Bently & Finlay
[2022] FedCFamC1F 1081
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bently & Finlay [2022] FedCFamC1F 1081
File number(s): BRC 12218 of 2022 Judgment of: BAUMANN J Date of judgment: 12 December 2022 Catchwords: FAMILY LAW – ADOPTION – Leave to make an application pursuant to the Adoption Act 2009 (Qld) Legislation: Family Law Act 1975 (Cth)
Adoption Act 2009 (Qld)
Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 12 December 2022 Place: Brisbane Counsel for the Applicants: Mr Blaxland Solicitor for the Respondent: Litigant in person ORDERS
BRC 12218 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BENTLY
First Applicant
MR BENTLY
Second Applicant
AND: MR FINLAY
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
12 DECEMBER 2022
THE COURT ORDERS:
1.That pursuant to s 60G of the Family Law Act 1975 (Cth), the Second Applicant, MR BENTLY born 1984 be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, X born 2005.
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 Bently & Finlay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
The child X born 2005 is a biological child of Ms Bently (“the mother”) and Mr Finlay. Mr Bently, who married the biological mother many years ago, seeks leave under the Family Law Act 1975 (Cth) (“the Act”) to bring an application in the State jurisdiction to adopt X. Mr Finlay has appeared today in answer to and in support of his Response filed 28 November 2022 and his affidavit in that respect. The affidavit, it seems to me with great respect to Mr Finlay, says more about recent circumstances, where during the course of 2022 the child X has apparently made disclosures and allegations about her being the subject of inappropriate sexual misconduct by her biological father some years ago.
Those matters are still before the criminal court and, as Mr Blaxland quite properly directed me to, the bail conditions on Mr Finlay prevent him having any contact with the child. I note there were, in 2016, orders made for the child to spend time with the father, but Mr Finlay makes it clear that he has not spent time with the child for some years. In respect of X, her parents separated when she was approximately two years of age in 2007. In approximately 2012, the biological mother and Mr Bently commenced their relationship. They have been since then, and there is no suggestion otherwise, a happy, intact couple for the last 10 years of X’s development.
Mr Finlay properly concedes and acknowledges that he has paid little by way of child support for the child. To be fair to him, he even acknowledges that Mr Bently and the mother have been good parents to X and have provided for her educationally, emotionally and by way of the necessary needs of a child developing from the age of seven, as she was when Mr Bently and the mother commenced cohabitation. Although not strictly relevant, in the exercise of discretion, it would be unfair not to refer to the recent charges. It may well be that for whatever reason the child has made these allegations recently, it could have been the catalyst for her, it seems for the first time, raising the issue of adoption with Mr Bently.
It is right to acknowledge, as I have indicated to Mr Blaxland today, that, of course, Mr Bently has had some 10 years or so to bring such an application. The way in which the application has been brought and the earlier attempts to engage the State department, as annexures to Mr Bently’s affidavit make clear, I think demonstrate that he has been strongly motivated by the wishes expressed by the child. He does so, aware no doubt from the advice of Mr Blaxland, if not otherwise, that this child at the age of 18 as an adult, which will be in 2023, will have every right to change her name and to do as she wish, at that time.
Adoption is a serious change of status for a child. It brings with it other rights and extinguishes other rights, often in the area of succession law and the way that children are described. I understand that Mr Finlay opposes the adoption leave being granted. He seems to have the belief that the application is brought as some form of manipulation or attempt to influence the way the criminal charges might be dealt with. There is no evidence that the Court doing what it is asked to do in this case, namely to grant leave to adopt, will have any such effect. I also make it clear to Mr Finlay, who is unrepresented, that there is no basis to adjourn the matter today for him to “get legal advice”.
Mr Finlay was served many weeks ago and filed his Response on 28 November 2023, which is now over two weeks ago. If we were dealing with a child of very tender years where urgency may not have been so important, perhaps some extra time might have been appropriate. However, there is no basis to adjourn the matter and I indicated that to Mr Finlay, who said he understood, the only test that the Court is required to apply in the exercise of discretion under s 60 of the Act to grant leave, is whether the order sought is in the best interests of the child.
In view of her history in the household of the mother and Mr Bently for over 10 years supporting and meeting the best interests of the child, and what I accept to be a recent expression of a desire by a mature child to support adoption, I will grant the application. I am conscious of the fact that, notwithstanding the order I propose to make today, it may not be practically possible to navigate all the hurdles in the State system to achieve adoption before the child’s 18th birthday in 2023.
Nonetheless, in my view on the evidence I find it is in the best interests of the child to make the order sought.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 12 December 2022
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