GUS & DUCKETT
[2012] FamCA 776
FAMILY COURT OF AUSTRALIA
| GUS & DUCKETT | [2012] FamCA 776 |
| FAMILY LAW – CHILDREN - Best interests – Orders made for adopted children to live with the wife and for the wife to have sole parental responsibility. |
| Family Law Act 1975 (Cth) |
| Tomas and Anor & Murray [2011] FamCA 641 |
| APPLICANT: | Ms Gus |
| RESPONDENT: | Mr Duckett |
| FILE NUMBER: | MLC | 6750 | of | 2012 |
| DATE DELIVERED: | 10 September 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 14 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Daly |
| SOLICITOR FOR THE APPLICANT: | Anthony's Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Colla |
| SOLICITOR FOR THE RESPONDENT: | McNab McNab & Starke |
IT IS ORDERED THAT
The applicant mother have sole parental responsibility for the children N born … July 2010 and T born … August 2010.
The said children live with the mother.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gus & Duckett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6750 of 2012
| Ms Gus |
Applicant
And
| Mr Duckett |
Respondent
REASONS FOR JUDGMENT
Introduction
The wife’s application came before me in the Judicial Duty List and proceeded on the basis of the affidavits filed by the husband and wife and submissions made by Counsel for each of the parties.
The husband in this case is 51 years of age and was born in Greece. The wife is 49 years of age and was born in Australia. Both parties have spent the majority of their lives in Australia although the wife has been living in Greece since August 2010.
The parties were married in Melbourne in 2006.
The dispute in this case relates to two children N born in July 2010 and T born in August 2010. Both of the children were born in Greece.
The husband and the wife went through a lengthy process in Greece to adopt the two children. This involved setting up a home on an adjacent island, Island K, undergoing medical tests, lengthy interviews with a social worker appointed to their case, and attending court hearings on 1 and 2 December 2010. After the court hearings the husband and the wife were both required to swear an oath that they accepted responsibility for raising the two children. They were then granted legal rights as parents of the children by the High Court of Greece. The documents verifying the adoption of the children have been translated and are annexed to the wife’s affidavit.
The parties separated on 3 December 2010 when the wife says the husband, without notice, returned to Australia leaving her in Greece with the two children. He advised the wife at that time that he had changed his mind about the adoption and no longer wanted to take responsibility for the children.
The husband in his affidavit essentially confirms the steps the parties took to adopt the two children and his involvement in the process, however he now alleges that the adoption was part of an international black market child smuggling scheme and should be set aside. It is the husband’s case that the children were placed in the wife’s care before his arrival in Greece and it was only, he says, after he arrived in Greece that he became aware that payment had been made for the children, which he says, was above and beyond what he had thought was the standard charges associated with adoption. The wife denies that the adoption was illegal or part of a black market child smuggling scheme. The evidence has not been tested and I cannot make findings in relation to these allegations.
The husband deposes that his solicitors have made contact with solicitors in Greece with specific expertise in the adoption and Hague Convention area of law. It is clear from his evidence that he has not actually instructed those solicitors to advise as to whether or not he can appeal from the adoption orders and now seeks time to enable his solicitors to investigate whether it may be possible to overturn the adoption orders. He further deposes that he has been advised that as it is summer in Greece it will not be possible to instruct solicitors to look into the matter until 3 September 2012 at the earliest.
The husband deposes that he “does not wish to have anything to do with these young children, notwithstanding my feeling great sympathy for the plight to which my wife has put them…” He also makes it clear that the potential child support liabilities are of significant concern to him. This is consistent with the submissions made on his behalf. It was also submitted that the children should not be removed from Greece in circumstances where it might be ultimately determined that their adoption was illegal.
On 22 December 2011 the wife was granted provisional custody of the two children by the Court at Island K. The wife, who was born in Australia and is an Australian citizen, now wishes to return to Australia with the children. She has obtained passports for the children and has been advised by the Australian Department of Immigration and Citizenship Office in Berlin that in order to obtain the necessary visas for the children to travel to Australia she requires the father’s consent or an order of this court granting her “sole custody” of the children. It is on that basis that she seeks orders for sole parental responsibility and that the children live with her.
On 10 April 2012 the wife’s solicitor wrote to the husband requesting that he sign the consent form or asking in the alternative whether he would be prepared to sign a minute of orders providing for the wife to have sole parental responsibility and that the children live with her.
It is common ground that the husband refused to sign the necessary consent or a minute of orders, making it impossible for the wife to travel to Australia with the children.
The wife has been in Greece since the children’s adoption. Her parents, sister and friends live in the Melbourne area near what was previously the former matrimonial home. The wife’s father is unwell and it is her case that she would like to return to Australia as soon as possible.
