Diaz and Kendall

[2014] FamCA 595

FAMILY COURT OF AUSTRALIA

DIAZ & KENDALL [2014] FamCA 595

FAMILY LAW – ADOPTION – Leave to adopt – Undefended proceeding.

Family Law Act 1975 (Cth)

APPLICANT: Mr Diaz

RESPONDENT: Ms Kendall

FILE NUMBER: DGC 2493 of 2013

DATE DELIVERED: 30 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 June 2014

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms McGregor

SOLICITOR FOR THE RESPONDENT: Fiona R McGregor

Orders

1. That the amended initiating application filed 2 April 2014 is struck out.

2. Pursuant to s 60G of the Family Law Act 1975 (Cth), leave is granted to Ms Kendall and Mr C to commence proceedings under the Adoption Act 1984 (Vic).

3. That the reasons this day be transcribed and be made available to the parties.

4. That the applicant Mr Diaz pay the respondent’s costs fixed in the sum of $2920.

5. That the response filed 29 April 2014 is otherwise dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2493 of 2013

Mr Diaz

Applicant

And

Ms Kendall

Respondent

REASONS FOR JUDGMENT

1. I am dealing with the response by Ms Kendall to an application for orders by Mr Diaz.  Mr Diaz has not attended the court today.  The court file shows that over the history of this matter, since September 2013, there have been occasions where he has attended and others where he has not.  More importantly, I made orders in May of this year at which he did not attend, and I think there was an explanation.  I gave some reasons at the time indicating my concern about the matter, and, despite that, Mr Diaz has not filed any further material and having been called today has not attended.  Accordingly, I have struck out his initiating application filed on 2 April.  That leaves alive the response by Ms Kendall, to whom I shall refer in these reasons as the mother. 

2. This is an application by the mother, supported by her partner, Mr C, for leave by a prescribed adopting parent to commence adoption proceedings in the County Court of Victoria under the State Adoption Act. In the exercise of its powers under s 60G of the Family Law Act 1975 (Cth) (“the Act”), the Court must consider whether granting that leave is in a child’s best interests. Whilst s 60G does not specifically refer to the determination of the best interest principles which usually apply in a parenting matter, there is certainly sufficient indication in the Act that the court should apply those principles.

3. An adoption order has significant effects on a child’s life, but more so if an order is made by this Court under s 60G. First, the child ceases to be a child of the marriage or, more relevantly in this case, a child of the relationship between the mother and Mr Diaz. Secondly, parental responsibility that a person had immediately prior to the adoption comes to an end. Thirdly, any parenting orders which, if they existed immediately prior to that adoption order, stop being in force.

4. If leave is not granted, then all of those responsibilities subsist irrespective of adoption orders. In essence, Mr Diaz still has an opportunity to oppose the adoption application, but if the adoption order is granted by the State Court, by virtue of an order made under s 60G, he effectively fades out of the child’s life completely.

5. This case has both a very pleasant side of it as well as a very sad side.  The sad side is that Mr Diaz has had nothing to do with his biological child B, (“the child”) who is now aged 11½ years.  The upside for the child is that she is in a loving family with a man she sees as her father, and she has three siblings who are the children of her mother and Mr C. 

6. The background can be simply stated as follows:  Mr Diaz and the mother were in a relationship from some time in 2000 until January 2003, and the child was born in December 2002.  At the time that the relation came to an end, therefore, the child was only a tiny baby. 

7. In 2003, the parties reached a compromise in relation to their future relationship by the use of a Family Mediation Centre.  For whatever reason, Mr Diaz participated in that process and came to an agreement which was incorporated into a parenting plan that was subsequently registered in this Court in September 2003.  I am told, although the agreement does not necessarily seem to be in evidence, there was no dispute that the child was to live with her mother, and to have contact with her father by agreement.  Notwithstanding the looseness of that arrangement, Mr Diaz has had no contact at all with the child, virtually for 11 years. 

8. In 2013, on the application of the mother, final parenting orders were made by Judge Phipps in the Federal Circuit Court in Dandenong.  Mr Diaz did not attend.  There is some debate as to whether he was aware of the existence of the orders, because the learned judge made an order for service to be waived.  Be that as it may, Mr diaz made no application subsequently to discharge those orders. 

9. The matter came to a head again in 2014 when the mother and Mr C decided to commence the adoption process.  This time the matter came into the Judicial Duty List before Macmillan J.  Mr Diaz attended.  That triggered a process known as an adult and children issues assessment, which was conducted by family consultant Ms H.

