Fenchel & Edison
[2023] FedCFamC1F 383
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fenchel & Edison [2023] FedCFamC1F 383
File number(s): CSC 55 of 2023 Judgment of: BAUMANN J Date of judgment: 10 May 2023 Catchwords: FAMILY LAW – ADOPTION – Leave to make an application pursuant to the Adoption Act 2009 (Qld) Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 10 Date of last submission/s: 10 May 2023 Date of hearing: 10 May 2023 Place: Brisbane Solicitor for the Applicants: Collier Lawyers Solicitor for the Respondent: Litigant in person (did not participate) ORDERS
CSC 55 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FENCHEL
First Applicant
MR JEREMY
Second Applicant
AND: MR EDISON
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
10 MAY 2023
THE COURT ORDERS:
1.That pursuant to s 60G of the Family Law Act 1975 (Cth) the Second Applicant, Mr Jeremy be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, X born 2006 (“the child”).
2.That the Applicants have sole parental responsibility in respect of all major long term issues of the child.
3.That the child live with the Applicants.
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 Fenchel & Edison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
I propose to make the order in terms of the Initiating Application. As required, I provide the following brief reasons.
X, a child born in 2006, and therefore approaching her 17th birthday, has made it clear that she wishes to be the subject of an application for adoption by her biological mother’s husband, Mr Jeremy.
After an Application was filed seeking orders for leave to adopt, an order was made by a Registrar relating to how service of the Application should be effected. That Order made 6 March 2023 by a Judicial Registrar has, on my reading of the evidence, been complied with by service by electronic means to an email address for the biological father’s mother.
An application for leave to adopt is a precursor to a necessary application to a State body – in this case, the Queensland Department – who are the ones empowered to make orders that the child be adopted. Such an application is a serious change of status for a child, and no doubt, notwithstanding this, X cannot be the subject of any such applications once she has turns 18 years of age. The parties will need to move quickly to seek to achieve what the child – it is clear – desires. When I say, “what the child desires”, I note part of the evidence before me, attached to the affidavit of the biological mother, is an email said to have been sent by the child to the paternal grandmother, Ms B, on or about 6 September 2022, which, whilst giving some background to her life at that stage, includes the following paragraph:
Now that I am 16 I’ve decided that I want Dad ([Mr Jeremy]) to adopt me, I’ve been thinking about this for a long time and it’s really important to me, Dad has been a huge part of my life for almost 10 years now and I want him to not only be my Dad emotionally but also legally be my Dad. It will also make it easier for me to do things like get a bank card, or driver’s licence, or a passport, things that without both parents consent are really difficult, near impossible. This definitely doesn’t mean that I don’t want you as my family, I want to make that very very clear. I am very glad we are in contact again, and I would like to keep in contact when the adoption process is complete. To be able to do the adoption process with ease I do need to send some paperwork and stuff to [Mr Edison] so I need his residential and his postal address, please.
The further exchanges and emails between the child and the paternal grandmother seem to have concluded by 6 October 2022, where the grandmother explains why she is not able to provide the address of the biological father to the child. I make no comment about the reasons offered.
There is further evidence before the court, through a report by a general practitioner in D Town, that the child (as at 13 January 2022) was experiencing symptoms relating to an injury in November 2021, but further talks about her anxiety around these adoption issues.
The evidence of the biological mother reveals – and I accept – that the mother married the biological father after the child had been born, and separated in October 2010, when the child was four years of age. She commenced a relationship with Mr Jeremy in 2012, and they were married in 2018. They have been blessed with a son who, of course, is a sibling of X, namely Y, who was born in 2016. He is now six years of age. I am satisfied that X seeks to be adopted as her email suggests. I am satisfied that the last contact between the biological father and X was over 10 years ago, possibly around 2011, when the mother says, and I accept, the father asked for the child to accompany him on a visit to City C to see family, but then kept the child, who would have been just under school age at the time, for three months.
The mother says that her relationship with the biological father involved significant physical and emotional abuse by the biological father towards her, such that in 2014 she obtained a domestic violence protection order, as a result of the father’s telephone threats to kill her.
There has been little contact with the biological father for over 10 years. The mother even speculates, in view of his past periods of imprisonment, that he in fact may currently be in prison.
The evidence before me supports the clear finding that Mr Jeremy has, in every respect, taken up the responsibilities of a parent to the child; is regarded by the child as her father, and that it is in the best interests of the child that the child be the subject of application for adoption as the parties seek. For these reasons, I make the orders as contained in the Application.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 18 May 2023
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