Waters & Vasati
[2023] FedCFamC1F 367
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Waters & Vasati [2023] FedCFamC1F 367
File number: MLC 2004 of 2023 Judgment of: HARTNETT J Date of judgment: 12 May 2023 Catchwords: FAMILY LAW – PARENTING – ADOPTION – Where the mother and the step-father seek leave to commence adoption proceedings – Where the mother and the step-father seek orders for equal shared parental responsibility of the child – Where the mother and the step-father seek orders for the child to live with them – Where the father has never met the child – Where the child’s biological father consents to the orders sought – Leave granted – Orders for the mother and the step-father equal shared parental responsibility – Orders for child to live with mother and step-father Legislation: Family Law Act 1975 (Cth) ss 4, 60CC, 60F, 60G, 60HA, 61E, 64B, 65J
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 149
Adoption Act 1984 (Vic)
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 12 May 2023 Place: Melbourne (via videolink) Counsel for the Applicants: Ms Hutchings Solicitor for the Applicants: Melbourne Family Lawyers The Respondent: Litigant in person ORDERS
MLC 2004 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WATERS
First Applicant
MR PEPIDES
Second Applicant
AND: MR VASATI
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
12 MAY 2023
THE COURT ORDERS THAT:
1.Pursuant to s 60G(1) of the Family Law Act 1975 (Cth), leave be granted to the Applicants to commence proceedings in the County Court of Victoria for the adoption of X born 2021 (“the child”).
THE COURT ORDERS, BY CONSENT, THAT:
2.The applicant mother and the applicant step-father have equal shared parental responsibility for the child.
3.The child live with the applicant mother and the applicant step-father.
THE COURT FURTHER ORDERS THAT:
4.All extant applications are 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 Waters & Vasati has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This matter came before the Court on 12 May 2023 to determine whether the Court should make a proposed order, which has the support of each of the parties, granting the first applicant mother (“the mother”) and the second applicant step-father (“the step-father”) leave to commence proceedings in the County Court of Victoria for the adoption of the child, X born 2021 (“the child”). The Court is also required to determine if proposed consent orders should be made for the applicants to have equal shared parental responsibility for the child and for the child to live with the applicants. The proposed orders are consented to by the respondent father (“the father”).
The current application before the Court commenced in the Federal Circuit and Family Court of Australia (Division 2) on 1 March 2023 and was transferred to the Federal Circuit and Family Court of Australia (Division 1) pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) on 26 April 2023.
The matter has duly been transferred. Accordingly, this Court has jurisdiction to determine the application.
LEGAL PROVISIONS
Adoption proceedings are not determined by this Court and are instead determined by State courts with regard to the relevant state legislation. The relevant state legislation in Victoria is the Adoption Act 1984 (Vic). Notwithstanding this, there is provision in the Family Law Act 1975 (Cth) (“the Act”) for this Court to provide leave to commence adoption proceedings.
Section 60G of the Act relevantly provides:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), the Supreme Court of the Northern Territory or the Family Court of a State 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.
Notwithstanding s 60G(1) of the Act expressly provides Division 2 of the Federal Circuit and Family Court may grant leave, pursuant to s 25 of the FCFCOA Act, Division 1 has jurisdiction to hear matters which have been transferred from Division 2 to Division 1 under s 149 of the FCFCOA Act.
Relevant to s 60G(1) of the Act, the meaning of a prescribed adopting parent, in relation to a child, is included in s 4(1) of the Act which provides:
(a)a parent of the child; or
(b)the spouse of, or a person in a de facto relationship with, a 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 the parent.
Relevant to s 60G(2) of the Act, the best interests considerations the Court must have regard to are as set out in s 60CC of the Act. Indeed, the Court must have regard to the best interests considerations as the paramount consideration when deciding to make a particular parenting order in relation to a child. A parenting order, pursuant to s 64B of the Act, may deal with the person or persons which whom a child is to live and the allocation of parental responsibility for a child.
Additionally, s 60F(4)(a) of the Act makes provision in relation to the child of a marriage who is adopted by the prescribed adopting parent:
if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of the marriage for the purposes of this Act.
