Re an Application for the Adoption of FFK
[2016] ACTSC 134
•16 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Re an Application for the Adoption of FFK |
Citation: | [2016] ACTSC 134 |
Hearing Date: | 16 June 2016 |
DecisionDate: | 16 June 2016 |
Reasons Date: Before: | 23 June 2016 Refshauge ACJ |
Decision: | That FFK become, by this order, the adopted person of TK. |
Catchwords: | FAMILY LAW – Adoption – adult adoption – adoption by step-parent – procedure EVIDENCE – Affidavit – good reputation – evidence of person who knows applicant – evidence of reputation amongst those who know applicant |
Legislation Cited: | Adoption Act 1993 (ACT), Dictionary, ss 10, 13, 15, 19, 39I Court Procedures Rules 2006 (ACT), rr 3157, 6703 Legislation Act 2001 (ACT), Dictionary Family Law Act 1975 (Cth), ss 60F, 60G, 61E |
Cases Cited: | Dias v O’Sullivan [1949] ALR 586 |
Parties: | TK |
Representation: | Self-Represented |
File Number: | AD 1 of 2016 |
REFSHAUGE J:
FFK was born on 31 March 1998. As at 16 May 2016, she was, therefore, aged 18 years old.
For the purposes of the Adoption Act 1993 (ACT), she is an adult. The Dictionary to the Adoption Act defines a child as a person under the age of 12 and a young person as a person over the age of 12 but not an adult. In Pt 1 of the Dictionary to the Legislation Act 2001 (ACT) an adult is defined as a person over the age of 18 years.
FLK is the mother of FFK and chose to be a single mother, conceiving FFK by donor insemination. The birth certificate for FFK shows that no father is stated.
On 13 September 2008, however, FLK married TK and FFK continued to live with them. FFK says, in an affidavit filed in these proceedings, that she has “grown to love [TK] as a father” over this time and they have “a loving and supportive relationship”.
On 16 May 2016, TK applied to adopt FFK. On 16 June 2016 I made an adoption order. These are my reasons.
This is, of course, the adoption of an adult. In Re DG and the Adoption Act (2006) 36 Fam LR 124 at 126; [10], Austin J observed that “[a]dult adoptions are relatively uncommon and are frequently not considered appropriate”. While that may be true, it seems to me that, where the various requirements of the Adoption Act are met, a court should be slow to exercise any discretion it has to refuse to make such an adoption order unless there is clear evidence showing or from which an inference can properly be drawn that there is a collateral purpose to the adoption of an adult (Re K and the Adoption of Children Act 1965 (1988) 12 Fam LR 263), or some impropriety rather than the general idea of “inappropriateness”.
Section 10 of the Adoption Act provides that an adoption order may be made for a person who is 18 years old or older on the day the application is filed in Court if the person:
(a)has been reared, maintained and educated by the applicant or applicants under a de facto adoption; and
(b)is present in the ACT.
FFK deposed in her affidavit that she lives in Canberra and was present when the application was before the Court. That meets the second requirement.
In his affidavit in support of the application, TK deposed that he has three children of a previous marriage. He further says that he regards FFK “as my fourth child and love and support her as such”.
FLK also made an affidavit in support of the application and deposed that FFK “has developed a close and loving relationship with [TK] and she considers him to be her father in every respect, except biologically”.
As noted above (at [4]), FLK and TK are married and both attest to a stable, committed relationship. The address that they and FFK give in the affidavits made for this application show the same address.
I have also noted above (at [4]), FFK’s depth of the relationship with TK as a father over the last nine years.
While a lawyer might prefer that the affidavits use the precise words of the first requirement prescribed in the legislation, stating that the applicant has “reared, maintained and educated” the person to be adopted, or words to that effect or more directly showing that this is the case, that is not necessary, as the requirement is met.
I am satisfied that there is a reasonable inference from this evidence of a loving, familial and obviously supportive relationship between FFK as daughter and TK as father and that TK has reared, maintained and educated FFK. Were the application to have been opposed by anyone, the evidence may have needed supplementation. It is, however, incumbent upon the Court to ensure that the statutory pre-conditions are met. I was satisfied that the evidence was sufficient to justify making the order.
There were three other issues to be addressed in making such an order. In the first place, s 15 of the Adoption Act places some restrictions on an adoption by a step-parent, as TK clearly is. In particular, the section requires leave of the Family Court of Australia under s 60G of the Family Law Act 1975 (Cth) for such an adoption and that the adoptive step-parent be on the register of suitable people maintained under s 19 of the Adoption Act.
