Kalbfeisch & Pickle
[2021] FedCFamC1F 149
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kalbfeisch & Pickle [2021] FedCFamC1F 149
File number(s): BRC 5955 of 2021 Judgment of: HOGAN J Date of judgment: 15 October 2021 Catchwords: FAMILY LAW – ADOPTION – leave to commence proceedings for adoption – where the child’s step-father seeks leave to commence proceedings for adoption – where the child has had a limited relationship with her biological father – where the biological father has not participated in the proceedings – where the child regards the step-father has her parent – leave granted Legislation: Adoption Act 2009 (Qld), ss 92, 208
Family Law Act 1975 (Cth), ss 60CC, 60F, 60G, 60HA, 61E, 65JCases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 15 October 2021 Place: Brisbane (via telephone) Solicitor for the Applicants: Ms Armstrong, Michael Lynch Family Lawyers Solicitor for the Respondent: No appearance ORDERS
BRC 5955 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KALBFEISCH
First Applicant
MS KALBFEISCH
Second Applicant
AND: MR PICKLE
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 60G(1) of the Family Law Act 1975 (Cth), leave is granted for the Applicants, Mr Kalbfeisch and Ms Kalbfeisch, to commence proceedings for the adoption by Mr Kalbfeisch of X, born 2005.
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 Kalbfeisch & Pickle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
Reasons for proceeding in the Respondent’s absence
I am satisfied that the respondent has been made aware of the existence of the application. I am satisfied that the applicants have complied with the order as to the method of service prescribed – namely, to provide information and documents via Facebook Messenger by attaching the documents filed, including a copy of the order made on 31 August 2021 by a Registrar. I also accept the information provided by the legal representative for the applicants from the bar table to the effect that the written submissions prepared on behalf of the applicants sealed 14 October 2021 were provided to the respondent via Facebook Messenger; that a check of the respondent’s Facebook page or via Messenger, after that occurred, resulted in the applicants’ legal representatives appreciating that they were no longer able to communicate with the respondent via Facebook Messenger as a consequence of the actions of someone in control of that account – which, I infer, is much more likely than not to be the respondent himself.
I also accept the submission to the effect that the actions to block the applicants’ solicitors is highly suggestive of the fact that the respondent has, to date, received the information provided by them to him via that source.
Given that all a court is required to do is to provide to a respondent – or someone whose interests are to be affected by the making of an order sought in any application before it – the opportunity to be heard and to make submissions, I am satisfied that the respondent, in this case, has been afforded that opportunity.
Consequently, I intend to continue to hear and dispose of the application in his absence.
Reasons for granting leave to commence proceedings for adoption
By way of Initiating Application filed 10 May 2021 the applicants seek an order pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Family Law Act”) granting to them leave to commence proceedings for the adoption by the first applicant of the child X, who was born in 2005.
X will be 16 this year.
As I have already outlined, the respondent to the proceedings has not appeared. I have already expressed reasons of my satisfaction that he has been made aware of the existence of this application. The respondent, who is X’s biological father, has not filed any material in response to the application.
I accept the information contained in the Initiating Application, and as referred to in the helpful written submissions prepared on behalf of the applicants, that there are no ongoing cases in relation to X in any other jurisdiction. I accept that there are no existing operative orders which relate to domestic violence, and that there is no protection order currently in force. I accept that there are no orders relating to domestic violence in force as between the applicants. I also accept that there are no parenting orders currently in force in relation to X.
It is appropriate that I record that Mr Kalbfeisch is X’s step-father. He and X’s mother, the second applicant, met and began their relationship in about mid-2006. I accept his evidence, and that of X’s mother, that Mr Kalbfeisch met X when she was about six months of age. I accept that the applicants commenced cohabitation in early 2007, at which time X was approximately one year of age. I accept that they married in 2010. I accept that, since no later than the time of their cohabitation, Mr Kalbfeisch has loved and treated X as if she was his biological child. I accept that, on 26 November 2010, X’s surname was changed from her mother’s maiden name to Kalbfeisch, and that this change occurred without the requirement for the respondent’s consent, as he has not ever signed X’s birth certificate.
It is, I think, also appropriate to note, at this stage, that I accept Mr Kalbfeisch’s evidence about his conversation with X and her request that he take steps to adopt her, and her comments about her concerns about the manner in which her birth certificate issues. I also accept that Mr Kalbfeisch’s response to X’s request was as he sets out in his affidavit material. It is clear, of course, that he and her mother have taken formal steps to put into effect those requirements necessary – if the appropriate authorities consider it appropriate – to have an order made for X’s adoption by him.
