Brucedale and Anor and Vaulks - [2020] FamCA 143

FAMILY COURT OF AUSTRALIA

BRUCEDALE AND ANOR & VAULKS

[2020] FamCA 143

FAMILY LAW – ADOPTION – Leave to commence proceedings.

Family Law Act 1975 (Cth) ss 60CC, 60G

Poulter and Anor & Lenton [2012] 46 Fam LR 623

1st APPLICANT:

Ms Brucedale

2nd APPLICANT:

Mr Bernati

RESPONDENT:

Mr Vaulks

FILE NUMBER:

CAC

2216

2019

DATE DELIVERED:

4 March 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

4 March 2020

REPRESENTATION

SOLICITOR FOR THE 1ST & 2ND APPLICANTS:

Capon & Hubert

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

Pursuant to s 60G of the Family Law Act1975 (Cth) leave is granted to Mr Bernati, a prescribed adopting parent, being a step-parent of X, born … 2009, and Y, born … 2007 to commence proceedings for the adoption of X and Y.

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 & Bernati & 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

This is an application pursuant to s 60G of the Family Law Act1975 (Cth) seeking leave for proceedings to be commenced for the adoption of a child. Here the adoption proposed is by a de facto step-parent of Y, who is aged 12, and X, who is aged 10.
That de facto step-parent is Mr Bernati.
That application is designed to be the precursor to adoption proceedings under the laws of the Australian Capital Territory, which is sought to be conducted in in the Family Court of Australia pursuant to the cross-vesting scheme.
The application for leave to commence such proceedings is taking place today without involvement of the Father of the children, Mr Vaulks. Earlier today I found that he had been appropriately served with documents placing him on notice of today's proceedings and he has not attended.
I am mindful of the objective contained within the Rules to deal with as many aspects of a case on one occasion as is practicable and also the operation of Division 12A which compels me to consider the impact on a child of proceedings. Those considerations push me to proceed to deal with the leave question today, having dealt with the service question earlier today.
It should be immediately recognised that what I am being asked to deal with is not at present an order for adoption, but rather is leave for adoption…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brucedale and Anor and Vaulks

Details

AGLC: Brucedale and Anor and Vaulks [2020] FamCA 143
Case: [2020] FamCA 143
Decision Date: 4 March 2020

CaseChat Overview and Summary

In the matter of *Brucedale and Anor and Vaulks*, Gill J of the Family Court of Australia considered an application for leave to commence adoption proceedings. The applicants, Mr Bernati and another party (referred to as "Anor"), sought to adopt two children, X and Y, born in 2009 and 2007 respectively. Mr Bernati is the step-parent of X and Y.

The central legal issue before the Court was whether to grant leave pursuant to section 60G of the *Family Law Act 1975* (Cth) for the adoption proceedings to commence. Section 60G governs the circumstances in which a person may apply for an adoption order, particularly where the applicant is not a parent of the child.

Gill J granted leave to Mr Bernati, a prescribed adopting parent and step-parent of the children, to commence proceedings for the adoption of X and Y. The Court's decision was based on the specific provisions of section 60G of the *Family Law Act 1975* (Cth), which permits such applications under certain conditions. The order was made subject to its formal entry into the Court's records.

Orders

Orders of the court

Pursuant to s 60G of the Family Law Act 1975 (Cth) leave is granted to Mr Bernati, a prescribed adopting parent, being a step-parent of X, born … 2009, and Y, born … 2007 to commence proceedings for the adoption of X and Y.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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