Section 60HA(3)(a) of the Act provides a reciprocal provision of s 60F(4)(a) of the Act in relation to children of de-facto partners.
Pursuant to s 61E of the Act, the effect of adoption on parental responsibility is if:
(1)…
(a)a child is adopted; and
(b)immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.
(2)The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.
Similar to s 61E of the Act, s 65J of the Act provides the effect of adoption on a parenting order is if:
(1)…
(a)a child is adopted; and
(b)immediately before the adoption, a parenting order was in force in relation to the child.
(2)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 section 60G for the adoption proceedings to be commenced.
Having regard to s 61E and s 65J of the Act, I note that the definition of prescribed adopting parent as detailed above includes provision for a parent of the child being an applicant in addition to the spouse of a parent.
MATERIAL RELIED UPON
The applicants rely upon:
(1)Initiating Application filed 1 March 2023;
(2)affidavit of Mr Vasati filed 1 March 2023;
(3)affidavit of Ms Waters filed 21 April 2023;
(4)affidavit of Mr Pepides filed 21 April 2023; and
(5)minute of consent orders dated 22 April 2023.
The respondent relied upon his affidavit filed 1 March 2023 and the minute of consent orders dated 22 April 2023.
DISCUSSION
The mother was born 1981 and is currently aged 41 years. The mother works as a manager.
The step-father was born 2023 and is currently aged 37 years. The step-father works as a financial professional.
The father was born 1988 and is currently aged 34 years. The father works as a public servant.
The mother and step-father commenced a relationship in 2015, commenced cohabitation in 2016 and married in early 2023. The mother and father had a very short relationship in mid‑2020 and the child was conceived. The mother and step-father had a brief period of separation in late 2020 however reconciled shortly after the mother told the step-father she was pregnant, and that he was not the biological father.
Upon the step-father learning of the mother’s pregnancy, the step-father supported the mother. The step-father was present for the birth of the child.
The child’s birth certificate includes the mother’s details as the mother of the child and father’s details as the father of the child, however the child’s surname is that of the step-father.
The step-father has taken on the role of the child’s father and considers the child to be his daughter. The mother also considers the step-father to be the child’s father. The applicants have another daughter, Y born 2023.
The step-father deposes to being heavily involved in the child’s life, relevantly, in the child’s daily routine, attending the child’s medical appointments, pickup and collecting the child from day care, and attending day care events including a Father’s Day afternoon tea. The step‑father’s affidavit filed 21 April 2023 provides clear insight into the child’s development.
It is the step-father’s evidence he and the mother provide for the household’s day to day expenses and the step-father will continue to do so for the child and Y.
The mother and the step-father each depose to the step-father’s extended family welcoming the child into their family with the applicants and child attending special occasions and family gatherings together.
The mother and step-father also each depose to the child calling the step-father “dadda”.
The father has never met the child or had any communication with the child. The father has no role in the child's life, has not made any attempts to meet the child and does not wish to be a father.
The father does not make any suggestion the child is at risk of or has been exposed to family violence in the mother and step-father’s care. Indeed, it appears the father has a large amount of respect for the step-father and the mother for caring for the child. I find, as submitted by Counsel for the applicants, that the father has carefully considered his position in respect of the proposed adoption of X and articulately, and with grace, he supports the application. The father recognises and acknowledges that X's best interests are served by the applicants adoption of her.
All parties should be commended for the child focused manner in which they have conducted these proceedings. On the mother, step-father and father’s account, the child is very loved by the mother and step-father and all parties are supportive of the mother and step-father raising the child. The proposed adoption of the child by the applicants will provide greater recognition to the child as Y’s sister and all that entails, including from a psychological and legal perspective.
I am satisfied it is in the child’s best interests to make an order pursuant to s 60 G of the Act and grant leave to the applicants to commence proceedings for the adoption of the child.
Having regard to the above facts and s 60CC of the Act, I am also satisfied it is in the child’s best interests for an order to be made for the applicants to have equal shared parental responsibility for the child and for the child to live with the applicants.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 12 May 2023
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