Willems & Anor

[2020] FamCA 1021

FAMILY COURT OF AUSTRALIA

WILLEMS AND ANOR [2020] FamCA 1021

FAMILY LAW – ADOPTION – Leave to commence proceedings – leave granted.

Adoption Act 2009 (Qld)
Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637

1st APPLICANT: Mr Willems

2nd APPLICANT: Ms Willems

FILE NUMBER: BRC 12710 of 2020

DATE DELIVERED: 1 December 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 1 December 2020

REPRESENTATION

SOLICITOR FOR APPLICANTS: Michael Lynch Family Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to section 60G(1) of the Family Law Act 1975 (Cth) as amended, the Applicants have leave to commence proceedings for the adoption of the child, X, born … 2003, by Mr Willems.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Willems & Willems has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12710 of 2020

Mr Willems

First Applicant

And

Ms Willems

Second Applicant

REASONS FOR JUDGMENT

1. Earlier today I made an order granting the Applicants leave to commence adoption proceedings for the adoption of X, who was born in 2003 and who will very soon be 17 years of age, by his step-father, Mr Willems.

2. I said then that I would provide the Applicants with written reasons in support of my decision that it is in X’s best interests for such an order to be made.

3. These are those Reasons.

The Application for leave

1. I accept that the identity and whereabouts of X’s biological father is unknown. I also accept that no person was listed as his father on his Birth Certificate when his birth was recorded in the Register of Births.

2. I also accept that there are no parenting orders, agreements, parenting plans or undertakings about X currently in force. I accept that there are no ongoing cases in relation to X in any other jurisdiction. 

3. Section 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 these matters, in particular at subparagraph (1)(d) of that section, is that a person has been granted leave under the Family Law Act 1975 (Cth) – hence this Application.

4. In determining whether to grant leave for parties to commence adoption proceedings, this Court must be satisfied of a number of things. One is that the proceedings are by a prescribed adopting parent, as that term is defined. In this case, that condition is clearly satisfied.  This Court must also consider whether granting leave will be in X’s best interests, having regard to the effects of section 60F(4)(a), section 60HA(3)(a), section 61E and section 65J of the Family Law Act 1975 (Cth), where those sections are applicable in any particular case.

5. The decision facing this Court is, of course, one that differs from the decision facing the Court charged with the obligation to make a decision about whether to permit adoption of X or not. The granting of leave to commence proceedings for adoption does not have the consequences outlined in the sections particularised in section 60G of the Family Law Act 1975 (Cth) – only an order for adoption, if made by an appropriate State court, has that effect.

6. However, section 208 of the Adoption Act 2009 (Qld) is to the effect that the Court may make a final adoption order under that Act only if satisfied of a number of matters. Included in these is that an order for adoption by a step-parent would better promote X’s well-being and best interests than an order under the Family Law Act 1975 (Cth), any Court order or no order at all. It is therefore apparent that this Court ought not make an order granting leave to an Applicant to permit proceedings in a State court to commence if such proceedings were, for example, doomed to fail because of the absence of evidence addressing the mandatory legislative requisites.

7. I record here my view that, in this case, I am satisfied that the mandatory legislative prerequisites are established on the evidence before me. 

8. In determining, as I must, under section 60G(2) of the Family Law Act 1975 (Cth), whether granting leave to commence proceedings is in X’s best interests, I must give consideration to the familiar “best interests” considerations where they are relevant, as those considerations are prescribed by section 60CC of the Family Law Act 1975 (Cth).

9. However, as is made clear by authorities such as Banks v Banks,[1] any failure to mention specifically any particular consideration does not mean that such consideration has not been the subject of my consideration during my assessment of the evidence relied upon by the Applicants in support of their Application. I have read their affidavits, and that of Ms B, and the helpful written submissions filed on their behalf on 30 November 2020.

   [1](2015) FLC 93-637.

10. When X’s mother and Mr Willems started a relationship in about mid-2005, X was about 18 months of age. When they started to live together in November 2006, he was not quite three years of age. When they married in 2007, he was nearly four years of age. When the Applicants arranged for X’s surname to be changed to “Willems” in 2008, he was nearly five years of age.

11. I completely accept the evidence that, since no later than when they started to live in the same home, Mr Willems has been consistently involved in X’s life and has supported him financially and emotionally. I accept that, since that time, he has parented X and provided him with all of the support, love and affection that any parent would provide to their child. I accept, therefore, that Mr Willems has fulfilled the role of being X’s father and has discharged all of the duties and obligations of being his parent. 

12. I accept that X has said that he would like for Mr Willems to adopt him. I accept that this comment occurs within the context that X has referred to Mr Willems as “Dad” since they started to live together in November 2006; that he and Mr Willems share a close relationship and that Mr Willems  has always regarded X as if he was his biological child and treated him accordingly.

13. I have no doubt that the Applicants’ biological children – thirteen year old Y, eight year old Z and five year old W – all regard X as their brother and that he regards them in exactly the same way. I accept completely that X has a very close relationship with Mr Willems’s mother and regards her as his “nan”. I also accept that he has close relationships with members of Mr Willems’s extended family and regards them as members of his extended family.

14. I am easily satisfied that, from X’s perspective, Mr Willems is already his father.  I am also satisfied that, from Mr Willems’s perspective, X is already his son. I conclude that their shared desire to formalise their relationship via adoption is but a further manifestation of their love and regard for each other and of Mr Willems’s ongoing commitment to continue to be one of X’s parents.

15. Consequently, I conclude that the commencement of proceedings seeking adoption is something that is in X’s best interests. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 1 December 2020.

Associate:     

Date:              1 December 2020