Dewart and Zarrah

[2010] FamCA 640

FAMILY COURT OF AUSTRALIA

DEWART & ZARRAH [2010] FamCA 640

FAMILY LAW – ADOPTION – Leave to commence proceedings

Family Law Act 1975 (Cth)

1st APPLICANT: Ms Dewart

2nd APPLICANT: Mr Dewart

RESPONDENT: Mr Zarrah

FILE NUMBER: TVC 197 of 2010

DATE DELIVERED: 23 April 2010

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Mushin J

HEARING DATE: 23 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Colwill

SOLICITOR FOR THE APPLICANT: Bill Cooper & Associates

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

IT IS ORDERED THAT

1. All requirements of service of any document in this matter on the respondent be and is hereby dispensed with.

1. Pursuant to the provisions of section 60G of the Family Law Act 1975 leave is granted to the applicant to commence proceedings for adoption of the child B born … July 1995.

2. All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER:  TVC 197/2010

MRS DEWART

First Applicant

MR DEWART

Second Applicant

and

MR ZANNAH

Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to the provisions of s.60G of the Family Law Act 1975 seeking the leave of the Court for the applicants to proceed with an application for adoption of the child B, who was born in July 1995 and is, accordingly, 14 and a half years. 

2. I have heard Counsel for the solicitor for the applicants.  There is no appearance by the respondent.  I have read the initiating application of the applicants filed on 22 February 2010, together with the relevant affidavits including sworn by an adoption officer and by each of the applicants.

3. The circumstances in which the respondent has not appeared on this application go not only to service but also to the merits of the application.  I am satisfied that all the material is consistent and credible, and I accept it.  It satisfies me that the child’s mother, the first applicant, Mrs Dewart commenced a relationship with the second applicant Mr Dewart in approximately early 1996 and they married in July 1999.  At no time was the mother in a de facto relationship or marriage with the respondent, who makes no contribution whatsoever, either financially or otherwise to the child’s welfare, and has had nothing to do with his upbringing.

4. The second applicant has been the effective father of the child for virtually the whole of the child’s life.  Given that the first respondent is not, in any circumstance, involved with the child and has made it clear that he has no interest in the child, the inability of the applicants to locate him for the purpose of service is quite clear and consistent.  In those circumstances, it is appropriate that an order be made dispensing with all requirements of service on the respondent.

5. Similarly, by virtue of the non-involvement of the respondent in the child’s life, the merits of this application by the applicants are high.  They are the parents of the child except for the second applicant not being his biological parent.  They are supported in this application by the adoptions officer. 

6. An order that would be made under section 60G of the Act is not an order for adoption, but simply gives leave to the applicants to proceed with an application for adoption in the State of Queensland. In my view, it is in the interests of the child that such leave be granted and I will order accordingly.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  27 July 2010