Trent & Anor and Calder

[2017] FamCA 306

FAMILY COURT OF AUSTRALIA

TRENT AND ANOR & CALDER [2017] FamCA 306

FAMILY LAW – ADOPTION – Leave to commence proceedings – Where location of the Respondent Father is unknown – Where no contact with the Respondent Father for 12 years – Where previous history of family violence – Where service dispensed with –Application granted.

Family Law Act 1975 (Cth)
Adoption Act 2009 (Qld)

APPLICANTS: Mr Trent and Ms Trent

RESPONDENT: Mr Calder

FILE NUMBER: BRC 1786 of 2017

DATE DELIVERED: 8 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr C, Suthers Lawyers

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to Rule 7.18 of the Family Law Rules 2004 (Cth) the requirement to serve the Respondent with the Initiating Application filed on 23 February 2017 and any Affidavits filed in support of that Application is dispensed with.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the child, B (also known by the surnames Penton and Trent) born … 2004.

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 Trent and Anor & Calder 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 BRISBANE

FILE NUMBER: BRC 1786 of 2017

Mr Trent and Ms Trent

Applicants

and

Mr Calder

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Application to Dispense with Service

1. It is clear, on the evidence before me, that since 2005, the child’s biological father has not made any attempt to the knowledge of the mother to move any Court to seek parenting orders or to contact her to see if they could reach some arrangement or to do anything in relation to exercising either the aspects of parental responsibility or to seek to spend time with the child. 

2. In terms of the application to dispense with service of the application on the Respondent, I have taken into account the contents of Mr C’s affidavit. Turning my mind to those matters prescribed by Rule 7.18 in relation to dispensing with service of a document: I have taken into account and consider that reasonable steps have been taken to serve the document or to bring notice of it to the Respondent’s attention (given the contents of Mr C’s affidavit); there is nothing in the evidence before me to suggest that the Respondent could reasonably become aware of the existence of the documents by virtue of an advertisement (given the fact of the type of searches already undertaken, which suggest that the Respondent is unlikely to be present in Queensland – that being the case, I could not possibly work out where to order the Applicants to advertise).

3. These matters, combined with the fact of the absence of action by the Respondent in relation to attempts to spend time with the child or be in a position to exercise parental responsibility in relation to the child in the more than 10 years since separation, persuade me that it is appropriate to dispense with the requirement that the Applicants serve the Application for leave to commence proceedings for adoption upon the Respondent.

4. I have also taken into account, in arriving at this decision, the fact that, of course, an order made in these proceedings does not have the effect of granting adoption but simply permits the commencement of proceedings seeking that result – so it seems to me there is likely to be the potential the Applicants may be required to attempt service prior to the making of any order that would have the effect of removing, from the child’s biological father, the obligations of parental responsibility that are cast upon him at this point in time. 

5. So, in that sense, these proceedings do not affect his rights in a way that cannot otherwise be remedied if he sought to appear in relation to the actual adoption proceedings themselves. 

6. For all of those reasons, I will make an order, pursuant to Rule 7.18, that the requirement to serve the Initiating Application filed 23 February 2017 upon the Respondent is dispensed with.

Application for Leave to Adopt

1. There is before the Court today the Initiating Application, filed 23 February 2017, by which the Applicants seek an order, pursuant to s 60G of the Family Law Act 1975 (Cth), granting to them leave to commence proceedings for the adoption of the child B, born in 2004.

2. It appears from the material before the Court that the child has, on occasion, also been known by the surname “Penton” and also by the surname “Trent”, which is the married surname taken by his mother following her marriage to Mr Trent a number of years ago.

3. The child’s mother was born in 1985 in America.  The evidence is to the effect that she met the child’s biological father – Mr Calder – in or around 2001/2002 and that they cohabited from about 2003 until their separation in 2005.  It seems, on the evidence before me, that, at the time of their separation, the child was about three months of age.

4. The child continued to live with his mother after separation.  He has continued to live with her and Mr Trent (who was born in 1982) as a family unit since about 2009.  The evidence is to the effect that the Applicants married in 2011. 

5. I accept that the child’s biological father, the Respondent, has spent no time at all with him since 2005, when his mother ended her relationship with him as a consequence of domestic violence.  I accept – in the context that it is unchallenged by any evidence from the Respondent – the mother’s evidence about that particular issue.  I also accept her evidence to the effect that she has not had any contact with the child’s biological father for no less than about 10 or 11 years now.  I also accept that she has not been in receipt of any particular financial support in relation to the child from him.

6. I also accept the evidence contained within the mother’s affidavit and, in particular, that at paragraph 8 of her affidavit filed 23 February 2017 – to which particular reference was made by Mr C (who appears on behalf of the Applicants).  I consider that that evidence provides a basis for a conclusion that it is more likely than not that the concept of the child’s adoption by Mr Trent was raised with members of the extended biological paternal family in about 2012; I also accept, that issue having been raised, the response by the biological paternal grandmother as set out by the child’s mother in that paragraph of her affidavit.

