Michaels and Linden

[2008] FamCA 456

FAMILY COURT OF AUSTRALIA

MICHAELS & LINDEN [2008] FamCA 456

FAMILY LAW – ADOPTION - Leave to commence proceedings

Family Law Act 1975 (Cth)

APPLICANTS: Mrs and Mr Michaels

RESPONDENT: Mr Linden

FILE NUMBER: DGC 1512 of 2008

DATE DELIVERED: 2 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 2 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Short

SOLICITOR FOR THE APPLICANT: Russo Pellicano Carlei

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That pursuant to s 60G of the Family Law Act 1975, leave shall be granted to MRS MICHAELS and MR MICHAELS to commence adoption proceedings in relation to the child … born … July 2001.

2. That there shall be a transcript of my reasons given this day which shall be retained on the court file and a copy made available to each party.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC 1512 of 2008

MRS AND MR MICHAELS

Applicant

And

MR LINDEN

Respondent

REASONS FOR JUDGMENT

1. This is about a six-year-old boy. The application is brought by his mother, Mrs Michaels, and her husband. They seek orders pursuant to s 60G of the Family Law Act for leave to commence adoption proceedings in the County Court at Melbourne for the child’s adoption.

2. I am satisfied that his father, Mr Linden, has been properly served.  I have an affidavit of service filed on 21 May 2008.  Attached to it is an acknowledgment of service and according to the deponent, the father agreed that he was the person referred to in the documents. 

3. I understand from correspondence I have been shown that the wife's solicitor wrote to the father on 15 May 2008, enclosing a consent for these orders to be made, and requesting that he sign and return it to their office as soon as possible.  I have a document purportedly signed by him.  Without using any attempt at handwriting expertise, the signature looks similar to the one on the acknowledgment of service.   The consent has been dated 19 May and returned as requested to the mother's solicitor's office.

4. I am required to consider a number of matters under s 60G of the Act. Subject to subsection (2), the Court may grant leave for proceedings to be commenced for the adoption of a child by a “prescribed adopting parent”. I am satisfied that under s (4)(c) of the Act, the mother and her husband fall within the category of a prescribed adopting parent.

5. Section 60G(2) provides that in proceedings for leave, I must consider whether granting leave would be in the child's best interests. Accordingly, I need to look at the provisions of s 60CC of the Act.

6. Having regard to the effect of s 60F(4)(a), s 61E, and s 65J of the Act, once leave is granted under s 60G, the child ceases to be a child of the marriage for the purposes of this Act. Taking that profound consequence into account, and considering the factors in s 60CC of the Act, I am satisfied that it is in the child’s best interests for the leave to be granted.

7. I am satisfied that the child has had no relationship with his biological father for a considerable period.  Orders were made in this Court for a re-introduction of the child to his father in October 2004. At that point, he had not seen his father for 16 months.  The only evidence before me is that he has not seen his father at all since the orders.  According to the evidence, the child is now closely bonded not only to his mother but also to her husband and the siblings in their household. 

8. It is clear that the mother and her new husband are caring thoroughly for the child and that her new husband has stepped into the role of fathering this little boy.  He sees Mr Michaels as a father figure, and is secure and happy in his care.  It is also apparent that Mr Michaels has borne the lion's share of the financial responsibility for the child and is willing to continue doing that. 

9. The last direct contact between the mother and father was when the father agreed to a change of the little boy's surname.  That was in March 2005.  It serves as an indication of the biological father being prepared to abdicate responsibility in relation to the child.  He told the mother at that time that he did not want to be financially responsible through any child support payments. 

10. It is for the combination of reasons that I am persuaded it is in the child’s best interests to grant the leave as sought. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau 

Associate: 

Date:  2 June 2008