Miller and Hunter

[2016] FamCA 849

FAMILY COURT OF AUSTRALIA

MILLER & HUNTER [2016] FamCA 849

FAMILY LAW – CHILDREN – ADOPTION – application for leave to commence adoption proceedings – where the application is opposed – where the respondent has not spent any face to face time with the child since she was about one year of age and has not communicated with her since sending her a card for her third birthday – where the child is now twelve years old – application granted.

Family Law Act 1975 (Cth)
Adoption Act 2009 (Qld)

APPLICANTS: Mr Miller and Ms Miller

RESPONDENT: Mr Hunter

FILE NUMBER: BRC 4076 of 2016

DATE DELIVERED: 26 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 26 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr C Umashev

SOLICITOR FOR THE APPLICANT: Ron Lawson Lawyer

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G of the Family Law Act 1975 (Cth) the Applicants, Mr Miller and Ms Miller are granted leave to commence adoption proceedings in respect of the child, B, born … 2004.

2. The Applicant, Ms Miller, and the Respondent, Mr Hunter, do all acts and things necessary to change the name of the child B born … 2004 to B Miller.

3. The Applicant, Ms Miller, prepare and provide to the Respondent, Mr Hunter, any forms necessary to change the child’s name with the Registry of Births, Deaths and Marriages.

4. The Respondent, Mr Hunter, sign and return to the Applicant, Ms Miller, any change of name forms within fourteen (14) days of receipt of those forms.

5. The Applicant Ms Miller bear any cost with the Registry of Births, Deaths and Marriage regarding the proposed change of name.

6. In the event the Respondent, Mr Hunter, fails to sign and return any change of name forms within fourteen (14) days of receipt of those forms, then a Registrar of the Court is appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to sign any such documentation in lieu of the Respondent.

7. In the alternative to Clause 3 and 4 above, the Applicant Ms Miller, prepare and provide any such necessary forms to the Registrar of the Court and that the Registrar of the Court is appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to sign any such documentation in lieu of the Respondent.

8. All outstanding Applications be dismissed and removed from the pending cases list. 

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 Miller & Hunter 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 BRISBANE

FILE NUMBER: BRC 4076 of 2016

Mr Miller and Ms Miller

Applicants

And

Mr Hunter

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. The Applicants apply pursuant to section 60G of the Family Law Act1975 (Cth) for leave to commence proceedings for the adoption of the child, B (the child), born … 2004. The application is opposed by Mr Hunter, who is the child’s biological father. He has not seen the child, it seems, since he and her mother separated in late December 2005. Mr Hunter currently lives in the United Kingdom, and, on the material before me, appears to have done so since about August 2012.

2. It seems clearly established, on the material before me, that Mr Hunter has not had any direct or indirect involvement with the child since separation in 2005, and, save for on one occasion when he sent her a gift to commemorate her third birthday, has not communicated with her by way of gifts, cards or any other communications. 

3. The reason for this appears to be in dispute as between the parties.  On the case of the Applicants, sufficient contact details remained consistent and capable of being ascertained by Mr Hunter so as to permit him the opportunity to correspond with or about the child.  On Mr Hunter’s contention, his attempts to do so were thwarted, or he was not in a position to undertake necessary investigations so as to enable him to engage in that type of communication.

4. It is clear that there are no parenting orders in place as between the child’s biological parents. 

5. Insofar as the Applicants are concerned, they commenced living together in mid-2007 and married in 2012.  They have a child together, C, who was born in 2008.  It is established on the material that since about mid‑2007 Mr Miller has lived in the same home as the child.  He has contributed to meeting her financial needs, and it seems established that he has assumed, together with her mother, all of the parenting responsibilities for her.

6. The current application is necessary because section 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 matters is that the person has been granted leave, pursuant to section 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 that category at present.

7. Section 60G(2) of the Act provides that in proceedings for such leave, the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of sections 60F(4)(a) and 60HA(3)(a) and sections 61E and 65J of the Act. It is evident, from the consideration of those sections, and, in particular, sections 61E and 65J of the Act, that the consequences for the child of being adopted include the termination of all parental responsibility owed by a biological parent for her and the non-enforceability, in a sense, of any existing parenting order.

8. As I have emphasised to Mr Hunter, during the course of the appearance this morning, the granting of an order in this Court for leave to commence proceedings for adoption is something which is quite different to an order for adoption.  The decision facing this Court, therefore, differs from that which will face the Court charged with the decision whether to permit the adoption.  The granting of leave to commence proceedings does not, as I have said, have the consequence of the cessation of parental responsibility or the enforceability – to use that term – of parenting orders, as only an adoption order made by a State Court has that effect.

9. However, section 208 of the Adoption Act2009 (Qld) provides that the Court may make a final adoption order only if satisfied of a number of matters, included in which is that an order for adoption by a stepparent 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.

10. I consider, therefore, having regard to the legislative framework provided by the Adoption Act 2009 (Qld) 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. It is clear, therefore, that in these proceedings, I must consider the familiar best 1975 interest considerations as prescribed by section 60CC of the Family Law Act (Cth).

