Hexter & Anor and Gabel

[2020] FamCA 619

FAMILY COURT OF AUSTRALIA

HEXTER AND ANOR & GABEL [2020] FamCA 619

FAMILY LAW – ADOPTION – Leave to commence proceedings – step-parent adoption – application granted

Family Law Act 1975 (Cth)
Adoption Act 2009 (Qld)

Banks & Banks (2015) FLC 93-637

1st APPLICANT: Mr Hexter

2nd APPLICANT: Ms Hexter

RESPONDENT: Mr Gabel

FILE NUMBER: BRC 6375 of 2020

DATE DELIVERED: 24 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 July 2020

REPRESENTATION

1ST APPLICANT: In person

2ND APPLICANT: In person

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the child, X, born … 2015.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6375 of 2020

Mr Hexter

First Applicant

Ms Hexter

Second Applicant

And

Mr Gabel

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have today an application which was commenced by Initiating Application filed on 20 May 2020. By that Application, an order is sought for leave pursuant to s 60G of the Family Law Act 1975 (Cth) to commence proceedings for the adoption of the child, X, who was born in 2015.

2. The Initiating Application informs that there are no ongoing cases in relation to X in any other jurisdiction. 

3. Save for Exhibit 1 – a Protection Order made as between Ms Hexter and Mr Gabel, X’s biological father, on 5 February 2015 and which expired on 5 February 2017 – there are no orders relating to domestic violence; no protection order is currently in force; there are no orders of that nature as between the Applicants.

4. The Initiating Application also informs that there are no existing parenting orders in force in relation to X. 

5. 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 1975 (Cth) – hence this current Application.

6. In determining whether to grant leave for parties to commence adoption proceedings, this Court must be satisfied of a number of things: one is that the proceedings are by a prescribed adopting parent as that term is defined.  In this case, that condition is clearly satisfied.  This Court must also consider whether granting leave will be in X’s best interests, having regard to the effects of s 60F(4)(a), s 60HA(3)(a), s 61E and s 65J of the Family Law Act 1975 (Cth) where those sections are applicable in any particular case.

7. The decision facing this Court this morning is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of X or not. The granting of leave to commence proceedings for her adoption does not have the consequences outlined in those sections particularised in s 60G of the Family Law Act 1975 (Cth) – only an order for adoption, if made by an appropriate State Court, has that effect.

8. However, section 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters. Included in these is that an order for adoption by a stepparent would better promote X’s wellbeing and best interests than an order under the Family Law Act 1975 (Cth), any court order or no order at all. It is, therefore, apparent that this Court ought not make an order granting leave to an Applicant to permit proceedings in a State Court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.

9. I record here my view that, in this case, I am satisfied that the mandatory legislative prerequisites are established on the evidence before me.

10. In determining, as I must under s 60G(2) of the Family Law Act 1975 (Cth), whether granting leave to commence proceedings is in X’s best interests, I must give consideration to the familiar “best interests” considerations, where they are relevant, as prescribed by s 60CC of the Family Law Act 1975 (Cth).

11. However, as is made clear by authorities such as Banks & Banks,[1] any failure to mention specifically any particular consideration in these Reasons (delivered this morning orally) does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon – being evidence that, as I have informed the Applicants, I have had the opportunity to read prior to commencing the hearing of the Application.

    [1](2015) FLC 93-637.

12. It is appropriate that I record that Mr Hexter is X’s stepfather.  I think it appropriate also to record that he and her mother married in 2019 after commencing cohabitation at about the beginning of 2016, at which time X was about six months of age.  Subsequently, they have now two children together: those children, born in 2018 and 2020 respectively, at this stage constitute the family in which X lives.

13. It appears to me, on the evidence before me, that it is clear that, since at least the time of cohabitation, Mr Hexter has taken up and assisted X’s mother to discharge all of the obligations that are associated with being a parent. 

14. As I have already outlined on the record, Mr Gabel (X’s biological father) has not filed any material in response to the Application.  Having also outlined, for the record, the existence of the Acknowledgement of Service, it is perhaps unnecessary to here record that I am satisfied that he is aware of the Application: had I not been so satisfied, I would not have commenced the delivery of these Reasons to determine it.

15. Whilst it is unnecessary to go into particularly detailed reasoning about the relationship between X’s biological parents, it is probably relevant that I record that X’s mother separated from Mr Gabel before discovering she was pregnant with X; that since X’s birth, the evidence is that he has paid no child support through the Child Support Agency in relation to her support and, thus, has made no contribution to her financial support; and that his contact with her has been very, very limited and has not occurred for a significant period of time.

16. I accept X’s mother’s evidence that, in essence, there has been only one occasion on which Mr Gabel sought to have any contact with X. I also note and accept her evidence, in essence, that none of X’s biological paternal family members have made any attempts to have any contact with her. 

17. I accept the evidence given by the Applicants to the effect that they are supportive of X having the knowledge of the existence of her biological father; I accept their evidence as to the manner in which they have attempted to deal with that issue at this stage of her life, noting her age. I also accept their evidence in relation to affording to her at least the potential in the future, if sought by Mr Gabel, of an opportunity to, at least, learn further of him. 

18. I accept the evidence given by each of the Applicants about the role that Mr Hexter has played in X’s life. As I have said, I accept that the Respondent to this Application has made what could only be regarded as very limited attempts to have contact with X.  I accept X’s mother evidence to the effect that, for example, he has never contacted X for her birthday or at Christmas and that he has never supported her financially, physically or emotionally. I also accept her evidence to the effect that none of his family members, or extended family members, have ever sought to establish a relationship with X. 

19. I accept the evidence of the Applicants that, instead, Mr Hexter has fulfilled that role and has discharged the obligation of being a parent to X, with her mother’s support. I accept, without hesitation, his evidence that he regards X as his own child and sees her in the same light as he regards her siblings, who are his biological children with X’s mother.

20. I am easily satisfied on the evidence before me that, from X’s perspective, Mr Hexter is her father for all intents and purposes. I also accept, without hesitation, his evidence that he would be honoured to adopt her; I infer that he seeks to do so, in essence, to formalise what he clearly regards already to be the situation in relation to their relationship – namely, that she is his daughter and he is her father.

21. I accept that Mr Hexter has committed to loving and supporting X always, and that the application for adoption that will be commenced (if leave is granted) is simply a manifestation of that desire and a desire to formalise the arrangements.  On the evidence before me, the fact of the Application seeking leave to commence adoption proceedings for X easily establishes that  Mr Hexter continues to seek to discharge the role of parenting X, together with her mother, and that he continues to do so with the support of her mother.

22. On the evidence before me, therefore, I consider it open for me to infer that it is much more likely than not that X, her mother, Mr Hexter (and, perhaps, X’s siblings) will also likely gain significant additional emotional benefit if, after proper consideration by the relevant State authorities, an adoption order is ultimately made. 

23. For these reasons, delivered orally, I have no hesitation at all in concluding that the commencement of proceedings seeking adoption is something that is in X’s best interests.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 July 2020.

Associate: 

Date:              24 July 2020