Altimari & Altimari (No 2)
[2024] FedCFamC1F 329
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Altimari & Altimari (No 2) [2024] FedCFamC1F 329
File number(s): CAC 1654 of 2023 Judgment of: GILL J Date of judgment: 17 May 2024 Catchwords: FAMILY LAW – CROSS VESTED JURISDICTION – Adoption proceedings – Effect of a person being a step-parent for the purposes of the Adoption Act 1993 (ACT) – Requirement for leave pursuant to s 60G of the Family Law Act 1975 (Cth) – Leave not available as not a step-parent for the purposes of s 60G – Territory scheme does not contemplate the circumstances of the parties Legislation: Family Law Act 1975 (Cth) – s 60G
Adoption Act 1993 (ACT) – ss 9, 14 and 43
Parentage Act 2004 (ACT) – s 19
Cases cited: Altimari & Altimari [2024] FedCFamC1F 3 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 8 May 2024 Place: Canberra Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Farrar Gesini Dunn Solicitor for the Respondent: Litigant in Person ORDERS
CAC 1654 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR B ALTIMARI
Applicant
AND: MR ALTIMARI
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
1.The application by Mr B Altimari for adoption of Y as a person who is not in a domestic partnership is refused and the consequential application for declaration that Mr Altimari is a parent is dismissed.
2.The application by Mr B Altimari for adoption of Y as a step-parent is refused and the consequential application for declaration that Mr Altimari is a parent is dismissed.
3.The application in relation to parental responsibility is adjourned to 7 August 2024 at 2pm for hearing. Leave is granted for the attendance by audio visual link.
4.In the event that the parties wish to rely upon affidavit material other than already filed, then such is to be filed no later than 4pm on 1 August 2024.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under pseudonym Altimari has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
INTRODUCTION
The background to the current application is set out in the judgment in this matter of 25 January 2024. This judgment should be read in conjunction with that judgment.
In general summary, as set out in the previous judgment, the proceedings:
1.… concern the status of the applicant [Mr B Altimari], as a parent of [Y] (born […] 2021). The respondent, [Mr Altimari], is the former partner of the applicant and is, at present, the only person designated as a parent of [Y], following an order made pursuant to the [surrogacy legislation in State E].
2.Both [Mr B Altimari] and [Mr Altimari] seek that [Mr B Altimari] be legally considered to be a parent of [Y].
3.It is uncontroversial that [Mr B Altimari] has always been treated as, and functioned as, a parent of [Y].
4.[Mr Altimari] and [Mr B Altimari] are the parents of another child, [X] (born […] 2017).
In that previous judgment, an application that Mr B Altimari be declared a parent of Y pursuant to the Parentage Act 2004 (ACT) (“the Parentage Act”) was refused, as was an application that pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Family Law Act”) leave be granted to Mr B Altimari to commence adoption proceedings as a step-parent of Y.
Relief sought
The relief currently sought is set out in the case outline document filed 24 April 2024. The relief draws upon this Court exercising both the jurisdiction conferred by the Family Law Act and the cross-vested jurisdiction of the Supreme Court of the Australian Capital Territory in relation to the Adoption Act 1993 (ACT) (“the Adoption Act”) and the Parentage Act.The objective of each form of relief sought under the Territory law is that both Mr B Altimari and Mr Altimari will be Y’s parents.
The first form of relief is that an order be made for the adoption of Y by Mr B Altimari pursuant to s 9 of the Adoption Act. The applicants seek that this be an order made other than as a step‑parent adoption. They then seek an immediate declaration pursuant to s 19 of the Parentage Act that Mr Altimari is a parent of Y.
The second, and alternative form of relief is that an order be made for the adoption of Y by Mr B Altimari pursuant to s 9 of the Adoption Act, but on the basis that Mr B Altimari is a step-parent of Y. They then seek an immediate declaration pursuant to s 19 of the Parentage Act that Mr Altimari is a parent of Y.
The third form of relief, being a joint adoption by Mr B Altimari and Mr Altimari, was abandoned. This accords with the previous judgment in this matter where I indicated that joint adoption was not available under the Territory legislation in the circumstances of this case.
Finally, and as an option of last resort, Mr B Altimari and Mr Altimari seek orders that they share parental responsibility, and that such application be listed for hearing.
It may be noted that Mr B Altimari and Mr Altimari concede that if relief under the Adoption Act is available it will require further steps, as specified in that Act, to be taken prior to the making of any such order.
It should also be noted that neither Mr B Altimari nor Mr Altimari pursue an outcome that would see Mr Altimari displaced as Y’s parent, which explains their resort to a combination of adoption and declaration.
