Halton
[2021] FedCFamC1F 258
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Halton [2021] FedCFamC1F 258
File number(s): BRC 17724 of 2020 Judgment of: JARRETT J Date of judgment: 8 December 2021 Catchwords: FAMILY LAW – ADOPTION – whether leave to commence adoption proceedings is in the best interests of the child – leave granted under s 60G of the Family Law Act 1975 (Cth) to commence proceedings. Legislation: Family Law Act 1975 (Cth), ss 60CC, 60F, 60G, 60HA, 61E, 65J
Adoption Act 2009 (Qld), s 92,
Cases cited: Poulter and Anor & Lenton [2012] 46 Fam LR 623 Division: Division 1 First Instance Number of paragraphs: 19 Date of last submission/s: 7 December, 2021 Date of hearing: 7 December, 2021 Place: Brisbane Solicitor for the Applicants: Murdochs Lawyers ORDERS
BRC 17724 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HALTON
First Applicant
MS CROWDEN
Second Applicant
AND: X (SURNAME UNKNOWN)
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The applicants have leave for proceedings to be commenced for the adoption of Y born in 2012 by Mr Halton.
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 Halton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
Y was born in 2012 in D City, Country F. His biological father, X, has had no contact with him since Y’s birth. Y’s mother, one of the applicants in the present application, has since married the second applicant in this application, Mr Halton. Mr Halton and Ms Crowden apply for leave for proceedings to be commenced for Y’s adoption by Mr Halton.
I have only referred to Y’s father by his Christian name because his surname is unknown. The evidence shows that Ms Crowden had a short relationship with Y’s father in Country F in 2011 after meeting him through an online dating service. Their relationship lasted about 2 or 3 months and she and X did not live together. She discovered she was pregnant in 2012 and she told X about her pregnancy. He told her that he did not want to be a father. Ms Crowden ended her relationship with X after he became angry with her when she refused to terminate her pregnancy.
Although he is named as a respondent to this proceeding, X has not been served with the application or material supporting it. His name does not appear on Y’s birth certificate and Ms Crowden swears that she has no way of contacting him. The last she knew of him, he was in Country F although he may have been a resident of the United States of America and returned to live there. She does not know. She gives evidence about the circumstances in which she and X met and of the little she knew about X. She has given evidence of her attempts to establish some way of contacting him, which appear to have been exhaustive. None have been successful.
The applicants seek an order that I dispense with service of the application upon X. Given that he does not appear to be a resident of Australia, he has never had any contact with Y, Ms Crowden has not had any contact with him since early 2012 and she has exhausted her attempts to contact him or establish a means of contacting him, I am satisfied I should dispense with service of the present application upon X.
Mr Halton is a 58 year old male disability pensioner. Ms Crowden is 35 years of age and works as a carer.
Mr Halton, Ms Crowden and Y live together in a home owned by Mr Halton’s brother and 2 other trustees of a family trust. They have lived in that home since January, 2017. Before that time the parties lived in Country F but upon receipt of her spouse visa, Ms Crowden, Mr Halton and Y moved to live permanently in Australia.
Mr Halton has been married before. His first marriage came to an end when he was divorced in 2015. He has no children from his previous relationship. Ms Crowden has no previous children either and has not been married before.
Y has always lived with his mother. The parties commenced their relationship in December, 2014 when Y was about 2 years of age Ms Crowden and Mr Halton commenced living together in March, 2015 Y. As a consequence, Y commenced living with Mr Halton at that time. Ms Crowden and Mr Halton married in 2015.
Mr Halton and Ms Crowden each swear that Mr Halton treats Y as his son. He assists significantly with Y’s care. Ms Crowden is employed on a full-time basis as a carer. Mr Halton is responsible for taking Y to school and collecting him at the end of the school day. He also takes Ms Crowden to work and collects her at the end of her work day. The parties spend the weekends together and Mr Halton assists with Y’s extracurricular activities such as football practice and football matches.
The parties and Y attend church together most Sundays. They engage in recreational pursuits together. Mr Halton swears that Y treats him like a father and calls him "Daddy". He considers Y to be his son.
Y attends school and is doing well. He has friends at school and in the parties’ neighbourhood.
The evidence demonstrates that Y also has a good relationship with Mr Halton’s mother, Ms G. She often visits and takes Y to the movies, the Art Gallery and play areas. Y attends normal family gatherings with Mr Halton and Ms Crowden for birthdays and social events.
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 to apply for adoption proceedings. That is the reason for the current application.
In determining whether to grant leave under s 60G of the Act for a party or parties to commence adoption proceedings, the Court must be satisfied that:
(a)the applicants are each a prescribed adopting parent within the definition of that term in section 4 of the Act; and
(b)whether granting leave will be in Y’s best interests, having regard to the effects of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J, if applicable, of the Family Law Act where those sections might apply in any particular case.
Section 60F(4) has no application. Neither does s 60HA(3)(a). Section 61E provides for any adoption to bring parents’ responsibility to an end except in certain circumstances. It is of no particular interest here. Section 65J provides for any adoption to bring extant parenting orders to an end. There are presently no extant parenting orders.
In Poulter and Anor & Lenton [2012] 46 Fam LR 623 at [24], Murphy J put the issue in the following manner:
The question then, in my view, can be expressed in this way: is it in the relevant child or children’s best interests to permit adoption proceedings to proceed in the state Magistrates Court with the potential consequences that a parent shall with the consent of the other parent or, absent consent, by court order, cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from orders being made in this Court that might involve the parent and step-parent?
In the present case, I think the answer to that question is yes. I am satisfied on the evidence that Y’s father has never had anything to do with him. He has never had any contact with him and has not sought to exercise any parental responsibility in respect of him. Mr Halton seeks to do that. Ms Crowden also seeks for him to do that. There is no suggestion in any of the material that there is reason to be concerned about any exposure of Y to any family violence or abuse as those terms are defined in the Family Law Act. Nor is there any suggestion in the material that Y has been exposed to family violence between the applicants whilst he has been living with them. The evidence demonstrates nothing other than a household in which Y is well cared for and in which he is thriving. Y calls Mr Halton “dad” or “daddy” and having regard to the practicalities of Y’s living arrangements it is sensible to conclude that Y considers Mr Halton as his father. Mr Halton is, on the evidence, committed to continuing his support of Y as he has done until now.
I am satisfied, and I find, that it is in Y’s best interests if there is a grant of leave to the applicants to commence proceedings for the adoption of Y by Mr Halton.
There will be orders accordingly.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 7 December 2021
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