In the matter of a child named Christopher Farren (a pseudonym)

[2021] VCC 1147

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

ADOPTIONS SURROGACY AND NAME CHANGES LIST

In the Matter of the Adoption Act 1984

and

In the Matter of a child named Christopher Farren (a pseudonym)

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF APPLICATION:	30 April 2021
DATE OF JUDGMENT (determined on the papers):	18 August 2021
CASE MAY BE CITED AS:	In the matter of a child named Christopher Farren (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1147

REASONS FOR JUDGMENT
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Subject:APPLICATION FOR AN ADOPTION ORDER

Catchwords:              Adoption of an adult aged 45– single applicant – step-father – applicant first met the child when child aged 33 - whether the applicant brought up, maintained and educated the child

Legislation Cited:      Adoption Act 1986 (Vic)

Cases Cited:Re Adoption Application by Clark [1987] 11 Fam LR 962; Application by the Director-General, NSW Department of Community Services: Adoption of DR by DCB and HMB [2000] NSWSC 22; Application A77/2302 (Supreme Court of New South Wales, Waddell J, 21 August 1978)

Judgment:                  Application dismissed

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HER HONOUR:

1Mr Tom Campbell[1] applies under s 11(5) of the Adoption Act 1984 (Vic) (“the Act”) to adopt his step-son, Christopher Farren[2], who is aged 45 (“Christopher”).[3] Mr Campbell filed two affidavits in support of his application: one from himself and one from Christopher. The Court provided Mr Campbell with a number of authorities,[4] and invited him to make written submissions, which he did. I have considered all of the material filed by him.[5]

[1]        A pseudonym.

[2]        A pseudonym.

[3]As Christopher has reached the age of 18 and he is the subject of the application for an adoption order, he falls within the definition of the word “child” in s 4(1) of the Act.

[4]Re Adoption Application by Clark [1987] 11 Fam LR 962; Application by the Director-General, NSW Department of Community Services: Adoption of DR by DCB and HMB [2000] NSWSC 22; Application A77/2302 (Supreme Court of New South Wales, Waddell J, 21 August 1978).

[5]By letter dated 31 May 2021, the Court invited the Secretary to the Department of Justice and Community Safety appear and make submissions in this case pursuant to s 108 of the Act. By letter dated 10 August 2021, the Secretary declined the Court‘s invitation.

2Mr Campbell has known Christopher since about February 2010, when he was aged 33. Mr Campbell married Christopher’s mother in September 2015.

3In his affidavit and submissions, Mr Campbell says that since marrying Christopher’s mother he has formed a strong relationship with Christopher. They have been on holidays together, and shared many family events and activities with Christopher and his two young daughters, including Christmas, birthdays, and Thanksgiving. Christopher suffered a serious stroke at the age of 41 and Mr Campbell and his wife have supported him in his recovery. Mr Campbell has taught Christopher a number of skills in metal fabrication, and helped him furnish his own workshop.  Mr Campbell and his wife have helped care for Christopher’s daughters when needed, and have also bought them clothes and sporting equipment. Mr Campbell says that he has taken Christopher on as a “son” in every sense, emotionally and practically “as far as possible given his age and personal financial independence”.

4Christopher supports the application. In his affidavit he says that while growing up, he had a difficult, strained relationship with his own father. That strained relationship deteriorated after he became an adult, to the point where his father disowned him. Christopher has had no contact with his father for the past 12 years. Christopher says that since Mr Campbell married his mother, Mr Campbell has helped him develop his metal fabrication skills and has involved him in his clay target shooting hobby. He also supported him through his post-stroke rehabilitation. He has acted as a paternal grandfather to Christopher’s two daughters, and has helped the family celebrate their Danish cultural heritage.

5Section 10(1)(b) of the Act provides that an adoption order may be made in respect of a person over 18 years of age (before the date on which the application was filed) who:

has been brought up, maintained and educated by the applicant…..as the child of the applicant….as if the applicant were the parent of that child…

6The outcome of this application turns on the meaning of the phrase “been brought up, maintained and educated by the applicant”.

7Mr Campbell says that this sub-section should be interpreted liberally, in the light of the particular facts of this case. The facts relied upon here include that: Mr Campbell has married Christopher’s natural mother; Christopher is an adult who can give informed consent to the application; and it is in the interests of the parties (Christopher, his mother, and Mr Campbell) for the adoption order to be made to legally formalise the familial relationship. He notes that the Secretary of the Department of Justice and Community Safety has elected not to appear to make submissions.

8In relation to the requirements of s10(1)(b) of the Act, Mr Campbell made the following submissions:

·he has “brought up” Christopher since marrying his mother in 2015 by creating a family environment for him and by treating him “emotionally and practically” as a son;

·“maintained” is not limited to financial support, and he has “maintained” Christopher by providing physical assistance, moral support, encouragement, advice and guidance, together with some financial support when that was needed. In particular, he provided the support and encouragement to the child Christopher after his stroke, helped him with his workshop fabrication projects, provided sporting clothes for Christopher’s daughters, and helped (along with his wife) with childcare when needed; and

·“educated” is not limited to formal education at school or at university, and can take the form of learning “hands-on” trade skills. He has taught Christopher a number of metal fabrication skills, as well as the requirements for workshop safety. They recently made a replica Viking wooden chest together.

Case law

9In Application A77/2302,[6] Waddell J of the Supreme Court of New South Wales dealt with an adoption application in respect of a young woman who was about 16 years and 10 months old when she met the applicant. The applicant married her mother about a year later, when she was 17 years and 10 months old.

