Saunders and Best - [2010] FamCA 654

FAMILY COURT OF AUSTRALIA

SAUNDERS & BEST

[2010] FamCA 654

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Leave granted

Family Law Act 1975 (Cth) s 60G
Adoption Act 2009 (Qld) s 92(1)(d)

Brock & Brock [2007] FamCA 1594
Berry & Wratten [2010] FamCA 75

Reynolds & Donaldson [2008] FamCA 518

APPLICANT:

Mrs Saunders

SECOND APPLICANT:

Mr Saunders

RESPONDENT:

Mr Best

FILE NUMBER:

BRC

3103

2010

DATE DELIVERED:

21 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

21 July 2010

REPRESENTATION

THE APPLICANTS:

In person

THE RESPONDENT:

No appearance

Orders

IT IS ORDERED

Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Saunders and Mr Saunders have leave to commence proceedings for the adoption of V born … January 1996.

IT IS NOTED that publication of this judgment under the pseudonym Saunders & Best is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3103 of 2010

MRS SAUNDERS

Applicant

MR SAUNDERS

Second Applicant

And

MR BEST

Respondent

REASONS FOR JUDGMENT

This is an application under section 60G(1) of the Family Law Act 1975 (Cth) by Mrs Saunders and Mr Saunders that they have leave to commence proceedings for the adoption of V born in January 1996 now 14 ½ years. Mrs Saunders is V’s biological mother and Mr Saunders is her stepfather. V’s biological father Mr Best has been served with the application and supporting material.
The matter was listed for hearing on 22 June 2010 by order made by Registrar Kane on 27 April 2010. That order provided also that the applicants must file and serve on Mr Best by 4 pm on 25 May 2010 several documents including an initiating application (the applicants at that stage having filed, anomalously, only an application in a case but there being no proceedings on foot in which such an application in a case could then have been filed) and certain specific affidavit material.
On 16 June 2010 Mr Best caused to be sent the following to the Court by facsimile which, on 22 June 2010, I caused to be received into evidence as exhibit 1:

[…] Rd
[…] Qld
Attention: The Registrar
Family Court of Australia
Brisbane
[…]
Re: File No: (P) BRC3103/2010
[Saunders vs Best]

In the Order dated the 27 April 2010, it states in point 3 that the applicant must file and serve upon the respondent, being myself, the following items by 4 pm 25 May 2010:
3(b) An affidavit by the applicant step-father in support of the application

3(c) Further affidavit evidence of the applicants addressing the matters relevant to the orders sought in the application.
To date, I have not been officially served with either of the above. I am currently in China for work and my wife, [Mrs Best], advised me that a person came to the door on Tuesday night 15^th June 2010 at 6.30pm.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saunders and Best

Details

AGLC: Saunders and Best [2010] FamCA 654
Case: [2010] FamCA 654
Decision Date: 21 July 2010

CaseChat Overview and Summary

In the matter of *Saunders and Best*, heard before O’Reilly J in the Family Court of Australia, the applicants, Mrs Saunders and Mr Saunders, sought leave to commence adoption proceedings concerning a child named V. The specific circumstances giving rise to this application are not detailed in the provided extract.

The central legal issue before the Court was whether to grant the applicants leave to commence adoption proceedings, as required by section 60G of the *Family Law Act 1975* (Cth). This section typically governs when a person may apply for an adoption order, often requiring leave of the court in certain circumstances, such as when the applicants are not the biological parents of the child.

O’Reilly J granted the applicants leave to commence proceedings for the adoption of V. The order reflects the Court's determination that the conditions for granting such leave under section 60G of the *Family Law Act 1975* had been met, thereby permitting the formal adoption process to proceed.

Orders

Orders of the court

IT IS ORDERED

Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Saunders and Mr Saunders have leave to commence proceedings for the adoption of V born … January 1996.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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