Rand & Anor and Unknown

[2011] FamCA 951

FAMILY COURT OF AUSTRALIA

RAND AND ANOR & UNKNOWN [2011] FamCA 951

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: Mr Rand

2nd APPLICANT: Ms Rand

RESPONDENT: Unknown

FILE NUMBER: ROC 436 of 2011

DATE DELIVERED: 3 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 3 November 2011

REPRESENTATION

THE 1ST APPLICANT: Mr Rand in Person

THE 2ND APPLICANT: Mrs Rand in Person

THE RESPONDENT: No appearance

Orders

1. Notice of these proceedings on the unknown father of the child B born in the Country D on … 2002, be dispensed with.

2. The application of the applicants filed on 20 September 2011 be heard ex parte.

3. The application filed on 20 September 2011 be heard and determined in the absence of a certificate issued pursuant to s 60I.

4. Leave is granted pursuant to s 60G of the Family Law Act for the applicants to commence adoption proceedings in respect of the child B born … 2002.

IT IS NOTED that publication of this judgment under the pseudonym Rand & Rand and Unknown is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 436  of 2011

Mr Rand and Ms Rand

Applicants

And

Unknown 

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction  

1. Before me for determination today is an application by Mr Rand and MsRand 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 Magistrates Court for the adoption by them both of the child B.  The child was born in the Country D in 2002 and is now therefore 9 years of age. 

2. In addition to seeking leave to proceed with adoption proceedings pursuant to s 60G the applicants seek other procedural orders, namely that service of the proceedings on the unknown biological father of the child be dispensed with; that the application be heard on an ex parte basis; and that the application be heard and determined in the absence of a certificate issued pursuant to s 60I of the Family Law Act. 

3. Relevantly, Ms Rand has deposed in her affidavit evidence and also in evidence given by her orally today over the telephone under oath, that she does not know the identity of, or the whereabouts of, the biological father of the child, B.  Ms Rand gave evidence that she was in a very short term relationship with the Filipino man who is the biological father of the child, in City C in the Country D. According to the date of the birth that would have been some time in the latter part of 2001. 

4. Ms Rand’s evidence is that man told her that his name was “Charlie” but that she subsequently learned from a friend that her friend knew the man as “Ricky”.  He apparently did not identify himself by any other name but contacted Ms Rand and went on a number of dates with her over a very short period of time.  That relationship ceased and Ms Rand was unable to, although having tried to contact this man, actually track him down and find out where he was or where he could be contacted when she learned that she was pregnant following that short term relationship.

5. Subsequently when the child the child was born in 2002 his birth was recorded in the official register of births in the Country D without any reference whatsoever to his biological father on that birth certificate.  Ms Rand deposes to the fact that she has had absolutely no contact with or knowledge of the whereabouts of the biological father of the child since the birth of the child and that the biological father of the child has played absolutely no role whatsoever in any form in the life of the child since his birth. I accept that evidence.

6. This application for leave to commence adoption proceedings pursuant to s 60G of the Family Law Act is an application within Part VII of that Act. As such, the provisions of s 60I of the Family Law Act, also contained within Part VII of the Act, are applicable. Those provisions deal with the attendance upon a family dispute resolution practitioner by parents or parties to parenting proceedings pursuant to Part VII before an application can actually be made pursuant to Part VII. Section 60I(7) says this:

   Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

7. Of course in this particular case no s 60I certificate has been filed with the application for the Part VII order. I am asked to nevertheless proceed with the application. There are exceptions to the requirement for such a certificate to be filed with an application before it can be heard. Those exceptions that are referred in sub-section (7) of s 60I are set out in sub-section (9) of s 60I of the Family Law Act.  It starts by saying that sub-section (7) does not apply to an application for a Part VII order in relation to a child in certain circumstances.  The section then lists a number of circumstances in various sub-paragraphs.  Relevantly in this case, sub-paragraph (e) says this:

   One or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason);

8. I am completely satisfied in this case that the exception must apply and that a s 60I certificate is not needed. If the identity and whereabouts of a biological father who would normally be the respondent to one of these applications is completely unknown, then it is impossible for that person to be able to participate effectively in family dispute resolution. Accordingly I am satisfied that proceedings can be heard and determined notwithstanding the absence of a s 60I certificate. Further, for all the same reasons I am satisfied that service of the proceedings on this unknown biological father is impossible and I am therefore prepared to dispense with that and deal with the application on an ex parte basis.

