Oliphant and Pinney

[2010] FamCA 613

FAMILY COURT OF AUSTRALIA

OLIPHANT & PINNEY [2010] FamCA 613

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Leave granted

Family Law Act 1975 (Cth) s60G

APPLICANTS: Mr and Mrs Oliphan

RESPONDENT: Mr Pinney

FILE NUMBER: BRC 3580 of 2010

DATE DELIVERED: 20 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 20 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mrs K Barnes
Kerry Barnes Lawyers

THE RESPONDENT: No appearance

Orders

IT IS ORDERED

1. The service by Kerry Barnes Lawyers by postage to the respondent by Air Mail of the documents described in the correspondence 28 April 2010 and 1 July 2010 from Kerry Barnes Lawyers to the respondent addressed to him care of his parents Mr & Mrs Pinney Snr,  … LONDON be deemed good service upon the respondent of those documents. 

2. Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Oliphant and Mr Oliphan have leave to commence proceedings for the adoption by them of R and L twins born … January 2003.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 3580 of 2010

MR AND MRS OLIPHANT

Applicants

And

MR PINNEY

Respondent

REASONS FOR JUDGMENT

1. This is an application under section 60G(1) of the Family Law Act1975 (Cth) by Mrs Oliphant and Mr Oliphant for leave to commence proceedings for the adoption of R and L twins born in January 2003 who are now seven and a half years.

2. The twins’ biological father, Mr Pinney, has not been able to be located by Ms Barnes, Solicitor, who appears for the applicants, by steps taken by her and by a search agency in England engaged by her, so as to effect personal service of the applicants’ initiating application and supporting material on him.  The steps taken are exhaustive and are set out in two affidavits by Ms Barnes filed on 2 July 2010 and on 20 July 2010 respectively.

3. In short, it has emerged that the last known address for the children’s biological father is …, London, as was able to be ascertained by Mr M, investigator and member of the Association of Civil Enforcement Agencies London.  However, upon attendance at that address as recently as 1 July 2010 a person of Bosnian extraction resided there and said that he had been residing there for over one year.

4. When considering this matter before coming into the courtroom, initially I had anticipated directing that there be service by registered post to the children’s biological father at that address, and that I would adjourn the matter for a month or so to enable that to occur.  However, I am satisfied, on the basis of the evidence to which I have just referred, that such would be futile and an unnecessary expense to the applicants, and further would not achieve the object of service which is to bring proceedings to the notice of a respondent party.

5. Other evidence deposed to by Ms Barnes shows that the paternal grandparents, who are Mr and Mrs Pinney Snr, reside at …, London; and that envelope addressed to the biological father care of them at that address and containing copies of the applicant’s documents for service was not returned to sender but that there has been no response.  Further, there is evidence from Mr M that the paternal grandparents, at least for some part of the time, have or may have been living in Dubai and that for a considerable time the premises referred to appears to have been locked up.

6. Mr M, very recently, also on 1 July 2010, spoke with neighbours of that premises who advised him that no one had visited the premises recently and that the biological father, Mr Pinney, had not been seen recently. 

7. Even more pertinent, it seems, is evidence by Mrs Oliphant that the only address that she knows that relates to the children’s biological father is the paternal grandparents’ address;  that on 11 June 2010 she telephoned and spoke with the paternal grandfather who advised that he and his wife had been in Dubai for about 18 months and that upon their return all of their mail was at the house for collection;  that she inquired of the paternal grandfather whether he had seen or heard from his son and was advised that he had not heard from Mr Pinney for about three years and did not know his whereabouts.

8. In these circumstances, I am asked to consider whether it is appropriate to dispense with service on the children’s biological father, or alternatively order that the service already effected by Ms Barnes of the material by post to the paternal grandparents’ address in London be deemed good service.  In my view, the importance of this application has effect that it is not one in which it is appropriate for me to dispense with service.  However, on all of the evidence, I am satisfied that it is appropriate that I order that the existing service be deemed good service.

9. I turn now to the substance of the application. 

10. The Adoption Act2009 (Qld) provides, by section 92(d), that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person has been granted leave under section 60G(1) of the Family Law Act 1975 (Cth) and other matters. Under section 60G(2) of the Commonwealth Act I am required to consider whether the granting of leave would be in the children’s best interests having regard to the effect of section 60F(4)(a) or section 60HA(3)(a) and sections 61E and 65J.

11. As to those matters if, ultimately, an adoption order is made, the effect of section 60F(4)(a) will be that the children will cease to be the children of the marriage of their biological parents with potential but not clear ramification under the provisions of Part VII of the Act in relation to future parenting orders able to be obtained by the children’s biological father.  In this particular case however the circumstance that I have outlined already as to the present location of the children’s biological father not being known combined with the circumstance that there has been no time spent with the children nor communication with them for over five years has the effect that it may not be likely before the children come of age that the children’s biological father may seek any such orders. (Even though an adoption order ultimately may be made, see section 65C(a) and (c) of the Commonwealth Act).  Mrs Oliphant described in the material that she and the children’s biological father met in England in 2000 but the circumstances of the marriage were such that she left England and returned to Australia, her birth place, with the children without telling him.  Since then, she has not maintained contact with the children’s biological father, nor he with her or them.  At the time the mother returned to Australia, the children were about eight months old.  Plainly enough, in the circumstances, they have never had a relationship with their biological father. 

12. Section 60HA deals with de facto relationships and is not applicable as Mrs Oliphant and Mr Pinney were married. 

13. Section 61E(2) provides that a person’s parental responsibility for a child ends on the adoption of the child unless the adoption is by a prescribed adopting parent and leave has not been commenced under section 60G for the adoption proceedings to be commenced. It seems to me that in the particular circumstances of the case already identified it is unlikely that the children’s biological father would seek to exercise parental responsibility for them.

14. Section 65J(2) provides that a parenting order stops being in force on the adoption of a child unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced. There are presently no parenting orders in force in relation to the children.

15. I turn, then, to other matters in relation to the children’s best interests.  I will refer to the particular provisions of section 60CC to section 60CG of the Commonwealth Act, which relate to the determination of a child’s best interests, only to the extent as on the material may seem relevant. 

16. The children, on the material, have a close and loving relationship not only with their biological mother but also with Mr Oliphant and their young half sibling T who is four years.  Mr and Mrs Oliphant have been in a relationship now for about seven years and married for almost five years.

17. The children, as I have mentioned, have no relationship and have not at any stage had any relationship with their biological father, who also, for all of their lives, has not paid child support.  Mr Oliphant, since the children were very young, has undertaken, together with Mrs Oliphant, all of the duties and responsibilities attaching to parenthood.

18. On all of the evidence, Mr and Mrs Oliphant, together with the children and T form a very close family unit.  Mr and Mrs Oliphant have ample capacity to provide for the needs of the children.  The child R has eyesight and speech problems that have been attended to diligently.  The children are progressing well at school. The responsibilities of parenthood have been amply demonstrated as carried out by Mr and Mrs Oliphant which same responsibilities, as put by Ms Barnes in her helpful written outline, have been abdicated by the biological father.

19. There is no family violence in the current family unit between Mr and Mrs Oliphant and the children.  Mrs Oliphant’s evidence however recites significant family violence between herself and the children’s biological father, now long left behind.

20. For the purposes of the Commonwealth law, I am satisfied in all of the circumstances that it is in the children’s best interests that I grant the leave sought and will do so.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:                 

Date:    21 July 2010