Daniels & Anor & Hooper

[2012] FamCA 271

FAMILY COURT OF AUSTRALIA

DANIELS AND ANOR & HOOPER [2012] FamCA 271

FAMILY LAW - ADOPTION - Leave to commence proceedings

Family Law Act 1975 (Cth)

Mortland & Wheaton [2011] FamCA 578

APPLICANTS: Mr Daniels & Ms Daniels

RESPONDENT: Mr Hooper

FILE NUMBER: MLC 1431 of 2012

DATE DELIVERED: 26 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 26 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr B Sayer

SOLICITOR FOR THE APPLICANTS: T J Mulvany & Co

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. Mr Daniels and Ms Daniels (the applicants) exercise shared parental responsibility for the long term and day to day issues concerning the care, welfare and development of G born … September 1996.

2. The said child live with the applicants.

3. Pursuant to S.60(G)(1) of the Family Law Act 1975 the first named applicant be granted leave for proceedings to be commenced for the adoption of the said child, it being determined that such order is in the best interests of the child.

4. The Application filed 20 February 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels and Anor & Hooper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1431 of 2012

Mr Daniels & Ms Daniels

Applicant

And

Mr Hooper

Respondent

REASONS FOR JUDGMENT

1. I have before me today an application seeking parenting orders and an order pursuant to section 60G(1) of the Family Law Act 1975 that the applicants be granted leave to commence proceedings for the adoption of G, who was born in September 1996 and is 15 years of age.  The applicants are G’s mother, Ms Daniels (“the second applicant”), and her husband Mr Daniels (“the first applicant”), and the respondent to this application is Mr Hooper, the child’s biological father. The application is undefended.

2. The second applicant and the respondent were in a brief relationship which resulted in the birth of G’s sister, E in November 1988.  Between 1994 and late 1996 the second applicant was again in a relationship with the respondent during which time G was conceived.  The relationship broke down shortly after G’s birth.  The respondent saw E and G on two occasions subsequent to separation, however, after the second occasion E refused to see the respondent.

3. Thereafter, the respondent made little effort to maintain any contact or communicate with the second applicant or the children, save and except that when G was approximately two years of age the respondent contacted the second applicant by telephone asking to see the two girls.  As he sounded intoxicated she suggested that he ring again when he was sober.  He did not telephone the second applicant or the children again and thereafter made no further requests to spend time with either E or G.  It is the second applicant’s evidence that G does not have any independent recollection of the respondent.

4. The first-named applicant, Mr Daniels, was born in 1960 and is 52 years of age.  He was previously married and has two children of that marriage who are aged 30 and 26 respectively.  The second applicant was born in 1955 and is 56 years of age.  She has been married on two previous occasions and has three children of her first marriage, who are aged 35, 33, and 31 respectively. 

5. The applicants commenced a relationship in 2002 and were married in December 2007.  Whilst G is aware that the first applicant is not her biological father, she has adopted him as her father figure and it was G who, in November 2011, told the first applicant that she wanted to change her surname to Daniels, and that she wanted to be adopted.  The applicants’ affidavit sets out in some detail their attempts to discuss these issues and these proceedings with the respondent.

6. I am satisfied in any event on the basis of the affidavit of service which was filed on 16 March 2012.  The application and the applicants’ affidavit sworn 16 February 2012 were served upon the respondent on 8 March 2012.  The matter was listed for a directions hearing before Registrar Sikiotis, on 22 March 2012 and on that date it was adjourned for hearing this day.

7. I am also satisfied that by letter dated 22 March 2012, which is annexed to the affidavit of Mr Sayer, the applicant’s solicitor, filed this day, that the applicant’s solicitor forwarded the letter to the respondent notifying him of today’s hearing and putting him on notice that if he did not appear today the applicants would be seeking leave to proceed on an undefended basis.  The respondent did not enter an appearance and I propose to proceed on an undefended basis.  I also note that the applicants seek to be excused from the requirement that they participate in family dispute resolution.

8. I am satisfied that in the circumstances of this case where it is clear that there is no dispute between the applicants and that the respondent has shown no interest in either maintaining his relationship with G, or in these proceedings that no purpose would be served by the parties attending family dispute resolution and I do not propose to make an order requiring them to do so. 

9. The Court may, subject to the presumption of equal shared parental responsibility, make such parenting orders as it thinks fit and proper in the circumstances. A parenting order may, as is sought by the applicants in this case, deal with the allocation of parental responsibility which includes the allocation of responsibility for making long term decisions and for determining with whom a child should live.  As in this case, in all applications for parenting orders, the Court must have regard to the objects underlying the provisions of Part VII of the Family Law Act, which are intended to advance the best interests of the child.

10. They include ensuring that children have the benefit of a meaningful involvement of both their parents in their lives, protecting the children from harm, ensuring that they receive adequate and proper parenting necessary for them to achieve their potential and ensuring that their parents fulfil their duties and meet their responsibilities concerning the children’s care, welfare, and development.  The Court must also have regard to the principles underlying those objects which are set out in section 60B, subsection (2), of the Act.

11. The paramount consideration when making a parenting order is the best interests of the child or children, the subject of that order.  In determining what is in the children’s best interests the Court must consider both the primary and additional considerations of what is in the best interests of the particular child, in the particular circumstances of the case.

12. The analysis of those statutory considerations of what is in the best interests of a particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and principles underlying those objectives.  The primary considerations directly take up the first two of those objectives.  I am satisfied that in all of the circumstances of this case the orders sought by the applicants, that they have equal shared parental responsibility for G and that she live with them, are in her best interests.

13. G is 15 years of age.  She has adopted the first applicant as her father figure and wants that relationship to be formalised.  The respondent has played little or no part in her life, either emotional or financial and even in the face of these proceedings has not sought to involve himself in G’s life.  According to the evidence, G is part of a close and loving family and I am satisfied that both applicants love and are committed to her welfare.  The first applicant deposes to the fact that he does not make any distinction between G and his biological children and I accept that evidence.

14. I am satisfied that on the basis of the evidence before me, that the respondent does not have and has not taken the necessary steps to develop or maintain a meaningful relationship with G.  Given G’s age it would of course be open to her, should she choose to do so, to contact the respondent, and the orders sought by the applicants would not preclude her from doing so.  I am also satisfied given the attempts that the applicants made to discuss these issues with the respondent, that they would not oppose G contacting the respondent, should she express her desire to do so at some future date.

15. Pursuant to section 60G this Court may grant leave for proceedings to commence for the adoption of a child by a prescribed adopting parent.  In summary, it is not the granting of leave that ends a person’s parental responsibility, it is the adoption itself, and the Court must consider whether the grant of leave would be in the child’s best interests.  In the unreported decision of Mortland & Wheaton [2011] FamCA 578, Murphy J described the question to be determined as follows:

    Is it in the relevant child or children’s best interests to permit adoption proceedings to proceed in the State Magistrates’ Court, with the potential consequences that a parent shall, with the consent of the other parent or absent consent by court order, cease to have any of the duties, powers, responsibilities and authority, in respect of his or her child as distinct from orders being made in this Court that might involve the parent and step-parent.

16. In all of the circumstances of this case and having regard to G’s expressed wish and the respondent’s total lack of involvement in her life, I am satisfied that it would be in her best interests to grant leave for the first applicant, who, as the husband of her mother, is a prescribed adopting parent, to commence adoption proceedings.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 March 2012.

Associate: 

Date:  1 May 2012