Harvey & Anor and Blair

[2014] FamCA 138

FAMILY COURT OF AUSTRALIA

HARVEY AND ANOR & BLAIR [2014] FamCA 138

FAMILY LAW – ADOPTION – Leave to adopt – Permission granted – Application unopposed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harvey and Ms Harvey

RESPONDENT: Mr Blair

FILE NUMBER: BRC 13039 of 2007

DATE DELIVERED: 4 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Sayers

SOLICITOR FOR THE APPLICANTS: T J Mulvany & Co

THE RESPONDENT: No appearance

Orders

1. That Mr Harvey and Ms Harvey have shared parental responsibility for the long-term and day-to-day issues concerning the care, welfare and development of L FROST born … February 1998 and B FROST born … November 1999.

2. That the children live with the applicants.

3. That for the purposes of s 26 of the Births, Deaths and Marriages Registration Act 1996 (Vic), the Court approves the proposed change of name of the child known as L FROST to L HARVEY and the child B FROST to B HARVEY.

4. That pursuant to s 60G(1) of the Family Law Act 1975 (Cth), the applicants have leave to commence proceedings for the adoption by the first-named applicant Mr Harvey for the said children.

5. That all outstanding applications are otherwise dismissed.

6. That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harvey and Anor & Blair 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: BRC 13039 of 2007

Mr Harvey and Ms Harvey

Applicant

And

Mr Blair

Respondent

REASONS FOR JUDGMENT

1. In this application, which was filed on 23 September 2013, the applicants, who are married to each other, sought an order for shared parental responsibility relating to two children, L and B. They also sought residence orders and that the Court approve the Registrar of Births, Deaths and Marriages in Victoria altering the surnames of the children. These are principally proceedings under s 60G of the Act for permission to commence a proceeding for adoption. The purpose of that exercise is that if these orders are made, then the biological father of the two children will no longer be able to seek parenting orders if the adoption is granted by the State Court.

2. A registrar made an order on 25 October 2013, after hearing evidence about the diligent search for Mr Blair.  That evidence showed that Mr Blair could not be found by a variety of means, and accordingly the registrar ordered that an advertisement be placed in the Herald Sun newspaper.  The evidence is that that advertisement was placed in the public notices area of the newspaper, and that to date Mr Blair has not appeared.  The evidence therefore is unchallenged.  Even if he does not know about it, the more important fact is that Mr Blair, who is said to be the biological father of these children, has not had any involvement in their lives since 2006.

3. At that time, there was a controversial over-holding of the children, requiring intervention by the Court. Subsequently the applicants, who have known each other since childhood days, have cared for the children, the details of which are set out in their affidavit. I take into account that the children are teenagers, and on the face of what I have been told, the applicants are the only people they consider to be their parents. On that basis, there seems to me to be a very good reason to grant the application for leave to adopt under s 60G, which will exclude Mr Blair from their future lives.

4. This particular provision is in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA of the Act provides that when making a parenting order the Court is obliged to consider the best interests of the children as the paramount consideration. Having read the material as to how these children have been cared for, I am satisfied that it is in their best interests that these orders be made. The applicants have been and are making all of the long term, major decisions for the children. Under those circumstances it is appropriate that I make the orders set out in the application.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 February 2014.

Associate: 

Date:  14 March 2014