Harvey & Anor and Igin

[2018] FamCA 273

FAMILY COURT OF AUSTRALIA

HARVEY AND ANOR & IGIN [2018] FamCA 273

FAMILY LAW – ADOPTION – leave to commence proceedings – where the child has not spent any physical time with the biological father for over 10 years.

Family Law Act 1975, s.60G

Adoption Act 2009 (Qld), s.92

APPLICANT:

Mr Harvey and Ms Harvey

RESPONDENT: Mr Igin

FILE NUMBER: BRC 639 of 2018

DATE DELIVERED: 3 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 April 2018

REPRESENTATION

The Applicants appeared in person

No appearance by the Respondent

Orders

1. That pursuant to s.60G of the Family Law Act 1975 the Applicants, MR HARVEY and MS HARVEY be granted leave to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child, B born … 2004 (“the child”).

2. That the Applicant mother, MS HARVEY have sole parental responsibility for the child, including but not limited to the ability to make all travel arrangements for the child, including in to and out of Country C.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harvey and Anor & Igin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 639 of 2018

Mr Harvey and Ms Harvey

Applicant

And

Mr Igin

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The child B was born in 2004.  She is now 14 years of age.  Her mother is Ms Harvey and her father is Mr Igin.  The mother and her new partner Mr Harvey commenced cohabitation not long after final separation, but in October 2007.  At that stage, of course, the child was but three and a half years of age.  The evidence from the mother and her partner Mr Harvey identify that the child has been brought up in the household with an understanding that she has a biological father, but that in many ways and in every way Mr Harvey has acted as a key father figure in her life.  This arises from the fact that although the mother and the biological father were married in 2000, they separated in December 2004.  At that stage, the child was about nine months of age.

2. The biological father has not caused an appearance to be made today.  The mother says that the relationship was shaped by domestic violence.  She obtained a Domestic Violence Order initially in November 2005.  Subsequently, proceedings were commenced by the father in the then Federal Magistrates Court of Australia in 2005.  Final orders were made by that Court on 2 March 2007.  Those orders provided that the child, the child, would live with the mother; that the mother would be responsible for the day to day care, welfare and development of the child; that the father communicate and spend time with the child as agreed between the mother and father to include by telephone each Wednesday; the Independent Children’s Lawyer was discharged and the order, having been made in the absence of the father in 2007, gave to the father a limited opportunity to seek to discharge the order on notice.  He has not done so.

3. Since then the child has, I am satisfied, been cared for, nurtured, loved and has developed in the household of the mother and her partner Mr Harvey.  The mother says, and I accept, that the child’s surname was changed to “Harvey” with the consent of the biological father, although, it seems, on the basis that there be no further pursuit of the biological father for child support.  I am told this morning that the child has an Australian passport as a result of the consent of the biological father at the time.

4. Both Mr Harvey and the mother inform the Court that the child has not spent any physical time with the father since February 2007, now over 11 years ago.  Intermittent telephone time has occurred.

5. With this history, I turn my mind to the law. Section 60G of the Family Law Act 1975 (“the Act”) provides that.

   (1) Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

6. I am satisfied it is in the best interests of the child that leave be granted to Mr Harvey as a prescribed adopting parent so defined to seek through the requirements of s.92 of the Adoption Act 2009 (Qld) the right to be the adoptive father of the child. The child is within the age span required by the legislation. Although I am satisfied the biological father has notice of these proceedings, he has not attended today. That does not mean, of course, that when the adoption proceedings are commenced, as they will be, and when he is again given an opportunity to be heard on those proceedings, he may not choose to appear then, but that is a matter for the State authorities to deal with under State Law.

7. For all those reasons, I make an order granting leave pursuant to s.60G of the Act to the Applicant, Mr Harvey, to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child B born in 2004.

8. The mother’s initial application seeks an order that the child be permitted to travel overseas.  In fact, it is the mother’s amended Application seeking a variation to the previous final parenting orders that there be a specific issue order allowing Ms Harvey to make all travel decisions for B.

9. The mother was born in Country C and her family live in Country C.  Earlier Affidavits identify a desire to be in Country C for a celebration of the 50th celebration of the maternal grandparents’ marriage.  Circumstances have now arisen which have delayed that trip and so as to provide flexibility, the mother seeks an order that would facilitate her ability to travel outside of Australia.

10. Furthermore, it seems, on the mother’s evidence, that the authorities in Country C now require a document called a “parental consent affidavit” which identifies that where a child is travelling with only one parent, the other parent has consented to travelling in or out of Country C.  The mother says this is to try and deal with concerns relating to child trafficking.  I am not aware of what the laws of Country C will make of an order which under Australian law would give the mother, as I believe in the child’s best interests, complete authority to make travel arrangements for the child.

11. The simplest way to deal with that is, in my view, and consistent with the best interests of the child, bearing in mind the history already indicated, will be to provide to the mother an order for sole parental responsibility.  That was not part of the initial consent orders made in March 2007.  Accordingly, I will make an order that the mother, Ms Harvey, the biological mother of the child, have sole parental responsibility for the child, the child Harding, including but not limited to the ability to make all travel arrangements for the child, including into and out of Country C.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 April 2018.

Associate:

Date:  30 April 2018