Denderfield and Anor and Power

[2007] FamCA 298

FAMILY COURT OF AUSTRALIA

DENDERFIELD AND ANOR & POWER [2007] FamCA 298

FAMILY LAW - ADOPTION - By step-parent - Permission to adopt - Section 60GM – Consent of biological parent given but requirements of Family Law Rules not satisfied - Best interests principles applied where consent obviously given - Parenting orders made.

Family Law Act 1975 (Cth)

APPLICANT: MRS DENDERFIELD and MR DENDERFIELD

RESPONDENT: MR POWER

FILE NUMBER: MLC 1948 of 2007

DATE DELIVERED: 15 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 March 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: CAREW COUNSEL PTY LTD

SOLICITOR FOR THE RESPONDENT: NO APPEARANCE

Orders

1. That the mother and her husband have joint responsibility for the long term care, welfare and development of her son born in December 1999.

2. That the son live with the mother and her husband.

3. That the mother and her husband be responsible for the day to day care of the said child.

4. That leave is granted under SS 60G of the Family Law Act 1975 (Cth) to the mother and her husband to apply to the County Court of Victoria for an Order for the Adoption by them of the child M, the child of the mother and the biological father.

5. That the Minutes of Consent Orders remain on the Court file.

6. That the Solicitor for the Applicants file 3 clean copies of these Orders within seven days and serve a copy on the Respondent by certified mail within 14 days.

7. Pursuant to Section 62B and 65DA of the Family Law Act 1975, the particulars of the obligations these create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1948  of 2007

MR AND MRS DENDERFIELD

Applicant

And

MR POWER

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother and her husband to be given leave under s 60G of the Family Law Act 1975 (Cth) (“the Act”) to approach the state courts under the Victorian Adoption Acts to adopt the mother’s son who was born in December 1999. The son in fact is now correctly known by his stepfather’s surname as a result of the registrar of births, deaths and marriages in Victoria providing a change of name certificate sealed and dated on 17 January 2007.

2. Whilst I have not looked at that legislation, my recollection is that to effect a name change in a child under the age of 12 years, the parents have to consent or there has to be a court order.  I am told that the son’s biological father has in fact sent documents showing his consent to that name change.  By way of simple background, the mother and the father had a relationship for some four years that ended in 2003, during which time the son was born.  The son is obviously now seven.  After the separation of that relationship the mother commenced her relationship in the United Kingdom with her now husband and they came to Australia in 2004. 

3. Both the son and his mother have permanent residence in Australia and the mother’s husband is an Australian citizen.  As a result of their marriage, they have two children aged three and 21 months respectively.  The material about their relationship shows some considerable stability.  They have a four bedroom home which is rented by the mother’s husband from his parents who live close by.  The grandparents, although they are referred to as paternal step-grandparents, are appropriately called grandparents will provide assistance to their son and daughter in law in the care of the child.  The child’s stepfather is a trainee draftsman and seems to have a secure income.  The family receives some family assistance from Centrelink. 

4. Most significantly in an application like this I have to look at the relationship between the child and his biological father.  It is quite clear from looking at the material that the biological father consented to the child leaving the United Kingdom and also to the change of his name.  In respect of his ongoing relationship with the child it would appear that there has been, at best, sporadic telephone communication, but importantly, there has been no face-to-face relationship between them.  To some extent that may be understood because the child is severely autistic. He has never learned to speak and he has not been able to communicate sufficiently to express his wishes.  Since he has arrived in Australia he has ceased to have tantrums which had characterised his behaviour previously.  I accept that he is very attached to his stepfather.

5. The child is currently under the care of a paediatric psychiatrist in W whom he sees periodically. What I have to be satisfied about in permitting parties to seek permission to adopt is that it would be in the best interests of the child. I do not have to deal with the matters in detail in s 60CC of the Act in relation to the parenting aspect of the orders because it is quite clear on the documents that the biological father has consented. As a matter of precaution however, I have examined each of the relevant factors in that section and am quite satisfied that had I been obliged to make findings about them, I would ultimately have been satisfied that it is in the child’s best interests that not only permission for the adoption be given but also that the parenting orders be made. Turning to the consent, I am quite satisfied that although it is somewhat unusual, the intention of the biological father can be seen. It transpires that the biological father was requested to consent to the proposed arrangements but the legal process seems to have got in the way.

6. The consent document was sent to the biological father but unfortunately he only signed the affidavit page, and then when ultimately it was sent back to him, he signed a number of pages but not all of them. The Family Law Rules also require that documents be filed with the court no later than 90 days from the date of the first affidavit. When the document was ultimately presented to the court, it was out of time. I am not sure whether the registrar would have rejected the application and whether she should have anyway having regard to the provisions of section 60G but in any event on 23 February the registrar wrote to the solicitors for the mother and her husband and also directly to the biological father indicating that the matter was to be dealt with in my list today.

7. There is no appearance of the biological father, nor has there been any correspondence sent by him to either the court or to the parties. In the circumstances I am satisfied that the father understands that the matter is to be dealt with in the terms of the orders that were signed by him. More importantly I am satisfied that it is in the best interests of the child that the application under s 60G be granted.

8. I am also satisfied that it is appropriate in the circumstances that the stepfather and mother have the joint responsibility for the child’s long-term care and development, and that he live with them.  In those circumstances I will make orders in the terms of paragraphs 1-3 and 5-8 of the orders presented to me.  I will direct that the original remain on the court file and I will direct in accordance with paragraph 7 of those minutes that the solicitor for the applicants file three clean copies of the orders within seven days and serve the biological father by certified mail within 14 days.

9. I will dismiss the application form 11 filed 21 February 2007, and I will remove all extant matters from the list of cases awaiting a hearing.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 4 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DENDERFIELD AND ANOR & POWER