Fuller & Anor and Gersten

[2014] FamCA 373

FAMILY COURT OF AUSTRALIA

FULLER AND ANOR & GERSTEN [2014] FamCA 373

FAMILY LAW – ADOPTION – by step-parent – consent of the biological father dispensed with – leave to commence proceedings – adoption order made

Adoption Act 1993 (ACT)
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

APPLICANTS: Mr Fuller and Ms Fuller

RESPONDENT: Mr Gersten

FILE NUMBER: CAC 801 of 2013

DATE DELIVERED: 6 June 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigants in person

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Pursuant to s 60G(1) Family Law Act 1975 (Cth), leave be granted to the applicants to commence proceedings for the adoption of E born … 2005 (“the child”) in the Family Court of Australia.

2. The requirement for the consent of Mr Gersten is dispensed with.

3. Pursuant to s 4(2) Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and in accordance with s 9 of the Adoption Act 1993 (ACT), that an adoption order be made in respect of the child in favour of Mr Fuller.

4. The Registrar of Births, Deaths and Marriages of the ACT be requested to amend the registration of the child’s surname on the appropriate register to that of “Fuller”.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fuller and Anor & Gersten has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 801 of 2013

Mr Fuller and Ms Fuller  

Applicants

And

Mr Gersten

Respondent

REASONS FOR JUDGMENT

1. The mother and step-father of E born in 2005 (“the child”) seek orders that leave be granted to allow them to commence proceedings for adoption of the child and for an adoption order to be made in respect of the child in favour of the step-father. I am further asked to request the Registrar of Births Deaths and Marriages in the Australian Capital Territory to amend the registration of the child’s surname.

2. The orders are sought in an application filed 7 June 2013. That application was supported by affidavits by both the applicants filed on the same day.

3. The child has not seen her father since 2012 when there was a chance encounter at a supermarket. Prior to that time, the father had not had any contact with the child since about 2009 or 2010.

4. On 1 August 2013 orders were made for substituted service on the father which was to be effected by the relevant sealed copies of documents being served upon the paternal grandfather. I am satisfied that service was effected on the father and on 20 August 2013 there was an appearance by the paternal grandparents before the court. There was no appearance at any time by the father.

5. A member of the Adoptions and Permanent Unit of the Community Services Directorate sought leave to appear at the hearing. The application for the adoption order is supported by the Director-General of the Community Services Directorate. I have been provided with a report from the Director-General dated 16 May 2014. That report opines that the welfare and interests of the child would be promoted by the proposed adoption and notes that there are no contact plans in place for the natural father as he has not made any attempts to initiate contact with the child in recent times.

6. Section 15 Adoption Act 1993 (ACT) provides:

   An adoption order for a child....may be made in favour of a step-parent of the child.....if –

   (a) the instrument of consent shows consent to adoption by the step-parent;

   (b) the Family Court of Australia has given the step-parent leave to commence a proceeding for the adoption of the child under the Family Law Act 1975, s 60G; and

   (c) the step-parent is on the register of suitable people.

7. The step-father was placed on the Adoption Register in the ACT on 17 December 2012 as a suitable person and he remains on the Register to date.

8. The child is the biological child of the step-father’s wife, the joint applicant in these proceedings.

9. Section 35 Adoption Act 1993 (ACT) provides:

   1.   On application, the court may, by order, dispense with the requirement for consent of a person to the adoption of a child....if the court is satisfied that –

   ...

   (c) the person has abandoned or deserted, or has neglected or ill-treated, the child...; or

   (d) the person has, for a period of not less than one year, failed, without reasonable excuse, to discharge the obligations of a parent or guardian, as the case may be, of the child...; or

10. I am satisfied on the evidence that the biological father has abandoned the child and has for a period of not less than one year failed, without reasonable excuse, to discharge the obligations of a parent of the child.

11. I shall make an order dispensing with the requirement for the father’s consent to the adoption. 

12. Based upon the evidence from the child’s mother, step-father and the material in the Director-General’s report:

    12.1.I find that an order should be made for leave pursuant to s 60G(1) Family Law Act 1975 (Cth) to allow the applicants to commence proceedings for the adoption of the child.

    12.2.It is appropriate, pursuant to the available cross vesting legislation, to make an order in accordance with s 9 Adoption Act 1993 (ACT) and I will make an adoption order in respect of the child in favour of the step-father.

    12.3.It is appropriate that I make the request to the Registrar of Births Deaths and Marriages as sought.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 6 June 2014

Associate:   

Date:  6 June 2014