Brady and Anor and Pidgeon

[2014] FamCA 758

FAMILY COURT OF AUSTRALIA

BRADY AND ANOR & PIDGEON [2014] FamCA 758

FAMILY LAW – CHILDREN – ADOPTION – Application by step-parent – Leave to commence adoption proceedings pursuant to s 60G – Where biological father initially opposed the application for leave to commence adoption proceedings but subsequently filed a Notice of Discontinuance – Where it is in the best interests of the child to grant leave

Family Law Act 1975 (Cth)
FIRST AND SECOND APPLICANTS:	Mr Brady and Ms Dunning

RESPONDENT:	Mr Pidgeon
FILE NUMBER:	BRC	9546	of		2013

DATE DELIVERED: 8 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 September 2014

REPRESENTATION

SOLICITOR FOR THE FIRST AND

SECOND APPLICANTS:

Ms Honan, Solicitor, Michael Lynch Family Lawyers

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

it is ordered that:

1. Pursuant to section 60G of the Family Law Act 1975 (Cth), leave is granted to the First and Second Applicants to commence adoption proceedings in respect of the child, C born … 2006.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9546 of 2013

Mr Brady and Ms Dunning

First and Second Applicants

And

Mr Pidgeon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The child C (“the child”) born in 2006, who is now seven years of age, is the child the subject of an Initiating Application filed on 5 November 2013 whereby Ms Dunning, the mother of the child, and her husband, Mr Brady, seek leave pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”) to commence adoption proceedings in respect of the child.

2. Ms Dunning and Mr Brady commenced a relationship in about July 2008, commenced cohabitation at the end of 2008, became engaged in 2009 and married in March 2011.  They have a child of their marriage, namely L, who was born in 2010, who is the child C’s half sibling.

3. Mr Pidgeon who is the child’s natural father (“the father”), filed a Response to the Initiating Application on 10 December 2013.  Initially the father sought final orders that the child live with the mother but there be equal shared parental responsibility; that the child spend time with him; and a number of other mechanical orders in terms of time spent on special occasions.  The father also sought some interim orders for preparation of a family report; for the appointment of an Independent Children’s Lawyer; and other associated interim orders.

4. At that stage the father expressed, in paragraph 3 of his affidavit filed 10 December 2013, his opposition to the grant of leave to the first and second applicants to commence adoption proceedings of the child.  However, on 15 July 2014, the father filed a Notice of Discontinuance with respect to the orders he had sought in his Response to the Initiating Application.

5. Moreover, on 20 August 2014, Registrar Brooks made orders for the setting down of the Initiating Application to be heard today and there is a number of notations to Registrar Brooks’ orders as follows:

   (1)The Respondent has discontinued his Response and does not oppose the orders being sought in the application.

   (2)The Respondent does not intend to appear on the next occasion.

6. The solicitor for the applicants confirms that on 4 September 2014, the father filed an affidavit confirming his filing of his Notice of Discontinuance and, more significantly, deposing to the fact that he no longer opposes the Application that he has sought independent legal advice and understands the ramifications of not opposing such Application.  I note that in his affidavit the ramifications of the grant of leave are fully and accurately set out by the father and I am thus satisfied he understands the effects of adoption.

7. Section 60G of the Act is the provision under which this Court grants leave for adoption proceedings to be taken by a prescribed adopting parent. Relevantly, under subsection (2) of that section, the Court must consider whether granting leave would be in the child’s best interests, having regard to a number of subparagraphs of the Act.

8. It is clear on the evidence before me that the father has not seen or spent time with the child since he was about three months of age and he is now soon to turn eight years of age.  On the evidence of Mr Brady and Ms Dunning, it would seem that Mr Brady is the only father the child has really known, and the child regards Mr Brady as his father. 

9. As the applicants explain, at an appropriate time in terms of the child’s age and level of development they intend to explain to the child that Mr Brady is not his biological father and will do so with the assistance of the intervention of a child psychologist.

10. I am satisfied on the evidence before me that Mr Brady and the child enjoy a very close relationship and, for all intents and purposes, Mr Brady regards the child as his son.  In social settings the child is introduced by Mr Brady as his son, and it is clear that for a long time now, Mr Brady has been providing financial support for the child and will continue to so do.  It is significant, of course, that Mr Brady and Ms Dunning have a child of their relationship who is the child C’s half sibling.

11. In all the circumstances of this case, I am satisfied that it would be in the best interests of the child to grant the Application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 September 2014.

Associate:

Date: 8 September 2014