Charley & Uma [2025] FedCFamC1F 761 (21 October 2025)

(a) forthwith upon appointment by Victoria Legal Aid the Independent Children's Lawyer file a notice of address for service;

(b) within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children's Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;

(c) the Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

(d) the Independent Children's Lawyer prepare a minute of the orders they will recommend be made as final orders.

1. Leave is granted to the Independent Children's Lawyer to inspect and copy:

(a) Material produced by the Department of Families, Fairness & Housing on 21 August 2025 in response to the notification made under s 67ZBG and s 67ZBF;

(b) Documents produced by the Department of Families, Fairness & Housing in response to the order to provide documents or information (s 67ZBE Order).

1. Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal ("CCP") and is granted leave to view copies of documents available on the CCP.

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 Charley & Uma has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Amended Initiating Application filed 12 September 2025, the applicant stepmother seeks orders pursuant to section 60G of the Family Law Act 1975 (Cth) that she be granted leave of the Court to make application for an adoption in the County Court of Victoria in relation to the two children, X and Y, who are twins born 2021.
2. The application is supported, apparently, by the first respondent biological mother and the second respondent biological father. Of concern to the Court is that all parties are represented by the same solicitor. On the face of the Court record, neither the first nor the second respondent have had the opportunity of independent legal advice in respect of that application.
3. The background to the matter is as follows.
4. The applicant stepmother, Ms Charley, who is aged 41 years, and the second respondent biological father, Mr Horta, who is aged 40 years, commenced cohabitation in around June 2008, and married in that same month. Those parties, together, have a child, B, born 2016. B is aged nine years.
5. The applicant and the second respondent sought to have a second child. They were unable to conceive, and as a result, undertook IVF procedures in India. The first respondent biological mother assisted the parties in their endeavour and acted as a surrogate for the applicant stepmother and second respondent. As a result of the IVF procedures undertaken by the parties, the children the subject of this application were born at the E Hospital in Suburb F.
6. Both children are Australian citizens. Since the time of their birth, the children have lived with the parties to this application at the home of the applicant and the second respondent in Suburb D, Victoria.
7. In around February 2025, the parties and the children came to the notice of the Department of Families, Fairness and Housing ("DFFH"). At that time, Child Protection received a report raising concerns for the safety and well-being of the three children at the residence, being the twins the subject of this application, as well as the older child of the applicant and the second named respondent.
8. The section 67ZBD response of DFFH dated August 2025 ("the DFFH report") records that, at the time of the investigation by Child Protection on 23 February 2025, the first respondent, being the children's biological mother, was reported to be the primary caregiver for the twins. It was also reported that the first respondent was subject to ongoing and significant incidents of emotional abuse, physical violence, financial abuse, threats to kill and coercive controlling behaviours by the second respondent biological father. It was also reported that the children were directly exposed to that behaviour.
9. The record notes additional concerns with regards to historical incidents of physical harm perpetrated by the second respondent towards the children. It was reported that the second respondent had slapped both children to the face as infants and had attempted to suffocate them on multiple occasions when they were crying. It was reported that Victoria Police had taken out a family violence safety notice against the second respondent, excluding him from the home. At that time, the applicant stepmother and the first respondent as well as the children were recorded as protected persons.
10. At interview by Child Protection, the parties acknowledged there had been a "one-off" incident whereby the first respondent and the second respondent had pushed one another, causing them to fall to the ground. The first respondent reported to DFFH that the information she had provided to police was misinterpreted as she did not have the benefit of an interpreter at that time.
11. On 2 April 2025, Child Protection substantiated harm in relation to the children, being emotional harm. The second respondent was assessed as having failed to protect the children from harm as a result of his perpetration of family violence towards the first respondent. The investigation was subsequently closed. At the time of closure of the investigation, the second respondent was reported to be residing with a friend. A limited intervention order was in place against the second respondent with the first respondent and the applicant as well as the children noted as protected persons. It appears that, since that investigation, the parties have resumed living together in the one household.
12. The order that is sought from the Court is one which requires the Court to undertake a consideration as to the children's best interests. At the centrepiece of a determination in relation to best interests is an assessment of the children's safety. At this time, in circumstances where the parties are represented by the same solicitor, where two of the parties require the assistance of an interpreter and where apparently there has been no independent legal advice or representation provided to any of the parties, and where there have been relatively recent allegations that the second respondent has perpetrated family violence against the first respondent, I hold significant reservations as to whether the consent given or said to be given by these parties is a genuine consent.
13. I also have significant concerns as to the children's safety and best interests, given the matters recorded by the Department of Families, Fairness and Housing in the report to which I have earlier referred.
14. This is an unusual matter. The parties have undertaken a surrogacy arrangement in another country. Seemingly, the parties intend to continue living together in circumstances where the first respondent is the primary caregiver to the two children the subject of the proceedings. That this is so is recorded in the DFFH report. Nonetheless, the orders that I am asked to make would see the continuing parenting responsibilities of that litigant removed, and leave granted for an adoption of those children by the applicant who is their stepmother.
15. In light of all of those concerns, in my view, it is appropriate that the proceedings be adjourned to enable the parties to obtain independent legal advice. In addition, I will make an order for the children to be independently represented by a lawyer who will have the task of undertaking all necessary inquiries and investigations and be in a position to make submissions to the Court as to what are the appropriate arrangements with respect to the ongoing care for these young children.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.