Haskova & Viraj
[2025] FedCFamC1F 103
•15 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haskova & Viraj [2025] FedCFamC1F 103
File number(s): BRC 11781 of 2024 Judgment of: JARRETT J Date of judgment: 15 January 2025 Catchwords: FAMILY LAW – ADOPTION – Whether leave to commence adoption proceedings is in the best interests of the children – “prescribed adopting parent” – Leave granted under s 60G of the Family Law Act 1975 (Cth) to commence proceedings Legislation: Family Law Act 1975 (Cth) ss 4, 60F(1)(a), 60F(4)(a), 60G, 60G(1), 60G(2), 60HA(3)(a), 61C, 61E, 65J
Adoption Act 2009 (Qld) ss 92(1)(d), 204(3), 214
Cases cited: Brock & Brock [2007] FamCA 1594
Cahill & Fryar [2008] FamCA 1245
Denforth & Sable [2023] FedCFamC1F 903
Hanlon & Hanlon [2022] FedCFamC1F 435
Tanner & Cape [2011] FamCA 665
Thomson & Barnes [2022] FedCFamC1F 504
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 15 January 2025 Place: Brisbane Counsel for the First and Second Applicants: Ms Dart Solicitors for the First and Second Applicants: Lawfirst Creating Solutions Solicitors for the Respondent: Litigant in person ORDERS
BRC 11781 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HASKOVA
First Applicant
MR HASKOVA
Second Applicant
AND: MS VIRAJ
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
15 JANUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 60G of the Family Law Act 1975 (Cth) Ms Haskova and Mr Haskova are granted leave to commence adoption proceedings in respect of X born in 2015 and Y born in 2015.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JARRETT J:
Twins, X and Y were born in 2015. Presently they live with their father, Mr Haskova, and his present wife and stepmother to the twins, Ms Haskova. Ms Haskova, as the first applicant, and Mr Haskova, as the second applicant, apply for leave to commence adoption proceedings in respect of the twins pursuant to s 60G(1) of the Family Law Act 1975 (Cth).
The twin’s mother and respondent to the application, Ms Viraj, consents to the application and the proposed adoption.
As explained in any number of previous decisions of this court, although the process of adoption occurs as an application of Queensland law by the relevant authorities of the State, in the case of adoption by a step-parent, a necessary first step is to seek leave to adopt from this court. A step-parent may only apply for adoption of a child if they have first been granted leave to adopt the child pursuant to s 60G(1) of the Family Law Act: s 92(1)(d) of the Adoption Act 2009 (Qld).
As Carew J recently observed in Denforth & Sable [2023] FedCFamC1F 903 at [3]:
Since 1 September 2021, the jurisdiction of this Court to determine an application for leave to commence adoption proceedings is dependent upon the proceedings being transferred from an inferior court, namely the Federal Circuit and Family Court of Australia (Division 2) (formerly known as the Federal Circuit Court of Australia), a court of record, to this Court (formerly known as the Family Court of Australia), a superior court of record (see s 9(1)(a) and s 10(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”)). Since 1 September 2021, the proceedings can no longer be instituted in this Court, but because of a protocol between the Courts, such applications are generally transferred, such is the importance given to the jurisdiction relating to adoption.
Her Honour went on to set out the less than straight forward statutory arrangements by which this court comes to have jurisdiction in applications such as the present:
4 Section 60G of the FLA relevantly provides as follows:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), … 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.
5 Section 25 of the FCFCOA Act relevantly provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
6A “family law or child support proceeding” is defined in s 7 of the FCFCOA Act and means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132.”
7The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) relevantly includes “matters in respect of which proceedings may be instituted under the Family Law Act 1975”.
The present application was commenced in the Federal Circuit and Family Court of Australia (Div 2) in August 2024. It was transferred to this court by an order made in early November 2024 and listed before me by another order made in late November 2024.
As a court of limited jurisdiction, I am obliged to ensure that I have jurisdiction to deal with the application before me. I am satisfied that I am seized of jurisdiction in the application.
