Willets and Hobbs

[2017] FamCA 1068

FAMILY COURT OF AUSTRALIA

WILLETS & HOBBS [2017] FamCA 1068

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

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

APPLICANTS: Ms & Mr Willets

RESPONDENT: Mr Hobbs

FILE NUMBER: BRC 5283 of 2017

DATE DELIVERED: 15 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 December 2017

REPRESENTATION

APPLICANTS: In Person

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 Amended Initiating Application filed on 25 October 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 born … 2008.

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 Willets & Hobbs 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 5283 of 2017

Ms & Mr Willets

Applicants

And

Mr Hobbs

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Application to Dispense with Service

1. The material before me relied upon by the Applicants makes it apparent that the biological father of the child the subject of the Application has not been served with the proceedings.  This has occurred in the context of the mother’s evidence that there has been no interaction with the child’s biological father for a significant period of time; that she does not know where the biological father is and that there has been no contact since about February 2010. 

2. Whilst there is no evidence before me as to any attempts to locate him via searches (such as electoral roll searches), the Rules provide to a party who is unable to serve a document the opportunity to apply to dispense with service of the document. Such opportunity exists as a consequence of the terms of Rule 7.18 of the Family Law Rules 2004.

3. The factors to which the Court may have regard, when considering any application for dispensation with the obligation to serve an Application on a Respondent, are outlined in subrule 2 of that Rule.

4. I intend to treat the application and the material before me as containing, in essence, an application for leave to dispense with the requirement to serve the biological father.  I do so in circumstances where the Applicants appear as litigants in person and previous orders have been made by Registrar Kane (in October of this year) in relation to the seeking of dispensation of service upon the Respondent. 

5. I take into account and accept the evidence relied upon by the Applicants (and,  particularly, the evidence given by the mother) in relation to the circumstances which underpin the absence of service on the biological father. 

6. By way of broad summary, her evidence is that she and the child’s biological father were in a relationship between about October 2007 and March 2008, at which time she fell pregnant.  She says there was a lot of verbal abuse; threats were made towards her because of her pregnancy. The biological father  expressed an intention or desire not to have a child. 

7. As a consequence, she obtained a Domestic Violence Order: that order having been made by consent, without admission, on 20 May 2008.  Later actions led to an amendment to that Order by Order made 14 October 2008 – this was made, it seems, after a finding that the biological father had committed an act of domestic violence and was likely to commit an act of domestic violence again. The amendment was to prohibit him from approaching within 100 metres of the mother’s work or home. 

8. The evidence given by the mother is to the effect that after the child was born in 2008, and when he was a little over one year of age, she and his biological father reunited their relationship.  She says that, between about November 2009 and February 2010, during the course of their relationship, she was exposed to further conflict. It seems, on her evidence, that their relationship ended as at February 2010. 

9. Her evidence is to the effect that the biological father at that time said that he wanted nothing to do with their child.  She says there has been no contact between their child and his biological father since that time.  The biological father has not paid child support, as the mother has not made a claim for the payment of child support. There has been no paternal familial interaction with the child.

10. Further, until he was about four years of age, the child thought the Applicant, Mr Willets, was his biological father. 

11. The mother’s evidence is that she does not know where the child’s biological father is and she has not seen or heard from him since February 2010, when their relationship ended. 

12. The evidence is also that, save for the domestic violence orders to which I have already referred, there have been no other applications for such orders which have concerned either of the Applicants before the Court.

13. I note also that there is no reference to the child’s biological father on his Birth Certificate. 

14. Having regard to those matters and the matters outlined in the Rules as being relevant to an assessment about whether to make an order dispensing with the requirement of service, I am persuaded in the circumstances that such an order is appropriate. 

Application for Leave to Adopt

1. I turn now to consider the application for an order for leave to commence proceedings for the adoption of B, born in 2008. 

2. As I have already outlined, it is clear on the evidence before me that that there has been no attempt by the child’s biological father to have, or spend, any time with him since the cessation of the biological father’s relationship with the mother in February 2010.

3. There is no evidence to suggest that the child’s biological father has made any attempt to move any Court to seek parenting orders in relation to the child. 

4. The mother’s evidence is that she has not been contacted at all by the child’s biological father: consequently, there has been no attempt by him to see, for example, whether they could reach an agreement about parenting which would have facilitated the child having the opportunity to spend time, and interact, and develop a relationship with his biological father. 

5. It is clear on the evidence before me that the biological father has not done anything in relation to exercising any aspect of parental responsibility which falls to him as a consequence of paternity. 

6. As I have said, he has not sought to spend any time with the child. 

7. It is clear that any order made by this Court, permitting or granting leave to the Applicants to commence proceedings, does not, of course, have the effect of bringing into effect the child’s adoption.  That factor is a further relevant matter I have taken into account in arriving at the decision I have expressed (and the order which will be made) to dispense with the requirement that the Applicants serve the biological father with the Application for leave to commence proceedings for adoption and supporting affidavits. 

