Stredwick & Lindner - [2022] FedCFamC1F 21

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stredwick & Lindner [2022] FedCFamC1F 21

File number(s): BRC 6697 of 2021

Judgment of: JARRETT J

Date of judgment: 27 January 2022

Catchwords: FAMILY LAW – ADOPTION – whether leave to commence adoption proceedings is in the best interests of the child – leave granted under s 60G of the Family Law Act 1975 (Cth) to commence proceedings.

Legislation:
Family Law Act 1975 (Cth), ss 4, 60CC, 60F, 60G, 60HA, 61E, 65J

Adoption Act 2009 (Qld), s 92

Cases cited:
Poulter and Anor & Lenton [2012] 46 Fam LR 623

Tomney & Bartells [2021] FedCFamC1F 332

Division: Division 1 First Instance

Number of paragraphs: 18

Date of last submission/s: Dealt with on the papers

Date of hearing: Dealt with on the papers

Place: Brisbane

ORDERS

BRC 6697 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

IN THE MATTER OF AN APPLICATION BY MR STREDWICK AND MS LINDNER PURSUANT TO S 60G(1) OF THE FAMILY LAW ACT 1975 (CTH)

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

27 JANUARY 2022

THE COURT ORDERS THAT:
1.The applicants have leave for proceedings to be commenced for the adoption of X born on … 2011 by Mr Stredwick.

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 Stredwick & Lindner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

X was born in 2011 in Brisbane. The identity of his biological father is unknown and service of this application upon X’s biological father has been dispensed with by an order made by a Registrar. Hence, there is no respondent to this application.
Since about six months before X was born, Ms Lindner commenced a relationship with Mr Stredwick and their relationship has endured for more than ten years now. Mr Stredwick wishes to adopt X. Ms Lindner agrees with that course and together they have applied pursuant to s 60G(1) of the Family Law Act 1975 (Cth) for leave to commence adoption proceedings in respect of X.
Given the lack of a respondent to the application and the clarity of the material relied upon by the applicants, I determined that the application could be determined on the papers. The applicants agreed with that course.
The present application is necessary because…

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 Stredwick & Lindner

Details

AGLC: Stredwick & Lindner [2022] FedCFamC1F 21
Case: [2022] FedCFamC1F 21
Decision Date

CaseChat Overview and Summary

The applicants in this case, Mr Stredwick and Ms Lindner, sought leave to commence adoption proceedings in relation to X, a child born in 2011. The application was brought pursuant to s 60G(1) of the Family Law Act 1975 (Cth) and was filed prior to the relevant amendments to the Act that occurred on 1 September 2021. As a result of those amendments, the jurisdiction to grant leave to commence adoption proceedings transferred from the Federal Circuit and Family Court of Australia (Division 1) to the Federal Circuit and Family Court of Australia (Division 2). To prevent the present application from failing for want of power, transfer orders between the courts were made pursuant to ss 52 and 51 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The application was determined on the papers. The central legal issue the Court was required to decide was whether granting leave to commence adoption proceedings would be in X’s best interests. The Court found that it was. The Court’s reasoning was based on the strong relationship between Mr Stredwick and X, who has acted as X’s father from the moment of his birth. The Court also noted the importance of the bond between X and his half-brother, Y, who is Mr Stredwick’s son. The Court found that it was in X’s best interests for Mr Stredwick to have parental responsibility for him, particularly in situations where important decisions need to be made rapidly and Ms Lindner is not available to make them. The Court was satisfied that there were no reasons why it would not be in X’s best interests for Mr Stredwick to have leave to seek to adopt him. The Court found that it was in X’s best interests for there to be a grant of leave to the applicants to commence proceedings for the adoption of X by Mr Stredwick. Consequently, the Court made orders granting the applicants leave to commence adoption proceedings.

Orders