Eastern and Anor and a**Fa**

[2008] FamCA 831

FAMILY COURT OF AUSTRALIA

EASTERN AND ANOR & “F” [2008] FamCA 831

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to commence proceedings for adoption pursuant to s 60G – Father’s full name and whereabouts unknown – Effect of s 61E on parental responsibility if leave to commence adoption proceedings granted – Leave granted to amend application to add mother as applicant and amend father’s name – Leave granted to amend orders sought and dispense with service on father.

Family Law Act 1975 (Cth) ss 60G & 61E
Adoption Act 1991 (SA) s 18(1)(d)

FIRST APPLICANT: Mr Eastern

SECOND APPLICANT: Ms Pidd

RESPONDENT: “F”

FILE NUMBER:	ADC	1136	of	2008
DATE DELIVERED:	5 June 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 5 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms Adlem

SOLICITOR FOR THE APPLICANTS: Paces Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That leave is granted to the applicant to amend the Application for Final Orders filed on 20 March 2008 to provide that:

   (a)the mother Ms Pidd be named as the second applicant and not as the first respondent;

   (b)the first respondent be the father of the child known as “[F]”;

   (c)paragraph 1 of the orders sought read, “Leave be granted pursuant to section 60G of the Family Law Act 1975 for proceedings to be commenced in the Youth Court of South Australia for the adoption of the child […] by the applicants.”

2. That leave is granted to dispense with the need for service of the Application for Final Orders filed on 20 March 2008 upon the respondent father.

3. That further consideration of this matter be adjourned to not before 9:30am on 6 June 2008.

IT IS NOTED that publication of this judgment under the pseudonym Eastern and Anor & F is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1136 of 2008

MR EASTERN

First Applicant

And

MS PIDD

Second Applicant

And

“F”

Respondent

EX TEMPORE REASONS

1. This matter has come before me this morning on an Application for Final Orders filed on 20 March 2008.  The applicant is Mr Eastern who is the stepfather of the child the subject of the proceedings.  The named respondents are firstly the mother of that child and a second respondent described as "father unnamed on birth certificate". 

2. This is an application pursuant to section 60G of the Family Law Act 1975 for leave to commence proceedings for adoption in the Youth Court of South Australia.  As I have said in the past, in circumstances like these the appropriate parties should be by way of applicant the natural mother and the stepfather.  That is because of the effect of section 61E of the Act, on an order ultimately being made for adoption in the way anticipated.  In other words, upon such an order being made, in my view section 61E has the effect that the mother's parental responsibility for the child would end.

3. I am sure that is not what is intended here and thus the appropriate way to address it is for me to give leave to amend the application such that the mother as added as an applicant.  In that way, on the assumption that the adoption order is ultimately made, she will have the same parental responsibility as she has always had and enjoyed, and the same as the stepfather will have in the event that the adoption order is made.

4. I note of course that the father of the child, who should be the respondent, is described, in the application as "father unnamed on birth certificate".

5. The situation with the father is that the mother does not know his full name, and she does not know his address, save and except that he may or may not be residing in Brazil.  She does know his first name and that is F, and that is deposed to in the mother's affidavit in support of this application. 

6. Perhaps to expand on that.  The child was conceived in Brazil out of a casual relationship with the man named F, while the mother was living in Brazil.  The mother further says in her affidavit that when she found out she was pregnant she contacted the biological father who declined to accept any responsibility for the pregnancy or for the child, even to the point of refusing to acknowledge that the child was his.  The biological father has never met the child nor offered any financial or emotional support to either the child or the mother and has had nothing whatsoever to do with the child.  Further, the mother tells me in her affidavit that she registered the birth, as she is obliged to do, in Brazil, and she registered it with her surname only and with the father's field left blank, as the biological father refused to sign the appropriate form.

7. To repeat then, the mother does not know the full name of the biological father.  However, there is no requirement that his full name be set out in the application, and I propose to give leave to amend the application to name the father as the respondent and just simply use his Christian name of F.

8. The effect of the orders that I propose to make will be that this application will become a joint application by the mother and the stepfather, with the respondent as the only respondent. 

9. Moving then to the orders sought, on the basis of the application being amended in accordance with the leave I propose to grant, the order sought will also need to be amended and I give leave for that to be done, such that the leave is sought not only by the stepfather but also by the mother.

10. The application also contains an order seeking leave pursuant to section 18(1)(d) of the Adoption Act (SA) 1988.  I have raised with counsel the fact that this Court simply has no jurisdiction to make that order.  That is now conceded.  I do not need to have that amended though; I simply mention it now on the basis that in due course I will dismiss that application.

11. I am told that the application has not been served, for reasons which appear obvious from the affidavit material that has been filed.  However, there is no application to either dispense with service or to seek an order for substituted service.

12. There appears to be sufficient information in the affidavits filed in support of the application for an order, for example, dispensing with service to be made.  I am prepared to receive an oral application to that effect.

13. The applicant's solicitor has now made an application to dispense with service of the application upon the respondent father.  As I said before, the mother deposes to not knowing the whereabouts of the father and not having had anything to do with him since some time in late 2004 or 2005 in Brazil.  I accept that the mother has no knowledge of the father's whereabouts, and that it would be impossible for her to try and find him.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 5 June 2008.

Associate: …

Date: