Hill & Anor and Radcliffe

[2013] FamCA 1153

FAMILY COURT OF AUSTRALIA

HILL AND ANOR & RADCLIFFE [2013] FamCA 1153

FAMILY LAW – ADOPTION – Whether to grant leave to commence proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) – where the father has had no involvement in the child’s life – application made by the mother and her husband – leave granted.

Family Law Act 1975 (Cth) s 60G

Mortland v Wheaton [2011] FamCA 578

APPLICANTS: Mr Hill and Ms Hill

RESPONDENT: Mr Radcliffe

FILE NUMBER: MLC 3906 of 2013

DATE DELIVERED: 8 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 8 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Sayer

SOLICITOR FOR THE APPLICANTS: TJ Mulvany & Co

THE RESPONDENT: No appearance

ORDERS

IT IS ORDERED THAT

1. Pursuant to s 60(G)(1) of the Family Law Act 1975 (Cth) the Applicants Mr Hill and Ms Hill be granted leave for proceedings to be commenced for the adoption of the child B born … 2000, as it being determined that such an order is in the best interests of the child.

2. The Application filed 20 May 2013 be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hill and Anor & Radcliffe 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 3906 of 2013

Mr Hill and Ms Hill

Applicants

And

Mr Radcliffe

Respondent

REASONS

1. The application before me today is the application seeking an order pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”) that the applicants, Mr Hill and Ms Hill, be granted leave to commence proceedings for the adoption of the child, B Radcliffe. The applicants are the child’s mother and her now husband. Mr Radcliffe is the child’s father.

2. On 20 May 2013 the applicants filed an Initiating Application in the Federal Circuit Court in which they sought orders for equal shared parental responsibility for long term and day-to-day issues concerning the child’s care, welfare and development, that he live with them, that his name be changed to the B Hill and the order pursuant to s 60G(1) of the Act. That application was personally served upon the respondent father on 9 June 2013.

3. When the matter came on for hearing in the Federal Circuit Court on 2 July 2013 the respondent father appeared in person.  On that date, final orders were made by consent, as follows:

   1.That [Mr Hill] and [Ms Hill] (“the Applicants”) exercise equal shared parental responsibility for long-term and day-to-day issues concerning the care, welfare and development of the child B Radcliffe born … 2000 (“the child”).

   2.That the child live with the Applicants.

   3.That for the purposes of Section 26 of the Births, Deaths and Marriages Registration Act 1996 (Victoria) the Court approve the proposed change of name for the child known as B Radcliffe to B Hill, the Court being satisfied that the change of name is in the child’s best interests.

4. And the Court also noted:

   (a)   The Respondent biological father agrees to the Final Orders sought by the Applicants.

   (b)  The Respondent and the applicants now acknowledge that the child of these proceedings, B, has a half-sibling, C, born in 2006.

   (c)  In the event that either of these children reach a level of maturity and wish to establish contact with each other. Then the parties to these proceedings intend to take all reasonable steps to facilitate this.

5. The application pursuant to s 60G(1) was transferred to this Court as the Federal Circuit Court does not have jurisdiction to deal with the matter. The matter was listed for a telephone mention on 31 July 2013 at 3.15 pm. Although attempts were made by Registrar Mestrovic to contact the father on the mobile phone number provided in his notice of address for service, she was not able to contact him. Accordingly, on 31 July 2013 she forwarded a letter to the father advising him that the matter would be listed in the Judicial Duty List today in relation to the remaining application pursuant to s 60G(1).

6. I am satisfied that the father is aware of the hearing today.  He has been called and he does not appear.  I have read the very detailed affidavit filed by the applicants in support of their application on 20 May 2013.  The history of the matter insofar as it relates to this application is that the father and mother were married in 1996 and separated on 29 March 2000.  The decree nisi of dissolution of their marriage became absolute on 13 July 2009.  B is their only child.  B was born in 2000 after his father and mother had separated. 

7. It is the mother’s evidence, which is not disputed, that the father has not had a significant relationship with the child.  He visited the child on or about 13 September 2000, approximately one week after his birth, and that other than this single occasion he has had no contact with the child whatsoever apart from sending him a first birthday card and a Christmas card on the first Christmas after his birth.  The child has had no contact with his father’s extended family. 

8. The mother commenced proceedings in relation to the child in late 2004 and the father did not participate in those proceedings. Final parenting orders were made on 13 December 2004 which provided that the mother have sole parental responsibility for the child and that he live with her. 

9. The applicants commenced their relationship in January 2003 and were married in 2005.  There are two children of their marriage, D who is seven and E who is four.  Although the child has what the mother says is an age appropriate understanding of his biological parentage, the child has been a part of the applicant husband’s family since the applicants commenced their relationship.  He has a close relationship with the mother, her husband and his half-siblings, as well as with the applicant husband’s extended family. 

10. Pursuant to s 60G(1) of the Act, this Court may grant leave for proceedings to commence for the adoption of a child by a prescribed adopted parent. It is not the granting of leave that ends a person’s parental responsibility. It is the adoption itself and the Court must consider whether the grant of leave would be in the child’s best interests.

11. In the unreported decision of Mortland v Wheaton [2011] FamCA 578 Murphy J at [22] described the question to be determined as follows:

    … it is in the relevant child or children’s best interests to permit adoption proceedings to proceed in the (State) Magistrates Court with the potential consequences that a parent shall (with the consent of the other parent or, absent consent, by court order) cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from orders being made in this court that might involve the parent and step-parent. 

12. In all the circumstances of this case, and having regard to the father’s lack of involvement in the child’s life and on the basis that he has not opposed the orders sought by the applicants, I am satisfied that it would be in the child’s best interests to grant leave for the applicants to commence adoption proceedings. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 August 2013.

Associate: 

Date:   31 October 2014