Dunstan & Dunstan

[2021] FamCA 239

FAMILY COURT OF AUSTRALIA

Dunstan & Dunstan [2021] FamCA 239  

File number(s):

BRC 17391 of 2020

Judgment of:

HOGAN J

Date of judgment:

23 April 2021

Catchwords:

FAMILY LAW – ADOPTION – Leave to commence proceedings – step-parent adoption – application granted.

Legislation:

Adoption Act 2009 (Qld)

Family Law Act 1975 (Cth)

Cases cited:

Banks & Banks (2015) FLC 93-637

Number of paragraphs:

16

Date of hearing:

23 April 2021

Place:

Brisbane

Solicitor for the Applicants:

Cooper Family Law

ORDERS

BRC 17391 of 2020

BETWEEN:

MS DUNSTAN

First Applicant

MR DUNSTAN

Second Applicant

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	23 APRIL 2021

Amended on 10 May 2021 pursuant to rule 17.02 of the Family Law Rules 2004

THE COURT ORDERS THAT:

1.Pursuant to Rule 7.18(3)(a) of the Family Law Rules 2004, the requirement to serve the Initiating Application and the affidavits filed in support of the same is dispensed with unconditionally.

2.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 … 2013, by Mr Dunstan.

NOTATION
A. This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending paragraph two (2) to record the correct spelling of the child’s name.

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 Dunstan & Dunstan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

These Reasons, which were delivered on 23 April 2021, have been amended pursuant to Rule 17.02A of the Family Law Rules 2004 by replacing the Orders which precede them with the Order amended pursuant to Rule 17.02 of the Family Law Rules 2004 and to correct the spelling of the child’s name in [2]

EX TEMPORE REASONS FOR JUDGMENT

Hogan J

1. I will now deliver, then, some short reasons to support the order that I intend to make granting leave to the Applicants to commence proceedings for the adoption of X by Mr Dunstan.  The reasons in support of such order are as follows.

2. I have today an Application commenced by Initiating Application filed 8 December 2020. By the 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 seven year old X who was born in 2013.

3. X was conceived using biological material provided by an anonymous donor.  Given this, I have dispensed unconditionally with the requirement to serve the Initiating Application and supporting affidavits. 

4. The Initiating Application informs that there are no ongoing cases in this or any other Court about family law, child support, family violence or abuse in relation to a child or any child where welfare issues that involve either Applicant or X; and also that there are no existing orders, agreements, parenting plans or undertakings to a Court about these issues, including family violence orders in relation so X or the Applicants.  Further, the Notice of Child Abuse, Family Violence or Risk filed 18 December 2020 asserts that X has not been abused and is not at risk of being abused, and that neither she nor the Applicants have experienced or been exposed to family violence or are at risk of experiencing or being exposed to family violence.

5. 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 the current Application before this Court.

6. 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 case.

7. 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 1975 (Cth) – only an order for adoption if made by an appropriate State Court has that effect.

8. 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 wellbeing and best interests 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.

9. I record here my view that, in this case, I am satisfied that the mandatory legislative prerequisites are established on the evidence before me. 

10. 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 section 60CC of the Family Law Act 1975 (Cth).

11. 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 I have had the opportunity to read prior to commencing the hearing of the Application. 

    [1](2015) FLC 93-637.

12. It is appropriate that I record that Mr Dunstan is X’s step-father.  He and X’s mother met in about August 2014.  I accept that X first met Mr Dunstan when she was about 12 months of age (that is, in 2014); I accept that X was not yet three years of age when her mother and Mr Dunstan started to live together in about mid-June 2015, and that she was only a little over three years of age when they married in 2015. 

13. I accept that the Applicants have a child together: Y, who was born in 2017 and who is now three years of age. 

14. It appears to me, on the evidence before me, that it is clear that, since at least the time of cohabitation, Mr Dunstan has taken up, and assisted X’s mother to discharge, all of the obligations that are associated with being a parent. I accept the evidence given by the Applicants and the witnesses in their case about the role that Mr Dunstan has played in X’s life.  I accept that he has provided to X, and no doubt her mother, emotional and financial support since cohabitation.  I accept, on the evidence before me, that from the time of cohabitation he has provided to X all the support that any parent provides to a child in that parent’s care.  I accept also that X likely regards him, quite clearly, as her father, because he is, for all intents and purposes and in real and practical terms, the only father she has ever had.  I accept that he regards X as his biological child and does not differentiate in any way in his regard for her vis-à-vis Y.

15. I am easily satisfied on the evidence before me that, as I have said, from X’s perspective, Mr Dunstan is her father.  I also accept that he is committed to loving and supporting her always and I conclude that the Application for adoption that will be commenced upon the grant of leave is simply a clear manifestation of his commitment to her.

16. On the evidence before me, I also consider it open to infer that it is much more likely than not that X, her mother, Mr Dunstan 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.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate:       

Dated:            23 April 2021