Nester & Anor and Dixon

[2017] FamCA 495

FAMILY COURT OF AUSTRALIA

NESTER AND ANOR & DIXON	[2017] FamCA 495
FAMILY LAW - ADOPTION

APPLICANTS: Ms Nester and Mr Cotter

RESPONDENT: Mr Dixon

FILE NUMBER: SYC 2122 of 2017

DATE DELIVERED: 14 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Mardens Law Group

THE RESPONDENT: No Appearance

Orders

IT IS ORDERED

1. That Mr Cotter have leave pursuant to s60G of the Family Law Act 1975 (Cth) to commence proceedings to adopt B born … 2006 and C born … 2007.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nester and Anor & Dixon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2122 of 2017

Ms Nester and Mr Cotter 

Applicants

And

Mr Dixon

Respondent

REASONS FOR JUDGMENT

1. Ms Nester (“the mother”) and Mr Dixon (“the father”) are the parents of two children, B  (“B”) born in 2006 and C  (“C”) born in 2007.

2. The mother and the father separated before C was born.

3. In 2009 the mother commenced a de facto relationship with Mr Cotter (“the applicant”). They have two children together. The mother, the applicant and all four children have lived together as a family since 2009.

4. The applicant wishes to commence proceedings in the Supreme Court of New South Wales to adopt B and C and the mother joins with him in an application for leave to commence those proceedings pursuant to s60G of the Family Law Act 1975 (Cth) (“the Act”).

THE FATHER

1. The father was served with the application on 18 April 2017 and signed an Acknowledgement of Service. He has not participated in these proceedings by filing any documents or by appearing.

2. On 29 July 2008, orders were made by consent which provided for the parents to have equal shared parental responsibility for the children; for them to live with the mother; spend time with the father as agreed; permitting her to move with the children to Queensland and permitting her to travel overseas with the children.

3. The mother deposed that the father has never asked to spend time with the children although he has at all times been able to contact her.

4. In about 2009 the father agreed to the mother’s request that she be permitted to change B’s surname to Cotter. He signed the relevant documents and B’s surname was changed.

5. In 2011, the father agreed that C’s surname also be changed to Cotter. There was some difficulty with the completion of the documents but C’s surname was changed in February 2017.

6. The mother deposed that the father has seen B twice since separation, in 2008 and 2011. He has seen C once in 2011. Neither child is aware that Mr Cotter is not their father.

7. The father has paid some child support, averaging about $1,300 per annum for each child.

8. The father and the mother met in September 2016 to discuss the present application. The father told the mother that he would sign any documents required for Mr Cotter to adopt the children.

9. Some time later, the father contacted the mother and asked her to “cancel the child support and wipe the debt”.

10. I am satisfied that the father is aware of the application for leave to adopt the children and that he does not oppose the application.

11. In those circumstances, the matter proceeded in his absence.

THE LAW

1. The proceedings are to be determined in accordance with the provisions of s60G of the Act which is set out below:

FAMILY LAW ACT 1975 - SECT 60G

Family Court may grant leave for adoption proceedings by prescribed adopting parent

(1)  Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

(2) 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 paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

Note:          Sections 60CB to 60CG deal with how a court determines a child's best interests.

1. S64F(4)(a) of the Act has no application here because neither of the children is a child of a marriage.

2. S60 HA(3)(a) of the Act has the effect that, if a court granted leave under section 60G of the Act for the adoption proceedings to be commenced, and the children are adopted by the applicant, they cease to be children of the father for the purposes of the Family Law Act.

3. S61E of the Act provides that, once the children are adopted by the applicant, the father ceases to have parental responsibility for them.

4. S65J of the Act provides that, once the children have been adopted by the applicant, the previous parenting orders made in 2008 are no longer in force.

5. This being a parenting application, proceeding under Part VII of the Act, the Court must determine whether it would be in the best interests of the children for the applicant to be given leave to commence proceedings to adopt them.

6. The children do not have a meaningful relationship, or any relationship, with their father. The applicant is the person with whom they have a meaningful relationship and who is their psychological father.

7. There is no evidence that the children have ever been exposed to physical or psychological harm in the care of the mother or of the applicant.

8. The children’s views have not been canvassed. They are not aware that the applicant is not their father.

9. The children have no relationship with their father. They do not know him. I accept that they have a close family relationship with their mother, the applicant and their siblings.

10. The father has not participated in the children’s lives. He has not participated in making decisions about them or spent time with them, or communicated with them.

11. The father has paid limited child support but it has been the mother and the applicant who have financially supported and provided for the children.

12. Because the children have no relationship with the father, severing their legal relationship with him will have no effect upon them. There is no proposal that they would be separated from their mother, the applicant or their siblings.

13. The applicant has, with the mother, provided for the needs of the children since 2009.

14. The father has effectively abdicated from his parental role. The applicant has willingly taken on the role of parent to the children and wishes to continue to do so.

15. I am satisfied that it is in the best interests of the children that the applicant have leave to commence proceedings to adopt them.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 July 2017.

Associate:

Date:  14 July 2017