Cross & Barrios
[2023] FedCFamC1F 663
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Cross & Barrios [2023] FedCFamC1F 663
File number(s): BRC 2420 of 2023 Judgment of: CAREW J Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – LEAVE TO COMMENCE ADOPTION PROCEEDINGS – Where the applicants are the step-father and mother and they seek leave to commence adoption proceedings in relation to a 10 year old child – Where the rules applying to overseas service are dispensed with – Where the respondent biological father has been informally served with the Application for Final Orders and affidavits of the applicants and has elected to take no part in the proceedings – Where the biological father consents to the application – Where the biological father has never met the child or communicated with her – Where leave is granted
FAMILY LAW – JURISDICTION – where the Court has jurisdiction
Legislation: Adoption Act 2009 (Qld) s 92
Family Law Act 1975 (Cth) ss 4(1), 60CB, 60CG, 60G, 60F(4)(a), 60HA(3)(a), 61E, 65J
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 9(1)(a), 10(1)(a), 25Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Sch 2, Item 29.2A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.31, 2.49
Cases cited: Brock & Brock [2007] FamCA 1594
Cahill & Fryar [2008] FamCA 1245
Hanlon & Hanlon [2022] FedCFamC1F 435
Orr & Leach [2022] FedCFamC1F 217
Tanner & Cape [2011] FamCA 665
Thomson & Barnes [2022] FedCFamC1F 504
Number of paragraphs: 31 Date of hearing: 11 August 2023 Place: Brisbane Solicitor for the Applicants: Phillips Family Law For the Respondent: Litigant in person, did not participate ORDER
BRC 2420 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CROSS
First Applicant
MS REYES
Second Applicant
AND: MR BARRIOS
Respondent
order made by:
CAREW J
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicants to make an oral application to dispense with the requirements of overseas service as set out in r 2.49 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the application of r 2.49 of the Rules is dispensed with.
3.Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Cross and Ms Reyes are granted leave to commence adoption proceedings in respect of the child, X born 2012.
4.The application in a proceeding filed 10 August 2023 is dismissed.
NOTATION:
A.The Court is satisfied that the respondent is aware of the Initiating Application filed 1 March 2023 and does not oppose leave to commence adoption proceedings being granted to the applicants.
B.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
C.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J.
Pursuant to the Adoption Act 2009 (Qld), a step-parent seeking to adopt a child, must first obtain leave from this Court to commence adoption proceedings. Such applications are one of the very few responsibilities undertaken by judges of this Court that generally elicit a sense of joy. That is because the parties and the child or children involved are usually happy and filled with hope.
In the current case, the applicants are Mr Cross and Ms Reyes and the child is X who is ten years old. Ms Reyes is the biological mother of X and Mr Cross is X’s step-father. X’s biological father, Mr Barrios, lives in Country B, and has not played any part in X’s life to date. He is said to be supportive of the proposed adoption.
APPLICABLE LEGAL PROVISIONS
The application for leave to commence adoption proceedings is made pursuant to s 60G of the Family Law Act 1975 (Cth) (“FLA”) even though the adoption proceedings themselves are determined under the law of Queensland, where the applicants live. Obtaining leave pursuant to the FLA is a prerequisite under s 92 of the Adoption Act.
Since 1 September 2021, the jurisdiction of this Court to determine an application for leave to commence adoption proceedings is dependent upon the proceedings being transferred from an inferior court, namely the Federal Circuit and Family Court of Australia (Division 2), a court of record, to this Court, a superior court of record.[1] Since 1 September 2021, proceedings of this type can no longer be instituted in this Court, but as a result of a protocol between the Courts, such applications are generally transferred, such is the importance given to the jurisdiction relating to adoption.
[1] See s 9(1)(a) and s 10(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”).
Section 60G of the FLA relevantly provides as follows:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), … may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
(2)In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.
Section 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) relevantly provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
A “family law or child support proceeding” is defined in s 7 of the FCFCOA Act and means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132.”
The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) relevantly includes “matters in respect of which proceedings may be instituted under the Family Law Act 1975”.
In the current case, the Initiating Application for leave to commence adoption proceedings was filed in the Federal Circuit and Family Court of Australia (Division 2) on 21 February 2023. On 30 March 2023 the Initiating Application was adjourned in chambers to 12 June 2023, to enable the applicants further time to obtain translated copies of the court material. The application was transferred to this Court by a Registrar pursuant to a delegated power to do so, on 30 June 2023.[2]
[2] See Item 29.2A to Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
Accordingly, this Court has jurisdiction to determine the application.
In considering whether or not to grant leave to commence adoption proceedings, I must consider whether granting leave would be in the child’s best interests having regard to the effect of s 60F(4)(a) (not relevant for present purposes) or s 60HA(3)(a) (not relevant for present purposes), and of s 61E and s 65J of the FLA.
Section 60CB to 60CG deal with how a Court determines a child’s best interests.
Pursuant to s 61E of the FLA, if a child is adopted and immediately before the adoption a person had parental responsibility, the person’s parental responsibility ends on the adoption “unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced”. Further, pursuant to s 65J, if a child is adopted and immediately before the adoption a parenting order was in force in relation to the child, the parenting order stops being in force on the adoption of the child “unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced”.
In Cahill & Fryar[3] Stickland J said at [13]:
The effect of section 61E of the Family Law Act is that if I grant leave and an adoption order is made, the parental responsibility of any person who had parental responsibility for the child immediately before the adoption ceases. That applies to both Mrs Cahill and Mr Fryar. Mr Fryar understands that that will be the effect of an ultimate adoption order. This is the issue that led me to raise with Mrs Cahill whether she wanted to become an applicant rather than a respondent, namely, that on that basis, if an adoption order is made in favour of both Mr and Mrs Cahill, then they will thereafter have parental responsibility for the child. In other words, although the effect of section 61E is that Mrs Cahill would nominally lose her parental responsibility for the child, upon the adoption, the effect of the adoption would be that she gets it back.