The statutory framework
As identified in the previous judgment, s 14 of the Adoption Act sets out the requirements for adoption, including identifying the circumstances where, as is proposed here, one person may pursue adoption. Section 14 is in the following terms:
Additional requirements for adoption of child or young person
An adoption order for a child or young person may be made in favour of a person only if—
(a) the person is on the register of suitable people; and
(b) for an order to be made in favour of 2 people jointly—
(i)they have lived together in a domestic partnership for at least 3 years (whether or not married or in a civil union); and
(ii)the court considers they have demonstrated the stability of, and their commitment to, their domestic partnership; and
(c)for an order to be made in favour of 1 person only—the person either—
(i) is a step parent of the child or young person; or
(ii) is not in a domestic partnership; and
(d)if the person is a step-parent of the child or young person—the Family Court of Australia has given the step-parent leave to commence a proceeding for the adoption of the child or young person under the Family Law Act 1975 (Cwlth), section 60G (Family Court may grant leave for adoption proceedings by prescribed adopting parent); and
(e)if the person is a relative of the child or young person—the court considers that—
(i)the family circumstances mean that it would be beneficial for the child or young person if the relationships within the family were redefined in the way the order would redefine them; and
(ii)it would not be preferable to make an order relating to guardianship or custody of the child or young person.
The parties seek to rely upon each limb of s 14(c) as an alternative basis for relief.
It may be concluded that at present Mr B Altimari is not in a domestic partnership.
The parties accept that Mr B Altimari should be characterised as a step-parent of Y for the purposes of the Adoption Act.
Under the Adoption Act a step-parent is defined as follows:
“step-parent”, of a child or young person, means a person who—
(a) is not a parent of the child or young person; and
(b) whether married or not, has lived in a domestic partnership for not less than 3 years with a parent of the child or young person.
The first form of relief
The first form of relief relies upon Mr B Altimari being entitled to apply for an adoption order in favour of one person only, based upon his status as a person who is not in a domestic partnership.
Although the parties concede that in terms of the Adoption Act Mr B Altimari is a step-parent of Y (see the previous judgment), due to the disjunctive nature of the descriptions of categories of persons who are eligible for an adoption order being made in favour of one person only, they assert that Mr B Altimari should be able to apply on the basis of the second category, of a person who “is not in a domestic partnership.”
While superficially attractive, this argument does not survive close scrutiny.
Although s 14(c) is expressed on the basis of alternatives, they are not alternatives that can be divorced from the legislative context of the rest of the Adoption Act. That context includes a specific scheme in relation to persons falling within the definition of “step-parent” under that Act, that imposes both additional requirements to an application by a step-parent (s 14(d)) and additional consequences (s 43(1)(c) and s 43(2)(b)). As such, it is suggestive that where it is a step-parent making the application, there is no opting out from those requirements, and by virtue of the person being a step-parent, those additional requirements and consequences apply.
It should be considered that although s 14(c) of the Adoption Act is expressed in a disjunctive manner, it does not thereby permit a step-parent to avoid the provisions in respect of step-parent adoption by styling the application as made by a person who is not in a domestic partnership.
This leaves this form of relief as unavailable.
The second form of relief
The second form of relief is based upon Mr B Altimari being, pursuant to the Adoption Act, considered to be Y’s step-parent. The parties accept that he is, despite no longer being in a relationship with Mr Altimari (see the previous judgment).
As noted in the previous judgment, a prerequisite for step-parent adoption under the Adoption Act is that leave be given pursuant to s 60G of the Family Law Act. For the reasons advanced in the previous judgment, such leave is not available. This acts as a solid barrier to an application by Mr B Altimari to adopt as a step-parent.
Lack of relief under the Adoption Act
The conclusion that relief is not available under either approach is consistent with other aspects of the Adoption Act.
For example, although the Adoption Act contemplates step-parent adoption, it does not do so in the absence of a current domestic partnership. Such can be seen at s 43(1)(c) which provides that the relationship with the parent is not displaced by adoption with a step-parent where they are “living in a domestic partnership.” The legislative expectation for step-parent adoption is that of two parents in a current domestic partnership.
A similar legislative expectation can be seen at s 14(b) which provides that where two persons adopt, and hence, similar to the above step-parent example, where the adoption will result in there being two parents rather than one, that the two parents will be in an enduring and stable domestic partnership.
It can be taken that the Adoption Act did not anticipate adoption taking place in the context of a non-intact relationship in order to effect a step-parent joining the other parent as a parent.
It may also be observed that it is by no means certain that, even if an adoption order was available, that the further necessary relief of declaration of parentage in favour of Mr Altimari is available. It is not, however, necessary to determine this issue given the above conclusions.
CONCLUSION
The relief in respect of the Adoption Act and the Parentage Act is refused. The matter will be listed with directions to allow the determination of the application in respect to parental responsibility under the Family Law Act.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 May 2024
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