicants to commence proceedings for adoption of the child and for them to provide a copy of the family report to the Department of Immigration and Border Protection.

11. Reasons for decision were reserved to chambers for delivery at a later date. These are those Reasons.

Can the applicants apply for parenting orders as persons concerned with the care, welfare and development of the child?

1. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.

2. It is clear having regard to the circumstances of the child both historical and at present as referred to above that the applicants are concerned with the care, welfare and development of the child.

3. The applicants therefore are able to apply for parenting orders in relation to the child.

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. This matter, however, involves non-parents.

9. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.

10. Consideration of the applicants as non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is therefore appropriate to apply the relevant considerations in respect of the applicants by way of application of s 60CC(3)(m).

11. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

    … there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

12. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

    19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents.

    …

    21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

    …

    25. In Donnell, the Court went on to say … [at [101] and [102]]:

    However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

    We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. … (emphasis added)

13. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant”.

14. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

    The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)

The applicants’ case

1. The father, who is 46, and the mother, who is also 46, were both born in Country C.

2. The applicants were married in Country C in 2002.

3. The father ran a franchise business in Country C and was the village leader of a political party which was in opposition to the government at the time.  

4. Following their marriage the applicants were unable to conceive a child and considered adoption. The father, in his affidavit filed 16 May 2017, deposes to there being a social stigma attached to married couples who are unable to conceive children. He also deposes to there being no formal process for adoption in Country C as under Islamic Law adoption is illegal. Instead, “adoptions” are private arrangements.

5. The applicants became aware through an employee of the father’s that the child’s biological mother was considering giving the subject child away because the biological father had passed away and she was unable to financially support the child. An informal “adoption” was arranged and the applicants were later registered on the child’s birth certificate as parents.

6. In early 2010 the child, who was 30 days old, came into the care of the applicants. The applicants did not know the biological mother’s name and only met her on one occasion when the child came into their care.

7. Since early 2010 the applicants have raised the child as their own and the child has had no contact with the biological mother.

8. The applicants’ relatives became aware that the child was “adopted” and informed the applicants’ community in Country C. The father deposes that he and the mother being subjected to verbal abuse and threats and told to give up the child or they would not be welcome in the community.   

9. In late 2011/early 2012 the father deposes to his family being threatened on multiple occasions, including by the police, because of his involvement with and funding of the political party.

10. Subsequently, the applicants made the decision to relocate to Australia in order to raise the child in safety. The applicants contacted three of the mother’s brothers who had already migrated to Australia and were aware of the child being in the applicants’ care and arranged to stay with them upon their arrival in Australia.

11. The applicants and the child migrated to Australia on temporary visas in July 2012. The family stayed with one of the maternal uncles until they found rental accommodation.

12. The father applied for a protection visa for himself, the mother and the child on the basis of the persecution faced by him in Country C due to his political ties. This application was rejected by the Department of Immigration in November 2012. The decision of the Department of Immigration was affirmed on appeal by the Refugee Review Tribunal in March 2014.

13. In April 2014 the father, without legal advice or representation, filed an application in the Federal Circuit Court of Australia (“FCC”) seeking orders that the decisions by the Department of Immigration and the Refugee Review Tribunal be quashed.

14. In May 2014 the father sought legal advice from an immigration lawyer who assisted the father in applying for a protection visa for the family under the child’s name. The applicants and the child were granted bridging visas pending the outcome of that application.

15. Orders were made in December 2014 for the father to file additional evidence to support his application in the FCC. The father did not file this evidence and in February 2015 his application in the FCC was dismissed.

16. The father filed an appeal of the dismissal which was unsuccessful. The father then applied for special leave to appeal to the High Court which was also unsuccessful.

17. In February 2017 the father was notified by the Department of Immigration that as he and the mother were not the legal guardians of the child they could not apply for a protection visa on her behalf. The applicants subsequently filed their Initiating Application in this Court.

18. In his affidavit filed 15 May 2017 the father deposes to continuing to experience difficulties with obtaining a protection visa due to the Department of Immigration not recognising him or the mother as the child’s legal guardians.  

