Murray & Anor and Unknown

[2012] FamCA 425

FAMILY COURT OF AUSTRALIA

MURRAY AND ANOR & UNKNOWN [2012] FamCA 425

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the identity and whereabouts of the biological father is unknown – Order that leave be granted

Family Law Act 1975 (Cth) s 60G, s 60I, s 61E, s 65J
Adoption Act 2009

1st APPLICANT: Ms Murray

2nd APPLICANT: Mr Murray

RESPONDENT: Unknown

FILE NUMBER: BRC 4112 of 2012

DATE DELIVERED: 7 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 7 June 2012

REPRESENTATION

THE 1ST APPLICANT: Ms Murray in Person

THE 2ND APPLICANT: Mr Murray in Person

THE RESPONDENT: No appearance

Orders

1. Leave is granted pursuant to s 60G of the Family Law Act for proceedings to be commenced for the adoption of the child, B MURRAY born … April 1997, by the applicants, Mr Murray and Ms Murray.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murray and Anor & Unknown 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 4112 of 2012

Ms Murray and Mr Murray

Applicants

And

Unknown 

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction  

1. Before me for determination today is an application by Ms Murray and Mr Murray that leave be granted pursuant to s 60G of the Family Law Act for proceedings to be commenced by those two applicants in the Queensland State Courts for the adoption by them both of the child B Murray (“B”).  B was born in April 1997 and is therefore now 15 years of age. 

2. Relevantly, Ms Murray has deposed in her affidavit evidence that she does not know the identity of, or the whereabouts of, the biological father of B.  Ms Murray has given evidence that she only met with the biological father of B on one occasion when she was out with friends when she lived in a town in a remote part of Australia.  According to the date of the birth of B, that would have been some time in or around the latter part of 1996. 

3. Ms Murray’s evidence is that the man who is the biological father of B told her his name, but that she was unable to remember it later when she determined that she was pregnant.  However she attempted to find the young man and quickly learned that he was not known to locals and she was unable to identify him or to locate him.

4. Subsequently when B was born in 1997 his birth was recorded in the Register of Births with no reference whatsoever to his biological father on his Birth Certificate.  Ms Murray deposes to the fact that she has had absolutely no contact with or knowledge of the whereabouts of B’s biological father since B was conceived.  Consequently, B’s biological father has played absolutely no part whatsoever in B’s life since his birth. I accept that evidence and am prepared to proceed to hear the application on an ex parte basis, dispensing of the need for service of the application on the biological father.

5. In Queensland, adoption of children is governed by the Adoption Act 2009.  Under that legislation some new criteria were introduced in respect of the determination of applications for adoption.  Particularly in respect of this type of application for adoption which is generally called a ‘stepparent’ adoption. The Adoption Act requires prospective adopting stepparents such as Mr Murray in this instance, to satisfy the Court, in addition to some pre-existing criteria that have to be satisfied, in respect of a number of new criteria. 

6. The new criteria include that the relevant child is at least five years of age and that he has not yet turned 17.  That of course is the case in respect of B.  Further, they include a requirement that this Court has granted the parties leave to commence proceedings to apply for an adoption order.  Further still, they include a requirement that either the consent of the biological parent or an order of the State Court dispensing with same must be made before the adoption can proceed.  The State Court will, of course, have to deal with an application by the applicants in respect of dispensation with the need for the biological father’s consent in the same way that I have had to consider the need to dispense with service and to proceed in this case on an ex parte basis. 

7. Section 60G of the Family Law Act was introduced into the Act in 1995.  Sub-section (2) of that section makes it plain that a decision whether to grant leave for proceedings to be commenced for the adoption of a child is actually governed by a determination of best interests of the child.  Failure to obtain leave from this court to apply to the State Court for adoption has certain consequences under the State legislation and also under the Family Law Act. 

8. Relevantly, sections 61E, 65J and a number of other sections that are referred to within s 60G, apply. In short, those sections provide that unless the leave of this court has been obtained pursuant to s 60G to commence proceedings to apply for adoption in the State Courts, that once an adoption order is made by the State Courts, the provisions of the Family Law Act pertaining to parental responsibility and any current parenting orders that are in place are not overridden. 

9. In other words, if this court grants leave to proceed to commence adoption proceedings pursuant to s 60G and then an adoption order is made in favour of the applicants by a State Court under the State Adoption Act, any parental responsibility that pre-existed the order in accordance with the provisions of the Family Law Act immediately ceases, that is, the biological parents of the child, in this case particularly the unknown biological father, no longer has parental responsibility in respect of the child pursuant to the Act and any orders that were already in place would automatically cease.  In this case, of course, that will not matter because the unknown biological father has played no part in the child’s life and has exercised no parental responsibility in respect of the child, even though he has it under the Family Law Act since the child was born, and additionally, there are no orders in place under the Family Law Act that provide him with any rights in respect of seeing the child and spending time with him.

10. The question that must be considered in determining this application is whether it is in the relevant child’s best interests to permit adoption proceedings to proceed in the State Magistrates Court where the potential consequences that I have just discussed will emerge.  In this particular case the applicant, Ms Murray, who is the mother of the child B, has parented B by herself until she met the other applicant in this case, Mr Murray. Mr and Ms Murray deposed to having commenced living together along with the child B some time in or around May 2000. The commencement of their cohabitation was soon followed by the birth of B’s first sibling.

11. Mr and Ms Murray then married in 2002 and were blessed with another three children thereafter, thus expanding the Murray family to seven.  Young B is indeed fortunate, although sometimes he may not think he is, to have four younger siblings in his life. 

12. On the evidence before me, after Ms Murray changed from her family name upon marrying Mr Murray, B started to request that his name be changed to Murray as well.  His continued requests were heard and in October 2002 his name was legally changed from West to Murray. I see that this name change is reflected in the notes on B’s Birth Certificate which is in evidence before me.

13. Young B has, as I understand the evidence, a loving father in Mr Murray who plays a very important part in his life.  The evidence allows me to conclude that Mr Murray has played an extremely active parental role in the life of B and no doubt the other four younger siblings and that Mr Murray’s parents are also happily involved as grandparents, not only in the lives of their four biological grandchildren, but also in the life of young B.  B is clearly a very important part in this family.

14. On the evidence I have read, like most teenagers, B is now looking forward to obtaining his learners permit once he reaches 16 years, which is not far off. Not unexpectedly B wishes to be referred to by his name of Murray instead of West and formal adoption would facilitate the official recognition of B’s surname as Murray. 

15. In the circumstances of this case, Mr Murray has in his affidavit assured the Court that he is very keen to adopt B as his child so as to wholly integrate him in a lawful sense into the family that Mr and Ms Murray and all of their children constitute, and to provide B with the opportunity to go through the rest of his life identifying Mr Murray as his lawful father and knowing that this man who has effectively been his father and raised him in circumstances where his biological father was not around to do so, is actually his lawful father. 

16. As I have said, B is a very fortunate young man.  In all the circumstances, I have no difficulty in stating that I am satisfied that it is in B’s best interests for the applicants to be able to file an application for stepparent adoption in the State Courts and for it to be considered there in accordance with the State adoption legislation. In the circumstances, I will make the order sought by the applicants.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 June 2012.

Associate: 

Date:  7 June 2012