Cassels & Malian
[2022] FedCFamC1F 289
•27 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Cassels & Malian [2022] FedCFamC1F 289
File number(s): BRC 16782 of 2021 Judgment of: HOGAN J Date of judgment: 27 April 2022 Catchwords: FAMILY LAW – ADOPTION – leave to commence proceedings for adoption – where the child’s biological father consents to the Application – leave granted – Second Applicant granted sole parental responsibility for the major long-term issue of the child’s name – leave granted to change the child’s name Legislation: Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 27 April 2022 Place: Brisbane First Applicant: Self-represented Second Applicant: Self-represented Respondent: No appearance ORDERS
BRC 16782 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CASSELS
First Applicant
MS MALIAN
Second Applicant
AND: MR DUNNE
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
27 APRIL 2022
IT IS ORDERED THAT:
1.Pursuant to s 60G(1) of the Family Law Act 1975 (Cth), leave is granted for the Applicants, Mr Cassels and Ms Malian, to commence proceedings for the adoption by Mr Cassels of X Dunne, born in 2005.
2.The Second Applicant has sole parental responsibility for the major long-term issue of the child’s name.
3.The Second Applicant has leave to change the child’s name to “X Cassels Malian”.
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
HOGAN J
There is today an Application, which was commenced in the Federal Circuit and Family Court of Australia (Division 2) by way of Initiating Application filed 17 December 2021, by the Applicants seeking an order pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Family Law Act”) granting them leave to commence proceedings for the adoption by Mr Cassels, the First Applicant, of the child X Dunne, who was born in 2005.
By order made 1 April 2022, Judicial Registrar Crawley transferred these proceedings pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to this Court, the Federal Circuit and Family Court of Australia (Division 1).
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 are that the child is at least five years of age and has not yet turned 17 years of age. In this case, that circumstance is satisfied.
I have already outlined my reasons for the decision to continue to proceed in the absence of the Respondent. In short form, I am satisfied that he was served with the Application and its accompanying supporting material on 6 February 2022. It appears from reference to orders previously made in this proceeding that Mr Dunne appeared on his own behalf at Directions Hearings held on 14 February 2022 and 28 March 2022, at which time orders were made for him to file and serve any affidavit or supporting material on which he sought to rely in his response to the Application.
As I have already outlined, a jointly signed Minute of Consent Order was filed in the Court on 17 March 2022 – by this Mr Dunne signified his consent to the making of an order granting leave to commence adoption proceedings and also his consent in relation to the change of X’s name as proposed by her mother and Mr Cassels. It is clear, also, that Mr Dunne filed an affidavit on 31 March 2022. As I have already said, that affidavit contains his evidence outlining his consent for the commencement of proceedings for the adoption by Mr Cassels of X.
It is against those circumstances, briefly outlined, that I turn to consideration of the Application itself.
The evidence suggests that, in 2012, Ms Malian and Mr Dunne entered into a set of parenting orders by consent. Those orders apparently saw X live with her mother and provided for her to spend two nights each alternate weekend and half of the school holiday periods with Mr Dunne. The evidence before me suggests that, despite the terms of those parenting orders, Mr Dunne did not take up the opportunity to spend time with X during school holiday periods. The evidence also suggests that, over the period of the last four years or so, he has reduced the amount of time he has spent with X such that it has occurred more recently on only a few occasions each year for dinner.
I accept, on the evidence before me, that that circumstance has arisen, in a sense, contrary to X’s attempts to maintain a relationship with Mr Dunne. I accept, on the evidence before me, that there are no ongoing cases in relation to her parenting arrangements in any other jurisdiction. I also accept that there are no orders relating to domestic violence; that there is no current protection order in force between Mr Cassels and Ms Malian and that, on the evidence before me, there has never been such an order.
As I have already remarked, s 92 of the Adoption Act 2009 (Qld) provides that a number of matters must be satisfied before a person is able effectively to apply to the Chief Executive to arrange an adoption of a child. Included within the matters prescribed in s 92, in particular, at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act – hence this 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 seems to me to be 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 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 consequences outlined in the sections particularised in s 60G of the Family Law Act – only an order for adoption, if made by an appropriate State court, has that effect.