19. The child lives with the applicants in Sydney. Both parents are employed.

20. The child presently attends school and has consistent and significant contact with her extended family in Australia, in particular her maternal cousins.  

The Family Report

1. The parents and the child attended on the expert for interviews in March 2018 and the expert subsequently prepared a Family Report dated 11 May 2018.  

2. The only risk issue identified in the Family Report is the stress experienced by the applicants as a result of their ongoing visa issues with the Department of Immigration.  

3. As to the interview with the child, the expert relevantly reported the following:

   [The child] spoke about her parents. She said she loves them both and described her father as “funny, friendly and nice”. She added that her father takes her swimming and buys her things. She said that he has promised to buy her a dog after she has done her Naplan tests and that he also brought her presents for her birthday. She commented that her mother gives her food and looks after her. [The child] said that both parents give her hugs and she would like either of them to look after her if she was sick. When she is sad, [the child] stated that she would like to hold one of her rabbits. [The child] also stated she loves her cousins although sometimes they take her mother’s lipstick and they get her into trouble. She stated that her mother tells her to come to her and questions her when this happens.

4. The expert considered that the child holds a loving and respectful relationship with both her mother and her father and “sees them as the source of her emotional nurturance, safety and security.” It was clear to the expert that the applicants are committed to the child and are attuned to and more than capable of meeting her needs.

5. The child disclosed to the expert the importance of her extended family and friends in Australia.

6. The expert was of the view that the child had largely been sheltered from the tension and difficulty the family has experienced and that the applicants had been reliable and consistent carers for the child. The expert opined:

   A disruption to that caring history [of the applicants] especially if it means severing [the child’s] relationship with [the father] and [the mother] is likely to result in severe psychological consequences for [the child]. In the first instance, it would leave [the child] feeling confused as she has no reason to doubt that [the father] and [the mother] are her parents. Depression and overwhelming sadness would be almost certainly likely to follow … Almost certainly it would be impossible for new caregivers to establish an authoritative role in [the child’s] life especially since, as [the applicants] suggest, such a transition might involve institutional care or return to her mother who is unlikely to be in a position to adequately care for her. [The child’s] resentment would probably manifest in a range of behaviours … and in a context where there is likely to be little therapeutic support for [the child] to deal with her feeling. [The child] is also likely to experience severe separation anxiety if she is removed from [the applicants] with an adverse impact on her capacity to attach to new caregivers.

   There are further risks for [the child] should she be removed from [the applicants] and placed in alternate living arrangements in [Country C]. Such children are more likely to be neglected, sexually abused or victims of physical or other forms of violence. Experience of abuse is likely to inhibit a child’s emotional and social development, impact on their personality and inhibit them from relying on others for support.

1. The expert was of the view that separating the child from the applicants would have a dramatic impact on the child both in the short and long term. She opined that the “gravity of the decision of [the child] being separated from [the applicants] and the weight of its consequences cannot be underestimated.”

2. Even if the child were not separated from the applicants, the expert was of the view that she would experience significant issues adjusting were the family to return to Country C particularly given the lack of cultural acceptance of her adoptive status and Islamic Law on the issue of adoption. Such issues could place the family, including the child, at risk should they return to Country C.

3. The expert holds some concern as to the mother and the father having failed to inform the child that she is adopted and of her heritage in that respect. As to that concern the expert opines:

   It is usually in the interests of children who are adopted to be advised sooner rather than later. That is likely to reduce substantially any element of surprise for the child which potentially occurred when she was interviewed by a Department of Immigration officer or any disappointment they might feel that the parents they know and love have lied to them or kept information from them. A child’s view of themselves, their place in their family and indeed their place in the world depends on their ability to trust. Not disclosing information about their origins is one factor that is likely to jeopardise the bond of trust and faith forged between adoptive parents and children …

4. In recommending that the applicants be granted parental responsibility for the child and that they advise the child of her adoption status the expert made the following comments:

   Orders for Parental Responsibility to [the father] and [the mother] would go a long way towards relieving some of the stress they currently face. Hopefully, it will also provide a satisfactory resolution to their immigration status which has now been ongoing for many years. Ongoing litigation is a source of stress which can trigger mental health concerns such as anxiety and depression. A parent’s capacity to meet a child’s needs and assume parental responsibility becomes compromised if they are burdened by excessive unresolved stress.    

