Orr & Leach
[2022] FedCFamC1F 217
•6 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Orr & Leach [2022] FedCFamC1F 217
File number(s): BRC 14441 of 2021 Judgment of: CAREW J Date of judgment: 6 April 2022 Catchwords: FAMILY LAW – LEAVE TO COMMENCE ADOPTION PROCEEDINGS – Where the applicants are the mother and step-father and they seek leave to commence adoption proceedings in relation to two 15 year old twin girls – Where the respondent biological father does not oppose the children being adopted – Where leave is granted.
FAMILY LAW – JURISDICTION – where the Court has jurisdiction
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)
Adoption Act 2009 (Qld)
Cases cited: Cahill & Fryer [2008] FamCA 1245 Number of paragraphs: 24 Date of hearing: 6 April 2022 Place: Brisbane First and Second Applicant: Self-represented Respondent: Self-represented ORDER
BRC 14441 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ORR
First Applicant
MS FREDERICK
Second Applicant
AND: MR LEACH
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
6 APRIL 2022
THE COURT ORDERS THAT:
1.Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Orr and Frederick be granted leave to commence adoption proceedings in respect of the children, X born in 2006 and Y born in 2006.
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 Orr & Leach has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
The applicants for leave to commence adoption proceedings are the mother and step-father of twin girls aged 15 years as the step-father wishes to formally adopt the girls. The proposed adoption is supported by the girls’ father.
APPLICABLE LEGAL PROVISIONS
The application for leave to commence adoption proceedings is made pursuant to s 60G of the Family Law Act 1975 (Cth) (“the FLA”) even though the adoption proceedings themselves are determined under the law of Queensland where the applicants live. Obtaining leave pursuant to the FLA is nevertheless a prerequisite to the application for adoption (see s 92 of the Adoption Act 2009 (Qld)).
Since 1 September 2021, the jurisdiction of this Court to determine an application for leave to commence adoption proceedings is dependent upon the proceedings being transferred from an inferior court, namely the Federal Circuit and Family Court of Australia (Division 2) (formerly known as the Federal Circuit Court of Australia), a court of record, to this Court (formerly known as the Family Court of Australia), a superior court of record (see s 9(1)(a) and s 10(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”). Since 1 September 2021, the proceedings can no longer be instituted in this Court.
Section 60G of the FLA relevantly provides as follows:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), … 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.
Section 25 of the new Act relevantly provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
A family law or child support proceeding is defined in s 7 of the new Act and means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132.”
The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) relevantly includes “matters in respect of which proceedings may be instituted under the Family Law Act 1975”.
The application for leave to commence adoption proceedings was filed in the Federal Circuit and Family Court of Australia (Division 2) on 1 November 2021 and transferred to this Court by a Registrar pursuant to a delegated power to do so (see Item 29A to Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021), on 3 November 2021.
Accordingly, this Court has jurisdiction to determine the application.
Pursuant to s 60E of the FLA if a child is adopted and immediately before the adoption a person had parental responsibility, the person’s parental responsibility ends on the adoption “unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced”. Further, pursuant to s 65J, if a child is adopted and immediately before the adoption a parenting order was in force in relation to the child, 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 s 60G for the adoption proceedings to be commenced”. In Cahill & Fryer[1] Strickland J said at [13]:
The effect of section 61E of the Family Law Act is that if I grant leave and an adoption order is made, the parental responsibility of any person who had parental responsibility for the child immediately before the adoption ceases. That applies to both Mrs Cahill and Mr Fryar. Mr Fryar understands that that will be the effect of an ultimate adoption order. This is the issue that led me to raise with Mrs Cahill whether she wanted to become an applicant rather than a respondent, namely, that on that basis, if an adoption order is made in favour of both Mr and Mrs Cahill, then they will thereafter have parental responsibility for the child. In other words, although the effect of section 61E is that Mrs Cahill would nominally lose her parental responsibility for the child, upon the adoption, the effect of the adoption would be that she gets it back.
[1] [2008] FamCA 1245.