[3] [2008] FamCA 1245.
While it seems counterintuitive for the mother in this case to apply for leave to adopt her own child, it does seem that the effect of s 61E and s 65J would be to end her parental responsibility for the child if she is not an applicant and the adoption is later granted. In a number of previous decisions of this Court (save one),[4] it has been concluded that the application for leave to adopt must include both the step-parent and the biological parent who is married to or in a de facto relationship with the step-parent. In this context, I also note that the definition of a “prescribed adopting parent” in s 4(1) of the FLA contemplates a parent of the child being an applicant as well as the spouse or de facto spouse of a parent.
[4] See for example, Brock & Brock [2007] FamCA 1594; Tanner & Cape [2011] FamCA 665; Orr & Leach [2022] FedCFamC1F 217; Thomson & Barnes [2022] FedCFamC1F 504 cf Hanlon & Hanlon [2022] FedCFamC1F 435.
In Hanlon & Hanlon[5] (“Hanlon”) Gill J concluded that a plain reading of s 61E leads to a perverse result, and as such a biological parent was not a necessary applicant. While I do not necessarily disagree with the conclusion about perversity, the remedy in my view lies not in a contorted interpretation of the plain meaning of the section but with legislative amendment. I remain of the view that if the mother, in this case, is to retain parental responsibility after the adoption of the child, she should be an applicant. I am fortified in this view by the inclusion of ‘a parent of a child’ in the definition of a ‘prescribed adopting parent’, which I note is not referred to in Hanlon.
[5] [2022] FedCFamC1F 435.
As the applicant, Mr Cross, is an Australian citizen and the applicant, Ms Reyes, is a permanent resident of Australia, they are permitted to make an application to adopt pursuant to s 92 of the Adoption Act 2009 (Qld).
The biological father of the child lives in Country B, and accordingly service of the application is required to be undertaken in accordance with r 2.49 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). As Country B is a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil of Commercial Matters (“Hague Service Convention”), Part IIAB of the Family Law Regulations apply, unless the application of the rule is dispensed with pursuant to r 1.31. I am minded to do so given the following circumstances.
On 16 June 2022, Ms Reyes emailed Mr Barrios to inform him that her partner, Mr Cross, would like to adopt X. On 19 June 2022, Mr Barrios purportedly responded that he agreed with the adoption. On 5 August 2022, Ms Reyes requested Mr Barrios to send her his address so that she could send him the relevant documents and he responded with that information on 12 August 2022.
An affidavit by Belinda Jane Jeffrey filed 11 May 2023, deposes to having sent a copy of the Initiating Application and the affidavits of Ms Reyes and Mr Cross (translated) to Mr Barrios by email on 3 April 2023 and by post on 4 April 2023.
An acknowledgment of service (translated) was filed on 11 May 2023 purportedly signed by Mr Barrios on 2 May 2023.
Mr Barrios has also received notice of the applicants request to appear at this hearing electronically to which he consented. Mr Barrios also purportedly emailed his consent to the proposed order granting leave to commence adoption proceedings and this email has been marked exhibit 1 on the proceedings. I note that the signature on this document bears no resemblance to Mr Barrios’ signature on his passport (a copy of which was obtained by Ms Reyes when applying for the child’s visa). The signature on his passport does appear to be similar to the signature appearing on the acknowledgement of service purportedly signed by Mr Barrios. I am of course not determining any rights, as such, at this hearing.
In the circumstances I am prepared to dispense with the overseas service requirements set out in r 2.49 of the Rules. No doubt a more rigorous enquiry will be required to progress the adoption proceedings themselves.
DISCUSSION
Ms Reyes and Mr Cross commenced living together in a de facto relationship in Australia in 2017.
Mr Cross is 61 years of age and employed in his own business. He is an Australian citizen by birth. He has known and assisted in the care of the child since she was four years old.
Ms Reyes was born in 1974 and is 49 years of age. Ms Reyes currently holds a ‘Partner (subclass 801)’ Australian visa and is entitled to reside in Australia for an ‘indefinite’ period of time.
The child, X, was born in 2012 and is 10 years of age. The child has also been granted a ‘Partner (Subclass 801) visa’ as a dependent of the mother.
Ms Reyes and Mr Barrios were never in a relationship and saw each other on only a few occasions. It seems Mr Barrios was already in a relationship when the child was conceived, and already had a child with his partner.
A final custody order was made in Ms Reyes’ favour in 2013 by the Country B Court. The order is expressed to be a “non-litigious matter” providing for a “court settlement” that entrusted custody and care of the child to Ms Reyes and obliging Mr Barrios to pay maintenance monthly. Contact between the father and daughter was to be by agreement of both parents. It is unclear whether Mr Barrios has paid the maintenance but according to Ms Reyes, Mr Barrios has never requested contact with the child.
Mr Cross and the child appear to have a close and loving relationship. He and the child enjoy spending time together on “weekly walks” and watching football and movies together. The child calls Mr Cross, ‘Dad’ (or a variation thereof) and he is very much involved in the child’s day to day care as well as long term parenting decisions such as health and education. The family enjoy travelling and holidaying together. They live comfortably in a six bedroom home owned by Mr Cross. Mr Cross supported the mother and the child financially for the first two years after their arrival in Australia in 2017. Ms Reyes was precluded by the conditions of her visa from engaging in employment for two years. She is now employed and contributes financially.
The child appears to be well cared for by her mother and step-father and they present as a happy cohesive family unit. I am satisfied that leave to commence adoption proceedings is in the child’s best interests and should be granted.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 11 August 2023
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