10. The relevance in that assessment is that Ms H spoke to the child who said that she did not want to see Mr Diaz, knowing what the exercise was about.  That is, whether any relationship could be created.  Perhaps somewhat beyond her years, she said:

    He hasn’t seen me since I was a baby.  He hasn’t sent me a birthday card even.  I don’t know anything about him.  Mr [C] has been like my dad since I was three and a half.  He has always done everything for me.  He is my dad.  I am happy with the way things are, and I don’t want anything to change.

    The child then declined to have anything to do with Mr Diaz.

11. To the extent that the provisions of s 60CC guide the Court in determining what is in the best interests of a child, this particular case is fairly simply put.  There is no prospect here of a meaningful relationship or, more importantly, the child benefiting from one for two reasons.  One, Mr Diaz has left his run a little bit late to commence a relationship with a girl who is now entering her teenage years.  No doubt, in the fullness of time her inquisitiveness may change that.  But certainly, to pop up at this late stage and suddenly want to have some time does not really give much chance of a meaningful relationship beginning.

12. The second reason is that s 60CC requires the Court to have a look at the responsibilities that parents have fulfilled in relation to their children.  It is hard to imagine me making any findings of Mr Diaz being a responsible parent when he not only does not bother to come to the Court, nor file any material that is of any probative value.  More importantly, he has not surfaced for the best part of 11 years, in the most formative years of this child’s life. 

13. In terms of capacity as a parent, therefore, I have no idea what his skills are or what he could bring to the life of a girl entering her teenage years.  There is no reason for me to destabilise this child’s life when she, in her own words, describes Mr C as “like” her dad.  Indeed, she goes further and says “he is my dad”.

14. There are therefore no considerations associated with family violence or those sorts of problems in this particular case that would give me any concerns.  The affidavit of the mother, which was filed on 29 April 2014, not only sets out the history, but sets out the relationship she has with Mr C.  They are engaged to be married, and they have three children together, so the child already only knows the three other children as her siblings.  The mother describes the relationship between the child and Mr C as a strong, very loving relationship, and, to his credit, Mr C is described as treating the child no differently from the other three children.  The mother describes the child as being very much part of the family and that is unsurprising having regard to her history. 

15. One of the things that a court must take into account in s 60CC is the cultural connection that a child has with a parent.  As I understand the evidence, Mr Diaz is of Filipino origin, and the evidence shows that the child is not only aware of that heritage, but also has the dark features that oftentimes are seen in the people of the Filipino nation.  To the extent that it is necessary to say so, the mother says that if the child becomes curious about that heritage, she would support her and assist her in obtaining that right. 

16. As I began, this case is about whether or not an adoption will effectively expunge Mr Diaz from the child’s life and exclude him from bringing applications under the Family Law Act of a parenting nature. The order that I make today does not bind the State Court in relation to the adoption. No doubt, that court will look at all of the issues normally dealt with under the State legislation before it grants or refuses any application.

17. Suffice it to say it would be hard for a court to see how Mr Diaz should have any right to have a say in such a case when he has shown so little interest for 11 years and not bothered to come along today to support the application that he made opposing that very course of action.  The mother’s application should be granted.

18. I have an application now by the respondent mother for an order for costs. Section 117 of the Family Law Act provides that in proceedings in this Court each party shall bear their own costs, unless there are circumstances to justify a departure from that principle, and if the court is contemplating such a departure, it must take into account the matters set out in s 117(2A) of the Act.

19. The application in this case is for $5400, but that is calculated on probably what is described as an indemnity basis. In circumstances where someone seeks to oppose an application and makes it clear that that is their intention, but then fails to not only advise the court that they are not coming, advise the other party that they are not coming and then not turn up, seems to me to be a pretty good justification for departure from the principle. I find in this case that there is, therefore, a justification for departure from the principle, and the question of the matters in s 117(2A) therefore become relevant.

20. I have no idea what the financial circumstances of Mr Diaz are, save that in his amended initiating application filed on 2 April 2014 he described himself as a student, but he also obviously was affluent enough to have himself a mobile telephone, because he provided that number to the court.  I am not entirely sure what the mother’s financial circumstances are, but I conclude that they are not impecunious. 

21. The other factors are that I did not understand there to be any legal aid considerations in this case.  There is, as I have earlier indicated, non-compliance by the applicant, Mr Diaz, to the requirements to be here today.  And in many respects, he being the party opposing the application for leave has been wholly unsuccessful.  On that basis I propose to make an order for costs, doing the best I can, and factoring in the rates set out in the schedule. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 June 2014.

Associate: 

Date:  25 July 2014