Kator & Wadala
[2023] FedCFamC1F 650
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kator & Wadala [2023] FedCFamC1F 650
File number(s): MLC 2828 of 2023 Judgment of: HARTNETT J Date of judgment: 7 August 2023 Catchwords: FAMILY LAW – PARENTING – ADOPTION – Where the mother and the step-father seek leave to commence adoption proceedings – Where the mother and the step-father seek orders for equal shared parental responsibility of the child – Where there were previous final consent orders for mother to have sole parental responsibility for the child – Where the child’s biological father has not seen the child in nine years – Where the child’s biological father consents to the orders sought – Leave granted – Orders for the mother and the step-father to have equal shared parental responsibility – Orders for the child to live with the mother and the step-father Legislation: Family Law Act 1975 (Cth) ss 4, 60CC, 60F, 60G, 60HA, 61E, 64B, 65J
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 149
Adoption Act 1984 (Vic)
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 7 August 2023 Place: Melbourne Solicitor for the Applicants: Taylor Rose Lawyers The Respondent: Litigant in person ORDERS
MLC 2828 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KATOR
First Applicant
MR KATOR
Second Applicant
AND: MR WADALA
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
7 August 2023
THE COURT ORDERS THAT:
1.The parenting orders made by consent on 26 February 2020 be discharged.
2.Pursuant to s 60G(1) of the Family Law Act 1975 (Cth), leave be granted to the Applicants to commence proceedings in the County Court of Victoria for the adoption of X born 2011 (“the child”).
THE COURT ORDERS, BY CONSENT, THAT:
3.The applicant mother and the applicant step-father have equal shared parental responsibility for the child.
4.The child live with the applicant mother and the applicant step-father.
THE COURT FURTHER ORDERS THAT:
5.All extant applications be otherwise dismissed.
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 a pseudonym Kator & Wadala has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
These proceedings came before the Court on 7 August 2023 to determine the application of the first applicant mother (“the mother”) and the second applicant step-father (“the step-father”) (together, “the applicants”) seeking orders for leave to commence proceedings in the County Court of Victoria for the adoption of the child, X born 2011 (“the child”). The applicants also sought orders for them to have equal shared parental responsibility for the child. The respondent to the proceedings is the child’s father (“the father”). The father consents to the orders sought by the applicants.
The application was initiated in the Federal Circuit and Family Court of Australia (Division 2) on 20 March 2023 and was transferred to the Federal Circuit and Family Court of Australia (Division 1) pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) on 21 June 2023.
LEGAL PROVISIONS
Adoption proceedings are not determined by this Court and are instead determined by State courts with regard to the relevant state legislation. The relevant state legislation in Victoria is the Adoption Act 1984 (Vic). Notwithstanding this, there is provision in the Family Law Act 1975 (Cth) (“the Act”) for this Court to provide leave to commence adoption proceedings.
Section 60G of the Act relevantly provides:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
(2)In proceedings for leave under subsection (1), 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 sections 61E and 65J.
Whilst s 60G(1) of the Act expressly provides Division 2 of the Federal Circuit and Family Court may grant leave, pursuant to s 25 of the FCFCOA Act, Division 1 has jurisdiction to hear matters which have been transferred from Division 2 to Division 1 under s 149 of the FCFCOA Act. As outlined earlier in these reasons, this matter has been duly transferred to the Federal Circuit and Family Court of Australia (Division 1).
Relevant to s 60G(1) of the Act, the meaning of a prescribed adopting parent, in relation to a child, is included in s 4(1) of the Act which provides:
(a)a parent of the child; or
(b)the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
Relevant to s 60G(2) of the Act, the best interests considerations the Court must have regard to are as set out in s 60CC of the Act. Indeed, the Court must have regard to the best interests considerations as the paramount consideration when deciding to make a particular parenting order in relation to a child. A parenting order, pursuant to s 64B of the Act, may deal with the person or persons which whom a child is to live and the allocation of parental responsibility for a child.
Additionally, s 60F(4)(a) of the Act makes provision in relation to the child of a marriage who is adopted by the prescribed adopting parent:
if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of the marriage for the purposes of this Act.
Section 60HA(3)(a) of the Act provides a reciprocal provision of s 60F(4)(a) of the Act in relation to children of de-facto partners.
Pursuant to s 61E of the Act, the effect of adoption on parental responsibility is if:
(1) …
(a)a child is adopted; and
(b)immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.
(2)The person’s parental responsibility for the child ends 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.
Similar to s 61E of the Act, s 65J of the Act provides the effect of adoption on a parenting order is if:
(1)…
(a)a child is adopted; and
(b)immediately before the adoption, a parenting order was in force in relation to the child.