However, given that 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 (including 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, any Court order or no order at all) it is apparent that this Court ought not make an order granting leave 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, whether granting leave to commence proceedings is in X’s best interests, I must give consideration to the familiar “best interests” considerations prescribed by s 60CC of the Family Law Act. However, as is made clear by authority 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 determination and deliberations during my assessment of the evidence relied upon – being evidence that I have had the opportunity to consider prior to commencing the hearing of this Application this morning.
[1] (2015) FLC 93-637.
It is clear that Mr Cassels falls within the definition of being X’s step-parent. The evidence is to the effect that he and Ms Malian commenced cohabitation in 2017, at which time X was eight years of age. Their family comprises other children: Y who is 12, and Z who is 10. The five of them constitute the family unit that lives together. It appears to me, on the evidence before me, that it is clear that, at least since the time of cohabitation, Mr Cassels has taken up and participated and assisted in X’s parenting. It is easy to infer that, since their cohabitation, he has assisted Ms Malian in discharging all of the obligations that are associated with being a parent to a child.
I do not intend to go into particular detail. It is clear, it seems to me, on the evidence, that it is much more likely than not that, from the time they started to live together, Ms Malian and Mr Cassels approached the parenting of X in a joint manner and in a way that is supportive of each other. It is also much more likely than not that each have contributed financially to the support of their family unit as they have constituted it; and that they have continued in their support of all who constitute that family unit – that, of course, includes X.
The evidence suggests that Mr Dunne has previously been assessed to pay child support and, also, that there is an amount outstanding, although there appears to be some difference in the evidence as to the quantum of that amount. It is unnecessary to resolve such difference for the determination of this Application this morning.
It is clear, I think, on the evidence before me that Mr Dunne has not really played a role that could be regarded as being active in X’s life from no later than 2017 onwards. As I have already remarked twice, his position is to consent to the application for leave to commence proceedings for X’s adoption by Mr Cassels.
I accept the evidence given by Ms Malian and Mr Cassels about Mr Dunne’s involvement in X’s life and also about Mr Cassels’s involvement in her life. I accept, also, that Ms Malian has approached the issue of X’s adoption with X on a number of occasions. Her evidence is to the effect that X is a child of some maturity and has considered the consequences for her of an adoption order ultimately being made.
I accept the evidence to the effect that X has expressed over at least the last two years, on a number of occasions, her desire to change her surname; that she has previously asked Mr Dunne to consent to that and, I infer, to do the necessary practical steps that need to be done to cause such a change to occur. On the evidence before me, he has failed to respond to that request and he has not done anything to cause her desire or wish to be put into effect. This is, of course, relevant to the aspect of the Application this morning for an order permitting the change of X’s name.
I am satisfied that it is much more likely than not that, from X’s perspective, Mr Cassels has stepped into the role of being her father since the time of his cohabitation with her mother and her. I accept, by his actions in bringing this Application and seeking an order for leave to commence proceedings for adoption, that he is committed to loving and supporting X always. I conclude, therefore, that it is much more likely than not that bringing the Application for leave to adopt is a clear manifestation of Mr Cassels’s commitment to X; it is also a clear manifestation of his appreciation of what it will mean in terms of responsibility, should an order for adoption ultimately be made.
I consider it open on the evidence before me to infer that it is much more likely than not that X will gain significant emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made.
I am, therefore, easily persuaded that the commencement of proceedings seeking the making of an order for adoption is something that is in X’s best interests.
I turn now to some short Reasons to support the making of the other orders I intend to make this morning. One of those is to accord to Ms Malian sole parental responsibility for the major long-term issue of X’s name; the second is to grant her leave to change X’s name to “X Cassels Malian”. I consider that those two orders are appropriate for the following reasons.
As I have already remarked, Mr Dunne consents to the change to X’s name that is proposed. It seems appropriate, in order to facilitate that change being made so as to reflect what the evidence reveals is X’s wish for the same, to make an order according to Ms Malian sole parental responsibility for the major long-term issue of X’s name. In that way, the Court hopes to facilitate the practical implementation of X’s wish and to assist in the application that needs to be made to the Queensland authority (Births, Deaths and Marriages) to have that agency change X’s name to reflect her wishes.
I am hopeful that an order that accords sole parental responsibility for that particular major long-term issue and an order that specifically provides for leave to change X’s name to that included on the order will be sufficient to satisfy the requirements of the authority and therefore enable the implementation of a change of her name – which is something which, on the evidence, X seeks.
For those short reasons, then, I make orders in these terms.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 27 April 2022
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