Morrison and Anor and Starter

[2009] FamCA 38

FAMILY COURT OF AUSTRALIA

MORRISON AND ANOR & STARTER [2009] FamCA 38

FAMILY LAW – ADOPTION – Equal shared parental responsibility – With whom a child lives – Leave to commence adoption proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Morrison and
Mrs Morrison

RESPONDENT: Mr Starter

FILE NUMBER: MLC 10901 of 2008

DATE DELIVERED: 5 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Sayer

SOLICITOR FOR THE APPLICANTS: T J Mulvany & Co

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That Mr Morrison and Mrs Morrison have equal shared parental responsibility for the child … born … March 1997.

2. That the child live with the applicants.

3. That pursuant to s 60G(1) of the Family Law Act 1975 (Cth), the applicants have leave to commence proceedings for adoption of the child, it being determined that such order is in his best interests.

4. That all applications filed 2 December 2008 be otherwise dismissed.

5. That all proceedings be removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10901 of 2008

MR AND MRS MORRISON

Applicants

And

MR STARTER

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 2 December 2008 by Ms Morrison and Mr Morrison who are husband and wife.  The respondent to the application is Mr Starter.

2. I have already marked as an exhibit in the proceedings the document which I accept is an acknowledgment of the service of the various documents before the court upon Mr Starter.  I have the evidence of Mrs Morrison that she recognises and confirms the signature of Mr Starter on that particular document.  As such I am satisfied as to service and, more importantly, I am satisfied that Mr Starter has had an opportunity to be heard in the proceedings.

3. These proceedings are effectively brought by Mr and Mrs Morrison concerning the child, who was born in March 1997.  There is no question that Mr Starter is the biological father of the child but Mrs Morrison and Mr Starter, although in a short relationship, separated prior to the child’s birth.  I am told - and the evidence seems clear - that the child has had no face-to-face contact with his biological father since birth and that apart from the fact that there has been some compulsorily collected payments of child support, Mr Starter has had nothing to do with the child.

4. That is also corroborated by the fact that the annexure to the affidavit of the applicants is a birth certificate showing no father, and I am told that that was because of the fact that Mr Starter declined to participate.

5. To all intents and purposes therefore I have a child who is nearly 12 years of age who has had no interest shown in him by his biological father.  Insofar as the law provides for parents to have equal shared parental responsibility, this is clearly a case where Mr Starter has not exercised any responsibility at all, and I include in that the fact that he has paid child support because it would appear that that has been compulsorily collected.

6. I have the affidavit of Mr and Mrs Morrison indicating that they were not particularly interested in the payment of child support and it was perhaps somewhat fortuitous that the payment was collected and, having regard to its size, it again supports the view that Mr Starter has shown no interest in this little boy.

7. The application seeks permission to adopt the child for the purposes of s 60G of the Family Law Act 1975 (Cth).  That particular provision provides that in the event that the court makes the order upon an adoption being granted by a state court, the responsibility of the biological father not only changes but as far as he is concerned he loses any prospect of having any relationship with the child in the future.

8. I have a very comprehensive affidavit by Mr and Mrs Morrison setting out the nature of their relationship and the fact that they have two children from their union.  To all intents and purposes, the evidence is clear that the child is being well cared for in a loving and responsible family environment. 

9. In those circumstances I am satisfied that it is in his best interests that the orders be made.  Those orders include the specific order that Mr Morrison join with Mrs Morrison in having equal shared parental responsibility for the child.  Both parties seek that order and it is not opposed by the biological father.  I see no reason not to grant it.

10. In those circumstances I propose to make the orders sought.

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

Associate: 

Date:  8 January 2009