Benson and Orlando

[2009] FamCA 440

FAMILY COURT OF AUSTRALIA

BENSON & ORLANDO [2009] FamCA 440

FAMILY LAW – ADOPTION – Leave to commence proceedings

APPLICANT: Mr and Mrs Benson

RESPONDENT: Mr Orlando

FILE NUMBER: MLC 2893 of 2009

DATE DELIVERED: 15 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C. Sayer

SOLICITOR FOR THE APPLICANT: TJ Mulvany & Co

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

BY THE COURT IT IS ORDERED

1. That the respondent Mr Orlando shall be deemed to have been properly served with the Application in a Case filed 3 April 2009 and affidavit in support filed 3 April 2009.

BY CONSENT

1. That Mr Benson and Mrs benson (“The Applicants”) exercise equal shared parental responsibility for all long term and day to day issues concerning the care, welfare and development of … (“the child”) born … May 1997.

2. That the child live with the Applicants.

3. That for the purposes of s 26 of the Births, Deaths and Marriages Registration Act 1996 (Victoria) that the court approve the proposed change of name for the child now known as … C to … Benson, the court being satisfied that the change of name is in the child’s best interest.

4. That pursuant to s 60G(1) of the Family Law Act 1975 the applicants shall be granted leave for proceedings to be commenced for the adoption by the First-named applicant of the said child, it being determined that such order is in the best interest of the child.

BY THE COURT

1. That a transcript of my reasons given this day shall be prepared and retained on the court file.

IT IS NOTED that publication of this judgment under the pseudonym Benson & Orlando is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2893 of 2009

MR AND MRS BENSON

Applicant

And

MR ORLANDO

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mrs Benson the mother of a young girl, born in May 1997.  She is joined in the application by Mr Benson her husband.

2. They seek orders:

   ·For them to exercise equal shared parental responsibility for all long term and day-to-day issues in relation to the child

   ·That the child live with them

   ·That for the purposes of s 26 of the Births, Deaths and Marriages Registration Act (1996) (Vic) that the Court approve the child’s change of name from C… to Benson

   ·Pursuant to s 60G(1) of the Family Law Act that they be granted leave for proceedings to be commenced for the adoption of the child by Mr Benson.

3. It appears that the Minute of Consent Order they presented to me is signed by the child's natural father, Mr Orlando.  As well as the applicants' Application in a Case filed 3 April 2009, and the extensive affidavit filed on the same day, I have a signed Acknowledgment of Service filed 30 April 2009, and the mother's Affidavit of Proof of Signature that will be filed today.  I also have the oral evidence today of Mr Sayer, the applicants’ solicitor.

4. I am satisfied that the child’s father has been adequately served in the circumstances.  I am satisfied that Mr Sayer has been communicating with the father over an extensive period of time whilst these orders have been in the process of being arranged.  I am satisfied that the father accordingly has had full notice of the application and of the precise orders being sought and of the Minute that he has signed.  Accordingly I am comfortable considering the application today. 

5. I said that the applicants’ affidavit was extensive.  It is a thorough affidavit that sets out all the details that I need to be satisfied that it is appropriate for the child that these people have the opportunity to commence the adoption process.  I bear in mind that there are far reaching consequences in terms of the child then becoming the child of Mr Benson as well as her natural mother, that she would cease to be the child or the natural father for all legal purposes, and that the parental responsibility of the natural father would cease in every respect.

6. I also bear in mind that the adoption process is one that is rigorous and it would need to be completed with the State authorities and ultimately a court giving its sanction. But taking into account the factors that I am obliged to consider under s 60G of the Family Law Act, I am satisfied that it is appropriate to make the orders as sought.

7. First, I shall make an order that I will make which is not an order by consent, that the respondent Mr Orlando shall be deemed to have been properly served with the Application in a Case filed 3 April 2009, and affidavit in support filed on that same day.

8. I will then make orders by consent in accordance with the Minutes dated today's date.  They will be retained on the court file.  I will make an order that a transcript of my reasons given this day shall be prepared and retained on the Court file.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  15 May 2009