The child’s best interests

1. Section 60CC outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

2. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

4. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

5. The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are as follows:

   (a)       any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)      the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);

   (c)      the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (ca)     the extent to which each of the child’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child;

   (d)      the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)      the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;

   (g)      the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; 

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

   (i)       the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)       any family violence involving the child or a member of the child’s family;

   (k)      if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

   (l)       whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)     any other fact or circumstance that the court thinks is relevant.

The primary considerations

1. The child has never had any relationship with her biological father, who is deceased, or her biological mother, whom she has not seen since she was one month old.

2. It is also clear from the Family Report that the child has a close and loving relationships with the applicants which is meaningful for her and it is important that such relationships continue. The child’s relationships with the applicants, who are non-parents, will be considered in more detail when dealing with the additional considerations later in these Reasons.

3. Otherwise, it is clear that there is a need to protect the child from the physical and psychological harm that may result if she were to return to Country C. Given the lack of cultural and religious acceptance in Country C surrounding adoption of children the expert was of the view that the child’s “emotional wellbeing is likely to be compromised by ongoing issues and cultural non-acceptance of her adoptive status” and that the applicants and the child could all be placed “at some risk” were they to return to Country C.

4. The protective considerations will be given primacy in these circumstances.

The additional considerations

1. While the majority of these considerations are of limited relevance in circumstances where neither applicant is a biological parent of the child, each of the additional s 60CC(3) factors will be considered in relation to the applicants by way of s 60CC(3)(m).

2. The child spoke positively of the applicants to the expert and clearly enjoys a warm and loving relationship with them. However, given the child’s age and her lack of awareness that the applicants are not her biological parents, her views will be given limited weight.

3. It is clear from the Family Report that the child enjoys a positive and meaningful relationship with the applicants, whom she views as her parents, and has no relationship with, and is unaware of, her biological mother. It is also clear that the child has developed positive relationships with the applicants’ extended family in Australia, particularly the child’s maternal cousins, who are more accepting of the child’s adoptive status than the applicants’ family and community in Country C.

4. It is the applicants’ evidence that the child’s mother was unable to financially care for the child and the applicants have acted as the child’s parents since the child came into their care one month after her birth. They have maintained the child in every way since that time and impress as caring and committed parents who have the capacity to continue to provide for the child’s needs including her emotional and intellectual needs.

5. The child has no relationship with her biological mother, who consented to her being placed in the care of the applicants and has played no part in her life since that date. While the applicants’ willingness to facilitate the child’s relationship with her biological mother, and the practical impacts of facilitating such a relationship, is of little moment in the circumstances of this case, the expert raised concerns about the child’s lack of awareness of her adoptive status and the impact of this lack of awareness on the child going forward. It will be important for the applicants to consider how they will address this concern particularly in light of their seeking to formally adopt the child in Australia.

6. The child has lived in Australia for six years, since she was three years old, and has a firmly established life in this country with her “parents”. The making of any orders other than for the applicants to have parental responsibility for the child and for the child to live with the applicants could see the child experience a significant change in circumstances. The expert was clear in her opinion that the child being removed from the care of the applicants or removed from her life in Australia would likely cause the child significant distress and impact on her future capacity to form relationships, particularly with parental figures. 

7. It is clear that the child will be able to maintain a connection with her cultural heritage through the applicants and their and the maternal extended family in Australia.

8. In circumstances where the applicants’ visa and immigration issues have been ongoing for a number of years and the resulting instability of the applicants’ and the child’s position in Australia has been causing the applicants significant stress, it is in the child’s best interests for orders to be made that will progress the applicants’ other legal matters and reduce the need for them to return to this Court for further orders.

9. Each of the above considerations is indicative of making orders as sought by the applicants.  

Discussion

1. For the reasons set out above and following a consideration of the various factors impacting on the child’s best interests the presumption as to the biological mother and biological father holding equal shared parental responsibility is clearly not to apply.

