Brucedale & Anor and Vaulks (No 4)

[2020] FamCA 651

FAMILY COURT OF AUSTRALIA

BRUCEDALE AND ANOR & VAULKS (NO. 4) [2020] FamCA 651

FAMILY LAW – CHILDREN – ADOPTION – whether adoption order should be made in favour of step-parent – best interests of the children.

Adoption Act 1993 (ACT) ss 5, 14, 39F, 45
Family Law Act 1975 (Cth) s 65J
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT)

Re An adoption of D (2008) 39 Fam LR 345

1^st APPLICANT: Ms Brucedale

2^nd APPLICANT: Mr Bernati

RESPONDENT: Mr Vaulks

FILE NUMBER: CAC 2216 of 2019

DATE DELIVERED: 10 August 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 17 July 2020

REPRESENTATION

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

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to s 39F of the Adoption Act 1993 (ACT), an adoption order is made for X, born … 2009, and Y, born … 2007 (the children), in favour of Mr Bernati, and he is now a parent of the children.

IT IS NOTED:

1. It is noted that this order is made with the consent of Ms Brucedale, the 1^st Applicant and Mother of the children.

2. The children remain the children of Ms Brucedale.

3. The children are no longer the children of Mr Vaulks.

4. All previous parenting orders relating to the children cease to be in force by virtue of s 65J of the Family Law Act 1975 (Cth).

5. Pursuant to s 60 of the Adoption Act 1993 (ACT) no one can inspect the Court file, in relation to the adoption proceedings, without leave of a judge.

IT IS FURTHER ORDERED THAT

1. The Initiating Application filed 31 October 2019 is otherwise dismissed.

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

REASONS FOR JUDGMENT

1. Mr Bernati and Ms Brucedale (the Applicants) filed an Initiating Application on 31 October 2019 seeking the adoption of the children, X, born in 2009, and Y, born in 2007 (the children).  Ms Brucedale is the Mother of the two children.  The application seeks that Mr Bernati, the children’s stepfather, adopt the children.  The Father of the children is Mr Vaulks.

2. The Applicants sought to change the surname of the children, that the matter be heard under the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) and the consent of the children’s biological father, Mr Vaulks, be dispensed with. Alternative to the adoption being granted, they sought that final orders, made by consent in the Federal Circuit Court on 22 June 2017, be discharged and that the Applicants have sole parental responsibility for the children, and that the children live with them and spend no time with Mr Vaulks.

3. The litigation history of the matter is set out in the judgments that relate to the granting of leave to commence adoption proceedings to Mr Bernati, as a step-parent, and then the judgment dispensing with the requirement for the consent of Mr Vaulks. 

4. It should be recognised that, although Mr Vaulks signalled his opposition to the making of adoption orders when contacted by the Director-General for the preparation of a report into the proposed adoption, he has not participated in the proceedings.  This lack of participation occurs in the context that he has been served with documents and orders throughout the process, identifying when the matter is next to be dealt with so that he might participate should he choose to.  The most recent example of this is that he was placed on notice that the adoption application was to be considered on the basis of submissions received from the Applicants and the Director-General, and that he could seek the relisting of the matter in order for him to be heard by contacting the Registrar, within 21 days of 17 July 2020.

5. Mr Vaulks has again not availed himself of the opportunity to address the Court as to his position in relation to the adoption.

6. Prerequisites for adoption are set out at s 14 of the Adoption Act 1993 (ACT) (the Act), requiring Mr Bernati to be on the Register of suitable people (he is), and to have, as a step-parent, obtained the leave of this court to apply for the adoption. He has obtained such leave.