8. The reality is that, in the course of the determination of the actual proceedings for the child’s adoption (if leave is granted by this Court to commence the same), there may well be a requirement that (or at least further consideration about whether) the Applicants should be required to make further attempts to serve the child’s biological father before any actual order that would have the effect of removing from him the obligations of parental responsibility, cast upon him at this time, is made. 

9. Consequently, these proceedings do not affect the biological father’s rights in a way that cannot otherwise be remedied if, contrary to all that has happened since February 2010, he seeks to appear in relation to – and be heard on – the actual proceedings for adoption. 

10. By the Amended Initiated Application filed 25 October 2017, 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 B, born in 2008.

11. It appears from the material before me that the child’s surname was changed from his mother’s maiden name to his current surname in April 2012.  That is, the married surname taken by his mother following her marriage to Mr Willets in 2012. 

12. I have already outlined, in the course of my consideration of the application to dispense with service, a brief overview of the circumstance which preceded the child’s birth and those which followed closely thereafter – relevantly, including the separation of his biological parents in about February 2010. 

13. The Applicants, who married in 2012, have a child together, C, born in 2012.

14. the child, who continued (obviously) to live with his mother, commenced living with her and Mr Willets as a family unit in, I think, about October 2010. 

15. I accept the mother’s evidence that the child has not spent any time with his biological father since February 2010.  I accept that she has not had any contact with the child’s biological father since that time also.  I accept that she has not been in receipt of any financial support for the child from his biological father. 

16. I also accept the mother’s evidence to the effect that the child has not had any contact with his biological paternal family since February 2010.  It is clear then, it seems to me, that I could conclude from this evidence that the attitude of the child’s biological paternal family has been that they have no wish or desire to interact with, or to develop a relationship with, the child.  That attitude and wish has been, it seems, put into effect by their decision/s not to seek time with the child or to seek the opportunity to spend time and develop a relationship with him. 

17. This attitude is one in which the biological father has shared, given the absence of action on his part to do anything to seek orders in relation to time with the child or to seek to exercise any aspect of the parental responsibility which vests in him as a matter of law as a consequence of his paternity of the child. 

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

19. It is obvious that adoption proceedings, pursuant to State legislation, have not commenced. That is the purpose of this Application. Such Application is 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. 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 turned 17 years of age. Clearly, the child falls within this parameter.

20. 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.  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.

21. It is clear that the decision facing this Court differs from the decision facing the Court charged ultimately with the obligation to make the decision 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. Only the order for adoption made by the appropriate State Court has that effect. 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 adoption by a step-parent 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.

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

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

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

25. As I have already remarked on a number of occasions, the child’s biological father has not spent any time at all with him since February 2010, at which time he was only about 16 months of age.  the child has lived with his mother and Mr Willets as a family unit since about October 2010: that is, from when he was about 19 months 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 (and some might think almost inevitable) that, together with his mother, Mr Willets has fulfilled all the duties and responsibilities associated with parenting the child.

26. Given the likely course of any life lived over that period of time (that is, from their joint cohabitation until the present) it is, I think, almost inevitable to conclude that, insofar as the child is concerned, Mr Willets has undertaken many, many aspects of his day-to-day care and parenting.  A conclusion other than that he has likely formed a well-bonded and loving relationship with the child is, I think, inconceivable on the evidence before me.

27. One could only conclude that it is much more likely than not that the child has a very strong and well-established relationship with Mr Willets and that, from the child’s perspective, in all the circumstances of this case, Mr Willets has been his father for all intents and purposes and has fulfilled that role and discharged the responsibilities associated with it since the time of their cohabitation. 

28. One could conclude nothing save that, for the child, Mr Willets is, for all intents and purposes, in reality his true father, irrespective of biology.  There could be no conclusion, in my view, other than that Mr Willets and the child’s mother have supported the child emotionally and financially and have joined together in meeting his practical needs since the commencement of their cohabitation together.

29. Given those circumstances, it is much more likely than not that Mr Willets has to date likely discharged all of the obligations associated with parenting, including those which involve making significant contributions to the child’s development and growth as a person.  Given that, I am persuaded that it is more likely than not that the child would feel a significant benefit, in a personal sense, if proceedings for his adoption by Mr Willets were able to be commenced.  In that sense, then, I accept that, for the Applicants, leave to commence proceedings for the child’s adoption is something that would contribute in a positive way to their family unit and their conception of their family unit as it has been constituted for a significant time now.

30. I accept, therefore, that it is 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.

31. That being the case, and for the reasons I have expressed orally, it seems to me that one could only conclude that leave to commence proceedings for adoption is something which is in the child’s best interests and I have no hesitation in concluding that this is the case.

32. For these reasons, then, I order that, pursuant to s 60G(1) of the Family Law Act 1975 (Cth), the Applicants have leave to commence proceedings for the adoption of the child B, born in 2008.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 December 2017.

Associate: 

Date:              20 December 2017