Falconio & Anor and Conchita

[2009] FamCA 1323

FAMILY COURT OF AUSTRALIA

FALCONIO AND ANOR & CONCHITA [2009] FamCA 1323

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – Cross vested jurisdiction from the Supreme Court of the Australian Capital Territory (Adoption Act 1993 (ACT))

Adoption Act 1993 (ACT) ss 9, 19(1), 35(1), 40, 45(1)
Family Law Act 1975 (Cth) s 60G(1)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(1)
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) s 5(1)

APPLICANTS: Mr Falconio and Ms Silvio

RESPONDENT: Mr Conchita

FILE NUMBER: CAC 1154 of 2009

DATE DELIVERED: 4 December 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 4 December 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mr Hubert, Capon & Hubert

SOLICITOR FOR THE RESPONDENT: Mr Harris, Robinson & Mason Pty Ltd

Orders

1. All applications by Mr Conchita in relation to the children, G, born … March 1995, and E, born … August 2000, are discharged.

2. Pursuant to section 60G of the Family Law Act 1975 (Cth) the applicant, Mr Falconio, have leave to proceed with his application for the adoption of G, born … March 1995, and E, born … August 2000.

3. Pursuant to section 35(1)(e) of the Adoption Act 1993 (ACT) consent of the respondent father to the adoption of G and E be dispensed with.

4. All outstanding applications be withdrawn and dismissed.

5. I direct that a memorandum in relation to the adoption be issued from the Court and transmitted to the relevant authorities in South Australia to enable the records to be amended accordingly. 

IT IS NOTED that publication of this judgment under the pseudonym Falconio and Anor & Conchita is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:   CAC 1154 of 2009

MR FALCONIO AND MS SILVIO

Applicants

And

MR CONCHITA

Respondent

REASONS FOR JUDGMENT

1. This is a matter which, but rarely, comes before the Family Court of Australia, because the jurisdiction under the Family Law Act1975 (Cth) to deal with applications for adoptions was never proclaimed by the Governor General. However, the Family Court sitting in Canberra, has the opportunity to cross‑vest jurisdiction which would otherwise rest in the Supreme Court of the Australian Capital Territory (ACT) under the Adoption Act 1993 (ACT), and in such circumstances this court is able to undertake and deal with matters that would otherwise have been dealt with by the Supreme Court in appropriate circumstances. It is appropriate, in circumstances where leave of this Court is sought in relation to an adoption and where there have been elements of family law associated with the matter, for this Court to accept jurisdiction under the relevant cross-vesting legislation of the Commonwealth and of the ACT.[1]

   [1] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(1) and Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) s 5(1) refers.

2. In this matter, the proceedings began by way of an application (as is required) for leave to commence adoption proceedings. Such leave is required by s 60G(1) of the Family Law Act 1975 (Cth), and is designed to enable the Family Court of Australia to have a measure of oversight in relation to adoptions that might proceed in the absence of taking account of the parental obligations, responsibilities and rights of each of the parents of the children who are to be the subject of the adoption order. That is not to suggest that the relevant authority, in this case the Chief Executive of the Department of Disability, Housing and Community Services, and the officers associated with the Office of Children, Youth and Family Support, do not carry out appropriate investigations. It is to take account of the fact that there should be a venue in which the parents are able to litigate matters relating to their children in circumstances where there is, by operation of law, a proposal that the rights and obligations and duties of one of the parents, at least, might be extinguished.

3. In this case, the respondent father initially opposed this Court giving its consent to adoption, and obviously, therefore, to the adoption itself. Indeed, Mr Conchita sought orders in relation to parenting, which would have meant the children spend substantial time with him.  He has, however, following a report prepared by Ms :, a Senior Family Consultant attached to the Family Court of Australia at Canberra, taken what is, in my opinion, an appropriate and proper step of putting the interests of the children ahead of his own concerns, and ahead of his own rights as he might have perceived them.

4. It is, in some respects, easy for parents to fight about their children, because in such circumstances they are not obliged to make decisions about what will be in their best interests.  It is far harder for parents to make decisions not to fight, and in circumstances such as this, to take an approach which will mean that their rights and, of course, their obligations which are the other side of the coin, will be extinguished. 

5. It is appropriate and proper that in this matter the orders that are being sought, preserve the opportunity for the children to continue to have some time with their father, Mr Conchita, and it is to the credit of the applicants, Mr and Mrs Falconio, and to their lawyer, Mr Hubert, that they have approached this matter in a responsible and a proper way.

6. Such an approach, I might add, is consistent with the reports both from the Department of Disability, Housing and Community Services and from Ms L.  Even more interestingly, in that context, each of the reports was prepared independently of the other, so that we have a coming together of minds that are appropriately qualified to review the benefits to the children in them being adopted by the current applicants.

7. It is appropriate in this matter, given that there is no opposition to the consent and all applications about adoption had been withdrawn by Mr Conchita, for me to give consent to the adoption, and therefore, under the relevant cross-vesting jurisdiction, to consider the adoption. 

8. The proceedings are governed by the provisions of the Adoption Act 1993 (ACT). The Court has power under s 9 of the Adoption Act 1993 (ACT) to make an order for adoption of a child. I note also the factors that the Court must take into account under s 19 of the Adoption Act 1993 (ACT), including taking into account the recommendation of the Chief Executive (in this case, of the Department of Disability, Housing and Community Services). [2]

   [2] Adoption Act 1993 (ACT) s 19(1)(a).

9. In the circumstances, I am prepared to, as requested by the applicants, to dispense with the consent of Mr Conchita, whose consent is not given, but he also does not oppose the adoption. I do so on the basis, as suggested by Mr Hubert, of s 35(1)(e) of the Adoption Act 1993 (ACT) that in all of the circumstances in this matter, particularly, the appropriate attitude taken by the respondent father, and the recommendations of both the report of the Department, and by Ms L, that the adoption should proceed.

10. I am conscious of the fact that there are geographical impediments to a continuing relationship between the children and their father. I am conscious also, in this context, of the fact that his involvement with the children has been minimal for some time. I am conscious also of the fact that there are some indications in the reports that have been filed in the reports in these proceedings that Mr Conchita has engaged in some conduct in relation to the children which may have operated to their detriment. It is unnecessary, however, for me to make any formal determination about such matters. I am also to the point of being satisfied that s 35(1)(d) of the Adoption Act 1993 (ACT) may have application but prefer, in the circumstances, particularly in light of what I regard as the appropriate and proper actions on the part of the respondent, to proceed under s 35(1)(e).

11. In such terms, having dispensed with the consent, having granted leave for the adoption to proceed, it is important that I should nevertheless consider as to whether it would be appropriate that the child, the subject of the application, should be adopted by Mr Falconio and Ms Silvio.  In my opinion, taking account of the matters I am obliged to take into account under the Act and, in particular, the loving and caring nature of the relationship between the applicants and J and E, that I should grant the order requested, that is, that the children become the children of the parents.  I note in the process that this will have the effect that E’s name should be changed to Falconio and I will make an order accordingly.[3]  I note that the Court has the power to make an adoption order subject to certain conditions.[4]  I will also make an order that J and E have such contact with Mr Conchita as they may wish, in accordance with the orders sought by the applicant. 

    [3] Adoption Act 1993 (ACT) s 45(1) refers.

    [4] Adoption Act 1993 (ACT) s 40.

12. Otherwise, the matter is removed from the pending cases list.  

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate: 

Date:  2 February 2010