Denforth & Sable

[2023] FedCFamC1F 903

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Denforth & Sable [2023] FedCFamC1F 903

File number(s):

BRC 9518 of 2023

Judgment of:

CAREW J

Date of judgment:

20 October 2023

Catchwords:

FAMILY LAW – LEAVE TO COMMENCE ADOPTION PROCEEDINGS – Where the applicants are the mother and step-father and they seek leave to commence proceedings in relation to an 11 year old child – Where the respondent biological father does not oppose the adoption – Where leave is granted  

Legislation:

Family Law Act 1975 (Cth) ss 4(1), 60CB, 60CG, 60F(4)(a), 60G, 60HA(3)(a), 61E, 65J

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 9(1)(a), 10(1)(a), 25

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Sch 2 Item 29.2A

Adoption Act 2009 (Qld) s 92

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

Number of paragraphs:

22

Date of hearing:

20 October 2023

Place:

Brisbane

Solicitor for the Applicants:

Litigants in person

Solicitor for the Respondent:

No appearance by or on behalf of the respondent

ORDER

BRC 9518 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DENFORTH
First Applicant

MR RIDDLE
Second Applicant

AND:

MR SABLE
Respondent

ORDER MADE BY:	CAREW J
DATE OF ORDER:	20 OCTOBER 2023

THE COURT ORDERS THAT:

1.Pursuant to s 60G of the Family Law Act 1975 (Cth) Ms Denforth and Mr Riddle be granted leave to commence adoption proceedings in respect of the child, X born 2012.

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:

1. X was born in 2012 and is presently aged 11.  Her stepfather, Mr Riddle, wishes to adopt her.  Although the process of adoption occurs through the State system (in this case Queensland), a necessary first step is to seek leave to adopt from this Court.  X’s mother, Mr Denforth, is married to the child’s stepfather and as a joint applicant, consents to the proposed adoption.  X’s biological father, Mr Sable, also consents to the proposed adoption.

   APPLICABLE LEGAL PRINCIPLES

2. The application for leave to commence adoption proceedings is made pursuant to s 60G of the Family Law Act 1975 (Cth) (“FLA”) even though, as already noted, 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 2009 (Qld)).

3. 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) (formerly known as the Federal Circuit Court of Australia), a court of record, to this Court (formerly known as the Family Court of Australia), a superior court of record (see s 9(1)(a) and s 10(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”)). Since 1 September 2021, the proceedings can no longer be instituted in this Court, but because of a protocol between the Courts, such applications are generally transferred, such is the importance given to the jurisdiction relating to adoption.

4. 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.

5. Section 25 of the 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.

6. 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.”

7. 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”.

8. The application for leave to commence adoption proceedings was filed in the Federal Circuit and Family Court of Australia (Division 2) on 19 May 2023 and transferred to this Court by a Registrar pursuant to a delegated power to do so (see Item 29.2A to Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021) on 13 June 2023.

9. Accordingly, this Court has jurisdiction to determine the application.

10. In considering whether to grant leave, the Court must consider whether granting leave would be in the child’s best interests having regard to the effect of s 60F(4)(a) or s 60HA(3)(a), and of s 61E and s 65J of the FLA.

11. Section 60CB to 60CG deal with how a Court determines a child’s best interests.

12. 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”.

13. In Cahill & Fryar^[1] 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.

    [1] [2008] FamCA 1245.

14. 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 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),[2] it has been concluded that the application for leave to adopt must include both the stepparent 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.

    [2] Brock & Brock [2007] FamCA 1594; Tanner & Cape [2011] FamCA 665; Orr & Leach [2022] FedCFamC1F 217; cf Hanlon & Hanlon [2022] FedCFamC1F 435.

    DISPOSITION

15. Turning now to consider the relevant facts of this case. The biological father has never met X, nor has his family.  The biological father is currently engaged and has two children.  In his affidavit filed on 21 July 2023, the biological father indicates he is willing to surrender all parental rights and consent to the adoption of X by the stepfather. He believes this is in X’s best interests. 

16. The mother was born in 1988 and is currently 35 years old.

17. The stepfather was born in 1988 and is also 35 years old.

18. The mother and stepfather met in high school in 2001.  They lost contact until 2011, where they reconnected via social media.  The mother’s relationship with the biological father had broken down a couple of months earlier and it was only after their separation that she found out she was pregnant with X.  The stepfather indicated his willingness to support the mother during her pregnancy.  They commenced a relationship shortly after the birth of X and began living together in 2011.  They married in 2018.

19. The mother and stepfather have another child together, B, who is aged 6. X and B enjoy a close relationship as sisters and X is “always going out of her way to play with her [and] help her with homework”.

20. Neither X nor B know that the stepfather is not the biological father to X.  The stepfather has raised X as his own child from birth and X refers to him as “Dad”. The stepfather’s parents have also taken an active role in X’s life and will visit at least once a year. A number of the applicants’ extended family have filed affidavits in support of this application.

21. The biological father has not filed a Response but has participated in the proceedings by filing two affidavits, both indicating his consent to the adoption taking place.  In his second affidavit, filed 3 August 2023, the biological father expressed that he did not wish to attend today’s hearing, or be involved any further with the process, although he reiterated his full support in the application for the stepfather to adopt X.  Paragraph 7 of his affidavit states:

    I have never met [X], nor sought to meet her, and fully support the application for [Mr Riddle] to adopt [X]. I believe it is in her best interests…

    Please consider this my formal response that I would like the approval to be granted for [the stepfather] to adopt [X], as I will not be seeking advice from a Solicitor, nor filing in any further documentation with this regard to this matter. My full support is given, and I would like to close this chapter in my life, again I will not be attending any hearings for this case.

    I hereby make this Affidavit on my own free will and accord, without coercion.

22. I am satisfied that that leave to commence adoption proceedings should be granted and will so order.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated: 20 October 2023