Cassels & Malian

[2023] FedCFamC1F 1075

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cassels & Malian [2023] FedCFamC1F 1075

File number(s):

BRC 9290 of 2023

Judgment of:

BAUMANN J

Date of judgment:

20 December 2023 

Catchwords:

FAMILY LAW – ADOPTION – Leave to make an application pursuant to the Adoption Act 2009 (Qld)

Legislation:

Family Law Act 1975 (Cth)

Adoption Act 2009 (Qld)

Division:

Division 1 First Instance

Number of paragraphs:

7

Date of hearing:

5 December 2023

Place:

Brisbane

Solicitor for the First Applicant:

Litigant in Person

Solicitor for the Second Applicant:

Litigant in Person

Solicitor for the Respondent:

Journey Family Lawyers

ORDERS

BRC9290 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CASSELS
First Applicant

MS MALIAN
Second Applicant

AND:

MR CURIE
Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	5 DECEMBER 2023

THE COURT ORDERS BY CONSENT:

1.That pursuant to s 60G(1) of the Family Law Act 1975 (Cth), the First Applicant be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the children, W born 2007, Y born 2009 and Z born 2012 (“the children”).

2.That leave is granted for the Second Applicant mother to seek an order for parental responsibility for the children.

3.That the Second Applicant mother have sole parental responsibility for major long-term decisions in respect of the children prior to the adoption proceedings being finalised.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cassels & Malian has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)

BAUMANN J:

1. The Court is seized of an application that was filed on 17 July 2023 by, effectively, Mr Cassels, who is currently aged 37 years, who is the partner of the biological mother, Ms Malian, relating to three children:  W, who is now aged 16 years, Y, who is now aged 14 years, and Z, who is now aged 11 years.  The application seeks leave as required under the Family Law Act1975 (Cth) (“the Act”) to make an application to adopt under State legislation in respect of the three children. I received a document which Ms Chapple, Solicitor on the record for the biological father, Mr Curie who currently lives in Country B that, confirms he is aware of the Application, and by, which Mr Curie is said to consent to leave being granted.

2. It is my view, as a matter of law, the parties cannot consent, but rather I take Mr Curie’s signature to this document as a clear indication that he does not oppose the exercise of my discretion that leave be granted. I also note that under those consent orders, the biological father does consent to what seems to be a new application, namely, that the mother is to have “full parental responsibility” for the children. Of course, those orders are not in terms of the way the Act is worded, but I shall deal with that matter shortly.

3. It is a curious factor of adoption practice in this country that before a person can seek to adopt a child, which is a function of State legislation, they must be granted leave from the Family Court of Australia, now known as the Federal Circuit and Family Court of Australia (Division 1).

4. Such leave will only be granted if the Court is satisfied that to give such leave is in the best interests of the children.  The evidence I have not tested or challenged is that the applicant, Mr Cassels, and the biological mother, Ms Malian, had been in a relationship for over nine years.  There is a report prepared already by a Ms C, who is a person described as a Queensland Government adoption officer, who prepared an assessment in this matter.  It is dated 28 January 2023.  I have read that assessment.  That assessment supports the conclusion I have reached that it is in the best interests of the children, W, Y and Z, that leave be granted.  I also note, interestingly, that another child of the mother, X, has already been the subject of adoption by Mr Cassels.

5. I take it that X and the other three children which I am dealing with are, effectively, a sibship group. For the reasons given, I am satisfied that leave should be given pursuant to section 60G(1) of the Act to Mr Cassels to commence adoption proceedings for the children, W, Y and Z.

6. There now seems to be a further application which the mother seeks, namely, that she have “full parental responsibility” of the children. The Act talks about parental responsibility for major long-term issues. Clearly, day-to-day responsibility is, as a matter of normal practice, exercised by the person who has the care of the children.

7. I am told that the biological father resides in Country B and has little input and/or contact with the children.  He consents to the mother having parental responsibility.  In the circumstances, I propose to make an order that leave be given to the applicant mother, Ms Malian, to seek an order for parental responsibility, and the Court orders by consent that the mother have parental responsibility for major long-term decisions in respect of the children, W, Y and Z.  It is not necessary to make that order conditional upon or ceasing when adoption occurs.  That is a by-product of adoption if it is granted by the State legislation.  I will cause these reasons to be published in the usual way.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       20 December 2023