Manfredi & Anor and Valenti & Anor

[2020] FamCA 778

FAMILY COURT OF AUSTRALIA

MANFREDI AND ANOR & VALENTI AND ANOR [2020] FamCA 778

FAMILY LAW – ADOPTION – leave to commence proceedings – where the applicants seek leave to commence adoption proceedings in the County Court of Victoria – where the applicants do not require leave under the Family Law Act 1975 (Cth) to commence adoption proceedings as they are not defined as prescribed adoptive parents under the Act.

FAMILY LAW – CHILDREN – with whom a child lives – where the applicants seek final parenting orders for the child – where the respondents are the biological parents of the child and do not oppose the making of final parenting orders in favour of the applicants including an order for parental responsibility – where final parenting orders are made in the terms sought by the applicants.

Adoption Act 1984 (Vic) s 53
Family Law Act 1975 (Cth) ss 60CC, 60F, 60G, 61E, 65J

APPLICANTS: Mr Manfredi and Ms Belfi

FIRST RESPONDENT: Ms Valenti

SECOND RESPONDENT: Mr Falco

FILE NUMBER: MLC 472 of 2020

DATE DELIVERED: 16 September 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 31 August 2020 & 16 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foo

SOLICITOR FOR THE APPLICANT: Aitken Partners

THE FIRST RESPONDENT: In Person

THE SECOND RESPONDENT: No Appearance

Orders

IT IS ORDERED THAT

1. The Applicants Mr Manfredi born … 1969 and Ms Belfi born … 1984 have sole parental responsibility for the child X born … 2018.

2. X live with the applicants

3. X spend time with and communicate with the First and Second Respondents Ms Valenti and Mr Falco (“the Respondents”) as agreed in writing between the parties.

4. The Applicants be permitted to provide a copy of these Orders to:

   (a)Any school, childcare, kindergarten or day care or educational facility that X may attend;

   (b)Any hospital, General Practitioner, medical specialist, Allied Health Professional than X attends upon or may attend upon;

   (c)Any foreign embassy, consulate or diplomatic mission;

   (d)Any Australian Commonwealth or Victorian State Government official, including but not limited to the Minister in charge of the Department of Foreign Affairs and Trade or delegated official, as required;

   (e)Any Australian Commonwealth or Victorian State Court as required;

   (f)Any other person/organisation who is required to obtain information in relation to X.

5. The Applicants:

   (a)Be permitted to attend all school/day care activities, events and functions;

   (b)Obtain school reports, photographs, notices and information ordinarily sent to parents; and

   (c)Be permitted to gain access to the school portals as necessary for X and be listed as the first emergency contacts for X as may be required from time to time.

6. The Applicants be permitted to change X’s surname to ‘Manfredi’ or any other surname that the Applicants may decide.

7. The Applicants be permitted, at their cost, to apply to the Victorian Registry of Births, Deaths and Marriages, without the consent of the respondents, to register X as X Manfredi or such other surname as they may decide and do all such acts and things that may be required  to give effect to X’s surname change.

8. The Court directs that a sealed copy of these orders by forwarded to the Registrar of the Victorian Registry of Births, Deaths and Marriages who IS REQUESTED to give effect to these Orders, and any applications made by the Applicants with respect to changing X’s surname.

9. That pursuant to section 11(1)(b) of the Australian Passport Act 2005 (Cth), the child X is allowed to travel overseas and that either or both of the Applicants be allowed to sign and execute any documents necessary for the child X to obtain an Australian passport or to extend any existing passports.

10. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

(B)These orders permit the Applicants  to:

a.Make all decisions in relation to short/long term medical issues concerning X;

b.Determine the education X shall receive including but not limited to the style, type and school X will attend;

c.Apply for and obtain any passports including any future renewals; and

d.Travel with X (whether interstate or overseas) at their discretion.

(C)That the First and Second Respondents have been served with all Court documents filed on behalf of the Applicants and have not filed any Court Affidavits or Responding documents. The First and Second Respondents have participated in these proceedings by attending on appointments with Family Consultant Ms E to assist her in preparing the Family Report dated 7 July 2020.

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 Manfredi and Anor & Valenti and Anor 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 MELBOURNE

FILE NUMBER: MLC 472 of 2020

Mr Manfredi and Ms Belfi

Applicants

And

Ms Valenti

First Respondent

And

Mr Falco

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me in the Judicial Duty List on 30 August 2020 on the application of Mr Manfredi and Ms Belfi (“the Applicants”) who are seeking parenting orders with respect to the child X born … 2018 (“the child”). The Applicant’s call the child Y. The Applicants are also seeking an order pursuant to s60G of the Family Law Act 1975 (“the Act”) for leave to commence proceedings in the County Court of Victoria to adopt the child.

