Mauro & Scarpa
[2023] FedCFamC1F 560
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mauro & Scarpa [2023] FedCFamC1F 560
File number(s): MLC 14689 of 2022 Judgment of: CARTER J Date of judgment: 7 July 2023 Catchwords: FAMILY LAW – ADOPTION – where the applicants are the mother and the stepfather – where the stepfather wishes to adopt the child – where the biological father's identity is unknown – leave granted pursuant to s 60G to commence adoption proceedings – where orders for the child to live with the applicants are in his best interests – where orders for the applicants to have equal shared parental responsibility are in the child's best interests Legislation: Family Law Act 1975 (Cth) ss 4, 60CC, 60F, 60G 60HA, 61C, 61E, 65J
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25 and 149
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 7 July 2023 Counsel for the Applicants: Ms Bastick Solicitor for the Applicants: Kenna Teasdale Lawyers ORDERS
MLC 14689 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MAURO
First Applicant
MS SCARPA
Second Applicant
AND: UNKNOWN
order made by:
CARTER J
DATE OF ORDER:
7 July 2023
THE COURT ORDERS THAT:
1.The first and second applicants have equal shared parental responsibility for the child X born 2017.
2.X live with the first and second applicants.
3.Pursuant to section 60G of the Family Law Act 1975 (Cth) the first and second applicants have leave to commence adoption proceedings for the adoption of X by the first applicant.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
X is five years old. He is the biological child of the second applicant, Ms Scarpa. Ms Scarpa is married to the first applicant.
The applicants in this matter seek:
(a)leave to commence proceedings for the first applicant to adopt X;
(b)orders that they have equal shared parental responsibility for him; and
(c)orders that X lives with them.
Ms Scarpa does not know the identity of X’s biological father. He was conceived as a result of a fleeting tryst with a man whose identity and whereabouts are unknown to Ms Scarpa. Consequently, he has had nothing to do with X. Ms Scarpa has no way of finding out who he is or where he may be. Accordingly, there is no respondent to this application.
The applicants have known each other since 2009. They commenced their relationship shortly after X was born, and they were married in 2020. They have since had a son, B, who is two years old, and another child is due later this year. Their evidence is that their marriage is stable, secure and committed.
WHAT IS THE POWER TO MAKE THE ORDER SOUGHT FOR LEAVE TO COMMENCE PROCEEDINGS?
Section 60G of the Family Law Act 1975 (Cth) provides that jurisdiction to grant leave to commence adoption proceedings vests in the Federal Circuit and Family Court of Australia (Division 2). This matter was transferred to the Federal Circuit and Family Court of Australia (Division 1). Pursuant to s 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this Court has jurisdiction to hear matters which have been transferred from Division 2 to Division 1 under s 149 of the Federal Circuit and Family Court of Australia Act.
Section 60G further sets out that an application for leave to commence adoption proceedings may only be made by a prescribed adopting parent. A “prescribed adopting parent” is defined in section 4(1) of the Family Law Act as being a parent of the child and his or her spouse.
Ms Scarpa is a prescribed adopting parent, as she is X’s biological parent. Mr Mauro, as Ms Scarpa’s spouse is also a prescribed adopting parent for the purposes of the legislation.
Pursuant to section 60G(2), in determining whether to grant leave, I must consider whether that would be in X’s best interests having regard to the effect of ss 60F(4)(a), 60HA(3)(a), 65J (none of which are relevant given the facts in his case) and 61E of the Family Law Act. Essentially those sections set out that if leave is granted, then upon adoption, the non-adopting parent will cease to have any of the parental duties, powers, responsibilities or authority in relation to the child.
ARE THE ORDERS IN X’S BEST INTERESTS?
Sections 60CC(2) and (3) set out the primary and additional considerations that I must take into account in determining what orders are in X’s best interests.
This is happily not a matter in which there are any risk issues identified. X is clearly safely and securely parented by the applicants. His ongoing relationship with them both is plainly of significant benefit to X.
X calls Mr Mauro “Dad”, and has lived in the same house as him since he was around one year old. He has a close and loving relationship with both the applicants, each of whom are intimately involved with his day to day care and routines. That includes being involved in his schooling, extra curricula activities, social engagements and bed and bath time routines.
X is young and his views have not been sought. He is treated as a member of Mr Mauro’s family, and regards himself as part of their family as well. Mr Mauro’s evidence is that he treats X as if he were his son and regards him as such. He deposes to delighting in X’s growth and development, and relishing his parental role.
X’s brother B is a child of the applicants, and there is another child on the way.
The applicants wish to maintain a stable family unit with the three children. They wish to ensure that X feels as safe and secure as his brothers as to his place in the family unit. They also both wish to ensure that X will be treated as a child of the relationship, along with his siblings, in the event that something should happen to Ms Scarpa.
X’s biological father has not been involved in X’s life. He has no relationship with X, and given that Ms Scarpa has no way of identifying or locating the biological father, it is highly unlikely he will ever play a role in X’s life.
What parenting orders should be made?
Mr Mauro has assumed a significant role in X’s life. That has included nurturing and caring for him physically, emotionally and financially. He has been involved in X’s life since he was an infant, and has lived in the same premises since X was one year old.
Both the applicants have been exercising parental responsibility for X. They have jointly made decisions about X’s education and religious upbringing.
I am satisfied that making an order for equal shared parental responsibility is in X’s best interests. It will reflect what has, in reality, been occurring for a protracted period. It will also ensure that parental decisions can be made for X in a timely fashion in the event the mother is not available.
I am satisfied on the evidence before me that both applicants are competent parents who will continue to discharge their duties in exercising parental responsibility in an appropriate manner.
I am also satisfied that it is in X’s best interests for orders to be made that he live with the applicants. He has always lived with his mother. He has lived with Mr Mauro since he was a little over one year old. There is, accordingly, no change to X’s care arrangements, and the orders sought simply formalise what has been the long standing arrangement for X. He is clearly thriving in their care.
Should leave be granted pursuant to s 60G?
The facts in this matter are unusual in that X’s biological father is unknown to the applicants. He has played no role in X’s life, nor exercised any powers or responsibilities in relation to him. Whilst X’s biological father has parental responsibility as a matter of law – arising as a result of the operation of s 61C of the Family Law Act – he has never exercised those responsibilities. If leave is granted to the applicants to commence adoption proceedings, X’s biological father’s parental responsibility will end upon his adoption. In circumstances where the identity of X’s biological father is highly unlikely to become known, there seems to be no utility in preserving parental responsibility to him.
Having regard to all of the evidence before me, and having taken into account the considerations as required, I am satisfied granting leave is in X’s best interests, and accordingly, I make the orders as sought.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 7 July 2023
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