Gray & Gray

[2021] FedCFamC2F 683

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gray & Gray [2021] FedCFamC2F 683

File number(s):	BRC 12230 of 2021
Judgment of:	MCCLELLAND DCJ
Date of judgment:	30 November 2021
Catchwords:	FAMILY LAW – PARENTING – Where the child’s biological mother has passed – Where the child’s father and stepmother wish to adopt the child – Application for leave to be granted under s 60G of the Act – Where s 60CC matters must be considered – Leave granted for adoption proceedings to be commenced.
Legislation:	Family Law Act 1975 (Cth), ss.60CC, 60G
Cases cited:	Poulter and Anor & Lenton [2012] Fam LR 623
Division:	Division 2 Family Law
Number of paragraphs:	12
Date of hearing:	30 November 2021
Place:	Sydney (via videolink)
Solicitor for the Applicants:	MCG Legal
The Respondent:	No appearance (deceased)

ORDERS

BRC 12230 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS GRAY

First Applicant

MR GRAY

Second Applicant

AND:

MS B GRAY

Respondent

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	30 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Pursuant to rule 2.34 of the Federal Circuit and Family Court Family Rules 2021, service of this application on the Respondent, MS B GRAY, be dispensed with unconditionally.

2.Leave is granted for this matter to be heard in the Respondent’s absence.

3.Pursuant to section 60G of the Family Law Act 1975, leave be granted to MS GRAY and MR GRAY to commence proceedings in the Childrens Court of Queensland to adopt the child, X (“X”) born in 2014.

4.For the purpose of Order (3) above, the First Applicant is granted leave to enter her name on the register of interested parties with the Department of Child Safety in Queensland to adopt the child X.

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

REASONS FOR JUDGMENT
EX TEMPORE

MCCLELLAND DCJ:

1. In this matter, the First and Second Applicants, being the child’s stepmother and father respectively (“the Applicants”), make a joint application for leave to be granted under s 62 of the Family Law Act1975 (Cth) (“the Act”) to commence adoption proceedings in the Childrens Court of Queensland. The application is made in respect to X (“X”), born in 2014, who is now 7 years old.

2. The application is made in circumstances where, unfortunately, X’s biological mother passed away in 2015.

3. I have had regard to the material filed by the parties to support this application. In particular, an application by Ms Gray, the applicant stepmother, filed on 14 September 2021, and also an affidavit by the biological father, Mr Gray, also filed on 14 September 2021. 

4. By way of background, I note the following:

   ·The Applicants commenced a relationship in 2018 before commencing to live together on 24 July 2018.

   ·The Applicants recently married in 2020.

   ·X has two (2) half-siblings, being children of the Respondent's relationship prior to the Second Applicant, namely:

   (a)C, born in 2005; and

   (b)D, born in 1999.

   ·The Applicants and X relocated from Canberra to the Region E in the state of Queensland in December 2020.

5. The application is made under section 60G of the Act, which relevantly provides:

   (1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), the Supreme Court of the Northern Territory or the Family Court of a State 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.

   Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

6. In Poulter and Anor & Lenton [2012] Fam LR 623 at [15]–[16], Murphy J stated;

   Proceedings for leave to adopt pursuant to section 60G of the Act are, in my view child-related proceedings within the meaning of the Act and, specifically, within the meaning of division 12A. That division imposes duties upon the Court included among which are to deal with as many aspects of the matter as possible on a single occasion.

   Moreover, the Court is required to apply a number of principles in the determination of child-related proceedings, all of which are directed towards focusing the Court upon the interests of children and the impact of proceedings on children. In my view, those matters apply no less in proceedings of this type.

7. In having regard to the best interests of the child, as referred to in s 60G(2), it is appropriate for the Court in these proceedings to have regard to those matters set out in s 60CC of the Act. Having considered all of the matters set out in s 60CC, I will address those matters that I regard as being of greatest relevance to my decision.

8. In that respect, I have regard to the totality of the affidavits filed by the Applicants, Ms Gray and also Mr Gray, both dated 14 September 2021. Specifically, I have had regard to the evidence they have provided in respect to the personality, needs and attachments of X. 

9. Having regard to that evidence, I am satisfied that X has a close attachment with both her father and her stepmother. I am satisfied that the Applicants are caring appropriately for X and providing for her intellectual and emotional needs, including her education.

10. I am further satisfied that X lives in a loving and caring relationship with both of the Applicants, as documented in the affidavit of Ms Gray at paragraphs 27 through to 36. 

11. Having regard to the evidence to which I have referred, I am further satisfied that the orders sought in this application are in the best interests of X. In that respect, I note the evidence set out in paragraphs 38 through to 45 of Ms Gray’s affidavit, which is as follows:

    I believe adopting X will have be a joyful event for her, as she will be able to refer to me as Mumma Bear or Mum knowing that I have in fact been legally recognised as her mother.

    For these reasons, I believe that while granting permission for me to adopt X will not have any practical effects on her current living arrangements, as this will continue as normal, my adoption of X will have a positive effect on strengthening our family unit.

    Section 60CC(3)(f) – Capacity to provide for X's needs

    I am currently employed as a public servant in which capacity I earn approximately $115,000 per annum. Accordingly, I believe I am capable of providing for X's needs from a financial perspective.

    As detailed previously in this my Affidavit, I believe that I am also very well attuned to X's emotional and psychological needs and I anticipate being able to provide the support she may need in this regard moving forward.

    While X does not have any immediate health or medical concerns, I am keenly aware of the condition her biological mother suffered from and will remain vigilant in addressing any risks associated with X suffering from a medical condition and provide any care she may require if any health concerns do eventuate.

    Section 60CC(3)(i) – Attitude towards the child and responsibilities of parenthood

    As noted previously in this my Affidavit, X and I enjoy a very close bond and I love her as though she was my own daughter.

    I understood that marrying pursuing a relationship [sic] with Mr Gray meant I would be taking on responsibility for care and support of X as well, and I have committed to ensuring that she receives all the care, love and support I am able to give her.

    Similar to my marriage to Mr Gray, I believe that adopting X and legally becoming X's mother will be an opportunity for me to show her how committed I am to her care and support and formalise the relationship I think X and I already feel exists.

    (As per the original)

12. Having regard to the evidence filed by the parties, and the matters to which I am required to have regard in contemplating an application pursuant to s 60G, I am comfortably satisfied that the orders sought in the application are in the best interests of X. Accordingly, I make orders in terms of the Application for Final Orders filed by the First Applicant, Ms Gray, on 14 September 2021.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       25 January 2022