Tomney & Bartells
[2021] FedCFamC1F 332
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tomney & Bartells [2021] FedCFamC1F 332
File number(s): BRC 10057 of 2021 Judgment of: CAREW J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – CHILDREN – ADOPTION – Where the applicants are granted leave to commence adoption proceedings.
FAMILY LAW – JURISDICTION – amendment to s 60G of the Family Law Act 1975 (Cth) – transfer between courts.
Legislation: Adoption Act 2009 (Qld)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)
Number of paragraphs: 21 Date of hearing: 17 December 2021 Place: Brisbane Applicants: Self-represented by telephone Respondent: Self-represented by telephone ORDERS
BRC 10057 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TOMNEY
First Applicant
MS TOMNEY
Second Applicant
AND: MR BARTELLS
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.Leave be granted to Ms Tomney to be added as an applicant in the proceedings.
2.Leave be granted to the applicants to amend the orders sought by including Ms Tomney as a person to whom leave to commence adoption proceedings is to be granted.
3.Pursuant to s 60G of the Family Law Act 1975 (Cth) Mr Tomney and Ms Tomney be granted leave to commence adoption proceedings in respect to the children X born on … 2010 and Y born on … 2012.
4.The orders sought by the respondent in his Response to Initiating Application filed on 30 September 2021 be dismissed.
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 Tomney & Bartells has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
X, who was born in 2010 and Y, who was born in 2012 are the subject of this application by Mr Tomney and Ms Tomney for leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”).
Although adoption is a matter governed by State law, s 92 of the Adoption Act 2009 (Qld) makes an application for leave, pursuant to s 60G of the Act, a prerequisite to an application for adoption. At the time of the adoption application, the child must be at least five years old, and not yet 17 years old, although the application for adoption may still be made if the process can be completed before the child attains 18 years.
Until 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)).
More significant changes occurred from 1 September 2021 than a change of name to the courts.
Despite 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)).
As the matter before me this morning was already listed, the application having been filed prior to the amendments, 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.
The ability to provide an apparently seamless process for the parties was achievable because the definition of “family law or child support proceedings” (which appears in both ss 51 and 52 and is defined in s 7 of the FCFCOA Act) means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132”. Section 132 of the FCFCOA Act creates original jurisdiction for the Federal Circuit and Family Court of Australia (Division 2) including “with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975”.
Thankfully for the parties in this case, the matter did not have to be adjourned.
DISCUSSION
Turning then to consider the relevant matters in this case.[1]
[1] For the sake of convenience I will refer to all those involved in this application by their first name.
An application for leave to commence adoption proceedings may only be made by a prescribed adopting parent, and prescribed adopting parent is defined in s 4(1) of the Act as being:
(a)a parent of the child; or
(b)the spouse of or a person in the de facto relationship with the parent of the child; or
(c)a parent of the child and either his or her spouse, or a person in a de facto relationship with that parent.
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. A note appearing under s 60G of the Act states:
Sections 60CB to 60CG deal with how a court determines a child’s best interests.
Mr Tomney is the children’s step-father. The children’s biological mother, Ms Tomney, was granted leave to be added as an applicant to whom leave should be granted because if she is not and the adoption is granted, her parental responsibility for the children will end when the adoption is granted (see s 61E of the Act).
Mr Tomney and Ms Tomney have lived together since 2013 and married in 2019. They have two children together, Z, who is one year old and another son who was born very recently.
It is accepted by the parties that the biological father of Y is Mr Bartells. Mr Bartells’s name does not appear on X’s birth certificate. Mr Bartells nevertheless pays child support for both girls, but he will be seeking to be relieved of that obligation if the adoption is granted.
Section 29 of the Child Support (Assessment) Act 1989 (Cth) requires that before the Registrar determines an application for a child support assessment he/she has to be satisfied that a person is a parent by one of the means referred to therein. As a child support assessment has been made in this case it would seem that the Registrar was so satisfied, however the material before me does not indicate on what basis that decision was made. A decision by the Registrar is not sufficient for me to make such a finding that Mr Bartells is X’s father. It is only if a court has made an order which could only have been made if the person was a parent, that I could be satisfied (see s 69S of the Act).
Mr Bartells and Ms Tomney were in a relationship during the period 2009 to 2013, although they both describe it as an ‘on again, off again’ relationship. At law, X is presumed to be Mr Bartells’s child if Ms Tomney and Mr Bartells cohabited at any time during the period beginning not earlier than 44 weeks and not less than 20 weeks before X’s birth (see s 69Q of the Act). Both Mr Bartells and Ms Tomney gave evidence under oath that they did cohabit at the relevant time and accordingly, Mr Bartells is presumed at law to be X’s father.
X and Y were only informed last year that Mr Tomney is not their biological father. Mr Bartells had made contact and asked to see the girls and introduced them to his wife and two children who are aged six and four. The girls spent time with Mr Bartells and his family on a few occasions but have not seen them since April this year. Mr Bartells and his family live in New South Wales. Mr Bartells intends to continue to see the girls occasionally so that they can maintain a relationship with their half siblings.
Mr Bartells speaks very highly of Mr Tomney and his relationship with the girls and supports the proposed adoption. Mr Bartells also noted that the girls spoke positively about Mr Tomney as their father figure.
According to Ms Tomney and Mr Tomney, X has some behavioural issues and these are being investigated as she may be “on the spectrum of autism and other severe mental health issues”. Ms Tomney contends that the girls have a very close relationship with Mr Tomney and want to be adopted by him. Ms Tomney has had some serious health issues over the last 12 months but has been fully supported by Mr Tomney throughout. The girls attend a local school and according to Ms Tomney are happy and well cared for in their household.
Mr Tomney contends that he has always valued his relationship with the girls and has been considered their ‘dad’ since he began raising them with Ms Tomney in 2013. He says that the girls want to be known by his surname, the same as their mother and brothers. He is very happy to financially support the girls and has done so to a large extent since 2013.
In circumstances where all parties involved and from what I am told, the children, support the adoption process I am satisfied that it is in their best interests to grant leave to Mr Tomney and Ms Tomney to commence adoption proceedings.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 17 December 2021
2
0
0