7. Having dealt with the issue of consent, the substantive application for adoption falls to be determined by reference to the matters contained at s 39F(1)(c) and (2) of the Act. They are as follows:

   (1)The court must not make an adoption order for a child or young person unless—

   (a)      each consent required under division 3.3 has been given; and

   (b)the period within which each required consent may be revoked has expired without the consent having been revoked; and

   (c)after considering the report or reports given to it under section 39D (Report on proposed adoption) or section 57A (Report on child for intercountry adoption) and any other evidence, the court considers that—

   (i)each applicant is of good reputation and able to fulfil the responsibility of the parent of a child or young person (including protecting a child’s or young person’s physical and emotional well being); and

   (ii)each applicant is suitable to adopt the particular child or young person having regard to—

   (A)the applicant’s age, education and attitude to adoption; and

   (B)the applicant’s physical, mental and emotional health, particularly as it impacts on capacity to nurture the child or young person; and

   (C)     any other relevant consideration; and

   (iii)the adoption is in the best interests of the child or young person.

   (2)In deciding whether or not to make an adoption order, the court must have regard to—

   (a)the views expressed by the child or young person in the consultation required under section 39E (Consultation with child or young person before adoption order made); and

   (b)any preferences expressed in an adoption plan given to the court as part of a report required under section 39D (Report on proposed adoption).

8. Those matters are to be considered in the light of s 5 of the Act which identifies the children’s best interests as the paramount consideration, and sets out matters that must be taken into account in determining that best interest, as follows:

   (1)A person making a decision under this Act in relation to a child or young person, must regard the best interests of the child or young person as the paramount consideration.

   (2)In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:

   (a)the likely effect of the decision on the life course of the child or young person;

   (b)the child’s or young person’s age, level of understanding, level of maturity, gender, and personal characteristics;

   (c)the child’s or young person’s physical, emotional and educational needs;

   (d)      the views expressed by the child or young person;

   (e) the relationship the child or young person has with the parents, any siblings and any other relatives;

   (f)the relationship the child or young person has with the adoptive parents;

   (g) the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs;

   (h)the alternatives to adoption for the child or young person to secure permanent family arrangements.

9. In considering those matters, the following material has been identified by the applicants and the Director-General:

   a)Applicants’ Initiating Application filed 31 October 2019

   b)Applicants’ Application in a Case filed 1 May 2020;    

   c)Affidavit of Mr Bernati filed 1 May 2020;

   d)Affidavit of Mr Bernati filed 31 October 2019

   e)Affidavit of Mr G affirmed 7 July 2020

   f)Affidavit of Ms J affirmed 7 July 2020

   g)Affidavit of Ms Brucedale filed 1 May 2020;

   h)Affidavit of Ms Brucedale filed 31 October 2019;

   i)Affidavit verifying Birth Certificate of Y dated 25 October 2019;

   j)Affidavit verifying Birth Certificate of X dated 25 October 2019;

   k)Minute of Proposed Orders;

   l)Amended Outline of Argument filed 13 May 2020;

   m)Orders and Reasons for Judgement dated 30 June 2020;

   n)Affidavit of Service filed 1 July 2020;

   o)Correspondence from Child and Youth Protection Services dated 4 November 2019;

   p)Applicants’ Amended Outline of Argument filed 13 May 2020;

   q)Adoption Regulations 1993 – Form 2 dated 25 October 2019;

   r)Affidavit of Mr G filed 31 October 2019

   s)Affidavit of Mr G filed 31 October 2019

   t)Director-General’s Report prepared by Ms K in accordance with s 39D of the Adoption Act on 8 April 2020; and

   u)Director-General’s Written Submissions filed 25 May 2020.

10. The report prepared by the Director-General (the Report) addresses the consultation requirement set out at s 39E of the Act.  The Report shows that the children have been given the appropriate information about adoption, had the opportunity to freely express their views, with, to the extent necessary, assistance to do so.  No indication was given that counselling was necessary.

11. The Report supports the conclusion that Mr Bernati is of good reputation,

12. Further, the parenting arrangements that have been in place, where Mr Bernati has, alongside the Mother, taken responsibility for loving and raising the children, indicate that he is able to fulfil the responsibilities of a parent. The Report demonstrated his involvement in, and insight regarding the children’s development.  This indicates that Mr Bernati is capable of protecting the children’s physical and emotional well being.

