Normand & Lassard

[2022] FedCFamC1F 1089

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Normand & Lassard [2022] FedCFamC1F 1089

File number(s):	BRC 10606 of 2022
Judgment of:	BAUMANN J
Date of judgment:	1 December 2022
Catchwords:	FAMILY LAW – ADOPTION – Leave to make an application pursuant to the Adoption Act 2009 (Qld)
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	8
Date of last submission/s:	1 December 2022
Date of hearing:	1 December 2022
Place:	Brisbane
Solicitor for the Applicants:	Cherry Family Lawyers
Respondent:	Litigant in person (did not participate)

ORDERS

BRC 10606 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS NORMAND

First Applicant

MR NORMAND

Second Applicant

AND:

MR LASSARD

Respondent

order made by:	BAUMANN J
DATE OF ORDER:	1 DECEMBER 2022

THE COURT ORDERS:

1.That pursuant to s 60G of the Family Law Act 1975 (Cth) the Second Applicant, MR NORMAND be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, X born 2016.

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 Normand & Lassard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

BAUMANN J:

1. X, born 2016, is the product of a short relationship between his mother Ms Normand and his biological father Mr Lassard.  When X was born, his parents were in their early 20s.

2. I am satisfied, as my discussion with the solicitor for the Applicants reveals from the transcript, that not only have the Applicants complied with the Order made by a Judicial Registrar on 6 October 2022 to serve the father via an email address, but that the father’s response to the solicitor for the Applicant sent at 3.15pm on 8 October 2022 can be seen as an acknowledgement of receipt of the documents, namely, the application seeking leave to adopt supported by the affidavit.  The email from the biological father, Mr Lassard, will be marked as Exhibit 1.

3. Perhaps surprisingly, the biological father wishes to take issue with allegations of family violence but makes, it seems, no comment about the core issue before the Court, namely the application for leave to adopt.

4. I am satisfied that, as the matter has moved through its paces to be listed before me today, both the solicitor for the Applicants and even my chambers has kept the biological father informed of the listing date.  As a result, consistent with authority, Mr Lassard knows of the Application before the Court today; knows of his right to appear by telephone and has, it seems, elected not to appear.  He has, of course, filed no response to the Application.  I therefore feel empowered to deal with the Application today in his absence and intend to do so.

5. As Ms Somerville, the very competent practitioner representing the Applicants, well knows and has informed her clients, this Court does not have power to grant adoption.  That is a matter which, constitutionally, is within the authority of the State.  However, strangely somewhat, this Court must give leave to adopt, and as the Family Law Act 1975 (Cth) (“the Act”) makes clear, the fundamental basis for giving that leave is determining whether it is in the best interests of the child to do so. To the extent the Mr Lassard may wish to be heard on the adoption, he will have his rights to do so when the State authorities receive an actual application to adopt supported by this order I intend to make today.

6. I am satisfied on the evidence that X has been a member of a household which combines the mother and the Applicant, Mr Normand, since late 2018 when he was two years of age.  Mr Normand and the mother were married in early 2021.  Mr Normand sets out that he has a child of an earlier relationship, B, who was born 2015, and that the mother of that child and he have discussed his application he intends to make to adopt X.  He says, and I accept for the sake of today, that the mother of B raises no objection.  One wonders whether she had any power to do so anyway, but I give credit to Mr Normand in seeking her view about the issue to the extent that it may create a sibling for B.  Of course, X already has a sibling of Mr Normand and the mother Ms Normand.  That is a child called Y born 2022.

7. I am satisfied on the evidence before me that X regards himself as a member of the household involving Mr Normand and his biological mother.  There is nothing to suggest that he is not happy in that household.  Rightly or wrongly, he appears to be enrolled at school in a name that reflects his biological connection with the mother and the non-biological connection with Mr Normand.  Everything in the affidavit points to it being in the best interests of X that Mr Normand and the mother have leave to adopt, and I make an order as set out in the Application filed 26 August 2022.

8. In passing, I note that some slight controversy arises on the authorities of a number of single judges as to whether it is necessary for a biological parent to actually be the subject of an order to be granted leave to adopt their biological child. I agree with the decision of Gill J that that seems to be a perverse interpretation of the Act, namely, why should a biological parent be required to adopt their own child? But nonetheless, it seems to be a regular practice arising from other decisions of other judges for an order to be sought in respect of both the biological parent and the non-biological parent, and in this case, that being the application and that being what the biological father, Mr Lassard, thinks the order might be, I make the order.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Dated:       12 May 2023