7. It is clear from that evidence, therefore, that the attitude – at least of the child’s biological paternal grandmother – was that she did not, in essence, wish to have anything to do with the child;  nor, it seems, did his biological father. 

8. That attitude has, as is clear on the evidence, been put into effect, by virtue of the fact that there is nothing in the evidence before me to suggest that the Respondent has made any attempt to seek parenting orders for the child, nor done anything to seek to be in a position to exercise the parental responsibility which vests in him as a matter of law.

9. It is clear, therefore, that there are no parenting orders in place in relation to the child and between his biological parents. 

10. It is obvious that adoption proceedings pursuant to state legislation have not commenced. That is the purpose of this Application. It is made necessary as a consequence of the terms of s 92 of the Adoption Act 2009 (Qld), which 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 specified matters are satisfied.

11. 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) and that the child the subject of the proposed adoption is at least five years of age and has not yet turned 17 years of age. Clearly, the child falls within this age bracket, if I might refer to it in that way.

12. In determining whether to grant leave for parties to commence adoption proceedings, the Court must be satisfied of a number of things.  One is that the proceedings are by a prescribed adopting parent.  I accept that this condition is satisfied in this case. 

13. This Court must also consider whether granting leave to commence adoption proceedings is something which is in the child’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.

14. It is clear that the decision facing this Court differs from the decision facing the Court charged, ultimately, with the obligation to make decisions about whether to permit the child’s adoption. The granting of leave to commence proceedings for adoption does not have the consequence outlined in the sections particularised in s 60G of the Act – only the order for adoption made by the appropriate State court has this effect.

15. However, s 208 of the Adoption Act 2009 (Qld) is to the effect that that Court may make a final adoption order under that Act only if satisfied of a number of matters. These matters include that an order for an adoption by a stepparent would better promote the child’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any other Court order or no order at all.

16. It is obvious, therefore, that this Court ought not make an order granting leave to permit proceedings in the State court to commence if such proceedings could be thought doomed to fail because of the absence of meeting the mandatory state prerequisites. 

17. Those prerequisites are, in my view, established in this case.

18. It is clear, I consider, from reading s 60G(2) of the Family Law Act 1975 (Cth), that, in these proceedings, I must consider whether granting leave to commence proceedings is in the child’s best interests. Thus, consideration must broadly be given to the familiar best interest considerations (where relevant) as those considerations are prescribed by s 60CC of the Family Law Act 1975 (Cth).

19. As I have already remarked, the child’s biological father has not spent any time at all with him since 2005 – at which time he was about three months of age.  the child has lived with his mother and Mr Trent as a family unit since about 2009:  that is, from when he was about four years of age.  Given the length of time that has passed since then, I have no hesitation at all in concluding that it is highly likely that, together with his mother, Mr Trent has fulfilled all the duties and responsibilities associated with parenting the child.

20. Given the likely course of any life lived over the period of time from their joint cohabitation in about 2009 until the present, it is highly likely that, insofar as the child is concerned, Mr Trent will have undertaken many, many aspects of his day-to-day care and parenting.  A conclusion other than that he has formed a well-bonded and loving relationship with the child would be inconceivable on the evidence before me.

21. One could only conclude as more likely than not that the child has a very strong and well-established relationship with Mr Trent. It is, on Mr Trent’s evidence, manifested by the fact that, on occasion, the child has asked that he be known by Mr Trent’s surname and, in fact, it appears, is enrolled to attend school using that name, or at least is known by that name.

22. Given the child’s very tender age at the time of his biological parents’ separation and the fact of the ongoing presence of Mr Trent in his life since about 2009, the only logical conclusion is that, from the child’s perspective, Mr Trent has been his father, for all intents and purposes, and has fulfilled that role and discharged the responsibilities associated with it since that time. One could conclude nothing other than that, for the child, Mr Trent is, for all intents and purposes, in reality, his true father, irrespective of biology. 

23. There could be no conclusion, in my view, other than that it is much more likely than not that, together with the child’s mother, Mr Trent has supported the child emotionally, financially and has joined in meeting his practical needs since 2009.

24. I also think it much more likely than not that, given the length of time over which Mr Trent has likely discharged such obligations and made significant contributions to the child’s development and growth as a person, the child would feel a significant benefit (in a personal sense) if proceedings for his adoption by Mr Trent were able to be commenced.

25. I accept that both adult Applicants and the child more likely than not feel that such result would, in a sense, complete their relationship, or at least formalise it for all intents and purposes to the world outside their family unit.  I accept (as more likely than not) that the child and both of the Applicants would likely gain additional emotional satisfaction if, after proper consideration by the relevant state authorities, an adoption order is ultimately made.

26. That being the case, and for the reasons I have expressed, it seems to me that one could only conclude that leave to commence proceedings for adoption is something that is in the child’s best interests. 

27. I have no hesitation, therefore, in concluding that the commencement of such proceedings satisfy such a test.

28. For these short reasons (delivered orally), I make an order that the Applicants have leave to commence proceedings as sought in relation to the child. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 May 2017.

Associate: 

Date:              8 May 2017