Matic & Anor and Davies

[2011] FamCA 463

FAMILY COURT OF AUSTRALIA

MATIC AND ANOR & DAVIES [2011] FamCA 463

FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

1st APPLICANT: Ms Matic

2nd APPLICANT: Mr Matic

RESPONDENT: Ms Dixon

FILE NUMBER: MLC 670 of 2011

DATE DELIVERED: 8 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 March 2011

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Jeanne Gorman

Orders

1. That the applicants have leave to proceed on an undefended basis.

2. That the child D born … November 2007 live with the applicants.

3. That the applicants have sole parental responsibility for the said child.

4. That pursuant to s 60G of the Family Law Act 1975 (Cth) leave is granted to the applicant Ms Matic to commence proceedings for adoption of the said child.

5. That all outstanding applications be dismissed.

6. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. That the applicant serve a copy of these orders upon the respondent in the same way as that set out in the orders of 25 February 2011.

8. That the reasons be transcribed and be placed on the file and a copy be provided to the applicants.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 670 of 2011

Ms Matic

1^st Applicant

Mr Matic

2^nd Applicant

And

Ms Dixon

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms and Mr Matic concerning child D who was born in November 2007.  The biological mother of D is Ms Dixon. 

2. The application was listed before me on 25 February having been transferred from a registrar because the respondent did not appear.  After some discussion about the difficulties associated with such an application, I adjourned the proceedings until today and ordered that the mother be served again particularly with an order indicating that she had until 8 March at 9.30 to file materials failing which the Court could proceed on an undefended basis in her absence.

3. Ms Dixon was served as I had required and to that extent, I rely on the affidavit of an employee of the solicitors for the applicants. 

4. Ms Dixon was called this morning and there has been no appearance and Ms Gorman has indicated to me that there has been no response to her from Ms Dixon. 

5. The application seeks orders that D live with the applicants and that they have sole responsibility for him and further that pursuant to section 60G of the Family Law Act 1975 (Cth) (“the Act”), they be granted leave to commence proceedings for adoption. The matter is undefended and the materials set out the background.

6. Mr and Ms Matic have been together for a long time but during their marriage, Mr Matic had a relationship with the respondent as a result of which D was born.  On the day that D was born, the respondent handed him to the Matics and there he has lived since November 2007.  During the intervening period, Ms Dixon has had no contact with him at all. 

7. All of the evidence points to the fact that Ms Dixon does not want anything to do with D.  There have been endeavours to find out her position about D but it is clear that she has got on with her life.  It appears she has a family of her own.

8. On the last occasion when the matter was before the Court, I canvassed with Ms Gorman on behalf of the applicants, the problems of D’s rights concerning not only his mother but also his siblings. He is clearly well cared for and there are no issues under section 60CC of the Act that would suggest an order is not in his best interests. The one area of concern is his relationship with his biological mother. Whether or not in the future, he will have a relationship with the mother remains to be seen. The applicants certainly say that at the appropriate time they will tell him about his mother but whether that eventuates depends on many factors that are at the moment unknown.

9. I am conscious of the fact that if the application for adoption proceeds, there will be an examination by the Department of Human Services who will have to speak to the mother to ensure that she understands what she is doing.  I suspect that that will not be a difficult exercise bearing in mind that she has shown no interest in D at all to date. 

10. My function in the application for both the parenting orders and also under section 60G is only to make an order that is in the best interests of the child. That is guided by the provisions of section 60CC and as I have already indicated, I could otherwise have no concerns about D’s future.

11. No doubt the question of the adoption will investigate some of those matters as well.  I am satisfied in the circumstances that it is in the best interests of D that he live with the applicants and that they have sole parental responsibility for his future.  I am also satisfied that it is in his best interests that the applicants have the leave to commence adoption proceedings in the future.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 March 2011.

Associate: 

Date:  15 June 2011