9. In Queensland, the adoption of children is now 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 Rand in this instance, to satisfy the Court, in addition to the pre-existing criteria that have to be satisfied, in respect of a number of new criteria. 

10. They include that the relevant child is at least five years old and that he is not yet 17.  That is the case in respect of the child.  Further, they include the requirement that this Court has granted the parties leave to commence proceedings to apply for an adoption order.  Further still, they require either the consent of an actual parent or an order of the State Court dispensing with same before the adoption can proceed.  The State Court will, of course, have to deal with an application by the applicants in respect of dispensation of the need for the consent of the biological father in the same way that I have had to consider the need to dispense with service and proceed ex parte in this case. 

11. 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 adoption legislation and it also has certain consequences under the Family Law Act. 

12. Relevantly, sections 61E, 65J and a number of other sections mentioned within s 60G, apply. In short, those sections provide that unless the leave of this court was obtained pursuant to s 60G to commence proceedings to apply for adoption in the State Courts, 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 automatically overridden. 

13. In other words, if this court grants leave to proceed pursuant to s 60G and an adoption order is made in favour of the applicants by a State Court under the State Adoption Act, parental responsibility that pre-existed the order pursuant to the provisions of the Family Law Act immediately ceases, that is, the biological parent of the child, in this case 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 hardly matter because the unknown biological father has played no part in the child’s life and has therefore has exercised no parental responsibility in respect of the child even though he has it under our Act and there are no orders in place that provide him with any rights in respect of the parenting of the child.

14. 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 Magistrate Court where the potential consequences that I have just discussed emerge.  In this particular case the applicant, Ms Rand, who is the mother of the child, the child, apparently raised the child with the assistance of her mother, that is, the maternal grandmother of the child, for several years before she was lucky enough to meet the other applicant in this case, Mr Rand, and marry him in 2007. 

15. Upon their marriage, Mr Rand, who is an Australian citizen, brought Ms Rand and her son to settle with him and live as a family in Australia.  They have been living as a family in the city of E Town since their marriage in 2007.  They have been blessed with apparent happiness since that time and not only that, but with three children of their own.  So within a space of four years, the Rand family has expanded from the three that it started with to now being a family of six.  Young B is fortunate, although he may not think so, to have three lovely young siblings in his life. 

16. Young B is also extremely fortunate, as I understand the evidence, to have a loving father such as Mr Rand come into his life.  The evidence allows me to conclude that Mr Rand is playing an extremely active parental role in the life of the child and that Mr Rand’s parents are also happily involved as grandparents, not only in the lives of their three new grandchildren, but also in the life of young the child.  the child is a very important part of this family and from the evidence I have seen he has taken to his new life in the city of E Town and at the school where he attends with a great deal of enthusiasm and commitment. 

17. I note that the parents have proudly placed into the evidence, details of and photographs of the child receiving academic achievement awards at the school that he is attending in E Town.  Indeed, Mr and Ms Rand are to be congratulated on what appears to be the fine parenting that they are providing for the child and no doubt for the subsequent three children.  In the circumstances of this case, Mr Rand has assured me that he is very keen to adopt the child as his child and wholly integrate him into the family that Mr and Ms Rand and their children constitute and to allow the child the opportunity to go through life identifying Mr Rand as his father and knowing that the man who has effectively been his father and raised him in circumstances where his biological father was not around to do that is his lawful father. 

18. As I have said, the child is fortunate.  In all the circumstances, I have no difficulty in stating to the Rands that I am satisfied that it is in the child’s best interests for the parents of the child, that is, his mother and stepfather, to be able to proceed to file an application for stepparent adoption in the State Magistrates Court and for it to be considered there in accordance with the State adoption legislation. In the circumstances, I will make such order.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 November 2011.

Associate:

Date:  15 December 2011