Carder & Pearson [2025] FedCFamC1F 393 (13 June 2025)

1. There is no Court by the name "Federal Circuit and Family Court of Australia". This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
2. The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Carder & Pearson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

In addition to the use of pseudonyms for the parties, other changes have been made to the published judgment to protect the identity of a party or a witness. Such changes (other than when a letter is used instead of a name or an address) are apparent on the face of the judgment by the use of square brackets.

1. X ("the child") was born on [redacted] 2020 and is presently aged five. His stepfather, Mr Carder ("the stepfather"), wishes to adopt him. Although the process of adoption occurs through the State system (in this case Queensland), a necessary first step is to seek leave to adopt from this Court. X's mother, Mrs Carder ("the mother"), is married to the child's stepfather and is a joint applicant, and consents to the proposed adoption. X's biological father, Mr Pearson ("the biological father"), also consents to the adoption.
2. Mrs B Pearson ("the paternal grandmother") filed an Initiating Application on 24 May 2023 seeking orders that the mother and father have equal shared parental responsibility, the child live with the mother, and that she and the father be able to spend time with the child.
3. Orders were made by consent on a final basis by the Federal Circuit and Family Court of Australia (Division 2) on 13 May 2024 and amended on 22 May 2024 that the mother have sole parental responsibility, and that the paternal grandmother and father spend no time with and have no communication with the child. On that date, the mother sought to amend her Response to include an application for leave to commence proceedings for stepparent adoption and the child's stepfather was joined to the proceedings pursuant to paragraph 4 of the order made on 13 May 2024 and amended on 22 May 2024. The matter was transferred to this Court on 24 May 2024.

1. The application for leave to commence adoption proceedings is made pursuant to s 60G of the Family Law Act 1975 (Cth) ("the Act") even though, as already noted, the adoption proceedings themselves are determined under the law of Queensland, where the applicants live. Obtaining leave pursuant to the Act is a prerequisite under s 92 of the Adoption Act 2009 (Qld).
2. In considering whether to grant leave, the Court must consider whether granting leave would be in the child's best interests having regard to the effect of s 60F(4)(a) or s 60HA(3)(a), and of s 61E and s 65J of the Act.
3. Section 60CB to 60CG of the Act deal with how a Court determines a child's best interests.
4. Pursuant to s 61E of the Act, if a child is adopted and immediately before the adoption a person had parental responsibility, the person's parental responsibility ends on the adoption "unless the adoption is by a prescribed adopting parent and leave was not granted under s 60G for the adoption proceedings to be commenced". Further, pursuant to s 65J, if a child is adopted and immediately before the adoption a parenting order was in force in relation to the child, 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 s 60G for the adoption proceedings to be commenced".
5. In Cahill & Fryar, [1] Stickland J said at [13]:

The effect of section 61E of the Family Law Act is that if I grant leave and an adoption order is made, the parental responsibility of any person who had parental responsibility for the child immediately before the adoption ceases. That applies to both Mrs Cahill and Mr Fryar. Mr Fryar understands that that will be the effect of an ultimate adoption order. This is the issue that led me to raise with Mrs Cahill whether she wanted to become an applicant rather than a respondent, namely, that on that basis, if an adoption order is made in favour of both Mr and Mrs Cahill, then they will thereafter have parental responsibility for the child. In other words, although the effect of section 61E is that Mrs Cahill would nominally lose her parental responsibility for the child, upon the adoption, the effect of the adoption would be that she gets it back.

1. While it seems counterintuitive for the mother in this case to apply for leave to adopt her own child, it does seem that the effect of s 61E would be to end her parental responsibility for the child if she is not an applicant and the adoption is later granted. In a number of previous decisions of this Court (save one),[2] it has been concluded that the application for leave to adopt must include both the stepparent and the biological parent who is married to or in a de facto relationship with the stepparent. In this context, I also note that the definition of a "prescribed adopting parent" in s 4(1) of the Act contemplates a parent of the child being an applicant as well as the spouse or de facto spouse of a parent.

1. Turning now to the relevant facts of this case.
2. The biological father was born on [redacted] 1999 and is currently 26 years old. He was in a brief relationship with the mother before she became pregnant in mid-August 2019. They lived together and became engaged in late 2019, however they separated soon after the birth of the child. The biological father has not spent any time with the child since about October 2020, when the child was around five months old. In his affidavit filed on 12 March 2025, the biological father indicates he is willing to surrender all parental rights and consents to the adoption of the child by the stepfather. He believes this is in the child's best interests and the biological father hopes the child is able to grow up in a stable household.
3. The mother was born on [redacted] 1996 and is currently 28 years old.
4. The stepfather was born on [redacted] 1996 and is currently 28 years old. He works as a disability support worker.
5. The mother and stepfather commenced a relationship in May 2021 and the stepfather attended the child's first birthday party on [redacted] 2021. From then he has been a consistent presence in the child's life, living with the mother and child since November 2021.
6. The mother and stepfather were married on [redacted] 2024 and had their first child together on the [redacted] 2025, a boy named C. The mother is currently a full‑time mother but previously worked as a property manager in real estate.
7. On the mother's evidence, the child has no memory of the biological father, and his current understanding is that the stepfather is his dad. She intends to advise the child of the adoption, when he is old enough.
8. The biological father filed an affidavit on 12 March 2025 and a Reply on 13 March 2025, both indicating his consent to the adoption taking place. His affidavit states:
   1. Although I am consenting to the decision, I wish to place on the record that this is one of the hardest decisions I have ever made and I would like to have it recorded that I am making this decision based on what I consider to be the best interest of [the child] for his long term future.

...

1. My decision to transfer my parental rights is not because I do not wish to be a part of his life but because I believe this is the decision that is best for his future stability and wellbeing.
2. I do not wish for [the child] to be exposed to ongoing conflict between the mother and I and consider that in the circumstances I consider this adoption is the best way for him to be protected from such conflict and to be able to grow up in a stable household.
3. [The stepfather] has been a consistent presence in [the child's] life and it is clear to me he has taken on the role of father. While it is painful for me to relinquish my rights, I recognise that [the stepfather] is in a better position to be able to provide for the daily care, guidance and support [the child] needs in his life.

1. Further, at paragraph 11, the biological father included a message for the child.
   1. I wish to include in these documents a formal message for my son should he ever make enquires about these proceedings:-

(a) My dearest [the child],

I want you to know this decision was made with much consideration and not made lightly. It does not mean that I do not love you. It means I love you so much that I want you to have the best possible life, free from the conflict and challenges that have come between your biological parents. I hope you grow up happy, loved and supported.

Please always remember you were never unwanted and you will always have a special place in my heart. No matter where life takes you I will always be cheering for you, proud of you and loving you from afar. You will always be my son and I will always love you.

(Emphasis in original)

1. The child appears to be part of a stable loving family and I am satisfied that it is in his best interests to grant the application.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew.

[1] [2008] FamCA 1245.

[2] Brock & Brock [2007] FamCA 1594 at [12]; Tanner & Cape [2011] FamCA 665 at [4]; Orr & Leach [2022] FedCFamC1F 217 at [11]; cf Hanlon & Hanlon [2022] FedCFamC1F 435 at [45]-[46].