While it is, as Chisholm J pointed out in Fogwell v Ashton (1993) 17 Fam LR 94 at 96, that it “is somewhat odd that it is necessary to apply to one court for leave to apply to another court for the exercise of the latter’s court’s jurisdiction”, though that can also happen when proceedings are sought to be taken against an insolvent company, the requirement for leave is significant because, without it, the adoption will, under s 60F of the Family Law Act, not make the adoptee a “child of the marriage” of the adopting parents. See Poulton v Lenton (2012) 46 Fam LR 623. Further, parental responsibility does not end as a result of an adoption order made without leave: s 6IE of the Family Law Act.
This provision does not apply in this case, however, for s 15 of the Adoption Act only applies to the adoption of children and young people. FFK is neither.
The next matter is consent. For the adoption of a child or young person, each parent must consent though, in this case, the donor male is conclusively presumed not to be the father of any child born as a result of the donation: s 11(5) of the Parentage Act 2004 (ACT). As this provision does not apply to the case of an adoption by an adult, there is, subject to s 39I of the Adoption Act, no issue of consent from anyone other than FFK.
Section 39I of the Adoption Act requires that the person who is subject of the application for an adoption order must consent.
In her affidavit, FFK deposes that “it means a lot to me for [TK] to be my legal father and for his name to be on my birth certificate”. Again, an application of black letter law may suggest that the word “consent” be used but I am satisfied that this constitutes consent by FFK to the adoption. In any event, FFK was present at the hearing in private chambers when the order was made and her consent – and delight – was made plain.
Finally, the applicant must be ordinarily resident in the ACT (s 13 of the Adoption Act) and of good reputation (s 39I of the Adoption Act).
TK deposes that his usual place of residence is at an address in Canberra. That meets the first requirement.
In support of the matter of reputation, TK filed an affidavit of a family friend who had known FFK for over 17 years and TK for about 9 years. She deposed that they “have a great relationship”. She further deposed that she had “watched their relationship blossom over the years” and that the relationship is “most definitely that of father and daughter”.
Reputation is, of course, a fact. It is to be distinguished from character, which refers to a person’s traits as pointed out by Lord Radcliffe in Plato Films Ltd v Spiedil [1961] AC 1090 at 1128. Reputation was described as “the popular belief of a man’s character” by Mayo J in Dias v O’Sullivan [1949] ALR 586 at 591. Thus, as Howell CJM said in R v Sands (1915) 25 CCC 120 at 123 pointed out, reputation is a matter of hearsay, “simply what the public say about a person”.
In my view, the affidavit of the family friend did not amount to evidence of reputation.
It was, however, possible for another family friend to be contacted by telephone during the hearing. I received that evidence in accordance with r 6703 of the Court Procedures Rules 2006 (ACT).
The family friend stated that he had known TK for over 40 years. He knew people who knew TK. He knew of the reputation that TK had amongst those people. He stated that they “[thought] the world of him”. He was known as honest and caring and as a good father and husband.
This is an appropriate way in which evidence of reputation may be adduced. See, for example, Michelson v United States 335 US 469 (1948).
This clearly met the final requirement of the Adoption Act.
Because of the infrequency of the making of such orders, the fact that many applications are made by the applicants themselves and not through lawyers and because of the need to ensure that the Adoption Act requirements are met and the judge can be satisfied of the matters required by it, I considered that some explanation of the process undertaken in this case was worthwhile to be recorded.
In summary, the process is:
(a) An application may only be made if the person whose adoption is sought (the adoptee) is over the age of 18 years at the date on which application is made.
(b) The application must be in the prescribed form 3.2(AF2011-55) and the principal affidavit in support must contain the information specified in r 3157 of the Court Procedures Rules.
(c) The evidence required, apart from that contained in the principal affidavit in support of the application must include evidence, usually by affidavit or affidavits of at least the following matters:
(i) that the adoptee is over the age of 18 years at the date on which the application is made;
(ii) that the adoptee has been “reared, maintained and educated” by the applicant which would usually require some details of the living, parenting and education arrangements between the applicant and the adoptee to show that those three matters have been proved;
(iii) that the adoptee is present in the ACT and, if not shown in the principal affidavit in support of the application, the applicant is ordinarily resident in the ACT;
(iv) that the adoptee consents to the adoption; and
(v) that the applicant is of good character, which requires evidence of people who know other people who know the applicant and who are in the circles in which he or she moves as to whether he or she has a reputation and, if so, what is that reputation;
(d) Notice of the application must be given to the adoptee if his or her consent has not been given, though the court may dispense with such notice.
Because I was satisfied that the requirements of the Adoption Act had been met in this case, I made the adoption order.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 23 June 2016 |
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