The discretion reposed in the court by s 60G(1) of the Act is enlivened when the application is made by a prescribed adopting parent. As the spouse of the twins’ parent, I am satisfied that Ms Haskova is a prescribed adopting parent for the purposes of the subsection. So too, is Mr Haskova: see s 4 of the Act and the definition of prescribed adopting parent.
By s 60G(2) of the Act, the discretion to grant leave is informed by, amongst other things, whether granting leave would be in the child’s best interests having regard to the effect of s 60F(4)(a) or s 60HA(3)(a), and of s 61E and s 65J of the Act.
Section 60F(4)(a) provides that a child who would otherwise be considered a child of a marriage as prescribed by s 60F(1)(a) of the Act, is no longer a child of that marriage where leave under s 60G of Act was granted in respect of that child. It has no relevance here because Mr Haskova and Ms Viraj never married and the twins are not, nor have ever been, children of a marriage.
Section 60HA(3)(a) of the Act is to similar effect, except that it applies to children of de facto partners. It provides that a child who would otherwise be considered such a child is no longer where that child is adopted by a prescribed adopting parent.
The evidence shows that Mr Haskova and Ms Viraj had a short relationship between 2013 and 2015. It is described by Mr Haskova as “an on again off again relationship”. He does not suggest that it was a de facto relationship for the purposes of the Act. Nor does Ms Viraj in her affidavit filed on 12 December 2024. In the circumstances I am not satisfied that s 60HA(3)(a) of the Act has any relevance to this application.
Subject to any order of a court for the time being in force, each of the parents of a child who is not 18 has parental responsibility for the child: ss 61C(1) and 61C(3) of the Act. Parental responsibility for the twins is the subject of a parenting order between Mr Haskova and Ms Viraj made by consent on 11 January 2021 in the Family Court of Australia (as it was then known). Thus, the position established by s 61C(1) of the Act is displaced.
The order made on 11 January 2021 remains current. By that order Mr Haskova has sole parental responsibility for the twins and they live with him. The orders do not provide for the twins to spend any time with Ms Viraj. The circumstances in which that order came to be made are set out in Mr Haskova’s affidavit, and no issue is taken with any of the matters to which he deposes in that affidavit by Ms Viraj.
The effect of the text of s 61E of the Act, taken literally, is that upon the adoption of a child, the parental responsibility for that child (by reason of a parenting order or otherwise) vested in any person, ends (except in circumstances which are not presently relevant). In a similar vein, s 65J of the Act provides that upon the adoption of a child any parenting order in force immediately before the adoption stops being in force (again except in circumstances which are not presently relevant).
In the present case, there is a parenting order that governs the incidence of parental responsibility for the twins. Section 65J will be engaged if an adoption order is made in respect of them. Upon that happening, the parenting order will stop being in force: s 65J(2) of the Act.
That presents little difficulty because the order makes no provision for the twins to spend time with Ms Viraj and so there will be no loss of any entitlement on their part in that regard. Insofar as parental responsibility is concerned, upon the cessation of the parenting order, both Mr Haskova and Ms Viraj will again have parental responsibility for the twins.
However, it is necessary to consider the effect of s 61E of the Act. Taken literally, the effect of this provision is to divest a non-adopting parent, including the parent who is the partner of the adopting party, of their parental responsibility for the adopted child. So much was explained in Cahill & Fryar [2008] FamCA 1245 at [13], Brock & Brock [2007] FamCA 1594 at [12], Tanner & Cape [2011] FamCA 665 at [15] and the other cases referred to therein.
However, in Hanlon & Hanlon [2022] FedCFamC1F 435, in what is, with respect, a careful and well-reasoned judgment, Gill J took a different view and concluded that on its proper construction, s 61E of the Act did not operate to strip parental responsibility from the parent who was partnered with the adopting step-parent. To take that interpretation requires the text of s 61E to be read down such that its operation is confined to the parental responsibility of a parent who is not a partner of the adopting step-parent.
