Bender & Samson
[2023] FedCFamC1F 795
•15 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Bender & Samson [2023] FedCFamC1F 795
File number(s): BRC 6599 of 2023 Judgment of: HOGAN J Date of judgment: 15 September 2023 Catchwords: FAMILY LAW – ADOPTION – Application for leave to commence proceedings for adoption – where the children’s biological father is deceased – leave granted Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Adoption Act 2009 (Qld)
Cases cited: Banks & Banks (2015) FLC 93-637 Division: First Instance Number of paragraphs: 25 Date of hearing: 15 September 2023 Place: Brisbane Counsel for the First Applicant: Ms Davison Solicitor for the First Applicant:: Hopgood Ganim Lawyers Counsel for the Second Applicant: Ms Davison Solicitor for the Second Applicant: Hopgood Ganim Lawyers ORDERS
BRC 6599 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BENDER
First Applicant
MS SAMSON
Second Applicant
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
15 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 60G(1) of the Family Law Act 1975 (Cth), leave is granted for the Applicants, Mr Bender and Ms Samson, to commence proceedings for the adoption by Mr Bender of X, born 2010 and Y, born 2012.
NOTATION
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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).
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 Bender & Samson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
There is today an application, which was commenced in the Federal Circuit and Family Court of Australia (Division 2) by way of Initiating Application filed 22 May 2023, by the applicants seeking an order pursuant to s 60G of the Family Law Act 1975 (Cth) to grant them leave to commence proceedings for the adoption by Mr Bender, the first applicant, of the children X, born 2010, and Y, born 2012.
By order made 18 July 2023, a Judicial Registrar transferred these proceedings, pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), to this Court, the Federal Circuit and Family Court of Australia (Division 1).
It is clear, on the evidence, that the children’s biological father, Mr C, died in 2016, at which time the children were aged five years and three years respectively. It is also clear, on the evidence, that the first applicant has known the children since about 2017, the applicants and the children have been a family unit since 2018 and that the applicants married in 2021.
There is evidence before the Court given by Ms B, the children’s biological paternal grandmother (Mr C’s mother) which outlines her support of the first applicant’s application for an order for adoption of the children.
It is clear, by way of broad summary, that there are no ongoing cases in relation to the children’s parenting arrangements in any other jurisdiction; there are no orders relating to family or domestic violence. There is no evidence to suggest that there are any protection orders in force as between the applicants. There is no evidence (and no allegation) that risk is an issue in this case. I accept the submission made by Counsel who appeared for the applicants to this effect.
It is sufficient, I think, to continue to say only the following.
The relevant legal principles that require some brief discussion in the determination of this application are as follows.
Section 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of the stated child only if a number of matters are satisfied. Included within these are that the child, the subject of the application, is at least five years of age and has not yet turned 17 years of age. In this case, that circumstance is clearly satisfied.
An additional matter prescribed by s 92 (in particular in subparagraph (1)(d) of that section) is that a person must have been granted leave pursuant to the Family Law Act 1975 (Cth) – hence this application to the Court.
In determining whether to grant leave for parties to commence adoption proceedings, this Court must be satisfied of a number of things. One is that the proceedings are by a prescribed adopting parent, as that term is defined. In this case, that condition is satisfied. This Court must also consider whether granting leave will be in the children’s best interests, having regard to a number of sections, such as 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 in any case. It seems from the evidence before me that, of those sections, only s 61A is applicable.
The decision facing this Court this morning is, of course, one that differs from a decision facing the Court charged with the obligation to make a decision about whether to permit adoption of the children or not. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections particularised in s 60G of the Act. Only an order for adoption, if made by an appropriate State Court, has that effect.
However, given that s 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters (including that an order for adoption by a step-parent would better promote the children’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any Court order, or no order at all) it is, I think, apparent that this Court ought not make an order granting leave to permit proceedings in a State Court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.
I record my view here that, in this case, I am easily satisfied that the mandatory legislative pre‑requisites are established.
I accept that which is outlined in the helpful written submissions filed on behalf of the applicants on 13 September 2023, in particular in this respect at paragraphs 70 to 73 of the same.
In determining, as I must, under s 60G(2) of the Family Law Act 1975 (Cth), whether granting leave to commence proceedings is in the children’s best interests, I must give consideration to the familiar best interests considerations prescribed by s 60CC of the Family Law Act 1975 (Cth). However, as is made clear by authorities such as Banks & Banks[1], any failure to mention specifically any particular consideration in these Reasons delivered this morning orally does not mean that such considerations have not been the subject of my consideration, determination and deliberations during my assessment of the evidence relied upon, being evidence I have had the opportunity to consider prior to commencing the hearing this morning.
[1] (2015) FLC 93-637.
I record also that I have had the opportunity to read the helpful written submissions that were filed on behalf of the applicants well before commencing the hearing this morning.
It is, I think, sufficient to record that, on the evidence before me, I am easily satisfied that Mr Bender has discharged all of the responsibilities of parenting the children for the time (five years now) that he has been present in their life.
I accept that it is highly likely that, from the children’s perspective – particularly given their respective ages at the time their biological father died in 2016 – Mr Bender is now very much a father figure to each of them. It would be difficult to think other than that each of them have a very close and loving relationship with him.
I also accept, on the evidence before me, that the children are very likely to have very close relationships, of course, with their mother and her family, Mr Bender’s extended family; they are, indeed, very fortunate that they have been able to maintain very close relationships with Mr C’s extended family.
I accept the evidence given by their biological paternal grandmother in terms of the support of the application for their adoption.
There could be no doubt on the material before me that the first applicant has assisted the children’s mother to parent them for the time that he has been in their lives and, in particular, from the time they have lived together as a family unit (namely, since 2018). He has clearly contributed to not only the practical tasks that are involved in parenting but also to discharging the financial obligations that are associated with being a parent to a child. There is nothing to suggest that he has not carried out and discharged such obligations in anything but a caring and loving manner.
I accept entirely, as is evidenced by the fact of this application, that he wishes to take a further step to demonstrate his desire to continue to discharge such obligations for the children into the future and that he is clearly supported in that desire by the children’s mother and, as I have already said, their extended family. The fact of the application itself is, in my view, a clear manifestation of an appreciation by Mr Bender of what it will mean in terms of his responsibility on an ongoing basis to the children should an order for adoption ultimately be made by the Court charged with the responsibility for the same.
I accept, also, the evidence before me to the effect that the children are supportive of the process that the applicants seek to undertake if leave is granted by this Court to commence adoption proceedings. I think a very strong conclusion sensibly open on the evidence before me is that it is much more likely than not that these children will gain significant emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made. Whilst in one sense practically for them, given their ages at this stage and their circumstances, it may not mean much, there is no doubt, it seems to me, that, as the children grow older, they too will come to appreciate further the importance of the step that their mother and Mr Bender have sought to start today by bringing this application.
It is unnecessary to say more, it seems to me, other than to record that I otherwise generally accept the submissions made on behalf of the applicants as set out in the Outline filed 13 September 2023.
In conclusion, the material easily persuades that the commencement of proceedings to seek that a Court make an order for X and Y’s adoption by Mr Bender is something that is in their best interests. For those reasons, then, I make the following order.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 15 September 2023
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