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 of 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

1. 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

1. 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. 

2. That de facto step-parent is Mr Bernati.

3. 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. 

4. 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.

5. 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.

6. 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 proceedings to be commenced.  That is, leave for proceedings to commence in which an order for adoption will be considered.  That means that what is being pursued is leave to commence proceedings under ACT law for an adoption order which will sever ties between Y and X and their Father and establish the legal status of a parent-child on their step-father Mr Bernati.  I note that failure to grant leave will mean that if adoption is pursued it will not have the above fundamental consequences.  That is, the adoption will be denuded of a significant part of its effect.

7. That application for leave is to be considered on the basis of what is in the best interests of Y and X.  Their best interests are to be considered in the light of s 60CC of the Act.  That is, is it in their best interests to open the gateway to consideration of whether it is also in their best interest to make an adoption order.[1] 

   [1] See the discussion of this by Justice Murphy in Poulter and Anor & Lenton [2012] 46 Fam LR 623

What then are the particular considerations? 

1. The primary considerations look to the benefits of meaningful relationship.  Here, relevantly, it would be with Mr Vaulks.  At present Y and X do not appear to be enjoying any benefits of meaningful relationship.  He is missing from their lives.  If an adoption order was to take place it would open the door to Y and X having the benefit of a father in their lives and the benefits that might flow from that.

2. The second primary consideration relates to the question of risk and no risk is identified at present, noting that neither Y nor X are spending any time with their Father and have not done so for a considerable period, not since 2018. 

3. The views of Y and X were seen to be important in this case, particularly given their age.  They are reported as saying “Can we use the name Mr Bernati as [Mr Bernati] is our real Dad.”  I would note that [Mr Bernati] is clearly a reference to Mr Bernati.  That is in sharp distinction to them expressing to their Mother that they do not want to be connected to the Vaulks family, that they do not want anything to do with their Father, that they regard their Father as mean, that they do not trust him and at least one of them considers that their Father does not love him.  Again, in contrast to that position they have expressed to their Mother that they desire to be “Mr Bernati boys”.  It should be also noted that in considering the nature of a relationship between Y, X and Mr Bernati and the balance of the family, along with the capacity of Mr Bernati to provide for emotional and financial support of the children that it should be observed that their Mother describes them as feeling security in their relationship with Mr Bernati, that he has been committed to supporting the children, including financially supporting the children, that Mr Bernati has been committed to the support of the Mother as a mother and that Mr Bernati and the Mother have engaged in joint decision-making in raising the boys.  Also in looking at the nature of relationships between Y and X and the balance of the family it should be observed that neither Y or X wish to use the word “step” when describing their two younger siblings who have been born to Mr Bernati and the Mother.

4. A consideration of all of those matters which can be taken to be the dominant of the s 60CC considerations points toward leave being granted to allow full consideration of the merits of an adoption, being an adoption with the full effects of adoption.  It may be concluded that it is in the best interests of the children to grant leave.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 March 2020.

Associate

Date:  11 March 2020