Taft & Messer

[2021] FamCA 8

FAMILY COURT OF AUSTRALIA

Taft & Messer [2021] FamCA 8

File number(s):

BRC 16544 of 2020

Judgment of:

HOGAN J

Date of judgment:

22 January 2021

Catchwords:

FAMILY LAW – ADOPTION – Leave to commence proceedings – Whether it is in the child’s best interests to permit adoption proceedings – Where the biological father has had a limited presence in the child’s upbringing – Where the child is already 17 years of age – leave granted  

Legislation:

Adoption Act 2009 (Qld)

Family Law Act 1975 (Cth)

Cases cited:

Banks & Banks (2015) FLC 93-637

Number of paragraphs:

25

Date of hearing:

22 January 2021

Place:

Brisbane

First Applicant:

In person

Second Applicant:

In person

Respondent:

No appearance

ORDERS

BRC 16544 of 2020

BETWEEN:

MS TAFT
First Applicant

MR AKERMAN

Second Applicant

AND:

MR MESSER
Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	22 JANUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the child, X, born … 2003, by Mr Akerman.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taft & Messer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HOGAN J

1. I have today an Application which was commenced by Initiating Application filed 23 November 2020. By that Application, an order is sought for leave, pursuant to s 60G of the Family Law Act 1975 (Cth), to commence proceedings for the adoption of the child, X, who was born in 2003 and is now 17 years of age.

2. Section 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of a stated child only if a number of matters are satisfied. These include that the child is at least five years of age and has not yet turned 17. As already noted X is now 17 years of age. However, the Chief Executive of the Queensland Department may accept such an application for adoption in circumstances where it is considered there is enough time to complete the adoption process prior to the child turning 18 and the grounds for making an adoption order in favour of the Applicants are likely to exist. Given this, there is no obstacle to this Court’s granting of leave to commence proceedings for the adoption of the child.

3. I accept that there is evidence before the Court outlining the Respondent’s attitude to the Application currently before this Court. I accept that X’s mother has messaged the Respondent via Facebook to advise him of the intention to make this Application.  I accept the Respondent has replied that, in light of X’s preference for Mr Akerman to adopt her, he was agreeable to the process of adoption.

4. I note for the record that the Respondent appeared at the Direction hearing of this Application on 15 December 2020 and advised the Court he did not oppose this Application. Despite the orders made that day including that he file and serve any affidavit material on which he seeks to rely by no later than 7 January 2021, he has not filed any material in response to the Application.

5. I turn now to a consideration of the Application itself. 

6. I accept that there are no ongoing cases in relation to X in any other jurisdiction; that there are no orders relating to domestic violence; and that there is no protection order currently in force between the Applicants and that there has not ever been one. I accept that there are no existing parenting in force in relation to X. 

7. As stated, s 92 of the Adoption Act2009 (Qld) provides a number of matters to be satisfied for a person to apply to the Chief Executive to arrange an adoption of a child. Included within these matters, in particular at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth) – hence this application.

8. In determining whether to grant leave for a party or parties to commence adoption proceedings, this Court must be satisfied of a number of things. One is that the proceedings are by a prescribed adopting parent, as that term is defined. In this case, that condition is clearly satisfied.  This Court must also consider whether granting leave will be in X’s best interests, having regard to the effects of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth), where those sections are applicable in any particular case.

9. The decision facing this Court this morning is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of X or not. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections particularised in s 60G of the Family Law Act 1975 (Cth) – only an order for adoption, if made by an appropriate State court, has that effect.

10. However, s 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters. Included in these is that an order for adoption by a step-parent would better promote X’s well-being and best interests than an order under the Family Law Act 1975 (Cth), any Court order or no order at all. It is therefore apparent that this Court ought not make an order granting leave to an Applicant to permit proceedings in a State court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.

11. I record here my view that, in this case, I am satisfied that the mandatory legislative prerequisites are established on the evidence before me. 

12. In determining, as I must, under s 60G(2) of the Family Law Act 1975 (Cth), whether granting leave to commence proceedings is in X’s best interests, I must give consideration to the familiar “best interests” considerations where they are relevant, as those considerations are prescribed by s 60CC of the Family Law Act 1975 (Cth).

13. However, as is made clear by authorities such as Banks v Banks,[1] any failure to mention specifically any particular consideration in these Reasons delivered this morning orally does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon – being evidence that I have had the opportunity to read, prior to commencing the hearing of this Application.

    [1](2015) FLC 93-637.

14. It is appropriate that I record that Mr Akerman is X’s step-father. He and X’s mother married in 2008 after commencing cohabitation in or around early 2007, at which time X was about three years old. Subsequently, they have two children together: Y who was born in 2008 and Z who was born in 2010 – those children at this stage do not know that X is not their father’s biological child.

15. It appears to me, on the evidence before me, that it is clear that, since at least the time of cohabitation, Mr Akerman has taken up and assisted X’s mother to discharge all of the obligations that are associated with being a parent.

16. I do not intend to go into particularly detailed reasons about the relationship between X’s biological parents, as I consider this unnecessary.  I consider it sufficient, as I have already said, to record that I am satisfied on the evidence before me that Mr Akerman has supported X’s mother since the time of cohabitation.

17. I accept, on the evidence before me, that the Respondent’s involvement with X may be broadly summarised as follows:

    (a)that, during X’s mother’s pregnancy, he provided very minimal financial support; and

    (b)that he moved to Australia and was present here from in or around June 2006 until he and the mother separated in around August or September 2006, at which time he returned to live in the United Kingdom; and

    (c)that, save for occasional messages sent via Facebook about financial support in 2016, X’s mother and the Respondent were not in contact after their separation – for a significant period at least; and

    (d)that the Respondent has not exercised, in reality, any parental responsibility in relation to X and has not made any decision about her or her care;  and

    (e)that as at 17 November 2020, there was $31,061.00 child support outstanding.

18. I am satisfied that, in reality, the Respondent has not played any active role in X’s life.

19. I accept the evidence given by the Applicants about the role that Mr Akerman has played in X’s life. In contrast to the Respondent, Mr Akerman has provided to X, and X’s mother, emotional and financial support since cohabitation. I accept, on the evidence before me, that, from that time, he has provided to X all the support that any parent provides to a child in that parent’s care.

20. I accept the Applicants’ evidence that Mr Akerman has raised X as he has his own biological children. I accept Mr Akerman’s evidence that, in 2006, X began referring to him as “Daddy” and that she has explicitly stated she considers him as her father, irrespective of her paternity. 

21. I also accept the evidence of the Applicants that they intended to facilitate X having contact with her biological father; however, she has declined such contact.

22. As already noted, I accept therefore that Mr Akerman has fulfilled the role of being X’s father and has discharged all of the duties and obligations of being her parent.

23. I am easily satisfied, on the evidence before me, that, from X’s perspective, Mr Akerman is her father for all intents and purposes. I also accept that he is committed to loving and supporting X always and I conclude that the Application for adoption that will be commenced upon the grant of leave is simply a clear manifestation of that commitment. I accept his evidence that he loves X with all his heart and will be very proud to be her adopted father. I also accept the evidence that X has said that she wants to be adopted by Mr Akerman.

24. On the evidence before me, I consider it open to infer that it is much more likely than not that X, her mother and Mr Akerman will also gain significant additional emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made.

25. For these reasons, delivered orally, I conclude that the commencement of proceedings seeking adoption is something that is in X’s best interests

I certify that the preceding twenty-eight (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate:

Dated:       22 January 2021