Mend and Fairbarn

[2007] FamCA 1628

FAMILY COURT OF AUSTRALIA

MEND & FAIRBARN [2007] FamCA 1628

FAMILY LAW – ADOPTION – Leave to commence proceedings

Family Law Act 1975 (Cth)

APPLICANTS: Mrs & Mr Mend

RESPONDENT: Mr Fairbarn

FILE NUMBER: MLF 3402 of 2006

DATE DELIVERED: 21 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 21 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Jeanne Gorman

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: Ms Bender
Victoria Legal Aid

Orders

On the matter of Mend & Fairbarn MLF 3402 of 2006 I order as follows:

1. That pursuant to the provisions of section 60G of the Family Law Act 1975, the joint applicants be and are hearby granted leave to commence proceedings in a court of competent jurisdiction in the state of Victoria for the adoption of the child T born on … July 1998.

2. That the joint applicants jointly share the parental responsibility of making all decisions with respect to the said child's long-term and day-to-day care, welfare and development.

3. That the said child live with the joint applicants.

4. That all applications be otherwise dismissed.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3402 of 2005

MRS & MR MEND  

Applicants

And

MR FAIRBARN  

Respondent

REASONS FOR JUDGMENT

1.The child T was born in July 1998.  The relationship between her parents broke down in very difficult and traumatic circumstances and her biological father has not had anything to do with her for many years.  In fact on 16 June 2000 he wrote a letter addressed to "whom it may concern" referring to an agreement between himself and the mother with respect to T in which he said:

I have entrusted full care of [T] in [the mother]’s hands and approve of any direction or activity which [the mother] choses to do with [T].

2.On the material before me I am satisfied that the relationship between T's parents was extremely difficult and was characterised by violence and threats.  I accept the mother's evidence that the father blackmailed her into paying him the sum of $5000 and paying off his Centrelink debts of approximately $1500 in order to prevent him from further threatening the mother or T.  I accept her evidence that he said that if she paid those amounts he would leave them alone for ever.  He has in fact done that.  After those events in June 2001 the father telephoned the mother threatening to send "people around to bash".  He has had nothing more to do with T since that time.   

3.In February 2002 the mother married.  There are four children of that marriage born respectively in October 2001, February 2003, July 2004 and May 2006.  The mother had previously lived with her now husband since 2000.  T has lived with them for that time and accordingly she has been in the household of the mother and her husband since the commencement of that cohabitation.  I accept the mother's evidence that her husband regards T as a member of the family and has supported her financially and emotionally.

4.The husband is engaged in the family business, and the mother is engaged in full‑time home duties and parental care. They are financially secure. The husband and T have a warm and loving relationship and she calls him "daddy" and regards him in that light. She is also very attached to her half siblings, and is regarded by them as a sister and member of the family. The present application is made by the mother and her husband jointly, pursuant to the provision of section 60G of the Act which empowers the court to "grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent".

5.The mother and her husband seek such leave. In considering that application I must consider whether granting leave would be in T's best interest, and in that regard I must have regard to a number of other statutory provisions. The first of those is subsection 60F(4A) which notes that upon adoption T would cease to be a child of the marriage for the purposes of the Family Law Act 1975.  T would become a child of the mother and her husband in all respects.  In my view there is no negative aspect of T's best interests arising out of the application of that provision.   

6.The next matter to which I am to have regard is the provision of section 61E.  That has the consequence of removing from the biological father any rights, duties and responsibilities which he might otherwise have for T upon the adoption.  Again, by virtue of the way in which I intend deciding this matter, I do not see anything contrary to T's best interest.  Finally I must have regard to the provisions of section 65J which provides that any parenting order in favour of the father ceases to be in force upon the adoption.  There is in any event no such order.

7.I have already noted the provision of the legislation requiring me to consider whether granting of leave to commence proceedings for adoption would be in T's best interests.  T is, on all of the evidence, a happy well adjusted appropriately developing child with close and appropriate relationships, not just with the mother but with the mother's husband, that is the co-applicant in these proceedings, and the four children of their relationship with whom she lives.  She is treated totally as a child of that family.  Her name has been changed to the surname of the husband which is also the mother's name, and in all other respects there is absolutely no differentiation between her status and role in the family and the role of any of the other four children.

8.As well as that, the biological father has clearly decided to take no role whatsoever in T's development.  He does not support her in any way, and has had nothing to do with her for most of her life.  T has moved from the family constituted by her biological parents and herself, to the family constituted by her mother, the mother’s husband and the four children of that relationship.  I not only do not see anything contrary to T's best interests in granting leave, but I see it as being positively in accordance with those best interests, particularly given the biological father's attitude to his biological daughter.  Accordingly leave will be granted.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  30 January 2008