Hausler & Coster
[2023] FedCFamC1F 502
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hausler & Coster [2023] FedCFamC1F 502
File number(s): BRC 12697 of 2022 Judgment of: BAUMANN J Date of judgment: 16 March 2023 Catchwords: FAMILY LAW – ADOPTION – Leave to make an application pursuant to the Adoption Act 2009 (Qld)
FAMILY LAW – PRACTICE AND PROCEDURE – Where substituted service upon the paternal grandmother was granted
Legislation: Family Law Act 1975 (Cth) s 60G
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.34(1)(b)
Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 16 March 2023 Place: Brisbane Counsel for the Applicants: Mr Casey Solicitor for the Applicants: Daykin Family Law Solicitor for the Respondent: Litigant in person (no appearance) ORDERS
BRC 12697 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HAUSLER
First Applicant
MS HAUSLER
Second Applicant
AND: MR COSTER
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
16 MARCH 2023
THE COURT ORDERS:
1.That pursuant to s 60G of the Family Law Act 1975 (Cth) the First Applicant, Mr Hausler be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, X born 2016.
2.That all outstanding applications be otherwise dismissed.
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 Hausler & Coster has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X is now six years old. X is the biological of the Applicant mother, Ms Hausler, and the Respondent father, Mr Coster. On the evidence, the child has been in the primary care of his mother since birth. The evidence is – and I accept this evidence – that the biological father, Mr Coster, has only met X on one occasion when he was a few weeks old. There was no evidence that he has any current relationship with X. The mother would go further and say that he has not expressed any interest in relation to spending time with or communicating with X, nor has he brought any application in respect of X to a Court of competent jurisdiction for orders to do so.
On the evidence which I accept, Mr Hausler, who is the husband of Ms Hausler, was introduced to X in 2017. At that stage, X was under two years of age. The evidence of both Mr Hausler and his wife and the mother of the child, Ms Hausler, is that they have lived together as a family unit since around late 2018. I suspect X was a happy participant in the Applicant’s marriage which took place in 2021.
The evidence provided to the Court establishes that since Mr Hausler has been the father figure in X’s life, they have developed a close and loving relationship. X calls Mr Hausler “dad”, as would be quite understandable in view of his life history. I have read carefully the evidence put before the Court by Mr Hausler and Ms Hausler, and I am satisfied that it is in the best interests of X that I give leave to adopt, as is the Application before me.
For the sake of the record, it is important that I identify that this Application was originally filed in October 2022. At that time, the Application included an order that the Application for leave to adopt be granted on an ex parte basis. The matter was transferred to me, a Division 1 Judge, and I first saw the matter in court on 19 January 2023. At that time, Counsel then appearing for the Applicants, Mr Hopper, noting that Mr Casey of Counsel appears for the Applicants today, had exchanges with the Bench about whether the requirements of r 2.34(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 had been complied with so as to allow an Application to dispense with service.
Essentially, that required the Court to be satisfied, in my view, that all reasonable steps had been taken to serve the document. One could only serve the document, of course, if one knew where to serve. Confronted with that difficulty, on 19 January 2023 I made an Order that service of the Application for leave to adopt be served on the biological father, Mr Coster, by effecting service of the Application upon his mother.
The Respondent’s mother was identified as the person likely to know the whereabouts of her son because of the evidence I had before me that, at one stage, the paternal grandmother had become quiet hostile, on Ms Hausler’s evidence, about the fact that there is no contact between X and the paternal family. The evidence was that there was some form of contact in 2016, which was the first and only visit.
Since the matter was before me in January, and to the credit of the mother – and I note at some expense – she engaged a firm to conduct a range of inquiries with a view to identifying the whereabouts of either the biological father or the mother of the father. I have read a report which details the full extent of the inquiries made and the fact that the investigations have not revealed the location of the biological father or his mother.
That report, from a firm called B Services, dated 27 January 2023, clearly establishes every reasonable endeavour taken to locate the biological father so as to serve him and/or his mother, in accordance with my Order.
For those reasons, it is in the best interests of the child, X, that I make the order.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 23 June 2023
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