JOSEPH & SADLER - [2010] FamCA 66

FAMILY COURT OF AUSTRALIA

JOSEPH & SADLER

[2010] FamCA 66

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act – Leave Granted

Adoption Act 2009
Adoption of Children Act 1964
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS:

Mr and Mrs Joseph

RESPONDENT:

Mr Sadler

FILE NUMBER:

BRC

482

2010

DATE DELIVERED:

27 January 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

27 January 2010

REPRESENTATION

THE APPLICANTS:

In person

THE RESPONDENT:

In person

Orders

IT IS ORDERED THAT

Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child J born … January 1999.

IT IS NOTED that publication of this judgment under the pseudonym Joseph & Sadler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 482 of 2010

MR AND MRS JOSEPH

Applicants

And

MR SADLER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application by a step-parent for leave to adopt pursuant to s 60G of the Family Law Act 1975 (“the Act”).
As Chisholm J remarked in Fogwell & Ashton (1993) FamCA 113:
It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter court’s ordinary jurisdiction. Nevertheless, that is the consequence of the provisions of the Family Law Act 1975 (“the Act”).
His Honour went on to say:
In these undefended proceedings, it is appropriate for this court to rely on the presumption that the relevant provisions of the Family Law Act are constitutionally valid. I note, however, that for reasons developed by Dr Jessep in a jointly-authored article, their validity may well be arguable: C.O. Jessep and R. Chisholm, “Step-parent adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179 at 182-185, discussing, in particular, Re LSH; ex parte RTF (1987) 75 ALR 469.
No argument is addressed in respect to the constitutional validity of the provisions of the Family Law Act. In this ex tempore judgment. I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings.
Adoption of children in this state is governed for another five days by the Adoption of Children Act 1964. On 1 February 2010, the Adoption Act 2009 will apply.
A number of applications currently in train will, at that new Act’s commencement date, have new criteria within that Act applied to them. Critically, the Act will require prospective adopting stepparents to satisfy, in addition to existing criteria, two new criteria, namely that the relevant child or children is or are at least five years old and not yet 17, and secondly, that this court has granted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JOSEPH & SADLER

Details

AGLC: JOSEPH & SADLER [2010] FamCA 66
Case: [2010] FamCA 66
Decision Date: 27 January 2010

CaseChat Overview and Summary

In the matter of *Joseph & Sadler*, heard before Murphy J, the applicants sought leave to commence adoption proceedings concerning a child, J, born in January 1999. The precise nature of the dispute leading to this application for leave is not detailed, but the core of the matter concerned the procedural step of obtaining court permission to initiate adoption proceedings.

The primary legal issue before the Court was whether to grant leave to the applicants to commence adoption proceedings, as required by section 60G of the *Family Law Act 1975* (Cth). This section typically requires a party to obtain leave of the court before commencing proceedings for an adoption order, particularly where certain conditions or circumstances apply.

Murphy J granted the applicants leave to commence adoption proceedings. The decision indicates that the Court was satisfied that the criteria for granting such leave under section 60G of the *Family Law Act 1975* had been met, thereby permitting the applicants to formally proceed with their application for an adoption order for the child J.

Orders

Orders of the court

IT IS ORDERED THAT

Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants to commence adoption proceedings of the child J born … January 1999.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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