13. Mr Bernati is also suitable to adopt the children.  He is in good health, of a comparable age to the Mother, and has education sufficient to provide physical and emotional support to the children.  He seeks to incorporate the children legally into the family that he has formed with the Mother, noting that the children already form as much a part of that family as they are able to, absent the legal status of adoption.  He says, and it is supported by the interview of the children, that the desire for the adoption comes at first instance from the children, who displayed a good understanding of the implications of adoption. This desire to incorporate the children as much as possible into a loving family unit displays a suitable attitude to adoption.

14. It remains to be determined whether the adoption is in the best interests of each of the children, by reference to the matters set out at s 5(2) of the Act.

The likely effect of the decision on the life course of the child or young person

1. The children currently live on a permanent basis with the Mother and the Applicant.  They function as a single family, with the children having relationships with members of the Applicant’s extended family.  The children both express concerns regarding potential contact with their Father, and both express the desire to be one name and one family with their siblings and the Applicant.  The essential difference in life course is of greater certainty in respect of the current family arrangements.

The child’s or young person’s age, level of understanding, level of maturity, gender and personal characteristics

1. Y is 12, X almost 11.  Each displayed a good understanding of the effects of adoption, in that Mr Bernati would become their legal parent.  X says that the adoption was his idea.  The idea has been enthusiastically embraced by Y.  Y expresses that the adoption would result in their family being a “proper family.”  Each demonstrated a sense of connection to Mr Bernati.  Neither was identified as lacking in age appropriate maturity, or of having personal characteristics that point away from adoption.

The child’s or young person’s physical, emotional and educational needs

1. The physical, emotional and educational needs were identified by the Mother and Mr Bernati, demonstrating the particular characteristics of each of the children and that there are appropriate arrangements in place for their development, both educationally and relationally.  Mr Bernati displayed an understanding of the character of each of the children and identified parenting tailored to their individual personalities.

The views expressed by the child or young person

1. These are identified above.

The relationship the child or young person has with the parents, any siblings and other relatives

1. The children have intact relationships with the maternal family.  They no longer have relationships with their Father or the broader paternal family. They are a part of a family with their siblings born to their Mother and Mr Bernati.

The relationship the child or young person has with the adoptive parents

1. Each of the children has a strong relationship with Mr Bernati who already functions as a parent to each of the children.

The suitability and capacity of the adoptive parents to meet the child’s or young person’s needs

1. This matter has been addressed above

The alternatives to adoption for the child or young person to secure permanent family arrangements

1. An alternative to adoption is the pursuit of orders in the Family Court of Australia for parental responsibility to be vested in the Mother and Mr Bernati.

Conclusion

1. As has been observed by Refshauge J in Re An adoption of D[1], the consideration of an adoption application casts a grave responsibility upon the Court.  An order for adoption carries with it long terms consequences, as it, as a matter of law, changes a child’s parents.  This involves the cutting off of a parent, and all that goes with a parent in terms of extended family, with potential consequences ins how a child develops the child’s understanding of place in the world.

   [1]Re An adoption of D (2008) 39 Fam LR 345.

2. At the same time, adoption carries with it the resolution of a relationship into a parent child relationship.  It cements a relationship with legal status where, in a case such as here, the relationship already carries the practical hallmarks of a parent child relationship.  Such a change carries with it, at least for these children, a sense of security in the relationship with Mr Bernati, being a security he cannot provide other than by the support of an adoption order.

3. If an adoption order is made here, it cements the good arrangements and relationships that are in place now and that bode well for the development of both Y and X.

4. In this case, importantly, an adoption order reflects the strong views of Y and X, being views formed in the understanding of what it is that they seek, being the formal status of being what they have terms as “Bernati boys.”

5. It is in their interests that an adoption order be made.

Names

1. The application seeks a change to Y and X’s surname to Bernati.  While the above considerations point to such a change flowing as in their best interests, s 45(4) and (5) of the Act require a report to be provided on that issue by the Director-General, and for the Court to take such into account. Such a report has not been prepared, and so such an order is not available.

2. It should be noted that this does not prevent an application being made for the change of name after the making of the order for adoption, in accordance with a law of the Territory, per s 45(7) of the Act.

Other matters

1. The adoption order renders the application under the Family Law Act otiose and it will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 August 2020

Associate: 

Date:  10 August 2020