The applicants have two biological children together: 12 year old Y, who was born in 2009, and 10 year old Z, who was born in 2010. The only sensible conclusion could be that all children regard themselves as siblings, and that there is no distinction maintained in their home about that particular issue.
I accept that there is no suggestion, in any of the evidence, that X has ever been abused. I also accept that there is no suggestion at all in the evidence that she has ever been placed at risk of being exposed to family violence or as having experienced the same.
Section 92 of the Adoption Act 2009 (Qld) (“the Adoption Act”) 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; hence, the current application.
In determining whether to grant leave for a party or 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, if applicable, of the Family Law Act where those sections are applicable in any particular case.
The decision facing this Court this morning is, of course, one that differs from the decision facing the court charged with the obligation of making the determination about whether to permit X’s adoption or not. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections I have particularised, and that are particularised in s 60G of the Family Law Act – only an order for adoption, if made by the appropriate State Court, has that effect. However, s 208 of the Adoption Act is to the effect that the court may make a final adoption order under the Adoption 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, 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.
I record here my view that, in this case, I am satisfied that the mandatory legislative prerequisites are established on the evidence before me.
In determining, as I must, under s 60G(2) of the Family Law Act, whether granting leave to commence proceedings is in X’s best interests, I must give consideration to the familiar best interest considerations, where they are relevant, as those are prescribed by s 60CC of the Family Law Act.
However, as is made clear by authorities such as Banks & Banks (2015) FLC 93-637, any failure to mention specifically any particular consideration in these reasons delivered orally this morning does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon – particularly given, as I have informed the applicants and their legal representative this morning, that I have had the opportunity to read their affidavit material prior to commencing the hearing of the application and that I was also assisted by, and had the opportunity to read, the helpful written submissions prepared in support of the same, those submissions having been filed on 14 October 2021.
I accept, generally, the contents of those submissions.
I accept the applicant’s evidence that she and X’s biological father separated when X was about three months of age. I accept that the respondent has not seen or spent time with X since she was approximately eight months of age. I also accept that, as a consequence of actions taken by her mother, X had, I think, two telephone calls or some telephone communication over a two-week period with the respondent in mid-2015 – but, after this time, she has not been afforded the opportunity to have any contact or communication with him. I accept the evidence of the applicants to the effect that that is as a consequence of decisions made by the respondent and not by themselves or by X.
It is clear on the evidence before me that Mr Kalbfeisch has, since the time of his cohabitation with X’s mother and X, acted at all times to discharge the responsibilities that any person would have to a child when taking up and exercising aspects of parenting. I accept that he has undertaken the responsibility of supporting X and her mother financially. I accept that, whilst the respondent has been assessed to pay about $12 a fortnight child support for X, the arrears of the same are, at present, about $2,786 – which clearly suggests that there has not been any payment by him of even the limited assessed amount for a very significant period of time, if at all. It is clear, therefore, that X’s mother and her stepfather, Mr Kalbfeisch, have, as I have said, borne entirely the responsibility for meeting her financial needs.
It is also clear on the evidence before me that the respondent has not played any active role in X’s life and that, when afforded the opportunity to communicate with her, he chose not to do so. In contrast, it is quite clear that Mr Kalbfeisch has played the role – for all intents and purposes – of X’s father in her life for all of her life. The evidence that she calls him “dad” is completely unremarkable given his presence in her life. I accept that he has provided her with significant emotional and practical support, that he has fulfilled the role of being her father and has discharged all of the duties and obligations of being her parent. There could be no other conclusion on the evidence before me.
The only other sensible conclusion I think appropriate to record is that X could only regard Mr Kalbfeisch as her father for all intents and purposes. Her request of him to take action to adopt her is a clear manifestation of the manner in which she regards him and all of the support he has no doubt provided to her during her life. I accept that Mr Kalbfeisch is committed to continuing to love and support X, as he has done previously, and I am easily satisfied that his application, being one in which X’s mother joins, for an order to be made for his adoption of X is simply a clear manifestation of his commitment to X.
On the evidence before me and given my earlier comments and conclusions about the manner in which X, Y and Z are likely to regard themselves, it is highly likely also that, if an order for adoption is made, ultimately, by the appropriate authority, then all of the children – as well as their parents, by which reference I mean the applicants – will gain the additional significant emotional benefit of a formal recognition of the manner in which the family unit currently regards itself.
For those short reasons delivered orally, I have no hesitation at all in concluding that the commencement of proceedings seeking adoption of X by Mr Kalbfeisch is something which is in her best interests.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 October 2021
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