2. It is in the child’s best interests that the applicants equally hold long term parental responsibility for the child. As a consequence there is no need to consider the child spending equal time or substantial and significant time with each of the applicants or the biological mother.

3. Overall, it is in the best interests of this child that orders be made as sought by the applicants.

Leave to Adopt

1. In addition to seeking orders for parental responsibility and residence, the applicants also seek that they be granted leave to commence adoption proceedings in relation to the child.

2. Section s 60G of the Act provides:

   (1)  Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2)  In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

3. Section 60G provides that this Court may grant leave for proceedings to be commenced for the adoption of a child by a “prescribed adopting parent” subject to a consideration of the child’s best interests.

4. “Prescribed adopting parent” is defined in s 4 of the Act as:

   (a)  a parent of the child; or

   (b)  the spouse of, or a person in a de facto relationship with, a parent of the child; or

(c)  a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.

1. The status of the applicants as “parents” is unclear. It is certain that under the Act they are not “parents” of the child.

2. The provisions the Act contained in s 60H (Artificial Conception Procedures), s 60HA (Defacto Partners) and s 60HB (Surrogacy Arrangements) have no application thus leaving the question of whether the applicants are “parents” for the purposes of leave under s 60G to the relevant State law (Bernieres and Anor & Dhopal and Anor [2017] FamCAFC 180, (2017) FLC 93‑793,(2017) 57 Fam LR 149).

3. The Status of Children Act 1996 (NSW) (“the Status of Children Act”), s 11 provides:

   11 Presumptions of parentage arising from registration of birth

   (1) A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register or a register of births or parentage information kept under a law of the Commonwealth, another State or a Territory or a prescribed overseas jurisdiction.

   (2) Nothing in this section affects the operation of Chapter 5 (Recognition of adoptions) of the Adoption Act 2000.

4. There appears to be no other jurisdiction prescribed by Regulation for the purposes of s 11(1) of the Status of Children Act.

5. The applicants are registered on the Birth Certificate of the child as parents. The method by which that was obtained is not known. The child’s birth certificate was issued by Country C in 2010.

6. The child’s birth record from the E Clinic where the child was born records the applicants as the child’s parents.

7. Should the applicants not have sought leave as in the present application they would not have been precluded from seeking an adoption order in relation to the child pursuant to s 28 of the Adoption Act 2000 (NSW) (Adoption by couple).

8. However the Act provides that an adoption order obtained with prior leave of the Court under s 60G of the Act:

   a)ends parental responsibility for the child or children of the parent who is not the adoptive parent (s 61E(2));

   b)renders the child the subject of the adoption order a child of the marriage of the adopting parents for the purposes of the Act (s 60F(4)(a)); and

   c)does not end the operation of any parenting order which was in force under the Act (s 65J(2)) as at the date of the adoption order. Thus the orders to be made in these proceedings for the applicants to have equal shared parental responsibility and for the child to live with them will survive the adoption orders and remain in force.

The Child’s Best Interests

1. In proceedings for leave the Court must consider whether granting leave would be in the child’s best interests having regard to the effect of an adoption order as set out above.

2. These considerations were considered in detail by Benjamin J in Prior & Prior [2008] FamCA 592.

3. The determination of a child’s best interests is to be made having regard to the considerations set out in s 60CC of the Act.

4. The primary and additional considerations in s 60CC have already been canvassed earlier in these reasons. Each of those considerations as pertaining to the applicants is indicative of the applicants being granted leave to apply to adopt the child.

5. That necessity for leave under s 60G of the Act is dependent on the resolution of the applicants’ status as “parent” under state law. That is not a matter for this Court.

6. In these circumstances the Court is satisfied that it is in the best interests of the child that leave be granted having regard to the consequences of that leave being granted under the Act as referred to above. The necessity for such leave may be ultimately illusory, yet the circumstances of the child’s uncertain status in Australia and the child’s best interests require that such leave be available if required.

7. Orders have been made accordingly as set out at the forefront of these reasons.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 September 2018.

Legal Associate: 

Date:  4 September 2018