Hislop and Mealor

[2010] FamCA 960

FAMILY COURT OF AUSTRALIA

HISLOP & MEALOR [2010] FamCA 960

FAMILY LAW – ADOPTION – leave to commence proceedings – where the natural father has been given every opportunity to participate in the proceedings – best interests – application for leave granted

Family Law Act 1975 (Cth) ss 60G & 60CC

APPLICANT: Mrs and Mr Hislop

RESPONDENT: Mr Mealor

FILE NUMBER: ADC 4735 of 2008

DATE DELIVERED: 20 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Papageorgakis

SOLICITOR FOR THE APPLICANT: Condello & Co

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. Pursuant to Section 60G of the Family Law Act 1975 leave is granted to the applicants MRS HISLOP and MR HISLOP to commence proceedings for the adoption of the child B born … December 2002.

2. All matters are removed from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4735 of 2008

MRS AND MR HISLOP

Applicants

And

MR MEALOR

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In view of the history of the proceedings, I am satisfied that appropriate attempts have been made to allow the natural father to participate in these proceedings and that he is aware, as a result of the steps the Court and the solicitors for the applicants have taken, that this matter was likely to be dealt with on a final basis if he did not respond or appear this morning.  We waited at least an extra quarter of an hour for him to arrive and there has been no appearance by or on his behalf.  I, therefore, propose to deal with the application which is before the Court, which is an application by the natural mother and her current de facto partner, Mr Hislop, for leave to be given to them to bring proceedings under the State legislation for the adoption of the child by the mother and Mr Hislop.

2. I have said in my remarks, when addressing counsel for the applicants, that I have some doubts as to the capacity of the Federal Government to legislate in terms of Section 60G, but have been convinced that this is not an appropriate case to make a determination of the basis of the legislation itself. Rather, I turn to consideration of Section 60G itself, which requires the Court to consider whether the granting of leave to the applicants would be in the child’s best interests.

3. I am not being asked to make an order that they adopt the child, merely an order giving them leave to bring proceedings;  bearing in mind that the mother and Mr Hislop have been residing together and caring for the child, B, for most of his life and that the only family the child knows has been that of his current family, made up of the applicants, and that the only father figure who has acted in a responsible fashion in the care of the child is the applicant, Mr Hislop. 

4. I am satisfied, taking into account the other provisions of Section 60CC, that it is in the best interests of the child for Mr Hislop and his mother to be granted leave to bring proceedings to adopt him, and I so order.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 October 2010.

Associate: 

Date:  29 October 2010