11. It is clear that the Applicants are prescribed adoptive parents within the meaning of the Family Law Act 1975 (Cth). In determining the application for leave to commence proceedings, I must determine what is in the child’s best interests by reference to the relevant aspects of sections 60CB to CG, and so far as they are relevant, the particular sections referred to in section 60G. While I may not, in these reasons, specifically discuss each relevant section or subsection, I have considered them, where relevant, in arriving at my determination.

12. It is clear that the child was very young when her biological parents separated.  She has lived most of her life with the Applicants jointly.  I accept she has a close and loving relationship with her mother and I also accept that she has a close and loving relationship with Mr Miller.  I accept that she has no relationship with her biological father, Mr Hunter, who has played no part in her life since the end of 2005.  I further accept, on the evidence before me, that Mr Hunter has not exercised parental responsibility for the child at any time since the end of 2005.

13. Whilst Mr Hunter’s opposition to the grant of leave, in relation to the proposed application by the Applicants for an adoption order, is a relevant consideration in determining whether permitting leave to commence proceedings for adoption is in the child’s best interests, his opposition is not determinative of the application. 

14. As I have noted, if an order for adoption is ultimately made by a State Court, Mr Hunter will not any longer have parental responsibility in relation to the child, but, as I have said, on the evidence before me, he has not really ever exercised this.

15. It is clear on the evidence before me that the Applicants have met all of the child’s emotional and psychological needs - in that sense, I accept that Mr Miller is very much her psychological parent.  He has, on the evidence before me, discharged all of the obligations and responsibilities associated with parenthood, as those responsibilities and obligations are envisaged under the Family Law Act 1975 (Cth). By this application he evidences his intention to continue to take up and discharge the role that he has undertaken for the child in her life thus far. It is clear, on the material before me, also, that the child certainly seems to accept him as her father, and, as I have said, there could be little doubt that he has, for all intents and purposes, discharged the obligations of that role.

16. I accept the evidence, to the effect that the child’s wishes at this stage are - as expressed to both her mother and to Ms D, upon whom she attended – very much to have the application for adoption commence and be prosecuted.  I accept, on the evidence before me, that it is very important for the child, and to her, that Mr Miller adopt her because, from her perspective, he is her father in every way.  He has been in that role since she was very young, and, as I have said, it is established that they have a very close relationship.

17. I take into account, also, the evidence provided by Ms D, upon whom the child attended with her mother.  I accept, on the basis of that evidence, that the child has no attachment to Mr Hunter or his family at this point in time.  I accept that she fully identifies with Mr Miller as forming part of his extended family also. 

18. It is apparent from the contents of the evidence provided by Ms D that the child has no recollection of Mr Hunter, and that, while she does not, it seems, express what Ms D describes as animosity toward him, she appears, at this stage of her life, to be not particularly interested in knowing more about him.  I accept also that from the child’s perspective, Mr Miller has been and fulfilled the father role – to use that term – for as long as she can remember.

19. I think it relevant to record, from Ms D’s report, that, from her interaction with the child, it appears that the child was confused at the time her mother married Mr Miller, because it seems she assumed that she would be known as a “Miller” and share the same surname with all other members of her family.  I accept that, from the child’s perspective, her desire is to seek to be adopted by Mr Miller and to have her name changed, so that she does not feel to be the odd one out in her family.  I accept Ms D’s evidence, from her interaction with the child, that there is nothing that they - being the members of her family - have done to make her feel like this; therefore, it is something which is more likely than not to be the child’s expression of an internal feeling.

20. I accept, on the evidence before me, that, from the child’s perspective, she strongly feels as though Mr Miller is her father; she wants him to be – to use the term of Ms D’s report – her “proper dad”, stating that, whilst it feels like he is, she knows that he is not. 

21. It also appears, on the evidence before me, that it is very important for the child, at this point in time, that there is a change to her surname.  That is a matter about which Mr Hunter is not in dispute with the applicants. 

22. I also accept, though, Ms D’s evidence, following her interaction with the child, that the child’s desire to be adopted is genuine and enduring;  that she seeks a sense of belonging in her family and that this is very important to her, at her current stage of development. 

23. I therefore accept that is very important from the child’s perspective, for the child, and to her, that the proceedings in relation to her adoption by Mr Miller be permitted to commence. 

24. The combination of all of the matters to which I have referred persuades me that an order permitting the proceedings to commence in relation to the child’s adoption is something that is in her best interests. 

25. Accordingly, I make an order that, pursuant to section 60G of the Family Law Act 1975 (Cth), the Applicants are granted leave to commence adoption proceedings in respect of the child, B, born in 2004. I also make orders in terms of Clauses 2, 3, 4, 5, 6 and 7 of the Initiating Application, filed 3 May 2016. The orders will issue in those terms.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 26 September 2016.

Associate:     

Date:              29 September 2016.