The perceived difficulty with s 61E has been dealt with in the past by ensuring that the partner of the adoptive step-parent (i.e. the parent of the child to be adopted) is a party to the application under s 60G of the Act. Indeed, as Carew J points out in Thomson & Barnes [2022] FedCFamC1F 504 at [13], the definition of prescribed adopting parent in s 4(1) of the Act includes a parent of a child. In a similar vein, in Queensland, any application for adoption of a child by a step-parent must be made jointly with the step-parent’s spouse: s 204(3) of the Adoption Act. The effect of a final order for adoption is prescribed by s 214 of the Adoption Act. Relevantly, it provides:
214 Effect on relationships
(1)This section applies on the making of a final adoption order for the adoption of a child (the adopted child) by a person (the adoptive parent).
(2)The adopted child becomes a child of the adoptive parent and the adoptive parent becomes a parent of the adopted child.
(3)The adopted child stops being a child of a former parent and a former parent stops being a parent of the adopted child.
…
(7)Despite subsections (3) to (6), if the final adoption order is for the adopted child’s adoption by the spouse of a parent of the adopted child, the relationship between the adopted child and that parent is not affected.
…
Whilst s 214(7) provides that in the circumstances that are present in this case, a final adoption order does not affect the relationship between the adopted child and the parent/partner of the adopting spouse, it says nothing of the incidents of that relationship, such as parental responsibility.
Carew J remarked upon the difficulty presented by section 61E to parents who are the partners of step-parents of children, and suggested that section 61E might need some legislative amendment. The decision of Gill J in Hanlon is an attempt, perhaps successful, to overcome the obvious difficulties with section 61E and its effect on parental responsibility for children. In any event, the matters to which I have just referred do not arise in this case in any significant way because, as I have already recorded, Mr Haskova is an applicant before me and he will necessarily be an applicant for adoption under the Queensland State Act. He will, by dint of s 214(2), or perhaps s 214(7) of the Adoption Act, be a parent of these two girls and upon the making of the adoption order, his parental responsibility, along with that of Ms Haskova, pursuant to s 61C of the Family Law Act will be enlivened. I mentioned before that Ms Viraj’s parental responsibility under s 61C will revive upon the cessation of the parenting order, but it will only survive momentarily because the effect of s 61E will be to take those parental responsibility rights away immediately.
Mr Haskova and Ms Haskova appeared by counsel before me and Ms Viraj appeared in person. As I have already recorded, Ms Viraj consents to the application.
I consider that an order for leave to commence adoption proceedings is in the twins’ best interests.
Some brief background, but only brief, is necessary. The applicants married in 2023 after commencing a relationship in 2019. They now have one child together, B, who is presently two years of age. No party raises any issues about the safety of the children in the care of the applicants. The evidence establishes that they are well cared for, both physically and emotionally by them. The evidence shows appropriate attention to the children’s medical and psychological needs by the applicants. There is no suggestion that any of their needs are not met.
The twins’ relationship with Ms Viraj seems to have fallen by the wayside. The last time they spent any time with her was on 12 September 2020 in a park. At that time she signed the consent orders that were subsequently made in January 2021. Ms Viraj sent the children a message on Christmas Day 2021 that Mr Haskova read to them, but there has not been other contact between the children and Ms Viraj since.
There had been other orders prior to the orders made in January, 2021. In particular was a final parenting order made in April 2018 which provided for the children to live with Mr Haskova and for them to spend frequent and regular weekly time with Ms Viraj. The evidence is, however, that although the twins spent time with Ms Viraj, it cannot be described as frequent or regular. The evidence of the applicants’ paints a picture of some unreliability and unpredictability about the time that Ms Viraj spent with the twins. Although she has filed an affidavit in response to the application, she takes no issue with these matters as deposed to by the applicants.
The applicants meet the children’s financial needs without contribution from Ms Viraj.
I am satisfied that that leave to commence adoption proceedings should be granted and will so order.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 15 January 2025
0
6
2