[6]Supreme Court of New South Wales, Waddell J, 21 August 1978.

10Justice Waddell held that, for an application to succeed, it must be shown that the person “has been brought up and maintained and educated” by the applicant.[7] The Court was satisfied that a close personal relationship was formed between her and the applicant not long before she turned 18 but was not satisfied that she had been “brought up, maintained and educated” by the applicants.[8] Rather, the Court considered that the father-daughter relationship was “basically a relationship which has been established during adult life and not, as the Act requires, during infant life”.[9]

[7]        Ibid 2.

[8]        Ibid.

[9]        Ibid 3.

11In Re Adoption Application by Clark,[10] the Adelaide Children’s Court considered an application for the adoption of a 19 year-old male. The Court considered that the phrase “brought up, maintained and educated” meant that the applicant must have “reared the child the subject of the application and exercised the rights and duties of a parent towards that child”.[11] The duties of a parent included the duty to show affection, care and interest, as well as to maintain the child in the financial or economic sense by providing food, clothing and housing.[12] The Court also considered that education meant teaching children in life in a wider sense than simply formal schooling.[13] In that case, Mrs Clark had raised the person from the age of 6 to 13 and then again between the age of 16 and 19, with interruptions due to family conflict. The adoption order was granted.

[10] [1987] 11 Fam LR 962.

[11] Ibid 964.

[12] Ibid.

[13] Ibid.

12In Adoption of DR by DCB and HMB,[14] Hodgson CJinEq, dealt with an adoption application filed when the child, D, was nearly 21 years of age. D was born in India in October 1978, of Anglo-Indian descent, and was given up at the age of three months to an orphanage. He had no known relatives in India. Mr and Mrs B sponsored him (as well as other children) financially from 1990 (up to about $50 per month) until he came to Australia in February 1996. During that time, they became close. D had no family in India, and he began to call Mrs B “mummy”. Mrs B went to visit him in India in 1992 when he was ill, raising the money for the trip by baking and selling bread. By then, she considered D to be her son, and she and her husband began to contemplate adoption. Mrs B went to India in 1996 and brought D to Australia when he was 17 years and 4 months old.  He lived with them and enrolled in a hotel management college.

[14] [2000] NSWSC 22.

13Hodgson CJinEq considered that the specific circumstances of the case warranted the conclusion that the applicants had satisfied the requirements of a child being brought up, maintained and educated. These were that from 1992, when D was 13 years old, Mr and Mrs B regarded him as a son, and provided all the care, affection, interest, counselling and support which they could provide. They also provided financial support of an extent which would meet a substantial portion of his cost of living in India. In relation to bringing up and education, his Honour considered that Mrs B “did provide that as much as was possible consistently with the respective circumstances of the parties and no one else was making that provision”.[15] His Honour concluded that the requirements of s 18(1)(b) of the Adoption of Children Act 1965 (NSW), had been met.

Findings and reasons

[15]Application by the Director-General, NSW Department of Community Services: Adoption of DR by DCB and HMB [2000] NSWSC 22 [33].

14I acknowledge that since he was aged 33, Christopher has developed a warm relationship with Mr Campbell which has many of the features of a father-son relationship, and that each of them is in favour of the proposed adoption.

15I note that the requirements set out in section 10(1)(b) have been in the Act (sometimes in a different section) since 1958.

16The words “brought up” in the phrase “brought up, maintained and educated” in section 10(1)(b) of the Act is not a term of art and must take its ordinary meaning. According to the Cambridge Dictionary “to bring up someone” is defined as “to care for a child until it is an adult”.[16] According to the Macquarie Dictionary, it is defined as “to care for during childhood, to rear”.[17] In the Merriam-Webster dictionary, it is defined as to “bring (a person) to maturity through nurturing care and education”.[18]

[16]        Cambridge Dictionary (online at 18 August 2021) “bring up someone”.

[17]        Macquarie Dictionary (online at 18 August 2021) “bring” (def 29.a).

[18]        Merriam-Webster Dictionary (online at 18 August 2021) “bring up” (def 1).

17Consistently with the Court’s interpretation of the phrase in Re Adoption Application by Clark,[19] I consider that the phrase requires that the bringing up or rearing of the person aged 18 or more at the time of the filing of the application for an adoption order must have occurred, or been established (although not necessarily have ended) before the person turned 18, that is, whilst he or she was an infant, child or an adolescent.  

[19] [1987] 11 Fam LR 962, 964.

18This interpretation is also consistent with the decision of Waddell J that it is appropriate to take into account the period of 12 months prior to the marriage of the natural mother to the proposed adoptive father, when the person to be adopted was almost 17 years old. However, on the facts before him, Waddell J appears not to have been satisfied that this period was long enough to satisfy the requirement that the person had been brought up, maintained and educated by the proposed adoptive parent.

19I consider that “maintained” refers to the economic or financial support of a parent in providing shelter, clothing, and the other conveniences of life. I accept that “educating” can mean more than formal schooling.

20However, the words “maintained and educated” cannot be read disjunctively, but rather take their colour from the first part of the phrase in which they appear, that is, after the words “brought up”. No matter how liberally the words “maintained” and “educated” are defined, they cannot alter the temporal connection which inheres in the words “brought up” – that is, a temporal connection with a pre-adult period, whether in infancy, childhood or adolescence.

21On the facts of this case, all of the features of the father-son relationship which are relied upon have taken place in the period since Christopher was 33 years old, financially independent, and a father himself. I am therefore not satisfied that the requirements of section 10(1)(b) of the Act have been met.

Conclusion

22For the reasons outlined above, the application is dismissed.