While it seems counterintuitive for the applicant mother in this case to apply for leave to adopt her own children, it does seem that the effect of s 61E would be to end her parental responsibility for the girls if she is not an applicant and the adoption is later granted. In this context I also note that the definition of a “prescribed adopting parent” in s 4(1) of the FLA contemplates a parent of the child being an applicant as well as the spouse of de facto spouse of a parent.
DISCUSSION
Turning then to consider the relevant factual matters in this case, I note that the respondent father has lived in England, United Kingdom, since 2012, and has not had any contact with the girls since that time. On 30 April 2014 an order was made by consent in the Federal Circuit Court (as that court was then known) granting the applicant mother sole parental responsibility for the children.
As already noted the respondent supports the proposed adoption of the girls by their step-father.
The applicant step-father is 51 years of age and employed in the public service. He is engaged to be married to the girls’ mother who is 43 years of age and also employed in the public service. The applicants have lived together as a couple for over three years. The girls refer to the applicants collectively as their “parents” although they refer to the applicant step-father by his first name. The applicant step-father appears to have a close and loving bond with the girls whom he supports financially and emotionally. He is very much involved in their lives including their schooling and other activities.
The applicants have spoken to the girls about the proposed adoption and they are said to be very supportive of the proposal. During a significant medical intervention for one of the girls in November 2020 (involving spinal fusion surgery), the applicant step-father took two months leave from his work in order to provide necessary support to the family. He is committed to the girls in all respects.
There is no suggestion that the girls are or have been exposed to family violence. The evidence suggests that they are much loved within their family and will benefit by the proposed adoption and are supportive of it.
I am satisfied that it is in the best interests of the girls for the applicants to be granted leave to commence adoption proceedings and accordingly, I propose to make the following order:
Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Orr and Frederick be granted leave to commence adoption proceedings in respect of the children, X born in 2006 and Y born in 2006.
MISCELLANEOUS
On 29 March 2022 an order was made by the Chief Justice of this Court transferring the proceedings to the Federal Circuit and Family Court of Australia (Division 2). The order is in the following terms:
UPON THE COURT’S OWN MOTION in Chambers and there being no need for an appearance by the parties
THE COURT ORDERS THAT:
Pursuant to section 52 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 2).
On the same day an order was made by the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) transferring the proceedings back to this Court. The order is in the following terms:
UPON THE COURT’S OWN MOTION in Chambers and there being no need for an appearance by the parties
THE COURT ORDERS THAT:
Pursuant to section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1) for hearing.
The parties were unaware of the orders until they were apparently advised by someone within the Court by an email (not uploaded to the Digital Court File) that the orders had been made and had “something to do with jurisdiction”.
I note that pursuant to s 52 of the new Act the Chief Justice of this Court may transfer a proceeding pending in this Court to the Federal Circuit and Family Court of Australia (Division 2). The transfer may be made on the Chief Justice’s own initiative but in doing so the Chief Justice must have regard to the following (see s 52(3)):
(a)any Rules of Court made for the purposes of subsection 53(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 2); and
(c)whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and
(d)the interests of the administration of justice.
An appeal does not lie from a decision of the Chief Justice in relation to the transfer of a proceeding under s 52.
I further note that pursuant to r 9.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Chief Justice must have regard to additional factors as follows:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Circuit and Family Court (Division 1) on one or more of the points in issue;
(b)the financial value of the claim;
(c)the complexity of the facts, legal issues, remedies and procedures involved;
(d)whether the proceeding, if transferred, is likely to be dealt with:
(i)at less cost to the parties; or
(ii)at more convenience to the parties; or
(iii)earlier;
(e)the availability of a judicial officer specialising in the type of proceeding to which the application relates;
(f)the availability of particular procedures appropriate for the class of proceeding;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns;
(h)the wishes of the parties.
The current proceedings were instituted after 1 September 2021 and transferred to this Court on 3 November 2021. It is not apparent why the transfer orders (i.e. to the Federal Circuit and Family Court of Australia (Division 2) and back again) were made on 29 March 2022. It would appear the orders are otiose.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 6 April 2022
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