Wade and Wade & Anor

[2018] FamCA 1170

FAMILY COURT OF AUSTRALIA

WADE & WADE AND ANOR [2018] FamCA 1170

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 – Where the child is close to being 17 years of age – Order that leave be granted.

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

FIRST APPLICANT: Mr Wade

SECOND APPLICANT: Ms Wade

RESPONDENT: Unknown

FILE NUMBER: BRC 9037 of 2018

DATE DELIVERED: 14 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 August 2018

REPRESENTATION

THE FIRST APPLICANT: In Person

THE SECOND APPLICANT:	In Person
THE RESPONDENT:	No appearance

Orders

1. That pursuant to rule 7.18 of the Family Law Rules, service of the Application of the applicants and their supporting affidavit material upon the respondent, is dispensed with.

2. That pursuant to s 60G of the Family Law Act 1975 (Cth), the Applicants, Mr and Ms Wade, be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, Z WADE (aka DEE) born … 2001, by her stepfather, Mr Wade.

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 Wade & Wade 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 9037 of 2018

Mr Wade

First Applicant

And

Mrs Wade

Second Applicant

And

Unknown

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Initiating Application filed 8 August this year and a further Amended Initiating Application filed a few days later on 10 August this year, Ms Wade and her husband, Mr Wade, both ask the Court for an order that pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”), they be granted leave to commence adoption proceedings for the adoption of Ms Wade’s child, Z Dee born in 2001 (“Z”), by her stepfather and the husband of Ms Wade, Mr Wade. They are both the applicants in the proceedings. Z, the subject child, is now 16 years of age, and as one could tell from the birth date that I have just referred to, she will soon be 17 years of age, making the timing of this application somewhat critical and urgent.

2. In addition to seeking leave to proceed with adoption proceedings pursuant to s 60G, the applicants have formally asked that service of the Application and supporting material on the unknown biological father of the child be dispensed with.

3. Ms Wade has deposed in her affidavit to the fact that she does not know the identity or the whereabouts of Z’s biological father.  Ms Wade has given evidence that she became pregnant with Z when she was a very young woman, having not long reached her adulthood.  At the time she had left the village in which she lived with her parents and rather large sibship, to seek work in a big city in Country B some thousand kilometres away from her village, so as to be able to earn an income that she could provide for the support of her parents and her extended family. From my understanding of the way of life in many South-East Asian countries, such as Country B, this is not an uncommon experience amongst the population. 

4. Without deposing to all of the circumstances surrounding Z’s conception, Ms Wade said that Z was conceived after she experienced a rather “traumatic event” at one of the places where she was living and working.  Suffice to say that Z was conceived outside of an ongoing relationship with the man who ‘fathered’ her and by the time Ms Wade realised that she was pregnant, this man was not around anymore and she did not know where he could be located or found. 

5. She returned to her family, particularly her parents, in the village of her origin to have Z and after Z was born, as I understand it, sometime after that, Ms Wade left Z in the care of her parents, Z’s grandparents, and she went about again travelling and earning income to send back to her parents in the village to help them support Z.  This was particularly important given that the identity and whereabouts of Z’s biological father was not known, resulting in there being no financial support from him for Z at all. 

6. Mr Wade met Ms Wade when they were both working overseas sometime in or around 2004.  At that time Z would have been two to three years of age.  Both Mr Wade and Ms Wade were sworn in this morning and gave evidence under oath to the Court in response to questions that I asked them from the Bench.  Mr Wade had told the Court that soon after he met Ms Wade and began courting her, he learned from her that she had a young daughter living back at home in her village of origin with her parents.  Mr Wade assured the Court, and I accept it, that Z’s existence in Ms Wade’s life and family was never kept secret from him.  He also told the Court, and I accept, that Ms Wade told him that she did not know the identity of Z’s biological father; did not have any contact with him; did not receive any support from him; and more particularly, Z did not know him and had never had any contact with him or had any relationship with him. 

7. The affidavit evidence of the Wilsons deposes to the fact that Mr Wade and Ms Wade, after they formed their permanent relationship, built a home of their own in the village where Ms Wade came from and where her parents and siblings were living.  They and Z occupied the home as a family for some time.  I also accept that they moved the family, that is the two of them and Z, to live in a bigger city not too far from their village.  There they rented an apartment and Z was able to attend a local American English-speaking school in order to commence her education more broadly but also, most particularly, in the English language.  They lived there between 2006 and 2009 or thereabouts. In October 2009, after some changes in Mr Wade’s work circumstances, they decided as a family to relocate back to Australia, and in particular to Brisbane, to live.  Mr Wade, Ms Wade and Z, who was then eight years of age, moved to the Suburb C area of Brisbane where for the first couple of years after they returned to Australia, they shared a house with Mr Wade’s sister, her partner and their baby twins for a couple of years.  After a couple of years, in or around 2011, they moved into their own home in the same area. They still live in that same home in Suburb C and it is conveniently located close to Mr Wade’s sister and her family and Mr Wade and his sister’s mother, who is their only surviving parent. 

