Hofer & Sudweeks

[2022] FedCFamC1F 401

Federal Circuit and Family Court of Australia

(DIVISION 1)

Hofer & Sudweeks [2022] FedCFamC1F 401

File number(s):

BRC 2886 of 2022

Judgment of:

CAREW J

Date of judgment:

2 June 2022

Catchwords:

FAMILY LAW – LEAVE TO COMMENCE ADOPTION PROCEEDINGS – Where the applicants are the step-father and the biological mother – Where the applicants seek leave to commence adoption proceedings in relation to an eight year old child – Where the biological father does not oppose the child being adopted – Where leave is granted.

Legislation:

Family Law Act 1975 (Cth)

Adoption Act 2009 (Qld)

Number of paragraphs:

17

Date of hearing:

2 June 2022

Place:

Brisbane

The Applicants:

Litigant in Person

The Respondent:

Litigant in Person

ORDER

BRC 2886 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HOFER

First Applicant

MS HOFER
Second Applicant

AND:

MR SUDWEEKS

Respondent

order made by:	CAREW J
DATE OF ORDER:	2 June 2022

THE COURT ORDERS THAT:

1.Leave be granted to the parties to appear at the hearing by telephone.

2.Leave be granted to join Ms Hofer as a party to the proceedings as a second applicant.

3.Leave be granted to the applicants to seek an order in the following terms:

Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Hofer and Ms Hofer be granted leave to commence adoption proceedings in respect to the child X born in 2013.

4.Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Hofer and Ms Hofer be granted leave to commence adoption proceedings in respect to the child X born in 2013.

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 Hofer & Sudweeks has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CAREW J:

1. This is an application for leave to commence adoption proceedings pursuant to section 60G of the Family Law Act 1975 (Cth) (“the Act”). Even though the adoption proceedings themselves are determined under the law of Queensland where the applicants live, obtaining leave pursuant to the Act is, nevertheless, a prerequisite to the application for adoption, see section 92 of the Adoption Act 2009 (Qld).

2. The child, the subject of these proceedings, is X, born in 2013. The applicants for leave to commence adoption proceedings are her stepfather, Mr Hofer and her biological mother, Ms Hofer.  The respondent to the application is the child’s biological father, Mr Sudweeks. 

3. Mr Sudweeks does not oppose leave being granted to the applicants to commence adoption proceedings and it is something that had been raised with him some time ago, well prior to being served with a copy of the application.

4. 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 the Federal Circuit and Family Court of Australia (Division 2), (formerly known as the Federal Circuit Court of Australia), to this Court, (formerly known as the Family Court of Australia). Since 1 September 2021, these proceedings can no longer be instituted in this Court. 

5. The application was filed in the Federal Circuit and Family Court of Australia (Division 2) on 15 March 2022 and transferred to this Court on 12 May 2022. 

6. Section 60G of the Act provides that a ‘prescribed adopting parent’ may be granted leave to commence adoption proceedings, and in considering whether or not to grant leave 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 section 61E and section 65J.

7. Section 60CB to 60CG deal with how a Court determines a child’s best interests.

8. Pursuant to section 60E of the Family Law Act if a child is adopted and immediately before the adoption a person had parental responsibility, that person’s parental responsibility ends on the adoption unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

9. Further, pursuant to section 65J if a child is adopted and immediately before the adoption a parenting order was in force in relation to the child, the parenting order stops being in force on the adoption of the child unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

10. While it seems counterintuitive for Ms Hofer to apply for leave to adopt her own child, it does seem that the effect of section 61E would be to end her parental responsibility for the child if she is not an applicant and the adoption is later granted. 

11. In this context, I also note that the definition of a ‘prescribed adopting parent’ in section 4(1) of the Act contemplates a parent of the child being an applicant, as well as the spouse or de facto spouse of a parent. As Mr Hofer is the spouse of the child’s mother, he too is a ‘prescribed adopting parent’ within the meaning of section 4(1) of the Act.

12. Mr Hofer was born in 1992 and has been in a relationship with Mrs Hofer since the child’s birth. He and Mrs Bauer married in late 2016.  Mr Hofer has at all times fulfilled the role of father to the child.  He works as a tradesperson.

13. Ms Hofer was born in 1993, and she is an education professional.

14. Mr Sudweeks is a professional although, it seems, currently unemployed.  He has never met the child and has no relationship with her.  He does not pay child support.

15. The child refers to Mr Hofer as “Dad” and regards him as her father.  She does not know that her biological father is Mr Sudweeks.  In 2019, the child began primary school at B School in Town C, and at school she uses the last name Hofer.  This was done by the applicants so that the child has the same surname as her half-brother, Y who is six years of age, and to ensure that the child did not have a different surname from the rest of her family.

16. X, by the sounds of it, is a very outgoing and happy child.  She is involved in a number of extracurricular activities.  Both Mr and Ms Hofer have extended family in Town C whom the child has a relationship with as grandparents, aunts, uncles, cousins, etc.  She is part of, by the sounds of it, a very close-knit and loving family. 

17. In the circumstances I am satisfied that it is in X’s best interests for leave to be granted to the applicants to commence adoption proceedings and will so order.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated:       7 June 2022