Balint & Moyle
[2021] FedCFamC1F 257
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Balint & Moyle [2021] FedCFamC1F 257
File number(s): BRC 5413 of 2021 Judgment of: JARRETT J Date of judgment: 8 December 2021 Catchwords: FAMILY LAW – ADOPTION – whether leave to commence adoption proceedings is in the best interests of the child – leave granted under s 60G of the Family Law Act 1975 (Cth) to commence proceedings. Legislation: Family Law Act 1975 (Cth) ss 4, 60F(4)(a), 60G(1), 60HA(3)(a), 61E and 65
Adoption Act 2009 (Qld), s 92J
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 7 December 2021 Place: Brisbane The First Applicant: Litigant in person The Second Applicant: Litigant in person The Respondent: No appearance ORDERS
BRC 5413 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALINT
First ApplicantMR BALINT
Second ApplicantAND: MR MOYLE
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Applicants are granted leave for proceedings to be commenced for the adoption of X, born in 2009 by Mr Balint.
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) of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Balint & Moyle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
X was born in 2009. Her mother, Ms Balint, is the first applicant. Ms Balint believes, having undergone parentage testing with one candidate and considering the timeline for another, that X’s father is Mr Moyle, the respondent.
Ms Balint and Mr Moyle had a two-week relationship in August, 2008. Since that time they have not seen one another. They had a brief telephone call between August, 2008 and X’s birth, wherein Ms Balint told Mr Moyle of the pregnancy. As a result of that conversation Mr Moyle has neither met X nor expressed to Ms Balint a desire to do so.
X’s needs for a paternal influence have been met by her stepfather, Mr Balint. He is the second applicant. Mr and Ms Balint met in May, 2012, commenced cohabitation in 2013 and married in 2018. X has always lived with her mother and has lived with Mr Balint since she was 3 years old.
The evidence shows that Mr Balint has “taken on parental responsibility for X at the end of 2013”. I understand that to mean that he has performed in the role of her parent since then, but he has not, as it is defined in the Family Law Act 1975 (Cth), had parental responsibility for her.
This application is for leave, pursuant to s 60G(1) of the Act, for the applicants to commence proceedings for Mr Balint to adopt X. By an order made on 26 October, 2021 service of the application on Mr Moyle was deemed to have occurred.
Mr Balint works as a supervisor. He has one biological child, Y. Y is X’s half-sister and a product of the Balint’s marriage. Both parties swear that he has acted in the role of X’s parent and father since the end of 2013. X calls Mr Balint either “…” or “Dad”. X has said words to Mr Balint to the effect of “I want you to adopt me and to properly be my Dad”.
It is apparent that X and Mr Balint are strongly bonded. He is clearly actively involved in meeting her physical, emotional and intellectual needs and has been since she was three years old. He shares her costs and the burden of transporting her. He works to maintain her friendships and shares with her an enjoyment of video games and waterslides He assists her with her homework and, perhaps most persuasively, he tries to attend her parent-teacher conferences when his schedule permits It does not concern me that he cannot always attend them, his interest in them at all indicates a preparedness to engage with parental responsibility as a duty to the child, as the term was intended, rather than a right of the parent.
Beyond the benefit to X of a parent who is prepared to meet her needs, there is an obvious benefit to her of tightening the bonds between her and Y’s father. The importance of sibling relationships are well traversed and it is sufficient to say that I take any benefit to that relationship to be relevant and in X’s best interests
Section 92 of the Adoption Act 2009 (Qld) requires a person to have leave under the Family Law Act before they may apply to the chief executive of the Department of Children, Youth Justice and Multicultural Affairs to adopt a child. That is why these proceedings were necessary.
Before granting that leave, I must be satisfied that:
(a)the applicants are each a prescribed adopting parent within the definition of that term in s 4 of the Family Law Act; and
(b)granting leave is in X’s best interests, with regard to ss 60F(4)(a), s 60HA(3)(a), s 61E and s 65J, if applicable, of the Act.
As Ms Balint and Mr Moyle were not in a de facto relationship, s 60HA(3)(a) has no application. Section 60F(4)(a) is not relevant either, though s 60F(1)(b) is relevant as, should X be adopted by Mr Balint, she will be deemed a child of the Balint’s marriage. Section 65J has no effect as there are no parenting orders to terminate. Section 61E is relevant to the extent that any adoption of X by Mr Balint will terminate Mr Moyle’s parental responsibility for X.
I am satisfied that X’s father has had ample opportunity to participate in her life, has declined to do so and consents to the proposed adoption. Mr Balint, on the other hand, seeks to formalise the obligations to care for X he has already willingly and informally taken on. Ms Balint also seeks that. Nothing before me suggests that X has ever been exposed or subjected to family violence, as defined in the Act, in the applicants’ care, or that there is a meaningful risk of this occurring in the future. She is apparently beloved by her stepfather and considers him to be her father. From Mr Balint’s evidence, that appears to be a mutual sentiment.
I am satisfied, and find, that it is in X’s best interests to grant leave to the applicants to commence proceedings for X’s adoption by Mr Balint.
I so order.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 8 December 2021
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