The wife further deposes that the economy in Greece is very depressed and she has very little likelihood of obtaining employment. She is reliant on support from her sister and friends to meet her living expenses.
The husband in his response filed 10 August 2012 seeks final orders adjourning the wife’s proceedings pending him having the opportunity to seek to overturn the adoption orders and that the wife be restrained from seeking to take any further action to bring the children to Australia pending the outcome of the appellate action. He seeks interim orders that the wife be restrained from taking any further proceedings with respect to the purported adoption and requiring her to provide documentation in relation to the purported adoption and that the court refrain from making an order pursuant to s106A permitting a Registrar to sign on behalf of the husband and thereby allowing the children entry to Australia.
Ms Colla initially submitted that I do not have jurisdiction to make the orders sought by the wife. Her final position was that, whilst I did have jurisdiction to make parenting orders, I did not have jurisdiction to make orders requiring the husband to sign the necessary visa application. Whilst the distinction was not one made by Ms Colla, it would appear to be a distinction between the court’s jurisdiction and the power to make a particular order that is in this case an order requiring the husband to sign the visa application. As it is the wife’s case that if I make parenting orders she seeks the husband will not be required to sign the visa application it is not necessary in this case for me to determine that issue.
The court’s jurisdiction to make parenting orders is contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”).The court can make parenting orders with respect to a child and a child is defined in s4 of the Act as including an adopted child.
“Adopted” is defined in s4 as a child adopted under the law of any place (whether in or out of Australia) relating to the adoption of children. Until the order of the High Court of Greece is set aside, it is regarded for the purpose of proceedings in this court for parenting orders as a valid adoption.
Section 69C(2) provides that either of a child’s parents can institute proceedings in relation to a child. Both the husband and the wife, as adoptive parents, are parents for the purposes of Part VII of the Act. Even if the adoption was found to be illegal and set aside, the children in this case have now lived with the wife since their birth in 2010 and she would be a person “concerned with the care, welfare and development” of the children pursuant to s69C(2)(d). Although the wife is living in Greece she is an Australian citizen and, as such, satisfies the jurisdictional requirements of s69E of the Act.
The husband does not consent to an order for sole parental responsibility or that the children live with the wife, although he does not oppose those orders in any real sense. It is clear from the husband’s evidence that he wants nothing to do with the children and does not want to be involved in making decisions with respect to their welfare on a long or short term basis. In those circumstances I am satisfied that it would not be practical or in the children’s best interests for their parents to share parental responsibility.
The husband now wishes to delay this court making any orders until he has had an opportunity to set aside the adoption orders. He says no investigations can be carried out until after 3 September 2012 but this does not explain why he has done nothing until now. Nor do I have any information as to how long it might take to set aside the adoption orders and what the prospects of successfully doing so may be.
The welfare of these young children is the paramount consideration. I must have regard to the objects of Part VII of the Act and the principles underlying those objects and consider the primary and additional considerations in s60CC(1) in so far as they are relevant to the particular case.
The children have lived with the wife since their birth and there is nothing to suggest that she has not made appropriate arrangements for their care.
The wife is effectively stranded in Greece away from her immediate family and in circumstances where she is reliant upon others for support. I am satisfied that that is not in the best interests of the children.
Whilst the allegations of an international black market child smuggling ring are concerning and the orders I make are not intended to sanction an illegal adoption, if that is in fact what has occurred, the paramount consideration is the welfare of these children. Even if the adoption were not legal that of itself would not be a reason why I should not make orders with respect to the application that is before me which is an application for parenting orders. Even if the adoption were to be set aside the wife is the only parent these children have known. In those circumstances I am not swayed by the argument that I should not make an order which would allow the children to travel to Australia in circumstances where the adoption may ultimately be overturned. In the case of Tomas & Anor & Murray [2011] FamCA 641 the adoptive parents sought residence of the children notwithstanding that the adoption order had been discharged. Whether or not the adoption in this case is ultimately determined to be legal or illegal I have the jurisdiction to make the parenting orders sought and in exercising that jurisdiction I must make orders which promote the welfare of these children.
Doing the best I can on the basis of the evidence that I have before me and the submissions made by Counsel for the parties and in particular the submissions on behalf of the husband that he does not “object” to the orders sought by the wife I am satisfied that it is in the children’s best interests that they live with the mother and that she be able to return to Australia with them. I have considered the husband’s concerns about the likelihood that he will have to pay child support but do not consider those concerns to be a reason why I should not make the orders the wife seeks. In the event that the adoption order is overturned the husband will have no liability for child support. However until that order is overturned he will have the same obligations as any other parent to contribute to the support of his children and for the purposes of the Act they are his children.
I propose to make orders that the wife have sole parental responsibility for the children and that they live with her.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 September 2012
Associate:
Date: 10 September 2012
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