Jing & Anor and Muldownie

[2010] FamCA 609

FAMILY COURT OF AUSTRALIA

JING AND ANOR & MULDOWNIE [2010] FamCA 609

FAMILY LAW – ADOPTION – leave to commence proceedings under s 60G – application heard on an ex parte basis – best interests – application for leave granted

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

APPLICANTS: Mr Jing and Ms Netherclift

RESPONDENT: Mr Muldownie

FILE NUMBER: DNC 249 of 2010

DATE DELIVERED: 6 July 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANTS: MR BARRY

SOLICITOR FOR THE APPLICANTS: DE SILVA HEBRON

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. All previous parenting orders relating to the child C born … August 1998 are discharged.

2. The applicants have leave pursuant to Section 60G of the Family Law Act 1975 (Cth) to commence proceedings for the adoption of the child C born … August 1998.

IT IS NOTED that publication of this judgment under the pseudonym Jing and Anor & Muldownie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 249 of 2010

MR JING AND MS NETHERCLIFT

Applicants

And

MR MULDOWNIE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by the mother and her current partner in relation to the child, C who was born in August 1998.  She is therefore 11, nearly 12.  She is the daughter of the mother and Mr Muldownie. 

2. The application before the Court seeks orders that the Court grant leave to the mother and her current partner to bring proceedings in the Northern Territory jurisdiction for the adoption, by the mother and her current partner, of the child. 

3. They ask that these matters be dealt with on an ex parte basis.  The affidavits of the mother and her partner and the staff of the solicitors’ office set out the efforts which have been made to locate the father for the purpose of service.  They have included appropriate steps, save and except attempts to locate the father through Centrelink or the Child Support Agency, an issue which arises from recent payments having been received. 

4. The affidavit of the mother clearly indicates that notwithstanding extensive orders, which were made concerning the child in September 2001, there has been no contact between the child and the father, or the mother and the father, since that time.  Taking into account the various factors and the nature of the proceedings, I consider it is appropriate to hear the matter today, notwithstanding that the father has not been able to be served with these proceedings. 

5. The final orders sought seek to discharge all previous orders and that the mother and her current partner have leave, pursuant to section 60G, to commence proceedings for the adoption of the child.

6. Section 60G is part of the provisions of Part VII of the Family Law Act 1975 (Cth). Section 60G(2) specifically requires that 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 certain paragraphs set out in that subsection.

7. That draws the Court’s attention to the fact that, if a final adoption order is made in favour of the mother and her current partner, the father would lose his rights and responsibilities pursuant to the provisions of the Family Law Act1975 (Cth) or any existing orders.

8. The consent order which was made in 2001 has not brought about a situation where the father has taken any steps to enjoy the benefit of the orders which were then made.  The affidavit material of the mother sets out, briefly, the history of the relationship and the circumstances surrounding the child’s care.  

9. Of concern are the references in the mother’s affidavit to the abuse of alcohol and violence by the father.  Those matters are taken into account and, in particular, that the child has not had the benefit of a meaningful relationship with her father since the consent orders were made in 2001 but has, since then, and indeed since the mother had formed her relationship with the current partner, had the benefit of what appears to be a paternal relationship with him. 

10. The specific factors in section 60CC, which the Court must take into account when determining what is in the best interests of the child, include “any views expressed by the child and any factors such as her maturity and level of understanding that the Court thinks are relevant to the weight it should be given to the child’s views”. 

11. The affidavits of the mother and her partner indicate that the child treats Mr Jing as if he were her father and refers to him as her father.  

12. The specific wishes of the child are not before the Court independently but in view of the circumstances surrounding this matter, I do not think that is a deterrent factor. 

13. The relationship of the child with the child’s parents is as disclosed in the affidavit material; namely, the child has a close relationship with her mother and has not been able to have a relationship with her father due to his failure to seek to foster that relationship for many years now. 

14. The Court also takes into account the “nature of the relationship with other persons”.  In this instance, this involves Mr Jing who has been in the role of father for the child for many years.  He has provided both material, psychological and emotional support to the child. 

15. “The willingness of each of the child’s parents to encourage a relationship with the other”. I am satisfied by the consent order that the mother has that willingness.  There is no evidence of any steps taken by the natural father in relation to this.  

16. The “likely effect of any change in child’s circumstances on the child”.  This is not particularly relevant nor is subsection (e). 

17. “The capacity of the child’s mother” is not in issue.  The capacity of the father is in serious doubt as he has not provided for the child in any way since the consent order was made in 2001. 

18. In relation to subsections (g) and (h), the mother is of Aboriginal background.  However, that is not a significant factor in relation to the leave to adopt order which she is seeking.  She will continue to be the mother to the child and to provide appropriately for her cultural and lifestyle background. 

19. “The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents”.  The mother has continued to provide for the child and the evidence indicates an appropriate attitude.  In contrast, the father’s attitude is called into question by his failure to make any effort since 2001. 

20. Subsections (j) and (k) require the Court to take into account, any “family violence”.  The background of violence is set out in the affidavit of the mother. 

21. Subsection (l) is “whether it would be preferable to make the order that would least likely to lead to the institution of further proceedings”.  Discharging the existing consent order would assist because it would remove any doubt as to the enforceability or validity of that order, once the leave to adopt and adoption proceedings have commenced. 

22. Subsection (m) “any other factor or circumstances the Court thinks is relevant”, allows consideration of making this order ex parte, bearing in mind the historical background to the matter as set out in the affidavit and the benefit to the child of having this matter resolved promptly and with a reduction of costs to the child’s family unit. 

23. Section 60CC(4), which requires the Court to consider the extent to which a parent has failed to take the opportunity to participate in decisions or to communicate with the child and the other matters contained therein. 

24. Taking all of the matters into account, the Court is therefore satisfied that it is in the child’s best interest to make the orders sought by the applicants in terms of the initiating application. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  20 July 2010