Hartley and Pether

[2010] FamCA 28

FAMILY COURT OF AUSTRALIA

HARTLEY & PETHER [2010] FamCA 28

FAMILY LAW – ADOPTION – Leave to commence proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr and Mrs Hartley

RESPONDENT: Mr Pether

FILE NUMBER: MLC 7416 of 2009

DATE DELIVERED: 18 JANUARY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: CRONIN J

HEARING DATE: 18 JANUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SAYER

SOLICITOR FOR THE APPLICANT: TJ MULVANY & CO

Orders

1. That the applicants have leave to proceed on an undefended basis.

2. That Mr Hartley and Mrs Hartley have equal shared parental responsibility for the child R born … May 2006.

3. That the child live with the applicants.

4. That pursuant to s 60G(1) of the Family Law Act 1975 (Cth) the applicants have leave to commence proceedings for adoption by Mr Hartley of the child R, it having been determined that such an order is in the best interests of the child.

5. That all proceedings be otherwise dismissed and removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7416 OF 2009

MR AND MRS HARTLEY

Applicant

And

MR PETHER

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr and Mrs Hartley for an order under s 60G of the Family Law Act 1975 (Cth) (“the Act”) that they be granted leave to commence proceedings in the state courts of Victoria for an adoption order in relation to R, born in May 2006. R is the biological child of Mrs Hartley and Mr Pether. For reasons that would defy logic, Mr Pether decided that he wanted nothing to do with R right from the word go.

2. What follows as statements of fact are to be read as findings.

3. The evidence indicates that Mr Pether wanted the pregnancy terminated.  The mother and Mr Pether were in a violent relationship and she quite sensibly brought that to an end.  As a result of his attitude and her fears, the mother says that she had no further relationship with Mr Pether after he made his position clear.  It seems that his parents adopted a similar attitude in relation to the pregnancy.

4. After R was born, the mother commenced a relationship with Mr Hartley, whom she had known for most of their lives.  They married in November 2007.  They are, according to the evidence, happily married and are shortly expecting a child of their relationship.  There is also a child of Mr Hartley’s previous relationship who has some involvement with R.

5. Subsequent to the birth of R it transpires that Mr Pether’s parents indicated they had no knowledge of his whereabouts and certainly appear to have taken very little interest in R in any event.  When an application was made returnable on 28 September 2009, the registrar ordered substituted service of the documentation upon Mr Pether.

6. The affidavit of the solicitor for Mr and Mrs Hartley indicates that the advertisement was duly lodged.  It was in the newspaper classifieds, and makes clear that Mr Pether could contact the solicitors for Mr and Mrs Hartley if he wanted to participate.  He has not appeared and as such I conclude, he is not interested in the proceedings.

7. I am satisfied therefore as to service for the purposes of the orders of 28 September 2009. 

8. Section 60G provides that subject to subsection (2) the court may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent. I am satisfied in the circumstances that the application is made by a prescribed adopting parent. Importantly, s 60G subsection (2) says that in these proceedings the court must consider whether granting leave would be in the child’s best interests, having regard to a number of other sections of the Act, one of which is s 60HA subsection (3)(a).

9. That provides that if a court grants leave under s 60G for adoption proceedings to be commenced, the child ceases to be a child of the partners who are obviously the biological parents, so for that purpose Mr Pether, upon an adoption order, fades out of R’s life completely.

10. There are no specific guidelines in s 60G as to how to determine what is in a child’s best interests, other than the one that I have just mentioned. Some guidance can be obtained from looking at s 60CC, which, in a parenting dispute, sets out how a court determines what is in the best interests of a child. In this case I have a very well prepared affidavit, setting out in very clear terms the relationship between Mr and Mrs Hartley with R, and how they propose to raise R.

11. Both Mr and Mrs Hartley enjoy good health and have the capacity financially and physically to care for R.  Because of all of the things in the affidavit about R I am satisfied that it is in R’s best interests that he form a very significant part of the Hartley household, particularly having regard to the fact also, that there is a child soon to be born to that house.

12. I am satisfied in the circumstances that the criteria, albeit vague in the Act, are satisfied and that an order is in the child’s best interests. There is also an application made that Mr and Mrs Hartley have equal share parental responsibility for all of the long term and day‑to-day issues concerning R’s care, welfare and development. That is a parenting order. A parenting order requires the court to be satisfied that it is in the best interests of the child for that order to be made.

13. In a household in which there are clear indications of a desire for R to be a significant part of the family, it makes sense for Mr Hartley to have some say in his future.  On that basis it seems sensible for me to make an order that he be involved in the health of R, his education, things such as religion and general lifestyle.  All of the indications in the affidavit are that Mr Hartley has his focus on R’s best interests.  Because of the forthcoming birth of a child, it would seem unreasonable for Mr Hartley, who has been a part of R’s life, virtually from birth, and the only father that R knows should be distinguished in any way.

14. In those circumstances, it is appropriate to make an order that the parties exercise equal share parental responsibility for not only the long term, but also the day-to-day issues concerning R’s care. I am satisfied in those circumstances that orders should be made.

15. I do not propose to make any orders for service of the orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  25 January 2010