Dixon and Ferrier

[2010] FamCA 91

FAMILY COURT OF AUSTRALIA

DIXON & FERRIER [2010] FamCA 91

FAMILY COURT – CHILDREN – ADOPTION – Leave to commence adoption proceedings pursuant to s 60G – Whether Biological Father’s strong opposition to adoption should be a factor in granting leave – Deemed a highly relevant consideration – Leave to commence adoption proceedings refused – Order sought seeking dispensation of service on Respondent – Whether attempts to locate the Respondent were exhausted – Court able to easily contact Respondent via telephone indicating poor attempt/s – Order dispensing with service refused

Adoption Act 2009
Adoption of Children Act 1964 ss 208, 208(e)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

APPLICANT: Mr Dixon

RESPONDENT: Mr Ferrier

FILE NUMBER: BRC 615 of 2010

DATE DELIVERED: 27 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The Applications in a Case filed on 22 January 2010 and 27 January 2010 for leave to commence adoption proceedings and to dispense with service of the Respondent are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 615 of 2010

MR DIXON

Applicant

And

MR FERRIER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the mother and step-father of T, born in September 1993.  T is now 16.  As part of the application, an order is sought seeking dispensation of service upon the respondent.

2. Material has been filed by the mother and step-father which includes an application in the case filed on 27 January 2010, an affidavit by Mr Dixon on 22 January 2010, an affidavit by the mother on 22 January 2010 and affidavits filed by Ms H filed on 22 January 2010 and a further affidavit by the mother also filed on 27 January 2010.

3. In the proceedings this morning, my court officer obtained from the court material a telephone number in Victoria for T’s father.  He tells me that during the course of proceedings that the telephone call today was his first knowledge of these prospective proceedings in any form.  It is somewhat significant, as it seems to me, that the court has been able to contact Mr Ferrier in circumstances where Mr and Mrs Dixon say they have been unable to effect service.  Mr Dixon tells me this morning that he has had a process server looking for Mr Ferrier but attempts to find him have been unsuccessful.

4. Nothing in any of the material filed by Mr and Mrs Dixon refers to that fact, nor does any of the material filed by Mr and Mrs Dixon refer to any attempts they have made to contact Mr Ferrier, or to attempt to contact him by any means.  In the circumstances just described, it seems to me that there is no evidentiary foundation to make an order dispensing with service upon Mr Ferrier.

5. That being so, it seems to be common ground that Mr Ferrier has, not only not been served, but has received no notification not only of the instant application but any attempts made through the Department of Families for Mr and Mrs Dixon to adopt T.  Mr Ferrier strongly makes the point today that today’s phone call is the first knowledge of any sort that he has about any such intention on the part of Mr and Mrs Dixon.

6. Moreover, Mr Ferrier makes it plain that he strongly opposes any proposed adoption by Mr and Mrs Dixon.  Whilst Mr Ferrier’s consent is not a matter directly relevant to the proceedings before me, it is a matter that is directly relevant, and indeed a precondition for the ultimate adoption which is to be ordered, if at all, by the State Magistrates Court.  Indeed, the State Magistrates Court is unable to order the adoption of a child unless the relevant birth parent consents to that adoption, save in circumstances where the Magistrates Court dispenses with that consent.

7. The circumstances in which consent can be dispensed with are set forth, as and from 1 February 2010, in the Adoption Act 2009. Whether or not Mr and Mrs Dixon can make out a case to the State Magistrates Court that consent should be dispensed with is a matter for another day. However, the circumstances in which the father of the child, who has currently parenting orders in his favour, both is unaware of the current proceedings and is adamantly opposed to them are, it seems to me, relevant matters to take into account in the exercise of my discretion pursuant to section 60G of the Act.

8. Furthermore, the Adoption Act 2009 makes it clear in section 208 that before a State Magistrates Court can make a final adoption order, it must be satisfied of, among other things there specified, that:

   An order for the child’s adoption by the step-parent would better promote the child’s well-being and best interests, than an order under the Family Law Act 1975 (Cth), any other court order or no court order.

9. In that respect, the short submissions made by each of the parties and discussion occurring in the proceedings before me, make it clear that whatever might be the rights and wrongs of it, there is an ongoing dispute about the circumstances in which the father has not availed himself of time with T. He asserts, for example, that the mother and her new partner have made it difficult for that to occur. It is not the place of these proceedings to determine if that is right or wrong, but it seems to me to be a highly relevant matter to a court making a decision ultimately about adoption, particularly when the requirements of section 208(e) are taken into account.

10. In all of the circumstances, I am not satisfied that it is in the best interests of T for me to grant leave for the adoption proceedings to proceed, and I dismiss the application to that effect, and also the application to dispense with service.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  12 February 2010