Iliescu & Kubo
[2024] FedCFamC1F 852
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Iliescu & Kubo [2024] FedCFamC1F 852
File number(s): BRC 12694 of 2024 Judgment of: HOGAN J Date of judgment: 5 December 2024 Catchwords: FAMILY LAW – ADOPTION – Where the applicant father and the applicant step-mother sought leave to commence adoption proceedings in relation to the father’s 12 year old child – Where the biological mother consented to the orders sought – Where leave is granted Legislation: Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Division: First Instance Number of paragraphs: 26 Date of hearing: 5 December 2024 Place: Brisbane First Applicant: Litigant in person Second Applicant: Litigant in person Respondent: Litigant in person ORDERS
BRC 12694 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ILIESCU
First Applicant
MR ILIESCU
Second Applicant
AND: MS KUBO
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 60G(1) of the Family Law Act 1975 (Cth), leave is granted for the Applicants, Ms Iliescu and Mr Iliescu, to commence proceedings for the adoption by Ms Iliescu of X, born in 2011.
NOTATION
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 the pseudonym Iliescu & Kubo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
I have today an application commenced in the Federal Circuit and Family Court of Australia (Division 2) by way of Initiating Application sealed 15 September 2024 by the applicants, seeking an order pursuant to s 60G of the Family Law Act 1975 (Cth) granting them leave to commence proceedings for the adoption by Ms Iliescu, the first applicant, of the child X, who was born in 2011.
By order made 13 November 2024, the proceedings were transferred to this Court pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
It is clear on the evidence before me, which I have had the opportunity to read before coming into Court this morning, that Ms Iliescu has known X since about the end of 2014 and that the applicants and X have lived together as a family unit since mid-2015, when they started to live together. It is also clear that the applicants married in 2020 and that, following the births of X's siblings in 2015, 2017, and 2022, the family unit has continued in its existence.
I accept the evidence given to the effect that Ms Kubo, (who is X's biological mother) agreed with her biological father, Mr Iliescu (the second applicant in these proceedings) in about May 2014 to a parenting arrangement which entailed X living in his full-time care.
I also accept the evidence to the effect that X and Ms Kubo have not had contact since December 2014.
Ms Kubo (the respondent to the proceedings) has provided evidence of her support for the making of an order granting leave to the applicants to commence proceedings for X's adoption by Ms Iliescu.
There is also evidence before the Court – which I accept – to the effect that all of the parties to this proceeding remain in contact with each other and have an ongoing relationship.
I accept the evidence, given in the relevant document filed on behalf of the applicants, that there are no ongoing cases in relation to X's parenting arrangements in any other jurisdiction. I accept that there are no orders relating to family or domestic violence. There is no evidence before this Court to suggest that there are any protection orders in force as between the applicants; there is no evidence and no allegation to suggest that risk is an issue in this case.
Having noted that, it is sufficient, I think, to continue to say only the following.
There are some relevant legal principles that require some very brief discussion in the determination of the application. They are as follows.
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 child only if a number of matters are satisfied. Included within these matters are that the child the subject of the application – here, X – is at least five years of age and has not yet turned 17 years of age. In this case, that circumstance is clearly satisfied.
An additional matter prescribed by s 92 (in particular, in subparagraph (1)(d) of that section) is that a person must have been granted leave pursuant to the Family Law Act 1975 (Cth) – hence this application to the Court.
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 satisfied. This Court must also consider whether granting leave would be in X's best interests, having regard to a number of sections of the Act; such as sections 60F(4)(a), 60HA(3)(a), section 61E, and 65J of the Family Law Act 1975 (Cth), where those sections are applicable.
The decision facing this Court this morning is, of course, one that differs from a decision facing the Court charged with the obligation to make a decision about whether to permit Ms Iliescu to adopt X. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections set out in s 60G of the Act; only an order for adoption, if made by an appropriate state Court, has that effect.
However, given that s 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 (including that an order for adoption by a step-parent would better promote a child'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, I think, apparent that this Court ought not make an order granting leave 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.
I record my view that, in this case, I am easily satisfied that the mandatory legislative prerequisites are established.
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 prescribed by s 60CC of the Family Law Act 1975 (Cth). However, as is made clear by authorities such as Banks & Banks,[1] any failure to mention specifically any particular consideration in these Reasons delivered orally this morning does not mean that such considerations have not been the subject of reflection, determination and deliberation during my assessment, before I commenced the hearing, of the evidence relied upon.
[1] (2015) FLC 93-637.
It is, I think, sufficient to record that, on the evidence before me, I am easily satisfied that Ms Iliescu has discharged all of the responsibilities of parenting X in the time that she has been present in her life – a not insignificant period of time at this point. I accept that it is highly likely that, from X's perspective, Ms Iliescu is now very much a mother figure to her. It would be difficult to think other than that she has a close and loving relationship with Ms Iliescu.
I also accept, on the evidence before me, that X has a very close relationship with her father and his family, Ms Iliescu’s extended family, as well as Ms Kubo's family who, on the evidence, continue to see her and spend time with her regularly. She is, indeed, I think, very fortunate that she has been able, no doubt with the assistance of the applicants, to continue to maintain very close relationships with Ms Kubo's extended family.
I accept the evidence given by Ms Kubo in terms of her support for the application. In particular, I accept that she thinks that X's adoption by Ms Iliescu would be beneficial for X's overall welfare as it would provide legal stability for what are clearly longstanding arrangements within which X has lived since she was four years of age.
There could be no doubt on the material before this Court that Ms Iliescu has assisted X's father to parent her for the time that she has been in her life, particularly from the time since they have lived together as a family unit – that is, about mid-2015.
The only inference able to be drawn from the material is that Ms Iliescu has clearly contributed to the performance of all of the practical tasks that are associated with being a parent to a child. There is nothing in the evidence before this Court to suggest that she has done anything other than carry out and discharge those obligations in a caring and loving manner.
I accept entirely, as is evidenced by the fact of this application, that Ms Iliescu wishes to take a further step to continue to demonstrate her desire to discharge such parenting obligations for X into the future. I accept her evidence that she would be honoured to be legally recognised as X’s mother and to prove to X her ongoing commitment to her for life. I accept that Ms Iliescu is supported clearly in this desire by both of X's biological parents. The fact of the application before this Court is itself, in my view, a clear manifestation of an appreciation by Ms Iliescu of what it will mean in terms of her responsibility on an ongoing basis to X should an order for adoption ultimately be made by the Court charged with responsibility for the same.
I think a very strong conclusion that is sensibly open on the evidence before me is that it is much more likely than not that X will gain significant emotional benefit if, after proper consideration by the relevant state authorities, an adoption order is ultimately made.
There is, I think, little doubt that it is likely that, as X grows older, she will continue to come to appreciate further the importance of the step that her father and Ms Iliescu have sought to start today by bringing this application.
In conclusion, the material before this Court easily persuades that the commencement of proceedings to seek that a Court make an order for X's adoption by Ms Iliescu is something that is in her best interests.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 13 December 2024
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