8. In 2012, Mr Wade and Ms Wade formalised their own relationship and married in a ceremony that took place on the Sunshine Coast.  I understand that Z participated in the ceremony as did her younger twin cousins.  In April 2014 both Ms Wade and Z, who was then 12 years of age, were granted Australian Citizenship.  Since they came to Australia Ms Wade has also obtained new qualifications.  Her qualifications that she had obtained in Country B were not recognised here and she was able to re-train such that she qualified in Australia in the health care and aged care industry and now works full time in that industry.  Mr Wade has obtained employment with an international firm and holds a national management position working full time in research, development and manufacture products and solutions for the international company. 

9. Z was educated at a local church school in the Suburb C area for her primary school education and later for high school at D School in Suburb E.  Z is now in grade 12 at D School.  Her father quite candidly says she is not excessively gifted with her academic pursuits but that she is a committed hard-working student and he acknowledges that D School encourages hard work in their students.  Mr and Ms Wade currently understand that Z wishes to be educated further at university and hopes to pursue a psychology degree next year. 

10. I am quite satisfied that the circumstances surrounding Z’s conception, her birth, and her upbringing are such that it would be completely unreasonable and inappropriate to expect Mr Wade and Ms Wade to try and to locate and serve these proceedings on Z’s biological father.  I have seen a copy of the birth certificate and there is no listing of a father on the birth certificate so it would simply be unreasonable to expect efforts to be made to serve him.  In the circumstances, I am quite prepared to grant dispensation of the need to serve the proceedings on Z’s biological father.

11. I note that Mr Wade drew my attention to the fact that Mrs Wade’s maiden name, Dea is different to her daughter Z’s surname, Dee. However, I am satisfied, that Mrs Wade is Z’s biological mother having had regard to their birth certificates which were annexed to the Mr Wade’s first affidavit. I also acknowledge that Z’s surname was formally changed to Wade on 24 January 2013.

The Law

1. In Queensland, the adoption of children is governed by the Adoption Act2009 (“Adoption Act”). It is a piece of Queensland legislation, it is not Commonwealth legislation. Under that legislation, a stepparent of a child may apply to the Chief Executive of the Queensland Department of Child Safety, Youth and Women to arrange an adoption of his or her stepchild, provided that a number of preconditions are met. Those include that the stepparent is a spouse of a parent of the child; that the parent, the stepparent and the child all live together; that the adult spouses have both living together with the subject child for a continuous period of at least three years up to the time of the application.

2. They also include the requirement that the stepparent applicant be an adult and an Australian citizen, or at least the spouse of the applicant must be an Australian citizen. They must also reside in Queensland. The child, who is the subject of the application, must be at least 5 years of age and, as I have mentioned previously, not yet turned 17. Finally, the stepparent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act.

3. Section 60G of the Act sets out the basis upon which this court can proceed and give leave to applicants such as those who are before me, as follows:

   (1)Subject to subsection 2 the Family Court 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.

4. Section 61E of the Act provides as follows:

   (1)       This section applies if:

   (a)a child is adopted; and

   (b)immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.

   (2)The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

5. If this court grants leave to proceed to commence adoption proceedings pursuant to s 60G and then an adoption order is made in favour of Mr and Ms Wade by a State court under the Adoption Act, any parental responsibility that pre-existed the adoption order in accordance with the provisions of the Family Law Act, immediately ceases. That is, the biological parents of the child, in this case particularly the biological father, will no longer have parental responsibility in respect of the child pursuant to the Family Law Act and any orders that were already in place in respect of parenting matters would automatically cease.  That is, if there was an order under the Family Law Act that Z spend time with her father on a regular basis, that order would no longer be an order that had to be complied with, it would no longer be valid.

6. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order, which is what I have just explained..

7. I consider it sufficient to say that in proceedings for leave for proceedings to be commenced in the State court by a stepparent seeking the adoption of a child, this Court must consider whether the granting of that leave would be in the child’s best interests, having regard to the effect of a number of other important sections of the Act.

