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 s 92 of the Adoption Act 2009 (Qld) provides that a person may apply to the Chief Executive to arrange an adoption by that person of a stated child only if a number of matters are satisfied. Included within the mandated requirements, in particular at s 92(1)(d), is a requirement that a person applying to adopt a child has been granted leave under the Family Law Act 1975 (Cth) to apply for adoption proceedings.
Carew J recently recorded in Tomney & Bartells [2021] FedCFamC1F 332:
3Until 1 September 2021 s 60G of the Act provided that the Family Court of Australia had the jurisdiction to grant leave to commence adoption proceedings. On 1 September 2021 the name of the Family Court of Australia was changed to the Federal Circuit and Family Court of Australia (Division 1) (see ss 8(1) and (9) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”)) and the name of the Federal Circuit Court of Australia was changed to the Federal Circuit and Family Court of Australia (Division 2) (see s 8(2) of the FCFCOA Act). Contrary to some perceptions, the two courts continue to exist as separate courts. This Court remains a superior court of record (see s 9(1)(a)) and the other court remains a court of record (see s 10(1)(a)).
4More significant changes occurred from 1 September 2021 than a change of name to the courts.
5Despite the importance of adoption matters, the original jurisdiction to grant leave to commence adoption proceedings has been removed from this Court and now vests in the Federal Circuit and Family Court of Australia (Division 2). This amendment applies even to applications that were already filed in this Court prior to 1 September 2021 (see s 229 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)).
The present application was filed prior to the amendments spoken of by Carew J in the passages above. To prevent the present application failing for want of power, transfer orders between the Courts were made pursuant to ss 52 and 51 of the FCFCOA Act. The Chief Justice of this Court has the power, on his own initiative, to effect the transfers from and to this Court (see ss 52(2)(b), 51(2)(b)) and this was done on 20 January, 2022. No injustice appears to arise or could arise by that process even though it was undertaken without notice to the applicants.
An application for leave to commence adoption proceedings may only be made by a prescribed adopting parent. The phrase prescribed adopting parent is defined in s 4(1) of the Act relevantly as being the spouse of, or a person in a de facto relationship with a parent of the child the subject of the application. It also includes a parent of the child and either his or her spouse, or a person in a de facto relationship with that parent.
There is no issue that Mr Stredwick and Ms Lindner are both, whether considered separately or together, within the definition of prescribed adopting parent for the purposes of the present application.
In considering whether or not to grant leave, pursuant to s 60G of the Act, the Court must consider whether granting leave would be in the child’s best interests, having regard to the effect of ss 60F(4)(a), 60HA(3)(a), 61E, and 65J, where those sections might apply in any particular case.
Section 60F(4) has no application in the present case. Neither does s 60HA(3)(a). Section 61E provides for any adoption to bring a person’s parental responsibility for the child to an end except in certain circumstances. It is of no particular interest here. Section 65J provides for any adoption to bring extant parenting orders to an end. There are presently no extant parenting orders.
In Poulter and Anor & Lenton [2012] 46 Fam LR 623 at [24], Murphy J put the issue that arises in cases such as the present in the following manner:
The question then, in my view, can be expressed in this way: is it in the relevant child or children’s best interests to permit adoption proceedings to proceed in the state Magistrates Court with the potential consequences that a parent shall with the consent of the other parent or, absent consent, by court order, cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from orders being made in this Court that might involve the parent and step-parent?
In the present case, for the following reasons, I think the answer to that question is yes.
The relationship between Mr Stredwick and X’s mother began when she was 3 months pregnant and he supported her during that pregnancy. Mr Stredwick cut X’s umbilical cord and in concert with Ms Lindner named X. He has sacrificed sleep and rest, as most parents do, to care for X as an infant. In every meaningful way he has acted as X’s father from the moment of his birth. Looking to X’s future, there is no reason, from the evidence, to expect that anything about Mr Stredwick’s role in X’s life is likely to change.
Mr Stredwick is also the father of X’s half-brother, Y. The importance of bonds between siblings is difficult to overstate and I consider it plainly in X’s best interests to give he and Y the opportunity to tighten those bonds. The formal recognition of Mr Stredwick’s role in X’s life provides such an opportunity.
From a practical perspective, I think that it is in X’s best interests for Mr Stredwick to be equipped with parental responsibility for X, if the child is ever in a position where important decisions need to be made rapidly and Ms Lindner is not available to make them.
I have turned my mind to whether there are any reasons it is not in X’s best interests for Mr Stredwick to have leave to seek to adopt him. I am unable to detect any such reasons. There is no evidence of domestic or family violence in the household. There is no evidence of a history of violence or criminality.
I am satisfied, and I find, that it is 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.
There will be orders accordingly.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 27 January 2022