(2)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.
Having regard to s 61E and s 65J of the Act, I note that the definition of prescribed adopting parent as detailed above includes provision for a parent of the child being an applicant in addition to the spouse of a parent.
MATERIAL RELIED UPON
The applicants rely upon:
(1)Initiating Application filed 20 March 2023;
(2)Notice of Child Abuse, Family Violence or risk filed 20 March 2023;
(3)The mother’s affidavit filed 13 April 2023; and
(4)The step-father’s affidavit filed 13 April 2023.
The respondent relies upon:
(1)Response to Initiating Application filed 24 May 2023;
(2)his affidavit filed 24 May 2023; and
(3)Notice of Child Abuse, Family Violence, or Risk filed 24 May 2023.
ORDERS SOUGHT
The applicants sought orders, as provided for in the Initiating Application filed 20 March 2023, relevantly, that, pursuant to section 64B(2) of the Act and upon receipt of an Adoption Order by the County Court of Victoria that Mr Kator, a party to a marriage and Joint Applicant in these proceedings, be granted equal parenting responsibilities with his wife, Ms Kator, the joint applicant in these proceedings and be recognised as the father of the child.
The father sought orders, as provided for in the Response to Initiating Application, relevantly, in the same terms as the orders sought by the applicants.
DISCUSSION
The mother was born in 1983 and is aged 39 years. The mother is employed as a professional, working 30 hours each week.
The father was born in 1091 and is aged 41 years. The father runs a small business in Country B, where he has resided since 2012.
The step-father was born in 1986 and is aged 37. The step-father is self-employed and owns a business.
The mother and father were married in 2010 and separated in 2012, when the child was one year old. The mother and father were divorced in 2016. The father has not seen the child since 2012, when he moved from Australia to Country B and has remained since that time.
On 26 February 2020, final parenting orders were made by consent between the mother and father which provided, relevantly, that the mother have sole parental responsibility for the child; the mother be at liberty to apply to the Victorian Registry of Births, Deaths and Marriages to register a change of the child’s name; the mother be entitled to remove the child from Australia as she sees fit; the mother be authorised and permitted to obtain an Australian passport for the child without first obtaining the written consent of the father; any requirement for the father’s consent or signature for a passport application or renewal with respect to the child be dispensed with; and subject to the requirements of the Australian Government Department or Agency which issues or has the power to issue passports, the mother do call acts and things necessary to issue passports to and for the child.
The mother and step-father married in 2021.
The child, as described by the applicants, is a happy and healthy boy. The child does not have any medical illnesses or conditions; does not have any on-going medical treatments; does not take any medication; and does not have any special dietary requirements.
It is the applicants’ evidence that the family home in which the child and the applicants live is a comfortable five bedroom house in Melbourne. Save for any of the child’s friends who sleep over, no one else sleeps overnight in the family home.
The child has his own bedroom in the applicants’ home where he has, in the opinion of each of the applicants, ample storage for his many toys and his own desk and computer which the child uses for his studies and to communicate with friends after school and over the weekends.
The child currently attends a local school near the family home and is in Year 9. The mother drops the child off at school each morning and the step-father collects the child from school at the conclusion of the school day.
The mother deposes to the child taking part in sports on weekday evenings, with the applicants each taking turns taking the child to each sport.
The applicants each assist the child with his homework in the evenings as required.
The applicants each depose to the child being very settled at school and having a number of close friends who visit the family home after school to play and study with the child.
It is also the applicants’ evidence that the father has never requested to communicate with the child and the child does not know the father to be his biological father.
The father does not pay any child support to the mother for the benefit of the child. The child is solely supported by the applicants who share the costs of maintaining the child.
The applicants have arranged for the child to travel overseas since the final orders were made in February 2020, including a holiday to spend time with overseas relatives.
It is the mother’s position there was no family violence during her and the father’s marriage, nor was there any family violence post separation.
The father does not make any allegation the child is at risk of or has experienced child abuse, family violence or neglect, as detailed in his Notice of Child Abuse, Family Violence or Risk filed 24 May 2023.
CONCLUSION
Having regard to the above facts and the parties’ consent for the Court to make orders as sought by the applicants, I am satisfied it is in the child's best interests to make an order pursuant to s 60 G of the Act and grant leave to the applicants to commence proceedings for the adoption of the child.
I am also satisfied it is in the child's best interests for an order to be made discharging all previous parenting orders relating to the child and for the applicants to have equal shared parental responsibility for the child.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 7 August 2023
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