Sinclair and Sinclair

[2016] FamCA 813

FAMILY COURT OF AUSTRALIA

SINCLAIR & SINCLAIR [2016] FamCA 813

FAMILY LAW – CHILDREN – Adoption – Undefended parenting – Change of child’s name – Application by biological mother and stepfather – Where the identity and whereabouts of the biological father is unknown – Whether it is in the child’s best interests to grant leave to commence adoption proceedings – Application for leave to commence adoption proceedings granted – Best interests of the child to live with mother and stepfather – Mother and stepfather to have equal shared parental responsibility

Family Law Act 1975 (Cth) ss 60CC, 60G, 61B, 61C(1), 61DA, 65DAC, 66M
Family Law Rules 2004 (Cth) r 7.18

Goode & Goode (2006) FLC 93-286

Reynolds & Donaldson [2008] FamCA 518

FIRST APPLICANT: Ms Sinclair

SECOND APPLICANT:	Mr Sinclair
FILE NUMBER:	PAC	1151	of		2016

DATE DELIVERED: 23 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: McPhee Kelshaw

Orders

1. That pursuant to rule 7.18 of the Family Law Rules 2004 (Cth) special service of this Initiating Application on the Respondent be dispensed with unconditionally.

2. That the applicant mother, Ms Sinclair, and the second applicant, Mr Sinclair, (“the Applicants”) have parental responsibility for the child B also known as C (the child) born on … 2005.

3. That the child live with the Applicants.

4. That the applicant mother do all acts and things and sign all documents, deeds and instruments necessary including documents required by the Registry of Births, Deaths and Marriages to register the child's name from B to C Sinclair.

5. That pursuant to section 6OG of the Family Law Act 1975 (Cth) the Applicants be granted leave to commence proceedings to adopt the child.

6. That pursuant to section 66M of the Family law Act 1975 (Cth) the second applicant Mr Sinclair has a duty to maintain the child.

7. That in the event that a party refuses or neglects to execute any deed of instrument within 14 days of being requested to do so then the Registrar of the Family Court of Australia be appointed pursuant to s160A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

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 Sinclair & Sinclair 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

FILE NUMBER: PAC 1151  of 2016

Ms Sinclair

First Applicant

and

Mr Sinclair

Second Applicant

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern a ten year old girl, B, who is known as “C”. the child was born in Southeast Asia and her biological father is unknown. When the child was a few months old her mother, Ms Sinclair (“the mother”), commenced a relationship with Mr Sinclair. Later that year, in 2006, the mother and Mr Sinclair were married. the child was twelve months old at the time of the marriage.

2. Mr Sinclair (“the stepfather”) has raised the child, together with the mother for the last 10 years. They now seek orders giving them leave to make an application to adopt the child and that they have parental responsibility for the child, that she live with them and other associated orders.

Background

1. The mother, who is now aged 31, was born in Southeast Asia. the child (“the child”) was conceived as a result of a casual sexual relationship between the mother and a man she met at a disco. The mother was not sexually active prior to the single occasion in March 2005, when she had sexual intercourse with this man. When the mother became aware that she was pregnant she could not recall the name of the man she had met at the disco and had no way of contacting him. The child’s Birth Certificate states that the father is unknown.

2. The mother met the stepfather when he was holidaying in Southeast Asia in February 2006. The mother was 21 and the father was 45 at the time. The father was 55 at the date of the hearing. The mother and stepfather commenced a relationship when the child was three months old and the relationship continued after the stepfather returned to Australia. The mother and stepfather were married in Southeast Asia in 2006. The mother’s family, including her parents and friends, attended the ceremony.

3. Following the marriage the mother and child were initially not permitted to live in Australia for about twelve months. The stepfather travelled between Australia and Southeast Asia on a number of occasions during this period.

4. The mother and child moved permanently to Australia in late 2007, and have subsequently become Australian citizens.

5. The mother, stepfather and child live together in a home owned by the mother and stepfather. The child is well settled at school and at the date of the hearing was in year five. She has friends and many members of her extended family live nearby. She participates in extracurricular activities at school, including sport and public speaking. The child believes the stepfather is her father, refers to him as “dad” and is unaware that he is not her biological father.

6. The stepfather works full-time and supports the mother and child. The mother does not work outside the home.

The law

Dispensing with service

1. The mother and the stepfather (“the Applicants”) first seek an order that special service of the Initiating Application on the Respondent be dispensed with unconditionally. Rule 7.18 of the Family Law Rules 2004 (Cth) provides for such an order to be made in circumstances where a party is unable to serve a document. I am satisfied that the identity of the child’s father is unknown and unable to be ascertained and that the Applicants cannot serve him with the Application. Accordingly, service is dispensed with unconditionally.

Application for leave to commence adoption proceedings

1. Applications for leave to commence proceedings to adopt a child are governed by section 60G of the Family Law Act 1975 (Cth) (“the Act”) which provides:

   (1)  Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2)  In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

2. The Applicants in this matter, being a parent of the child and her spouse, fall within the definition of “prescribed adopting parents” under the Act.

3. The Applicants are seeking leave of the Court under section 60G to commence proceedings to obtain an adoption order in relation to the child. Although they are not required by the Act to seek leave to adopt, the Act sets out the effect of an adoption if leave is granted or not granted. In summary, the effect of these sections is that without leave, upon adoption there are consequences that:

   1.      The child would not become “a child of the marriage” of the mother  and stepfather;

   2.      The child’s parental responsibility would remain with her birth parents;

   3.      If there were a parenting order in place at the time of adoption it would remain in effect.

4. If leave is granted the converse applies and upon adoption the child would become “a child of [the Applicants’] marriage”, the birth father’s parental responsibility for the child would cease and any existing parenting order or order for parental responsibility would cease.