2. The first and second named respondents are the child’s biological parents, the first respondent Ms Valenti (“the mother”) and the second respondent Mr Falco (“the father”). The mother filed a Notice of Address for service, participated in a telephone interview with the family consultant for the purposes of the preparation of the family report and appeared in the person at the hearing before me. She had the assistance of a Country D interpreter during the hearing. Although the father had filed a Notice of Address for Service and attended a telephone interview with the family consultant for the purposes of the preparation of the family report he did not participate in the hearing before me. Registrar Mestrovic made orders that the respondents file and serve a Response to the Applicant’s Initiating Application together with any Affidavit in support, however neither the father nor the mother filed any answering material.

Background

1. Mr Manfredi is 51 years of age and is a farmer. Ms Belfi is 36 years of age and cares for the child on a full time basis. Ms Belfi was born in Country D and came to Australia in 2016. Mr Manfredi and Ms Belfi commenced a relationship in about February 2017, commenced cohabitation some eight months later and intend to marry. She is currently in the process of obtaining a spouse visa and is currently living in Australia on a bridging visa.  

2. The father is 35 years of age and is a Country D citizen. He has a wife and four children. He is in Australia on a working visa. His wife and four children continue to live in Country D. The mother who is 37 years of age is similarly a Country D citizen. Her husband and three children live in Country D. The mother is in Australia on a working visa. The father and mother told the Family Consultant Ms E that they both intend to return to Country D within the next 10 months when their passports and visas are due to expire. 

3. Mr Manfredi deposes that in or about June 2018 he employed both the father and the mother to work on his farm. The father and mother told Ms E that they commenced a relationship when they were working for Mr Manfredi. The mother’s pregnancy was unplanned. The mother reported to Ms E that although she and the father had initially intended keeping the child the father changed his mind shortly after his birth. She also said that although she attempted to care for the child without the father she realised that because of her employment commitments and her own family circumstances in Country D she could not do so. The father reported that when he and the mother became aware of her pregnancy they considered a termination but decided to continue with the pregnancy with the intention of placing the child in someone else’s care after his birth. He told Ms E that the child was placed in foster care for approximately three months before he and the mother resumed his care and that the child remained in their care for approximately one month prior to being placed in the applicants’ care.

4. Ms Belfi deposes that she became aware in September 2018 that the mother intended to place the child up for adoption and that she and Mr Manfredi discussed the possibility of the child living with them as a result of which she spoke to the mother to discuss that possibility. It is her evidence that the father did not wish to be and was not involved in these discussions.  She deposes that the mother was happy for them to care for the child and that she said that she would speak to Department of Health and Human Service (“DHHS”) about getting the child back. She said that shortly after the mother agreed that she and Mr Manfredi could care for the child the mother told DHHS that she no longer wanted to go ahead with his adoption and he was returned to her care but that she did not tell DHHS that she intended placing the child in their care on a full time basis.  

5. Ms Belfi further deposes that for approximately 3 months DHHS visited the mother to check on how she was coping with the child, that she and Mr Manfredi would drop the child off to the mother and wait in the car and that it was her understanding that during these visits DHHS became aware that she was assisting the mother with the child’s care. She also said that the mother stopped contacting her and Mr Manfredi after the visits from DHHS stopped and that she had not heard from the mother since approximately early August 2019. The father reported to Ms E that he had not seen the child since he was 8 months old.  

6. Although the time line is not totally clear and there appears to be some uncertainty surrounding the circumstances in which the child having been placed in foster care by DHHS with a view to a possible adoption came to be placed in the applicants’ care, it appears that the child has been in their uninterrupted care since early October 2018 with little or no contact with either the father or the mother.

7. Both the father and the mother told Ms E that they had no objection to the child remaining in the long term care of Mr Manfredi and Ms Belfi and I am satisfied having regard to Ms E’s report that both the father and mother supported the applicant’s plans for adoption.

Legal Principles

1. The applicants in this case seek both parenting orders and an order for leave to proceed with an application for adoption. The adoption of a child in Victoria is governed by the Adoption Act 1984 (Vic) (“the Adoption Act”). The Adoption Act provides that an adoption order may be made for the adoption of a person who has not attained the age of eighteen years before the date upon which the application for adoption is filed or has been brought up, maintained and educated by the applicants if they were the parents of that child. The Adoption Act also provides that in order for an adoption order to be made in their favour the applicants in this case need to have been married or lived in a domestic relationship for two years. The unchallenged evidence in this case is that the applicants having commenced a relationship in early 2017 started living together later that year.

2. Section 53 of the Adoption Act provides that a child who is adopted is treated in law as a child of the adopting parents and not a child of that child’s parents prior to the adoption order being made and those parents are no longer treated in law as parents.

3. Pursuant to S61E of the Act provides as follows:

   (1)This section applies if:

   (a)A child is adopted; and

   (b)Immediately before the adoption, a person had parental responsibility for the child, whether in full force or of a limited extent and whether because of section 61C or because of a parenting order.

   (2)The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the proceedings to be commenced.

4. Pursuant to Section 65J of the Act any parenting order in force in relation to a child prior to an adoption order being made stops being in force upon the making of that order.

