Irving & Anor and Tatupa & Anor

[2013] FamCA 358

FAMILY COURT OF AUSTRALIA

IRVING AND ANOR & TATUPA AND ANOR [2013] FamCA 358

FAMILY LAW – CHILDREN – Parental responsibility sought by non-parents – Section 65G of the Family Law Act 1975 (Cth) – Applicants seeking adoption of child in State Court – Whether the requirement for the parties to attend upon a Family Consultant as to the proposed orders be dispensed with

Family Law Act 1975 (Cth)

APPLICANTS: Mr Irving and Ms Irving

FIRST RESPONDENT: Ms Tatupa

SECOND RESPONDENT: Mr Soares

FILE NUMBER: PAC 1548 of 2013

DATE DELIVERED: 13 May 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 13 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Mr Edwards

Watts McCray Lawyers

SOLICITOR FOR THE FIRST 

RESPONDENT:

Self-represented Litigant

SOLICITOR FOR THE SECOND

RESPONDENT:

Self-represented Litigant

Orders

1. That I make orders in accordance with paragraphs 1, 2 and 3 of the Application filed by the Applicants on 16 April 2013, namely:-

   1. That the Applicants, Mr Irving and Ms Irving, have sole parental responsibility for the child M born on … December 2011 (“the child”).

   2.That the child live with the Applicants.

   3.That the child spend time with the First Respondent, Ms Tatupa, as agreed between Applicants and the First Respondent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Irving and Anor & Tatupa and Anor 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 PARRAMATTA

FILE NUMBER: PAC 1548 of 2013

Mr Irving and Ms Irving

Applicants

And

Ms Tatupa

First Respondent

And

Mr Soares

Second Respondent

REASONS FOR JUDGMENT

1. This matter concerns the future parenting arrangements to be made for the child, M, who was born in December 2011.  Before me is an application bought by the Applicants for the child to live with them and for them to have equal shared parental responsibility for the child. 

2. The child is the child of the First Respondent, and also named as a Second Respondent in the application is the child’s father.  However, notwithstanding he has been served, the child’s father does not appear in these proceedings.  Nor is he named on the child’s birth certificate.  He does not seek in any way to assert his paternity of the child, and accordingly I am satisfied that whilst he has been named as a Second Respondent, he is not an active participant in these proceedings, and his consent is not necessary in any way for any orders that I might propose to make.

3. The orders that are sought, of course, would have the effect of placing the child, by consent of the Applicants and the First Respondent, with parties who are not family.  It is clear that the Family Law Act1975 (Cth) takes such a matter seriously, and section 65G of the Act sets out special conditions to be considered where a parenting order is sought for the allocation of parental responsibility by consent in favour of a non-parent. The section applies if the Court proposes to make such an order, that is by consent, to a non-parent.

4. I am not to make such an order according to section 65G(2) unless I do so on the basis that the parties have attended a conference with a Family Consultant, or the Court is satisfied that there are circumstances that justify me so doing.

5. In this case, in addition to the application filed in this matter on 16 April 2013, I have read the affidavits of the Applicants.  I am satisfied that there have been a number of reasons why I might dispense with such an order for the parties to attend upon a family consultant.  Those circumstances, as they appear to me, are two-fold:- Firstly, the Applicants have made an application to the Department of Family and Community Services in New South Wales for an adoption pursuant to the State legislation.  Secondly, I am alerted to the fact that there has been employment obtained outside Australia, and some status for the child is required so that the necessary application for passport, or other travel documents, can be obtained.

6. I am satisfied that if I do not grant such an application then the task of obtaining travel documents would be made that much more difficult.  I am also satisfied that, were I to make an order then there is a high probability, although no guarantee of course, that the Department would support an application for formal adoption in the New South Wales Supreme Court. 

7. Accordingly, I am satisfied that this is a case to which subsection 65G(2) applies and I propose to proceed to make orders without having the parties attend upon a Family Consultant, because of the circumstances that I have identified.

8. The order that I then make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 13 May 2013.

Legal Associate:      

Date:    23 May 2013