5. Section 60G provides that the Court must have regard to these provisions when considering whether granting leave would be in the child’s best interests.

6. The “best interests” considerations are set out in section 60CC of the Act. Although section 60G does not state that the child’s best interests are to be the paramount consideration and does not specifically refer to section 60CC, I adopt the approach of Strickland J when his Honour said in Reynolds & Donaldson[1] at paragraph 14 that section 60CC is “a convenient guide to what factors bear upon a child’s best interests”. These considerations will be applied to the application for leave to adopt and the other parenting orders sought by the Applicants, that they have parental responsibility for the child and that the child live with them.

   [1] [2008] FamCA 518.

Best interests considerations

1. So far as the primary considerations are concerned, it is clear that the child has received and will continue to receive the benefit of a meaningful relationship with her mother under the proposed orders. The child’s father is unknown and she has never had any relationship with him.

2. There is nothing to indicate that they are any concerns in relation to physical or psychological harm to the child arising from being subjected to or exposed to abuse, neglect or family violence.

3. Although the child is ten and her views have not been formally sought, it is clear that she regards her stepfather as her father and is unaware of the existence of her biological father. According to the stepfather’s affidavit, the child has questioned him about why she does not have his surname and clearly sees herself, the stepfather and mother as part of a single family unit.

4. The child’s principal relationships are with her mother and stepfather. Her mother has cared for her throughout her life and the stepfather has been a significant presence in her life. It would appear that he has shared an important attachment relationship with the child for almost as long as the mother. The child also appears to enjoy relationships of significance with extended family members within the mother’s family and her stepfather’s family.

5. The father, who is unknown, has had no involvement in any aspect of the child’s life. It is likely that the father is unaware of the child’s existence.

6. The proposed orders will not bring about any change in the child’s circumstances. They will formalise an arrangement in which the child is well–settled and apparently well cared for.

7. The mother has demonstrated that she has been capable, together with the stepfather, to meet the child’s needs including her day–to–day physical and material needs and emotional and intellectual needs. The child’s most recent school report indicates that she is doing well academically and socially.

8. The child is of Southeast Asian heritage through her maternal side and it appears that her stepfather is Anglo–Australian. The child is well–settled living with her mother and stepfather, with friends and extended family members nearby. The mother maintains the child’s connection with her Southeast Asian heritage through cultural activities and travel to Southeast Asia. Despite the shame associated with the circumstances of the child’s conception, the mother continues to receive the support of what she describes as a “large [Southeast Asian] Catholic family”.

9. The mother has demonstrated a loving and caring attitude toward the child and that she is a responsible parent, including in making this application to formalise the child’s status and living arrangements. The father may not be aware of the child’s existence, and has not taken on any responsibilities of parenthood.

10. The issue of family violence does not arise on the evidence before me.

Discussion

1. In my view, the stepfather has taken on shared parental responsibility for the child on a practical level for most of her life. He has raised her with the mother as his child and the biological father is unknown. It is highly likely that an application for adoption made to the Supreme Court of New South Wales would be successful. In these circumstances and having regard to the consequences if leave is not granted, I am satisfied it is in the best interests of the child that leave be granted for adoption proceedings to be commenced.

2. Unless the Court makes an order changing the statutory conferral of parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

3. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

4. Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (sub-section 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (sub-section 61DA(4)). It is not possible in circumstances where one parent is unknown to consider the presumption of equal shared parental responsibility between them.

5. The presumption of equal shared parental responsibility between the mother and stepfather does not arise as the stepfather is not a natural parent.

6. The Applicants seek that the mother and stepfather have sole parental responsibility for the child. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in section 61B, the expression sought must mean that the holder of sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.

7. In my view, it is not possible for two people to have sole parental responsibility for the child. Rather, having regard to the best interests considerations I am of the view that it is in the child’s best interests for the Applicants to each have parental responsibility for the child. This reflects the usual form of parental responsibility provided for in section 61C of the Act. I consider that this is the most appropriate form of order pending the outcome of the adoption application or in the event that the application for adoption does not proceed. This order will effectively formalise the existing arrangement whereby the mother and her husband of ten years have effectively raised the child together and have each exercised parental responsibility for her.

8. Pursuant to section 66D the stepfather does not have a duty to maintain the child unless the Court makes an order under section 66M that it is proper for him to have that duty. Consistent with the responsibility and commitment he shows to the child, he and the mother seek that such an order be made. Having regard to the matters set out in sub-sections 66M(2) and (3) I consider that such an order is proper.

9. The remaining order sought by the Applicants is that the mother do all acts and things required to change the child’s name from “B” to “C Sinclair”. According to the uncontradicted evidence, although the child’s name was registered as “B” she has been known as “C” throughout her life in all contexts. I note that the child’s recent school report refers to her as “C”.

10. According to the stepfather’s affidavit, the child has questioned why she does not have the surname “Sinclair” which is shared by the other members of the family. The child has clearly been raised by both Applicants as their child and she has expressed the view that she wishes to use that name. The child clearly identifies strongly with her stepfather and is unaware that he is not her father. The surname that is to be changed is the mother’s surname and she seeks the change. In circumstances where the child has been raised in a loving and stable family, the other members of which bear the same surname, I am satisfied that it is appropriate and in the child’s best interest for this order permitting the change of name to be made.

11. Accordingly I make the orders set out at the forefront of this judgment.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 September 2016.

Associate: 

Date:  23 September 2016