Capello & Logan
[2021] FamCA 7
•22 January 2021
FAMILY COURT OF AUSTRALIA
Capello & Logan [2021] FamCA 7
File number(s): BRC 15094 of 2020 Judgment of: HOGAN J Date of judgment: 22 January 2021 Catchwords: FAMILY LAW – ADOPTION – Leave to commence proceedings – step-parent adoption – application granted Legislation: Family Law Act 1975 (Cth)
Adoption Act 2009 (Qld)
Cases cited: Banks & Banks (2015) FLC 93-637 Number of paragraphs: 25 Date of hearing: 22 January 2021 Place: Brisbane Solicitor for the First and Second Applicants: Michael Lynch Family Lawyer Respondent: No appearance ORDERS
BRC 15094 of 2020 BETWEEN: MR CAPELLO
First ApplicantMS CAPELLO
Second ApplicantAND: MR LOGAN
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
22 JANUARY 2021
THE COURT ORDERS THAT:
1.Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the child, X born … 2010, by Mr Capello.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Capello & Logan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Hogan J
I have today an Application which was commenced by Initiating Application filed 27 October 2020. By that Application, an order is sought for leave, pursuant to s 60G of the Family Law Act 1975 (Cth), to commence proceedings for the adoption of 10 year old X who was born in 2010.
I accept that there is evidence before the Court outlining the Respondent’s attitude to the Application currently before this Court. I accept that X’s mother emailed the Respondent on 13 November 2017 and on 12 June 2019 to raise with him whether he would consent to Mr Capello adopting X. I accept that the Respondent replied on 21 November 2017 and on 12 June 2019 to advise that he would consent to the process of adoption, and that he also commented in his response that he had no concerns of or about the adoption.
I note for the record that Mr Logan, the Respondent, has not filed any material in response to the Application. I also note for the record the existence of the Acknowledgement of Service, filed 3 November 2020, which establishes that the Respondent was served by hand with the Initiating Application, affidavits of the Applicants sworn/affirmed on 26 October 2020 filed 27 October 2020 and the tender bundle of documents which accompanies the same.
I accept the evidence given by Ms B in her affidavit sealed 3 December 2020 to the effect that, as required by Order 2 of the Order made on 12 November 2020 by Registrar Coutts, she caused a letter to be sent to the Respondent on 23 November 2020 to his last known mailing address to advise that the matter has been listed for hearing today. I accept that, as at the swearing of her affidavit, Ms B had not received any response from the Respondent.
I am satisfied that the Respondent is aware of the Application: had I not been so satisfied, I would not have commenced the delivery of these Reasons to determine it.
The Initiating Application informs that there are no ongoing cases in relation to X in any other jurisdiction; no orders relating to domestic violence; no protection order currently in force; and no orders of that nature as between the Applicants. The Initiating Application also informs that there are no existing parenting orders in force in relation to X.
Section 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of a stated child only if a number of matters are satisfied. Included within these matters, in particular at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth) – hence this current Application.
In determining whether to grant leave for a party or parties to commence adoption proceedings, this Court must be satisfied of a number of things. One is that the proceedings are by a prescribed adopting parent, as that term is defined. In this case, that condition is clearly satisfied. This Court must also consider whether granting leave will be in X’s best interests, having regard to the effects of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth), where those sections are applicable in any particular case.
The decision facing this Court this morning is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of X or not. The granting of leave to commence proceedings for adoption does not have the consequence outlined in the sections particularised in s 60G of the Family Law Act 1975 (Cth), – only an order for adoption, if made by an appropriate State court, has that effect.
However, s 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters. Included in these is that an order for adoption by a step-parent would better promote X’s well-being and best interests than an order under the Family Law Act 1975 (Cth), any Court order or no order at all. It is therefore apparent that this Court ought not make an order granting leave to an Applicant to permit proceedings in a State court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.
I record here my view that, in this case, I am satisfied that the mandatory legislative prerequisites are established on the evidence before me.
In determining, as I must under s 60G(2) of the Family Law Act 1975 (Cth), whether granting leave to commence proceedings is in X’s best interests, I must give consideration to the familiar “best interests” considerations, where they are relevant, as prescribed by s 60CC of the Family Law Act 1975 (Cth).
However, as is made clear by authorities such as Banks & Banks[1], any failure to mention specifically any particular consideration in these Reasons (delivered this morning orally) does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon – being evidence that, as I have informed the Applicants, I have had the opportunity to read prior to commencing the hearing of the Application.
[1](2015) FLC 93-637.
It is appropriate that I record that Mr Capello is X’s step-father. He and X’s mother commenced cohabitation in or about 2011/2012, at which time X was approximately one year old. I accept that, on 10 September 2013, X’s surname was changed from Logan to Capello and that this change occurred with her biological father’s consent. I accept that, when the Applicants married in 2014, Mr Capello spoke about how he loved X as if she was his biological child.
I accept that the Applicants have a child together: Y, who was born in 2018 and who has not long turned two years of age.
It appears to me, on the evidence before me, that it is clear that, since at least the time of cohabitation, Mr Capello has taken up, and assisted X’s mother to discharge, all of the obligations that are associated with being a parent.
I do not intend to go into particularly detailed reasoning about the relationship between X’s biological parents, as it is unnecessary given the Respondent’s attitude to an order finalising the Application before this Court.
I accept the Applicant’s evidence that she and X’s biological father separated when X was about one year of age; I also accept that, following their separation, X would spend one night per week with the Respondent until the end of 2012, at which time the Respondent stopped spending time or communicating with X. I accept that X has not spent time with, or communicated with, the Respondent since this time – that is, for approximately the last eight years. I accept that when the mother took X to the Respondent’s father’s funeral in around 2013/2014, the Respondent ignored her and X.
I accept Mr Capello’s evidence that the Respondent has not paid child support through the Child Support Agency in relation to X’s support and, thus, has not contributed to her financial support for eight years.
I am therefore satisfied that, in reality, the Respondent has not played any active role in X’s life for at least the past eight years.
In contrast, I accept the evidence given by the Applicants about the role that Mr Capello has played in X’s life. I accept that he has provided to X, and X’s mother, emotional and financial support since cohabitation. I accept, on the evidence before me, that, from that time, Mr Capello has provided to X all the support that any parent provides to a child in that parent’s care. I accept that X has established a relationship with Mr Capello’s parents and sister and that she regards them as part of her family.
In summary, I accept therefore that Mr Capello has fulfilled the role of being X’s father and has discharged all of the duties and obligations of being her parent.
I am easily satisfied on the evidence before me that, from X’s perspective, Mr Capello is her father for all intents and purposes. I also accept that Mr Capello is committed to loving and supporting X always, and I conclude that the Application for adoption that will be commenced upon the grant of leave is simply a clear manifestation of that commitment.
On the evidence before me, I consider it open to infer that it is much more likely than not that X, her mother, Mr Capello and, I suspect, Y in time, will also gain significant additional emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made.
For these reasons, delivered orally today, I conclude that the commencement of proceedings seeking adoption is something that is in X’s best interests.
I certify that the preceding twenty-six (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 22 January 2021
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Family Law
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