5. Neither of the applicants in this case are prescribed adopting parents as defined by the Act and in this case leave to adopt is not necessary.

Parenting Orders

1. In so far as the applicants seek final parenting orders, including an order for shared parental responsibility, I am satisfied that those orders are consented to by both the father and the mother albeit the father did not participate in the hearing before me.  

2. When making parenting orders the child’s best interests are the paramount consideration. The matters the court must consider when determining the child’s best interests are set out in s60CC of the Act. The primary considerations are the benefits of the child having a meaningful relationship with both of his or her parents and 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 this case I have had the benefit of a family report prepared by Ms E. There are no allegations in this case which suggest that the child is at any risk of harm and Ms E reports that when she liaised with DHHS she was advised that DHHS had investigated how the child came to be placed in the applicant’s care and that their investigation had not identified any risk of abuse to the child in the applicants’ care. Ms E also referred to the applicant’s having undergone a criminal history check with Victoria Police. 

4. Although both of the applicants depose to the lack of any involvement by the father and the mother in the child’s life they also told Ms E that they were open to the possibility of the father and mother having some contact with the child. They also said however, which is consistent with the history of the father and mother’s involvement to date, that they did not believe that the father and mother would maintain contact with the child.

5. Although the father said he wanted the child to know about his biological parents and wished to see him once per month given his failure to involve himself in the child’s life or take the opportunities offered to enable him to do so and in circumstances where it is likely that both the father and the mother will be returning to Country D in early 2021 it seems unlikely that either of the father or the mother are likely to play any significant part in the child’s life.

6. The applicants told Ms E that they had not given much thought to if/how and when to tell the child about his parentage, however Ms Belfi who is from the same village in Country D as the mother has family members living in Australia with their respective families who will play a part in the child’s life. It is also the case that the applicants, the father and the mother are all of a particular faith and the applicants propose to raise the child in their faith.  

7. The applicants depose in some detail to the care they have provided for the child and their commitment to the child. Ms E described the applicants and the father and the mother and their commitment to the child as follows:

   43.Mr Manfredi and Ms Belfi’s commitment to caring for X was in evidence and they demonstrated a willingness to secure this arrangement from a child focused perspective.

   44.Ms Valenti and Mr Falco’s precarious visa, employment and relationship status indicated that they may only be able to commit to limited involvement in X’s future. It may be that their and Ms Belfi’s cultural backgrounds keeps them connected to communicate with Mr Manfredi and Ms Belfi about X.

8. In her evaluation Ms E said of the applicants (at [56]) as follows:

   56.Mr Manfredi and Ms Belfi seemed to have demonstrated a commitment to caring for and parenting X since he was seven weeks old. They seemed to have been able to meet X’s developmental needs, despite not having decision making responsibilities, X was reportedly fondly accepted into their wider families. This all bodes well for the stability and security of X’s future and supports his sense of belonging and identity if he were to remain in the care of Mr Manfredi and Ms Belfi. While Mr Manfredi and Ms Belfi’s personal circumstances may have motivated their decision to become involved and help Ms Valenti and Mr Falco, they showed insight and sensitivity to religious and cultural needs and what this meant for Ms Valenti and Mr Falco. Their commitment to X and the apparent stability of their own relationship and employment bodes well for X’s future.  

9. Ms E ultimately concluded, albeit I am satisfied that the applicants do not require leave, (at [60]) as follows:

   60.This assessment supports Mr Manfredi and Ms Belfi proceeding with their plans to undergo assessment so that they can adopt X. This assessment is satisfied that Ms Valenti and Mr Falco genuinely support this arrangement and do not intend to assume care of X in the future. In the meantime, Mr Manfredi and Ms Belfi would benefit from a Court Order which enables them to make day-to-day and long term decisions for X. He is reaching an age where he will attend childcare, kindergarten and then school and he will need these decisions to by his carers without any unnecessary barriers. Further, Mr Manfredi and Ms Belfi will be able to attend to any health or medical needs without undue delay and this will mitigate any risks to X’s health and development while he is in their care. This assessment also supports Mr Manfredi and Ms Belfi’s proposal to change X’s surname and immerse him into their faith, including baptising him, though the legalities of such decisions in relation to potential adoption proceedings remain with the Court.

10. In all of the circumstances I am satisfied that I should make the orders the applicant’s seek and that it is in the child’s best interests to do so. The child has been in the applicant’s care for all but the first seven weeks of his life and I am satisfied that they are his only option but also the best option in terms of both his short term and long term welfare. I also agree with Ms E that the applicants need to be able to make decisions with respect to the child’s welfare whether or not their application to adopt the child is successful. In all of the circumstances I am also satisfied that I should make the order with respect to changing the child’s surname to Manfredi. Although the applicants will have parental responsibility for the child I am prepared to make the order permitting the name changes to avoid any uncertainty.  

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 September 2020.

Associate: 

Date:  16 September 2020