Brucedale and Anor and Vaulks

[2020] FamCA 287

FAMILY COURT OF AUSTRALIA

BRUCEDALE AND ANOR & VAULKS [2020] FamCA 287

FAMILY LAW – ADOPTION – application for adoption by stepparent – whether adoption report should be made available to parties.

Adoption Act 1993 (ACT) s 39D
Family Law Act 1975 (Cth) ss 60CC, 60G

Poulter and Anor & Lenton [2012] Fam LR 623
Woodbury and Anor & Fowler [2020] FamCA 195

1st APPLICANT: Ms Brucedale

2nd APPLICANT: Mr Bernati

RESPONDENT: Mr Vaulks

FILE NUMBER: CAC 2216 of 2019

DATE DELIVERED: 15 April 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 April 2020

REPRESENTATION

SOLICITOR FOR THE 1ST & 2ND APPLICANTS: Capon & Hubert

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The report in relation to the proposed adoption of Y and X by Mr Bernati, prepared by the Child and Youth Protection Services, Community Services Directorate pursuant to s 39D of the Adoption Act 1983 (ACT) and provided to the Canberra Registry of the Family Court of Australia (“the Report”) is permitted to be made available to Mr Bernati and Ms Brucedale.

2. The above order is subject to the following conditions.

   (a)The Report is to be provided by the Canberra Registry of the Family Court of Australia in electronic form to the solicitor for Mr Bernati and Ms Brucedale (“the solicitor”).

   (b)       A single copy of the Report may be printed. 

   (c)The electronic version of the Report is to be deleted by the solicitor within 48 hours of the receipt of the electronic version.

   (d)No electronic copy of the Report may be retained.

   (e)The printed copy is to remain in the custody of the solicitor.

   (f)The printed copy is to be given to the Canberra Registry of the Family Court of Australia on the expiration of the relevant appeal period following the resolution of the proceedings.

IT IS NOTED THAT

1. These orders do not prevent the Report being shown to Mr Bernati and Ms Brucedale and instructions being taken in relation to the Report.

IT IS FURTHER ORDERED THAT

1. In relation to the Application for the adoption by Mr Bernati of Y and X and the associated application to dispense with consent by Mr Vaulks the proceedings are adjourned for hearing to 10 am on 15 May 2020.

2. The hearing on that occasion will take place by video link.

3. The Applicant is entitled to file and serve any further evidence that he intends to rely upon in support of his Application for adoption by 4 pm on 1 May 2020.

4. In the event that Mr Vaulks wishes to be a party to these proceedings, to either oppose or support the applications, then he is required to file and serve a Response in the proceedings by 4 pm on 8 May 2020.

5. The Applicants are to cause to be sent to Mr Vaulks, by registered post to the address at which I previously deemed service to be effected, a copy of these Orders and are to file evidence demonstrating that such step has been taken.

6. The Director-General is to forward to Mr Vaulks, at the email address at which they have been corresponding with him, these Orders and are directed to file and serve evidence demonstrating that this step has been taken.

7. The parties are to file and serve written submissions directed to the question of the dispensation with consent seven days in advance of the hearing of this matter.

8. Any party or Mr Vaulks are at liberty to approach the Registrar of the Canberra Registry of the Family Court of Australia to obtain further directions in respect to the preparation of and conduct of this matter

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 Brucedale and Anor & Vaulks 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 CANBERRA

FILE NUMBER: CAC 2216 of 2019

Ms Brucedale and Mr Bernati

Applicants

And

Mr Vaulks

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These matters concern an Application for adoption by a stepparent. Leave has already been granted pursuant to s 60G of the Family Law Act 1975. 

2. The Director-General of the relevant agency in the Australian Capital Territory has prepared a report pursuant to s 39D of the Adoption Act.  Section 113 of that Act prohibits the release of that report, absent an order of the Court. 

3. I refer to my discussion of the operation of the legislation and to the principles which govern a determination as to release as set out in the case of Woodbury and Anor & Fowler.[1]  Having read the report there are matters contained in the report which stand against the success of an Application by Mr Bernati for adoption.  In particular as there is an indication within the report that there is a lack of consent on the part of the biological father to the adoption proceedings.  That is a matter that militates strongly in favour of the release of the report to Mr Bernati and to Ms Brucedale who support the Application.

   [1] [2020] FamCA 195

4. Against that the Director-General resists the release of the report citing general concerns as to the potential of reports, again in a general sense, being released and either being such as to cause harm to the litigants, or to discourage children from the frank expression of their views.   Ms Law-Jamieson, who appears on behalf of the Director-General, has made a number of what appear to be quite appropriate concessions that there are not specific factors to this case which points to the release of the report being inimical to the interests of the children.

5. Having noted the analysis of the law that I have undertaken in Walker & Fullerton I determine that the requirements of natural justice require the release of the report to Mr Bernati and to Ms Brucedale at this stage.  That is a release which will occur subject to specific provisions which I will set out shortly.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 April 2020.

Associate:     

Date:  17 April 2020