8. Essentially, as I have explained already, the effect of those critical sections of the Act to which regard must be had when considering the child’s best interests is that on the granting of an adoption order pursuant to the State legislation, any pre-existing parental responsibility rights and rights in respect of the child spending time with or living with the other parent, immediately cease.

9. Having said all that, I am satisfied in the circumstances of this case, as I have already outlined, that will not matter because the biological father of Z has never played any part in her life.  He has not provided any support for her; he has not spent any time with her; he has not communicated with her; he has not ever exercised any parental responsibility in respect of Z, and to the best of my knowledge, he does not even know Z exists, let alone sought to spend any time or communicate with her or acknowledge his paternity of her.

10. There are no orders in place under the Family Law Act that provide the biological father with any rights in respect of Z in terms of spending time with her or communicating with her, and that is all perfectly understandable having regard to the circumstances.

11. Mr Wade is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Act, a person within the definition contained.

Best interests

1. The test for me to consider this morning is whether it is in the child’s best interests for leave to be granted for Mr Wade to commence an adoption application, with the support of his wife, in respect of Z. In the process of considering that question, I must have regard to the provisions of ss 60CC and 60CD of the Family Law Act as well.

2. Section 60CC(3) includes a list of many things that must be considered by the Court in determining what is the best interest of the child. It includes importantly any views expressed by the child and any factors that go to the weight that should be given to any of those views expressed by the child that the Court thinks are relevant.

3. All of the evidence that I have read and heard in this matter, leaves me with no doubt that Z relates to Mr Wade in a way that can only be described as daughter and father.  Mr Wade has no other children. He deposes to how close he, Ms Wade and Z are to each other.  He also deposes to how close they are to his sister and her family, and to his own mother.  He deposes to how important family is to all of them.  Although Z does not have any biological siblings, I am pleased to have read and heard that she has an extremely close relationship with her younger twin cousins and with Mr Wade’s mother, who she would no doubt treat as her paternal grandmother, and with Mr Wade’s sister, who she no doubt treats as her paternal aunt.

4. In support of this application, Ms Wade describes Mr Wade as someone who “has been the biggest influence in our life as a partner, husband and father to our daughter”. Critically she says how she and Mr Wade have provided all the support for Z. She deposes to how much Mr Wade loves Z and her.  It is nice to know she appreciates that. She deposes to how she wishes for Mr Wade to adopt Z so he can continue to guide her “through life as his daughter”. She says that the three of them have at some stage in the past discussed this adoption.  She says in particular, that Mr Wade and Z have discussed the adoption and that all three want it to happen. 

5. I am also encouraged by reading in Mr Wade’s affidavit how much he says he loves and supports Z and how he has “always cared, guided and raised Z to the best of [his] abilities as her father”. I have absolutely no doubt having read Mr Wade’s affidavit evidence and seen him in court this morning and heard him speak about the circumstances of this case, that he loves Z very dearly and regards her as his daughter.  It is clear from his evidence that he shares many activities with Z, he talked about how they watch and attend sporting games, they go to the beach together, they surf together, they kayak and he pointed out that recently, Z learned to dive, that is, she obtained a diving qualification, and I presumed from that he must already have one and that is now something that they enjoy doing together.

Urgency of the application

1. There is as I pointed out, some urgency to this application. Given the child’s age and that she is only a week or so away from turning 17, Mr and Ms Wade made requests of this Court that the Court hear and determine the application urgently. The evidence suggests that the time has quickly slipped by for this family. In addition to education, work and travel commitments, health, family and financial challenges that have arisen, they have busy lives and all of this has prevented them from making this application sooner than they have. Nevertheless, I have accepted all their reasons for explaining that and have determined that it is in Z’s best interests for Mr and Ms Wade’s application to be allowed to proceed in the Queensland State Courts. I do not consider it necessary for me to consider s 92(2) of the Adoption Act given that Z has not yet turned 17 years of age.

Conclusion

1. Having considered all of the matters and principles that I have just referred to, namely the fact that I must be satisfied that the granting of leave is in the best interests of Z, I am satisfied on all of the evidence that it is in the child’s best interests for Mr and Mrs Wade to be given leave to be able to commence proceedings in the State courts of this State for an order granting the adoption of Z and I order accordingly.

2. As previously mentioned, I also accept the evidence and was prepared to hear the application on an ex parte basis, dispensing with the need for service of the application on the biological father pursuant to the provisions of r 7.18 of the Family Law Rules 2004 (Cth).

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 August 2018.

Associate: 

Date:  5 December 2019