Hanlon & Hanlon (No. 2)

[2021] FamCA 469

FAMILY COURT OF AUSTRALIA

Hanlon & Hanlon (No. 2) [2021] FamCA 469

File number(s):	CAC 2835 of 2020
Judgment of:	GILL J
Date of judgment:	1 July 2021
Catchwords:	FAMILY LAW – ADOPTION – release of report prepared by the Director-General of Community Services pursuant to Adoption Act 1993 (ACT) s 39D – exercise of discretion to release report on basis of procedural fairness – restrictions conditioning release of report.
Legislation:	Adoption Act 1993 (ACT) ss 39D, 39F, 60, 112 and 113
Cases cited:	Woodbury and Anor & Fowler [2020] FamCA 195
Number of paragraphs:	5
Date of hearing:	1 July 2021
Place:	Canberra
Solicitor for the Applicants:	Parker Coles Curtis

ORDERS

CAC 2835 of 2020

BETWEEN:

MR HANLON

First Applicant

MS HANLON

Second Applicant

ORDER MADE BY:	GILL J
DATE OF ORDER:	1 JULY 2021

THE COURT ORDERS THAT:

1.The report in relation to the proposed adoption of X prepared by the Director-General of Community Services pursuant to s 39D of the Adoption Act 1993 (ACT) and provided to the Canberra Registry the Family Court of Australia (the report) is permitted to be made available to Ms Hanlon, Mr Hanlon and their legal representatives.

2.The above order is subject to the following conditions:

(a)The report is to be provided by the Canberra Registry of the Family Court of Australia in electronic form to the solicitor for Ms and Mr Hanlon (the solicitor);

(b)A single copy of the report may be printed;

(c)The electronic version of the report is to be deleted by the solicitor within 48 hours of the receipt of the electronic version and is not to be forwarded to any other person, including Ms and Mr Hanlon;

(d)No electronic copy of the report may be retained;

(e)The printed copy is to remain in the custody of the solicitor; and

(f)The printed copy is to be given to the Canberra Registry of the Family Court of Australia on the expiration of the relevant appeal period following the resolution of the proceedings.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanlon & Hanlon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. Leave has been granted to commence proceedings for adoption by a step-parent to Mr Hanlon and that follows an application for that leave to be granted and an adoption application having been made by him before this Court pursuant to the cross vesting laws.  Mr Hanlon and Ms Hanlon seek a corresponding adoption order pursuant to the Adoption Act 1993 (ACT) (“the Adoption Act”) in relation to X. 

2. This particular aspect of the proceeding concerns the release of a report, prepared pursuant to s 39D of the Adoption Act in relation to the proposed adoption, prepared by the Director-General, Community Services, the administrative body of the Australian Capital Territory charged with responsibility under the Adoption Act. The Director-General has marked the report as confidential but has not sought any orders in respect of the use of that report. The report, where provided to the Court, is a mandatory consideration in the determination of an adoption application pursuant to s 39F of the Adoption Act. The Director-General, who may appear and be treated as a party to adoption proceedings, does not appear and I mark correspondence from the Director-General as Exhibit C1, wherein the Director-General encloses the report and indicates that the Director-General does not wish to be heard on either the leave application or the substantive application. Section 113 of the Adoption Act deals with the release of such reports.  By virtue of the Commonwealth and Territory cross-vesting laws the Family Court of Australia is vested with jurisdiction of the ACT Supreme Court in respect of adoption pursuant to the Adoption Act.  In exercising that jurisdiction this Court is to adopt the procedures of the ACT. 

3. In relation to statutory interpretation in respect of this aspect of the Adoption Act I adopt what I said in Woodbury and Anor & Fowler [2020] FamCA 195. Section 113 of the Adoption Act deals directly with the release of such reports.  It is in the following terms:

   Contents of reports not to be disclosed

   Except as the court otherwise orders, a report to the court under section 39D must not be made available to a party to the proceedings or any other person.

4. The default position is that such reports are not to be released.  The release requires a discretionary determination that the release should take place.  No considerations particular to either the exercise of, or refusal to exercise its discretion, are set out to guide such a determination.  However, the report forms a central evidential consideration as to what are in X's best interest under the Adoption Act.  Accordingly, it is necessary for the Court to consider its content in determining whether or not to make the adoption order sought by the step-father and supported by the mother.  Giving such consideration to the report without giving the step-father and mother access to the report conflicts with the inherent obligations of the Court to accord procedural fairness to the step-father and the mother.  This matter justifies the exercise of the discretion to permit access to the report.  Orders will be made granting access to the report to the step-father and mother, through their legal representative. 

5. It may be observed that the Adoption Act creates a scheme that restricts the principles of open justice. Section 60 provides that the records of a Court other than the order or decision of the Court must not be made available to any person. Further, s 112 provides that the proceedings are not to be conducted in open court. This colours the nature of the orders to be made that provide access to the report. Given the generally restrictive scheme of the Adoption Act, pending further submissions to the Court, that access will be conditioned on the appropriate control of the document.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       1 July 2021