Gilmore & Hofste
[2023] FedCFamC1F 114
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Gilmore & Hofste [2023] FedCFamC1F 114
File number(s): BRC 16345 of 2022 Judgment of: HOGAN J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – ADOPTION – leave to commence proceedings for adoption – where the child’s biological father consents to the Application – leave granted Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Adoption Act 2009 (Qld)Cases cited: Banks & Banks (2015) FLC 93-637 Division: First Instance Number of paragraphs: 21 Date of hearing: 24 February 2023 Place: Brisbane Solicitor for the First Applicants: Ms Price, Daykin Family Law Solicitor for the Respondent: Ms Collins, Cudmore Legal ORDERS
BRC 16345 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GILMORE
First Applicant
MS GILMORE
Second Applicant
AND: MR HOFSTE
Respondent
order made by:
HOGAN J
DATE OF ORDER:
24 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Pursuant to s 60G(1) of the Family Law Act 1975 (Cth), leave is granted for the Applicants, Mr Gilmore and Ms Gilmore, to commence proceedings for the adoption by Mr Gilmore of X, born 2010.
IT IS NOTED THAT
A.The Court notes that the Respondent consented to an order being made in these terms.
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 Gilmore & Hofste has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
There is today an application which was commenced in the Federal Circuit and Family Court of Australia (Division 2) by way of Initiating Application filed 29 December 2022, by the applicants seeking an order pursuant to s 60G(1) of the Family Law Act 1975 (Cth) granting to them leave to commence proceedings for the adoption by Mr Gilmore (the first applicant) of the child, X, who was born in 2010.
By Chambers Order made 31 January 2023, these proceedings were transferred, pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), to this Court – the Federal Circuit and Family Court of Australia (Division 1).
The respondent, who appears by his legal representative and who is present this morning, is X’s biological father. He consents to an order being made to grant to the applicants leave to commence proceedings for adoption. Whilst it appeared that such consent had been evidenced by a jointly signed Minute of Consent Order (filed, I think, on about 10 January 2023) it is, I think, appropriate, and certainly a courtesy, that the respondent appears this morning as he does by his legal representative to be heard and to have his consent recorded formally in these proceedings.
I have before me an Outline of Case Document prepared by the applicants’ legal representative. That document contains, I think, a good summary, within the heading “Outline of Contentions”, of the matters that are relevant to the determination of the current application. I accept the contents of that document based, as it is, upon the evidence before the Court.
By way of broad summary, it is clear that there are no ongoing cases in relation to X’s parenting arrangements in any other jurisdiction. It is clear on the evidence that there are no orders relating to family or domestic violence. There is no evidence to suggest that there are any protection orders in force as between the applicants and their evidence is that this is not the case. In fact, there is no evidence to suggest that has ever been the case.
It is unnecessary, I think, to detail in these proceedings with any particularity the circumstances that support the application. It is, I think, clear and sufficient to say the following.
The material makes it clear that Mr Gilmore has, for all intents and purposes, always been –and certainly from the child’s perspective is – X’s father. It is also clear on the material that X does not know that Mr Gilmore is not his biological father; X has never met the respondent and there has been no interaction between them.
I turn now to a brief consideration of the relevant legal principles that require some brief discussion in the determination of this application.
It is clear from s 92 of the Adoption Act 2009 (Qld) 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 are that the child is at least five years of age and has not yet turned 17 years of age. In this case, that circumstance is satisfied.
An additional matter prescribed by s 92 – in particular, in subparagraph (1)(d) of that section – is that a person must have been granted leave pursuant to the Family Law Act 1975 (Cth): hence this application to this Court.
In determining whether to grant leave for 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 satisfied. This Court must also consider whether granting leave will be in X’s best interests having regard to the effects of sections 60F(4)(a), 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth), where those sections are applicable in any case.
The decision facing this Court this morning is, of course, one that differs from a 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 60G of the Family Law Act 1975 (Cth) – only an order for adoption, if made by an appropriate State court, has that effect.
However, given that 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 (including that an order for adoption by a step-parent would better promote X’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any court order or no order at all) it is, I think, apparent that this Court ought not make an order granting leave 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.
I record my view here that, in this case, I am easily satisfied that the mandatory legislative perquisites are established.
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 prescribed by s 60CC of the Family Law Act 1975 (Cth). 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 determination and deliberations during my assessment of the evidence relied on, being evidence I have had the opportunity to consider (as I have had the opportunity to consider the Outline of Case Document filed on behalf of the applicants) prior to commencing the hearing this morning.
[1] (2015) FLC 93-637.
It is, I think, sufficient to record that I am easily satisfied that Mr Gilmore has discharged all of the responsibilities of parenting X for the entirety of his life. I accept on the material that, from X’s perspective, Mr Gilmore is his father. There could be no doubt given what I have read that they have a very close and loving father and son relationship. X is part of the family that is constituted by his parents and his sister. As part of that, he has had opportunities, which he has taken, to form relationships with members of the extended family; there is nothing to suggest other than he has a close relationship with those people as well as, of course, a close and loving relationship with his sister.
There could be no doubt, on the material before me, that Mr Gilmore has assisted X’s mother to parent him for all of his life. He has clearly contributed to not only the practical tasks that are involved in parenting, but also to discharge the financial obligations that are associated with being a parent to a child. There is nothing to suggest that he has not carried out and discharged those obligations in anything but a caring and loving manner. I accept entirely, as is evidenced by the fact of this application, that he wishes to take a further step to demonstrate his desire to continue to discharge those obligations for X into the future. The fact of the application is, I think, a clear manifestation of an appreciation by Mr Gilmore of what it will mean in terms of his responsibility, on an ongoing basis, to X should an order for adoption ultimately be made by the court charged with the responsibility for the same.
I think the only conclusion sensibly open on the evidence is that it is much more likely than not that X would gain significant emotional benefit if, after proper consideration by the relevant State authorities, an adoption order was ultimately made. Whilst for him practically it may not mean much, in a sense, at this time, there is no doubt that, as X ages, he will come to appreciate further the importance of the step that his mother and Mr Gilmore have started today by bringing this application.
I think it unnecessary to say more.
The material easily persuades that the commencement of proceedings to seek that a court make an order for X’s adoption by Mr Gilmore is something that is in the child’s best interests.
For those reasons, then, I make the order, noting that it is made by consent.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 24 February 2023
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