Pacton and Fable

[2018] FamCA 86

FAMILY COURT OF AUSTRALIA

PACTON & FABLE [2018] FamCA 86

FAMILY LAW – CHILDREN – LEAVE TO ADOPT – Where the mother’s husband seeks to adopt the child, aged 15 – Where both the mother and the father of the child consent – Leave granted pursuant to s 60G of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) s 60G

APPLICANTS: Mr Pacton and Ms Pacton

RESPONDENT: Mr Fable

FILE NUMBER: SYC 478 of 2018

DATE DELIVERED: 22 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 21 February 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Williams (by telephone)

THE RESPONDENT: In person (by telephone)

Orders

IT IS ORDERED THAT

1. Pursuant to s 60G of the Family Law Act 1975 (Cth), leave is granted to Mr Pacton and Ms Pacton to commence proceedings for the adoption of B born on … 2002.

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 Pacton & Fable 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 478 of 2018

Mr Pacton and Ms Pacton

Applicants

And

Mr Fable

Respondent

REASONS FOR JUDGMENT

1. B who was born in 2002 is the son of Ms Pacton (“the mother”) and Mr Fable (“the father”). The mother and the father separated before the child was born.

2. The mother and Mr Pacton married when the child was two years old.

3. The mother and Mr Pacton have made an application for leave to adopt the child and that application was listed for hearing on 21 February 2018. In support of the application, affidavits were filed by the mother and by Mr Pacton. At the hearing, they were represented by their solicitor. The father appeared at the hearing to tell the Court that he consented to the application.

4. Because the leave of the Court is required for the adoption to proceed, the father’s consent alone is not sufficient, although it is a very relevant consideration.

5. An application for leave to adopt is made pursuant to s 60G of the Family Law Act 1975 (Cth) and is an application which is to be determined having regard to the child’s best interests as the paramount consideration. Therefore, it is necessary to have regard to the child’s past and present circumstances.

6. After the mother and Mr Pacton were married, the father consented to the child’s surname being changed to “Pacton” and he has since been known by that name.

7. The mother and Mr Pacton have two children, C who is nearly eleven years old and D who is eight years old. The child considers Mr Pacton to be his father and C and D are his siblings.

8. The child has had little contact with the father who first met the child when he was two months old. Until the child was two years old, the mother took him to Adelaide to see his father around ten times. The father came to the child’s second birthday party and brought a gift. Since the child was five years old, the father has not acknowledged the child’s birthday. The child has only received one Christmas present from his father, when he was about eleven years old.

9. The father did not see the child from when he was five years old until he was seven years old. The father did, however, telephone occasionally and speak to the child. Since the child was seven years old, there have been no telephone calls from the father.

10. Communication resumed for a time by email in 2012 at the mother’s instigation but the father did not respond after a time. The child sent emails to his father from July 2016 but did not receive a response to his last email in July 2017.

11. The mother arranged for the father and the child to meet in 2017, taking the child to Adelaide to see his father. After that meeting, the child indicated to the mother that he did not want to see his father again.

12. The mother and Mr Pacton have discussed the proposed adoption with the child and he has indicated that he would like to proceed. The child is fifteen years old and considerable weight should be given to his views. The child has had the opportunity to speak to an Accredited Adoption Counsellor and be informed of the ramifications of the adoption process.

13. I accept that the relationship between the child and the father is distant and that the child regards Mr Pacton as his father. Mr Pacton’s extended family have embraced the child as a member of their family

14. The father has not participated in the child’s life and has not undertaken the obligations of parenting in relation to the child, including but not limited to the financial obligations of support.

15. I accept the evidence of the mother that she will continue to encourage the child’s relationship with his extended paternal family and that the child will be able to contact his father if he wishes to do so.

16. I am satisfied that Mr Pacton has, in every sense, performed the role, and undertaken the obligations of a parent to the child.

17. It is the child’s best interests that his position in the family comprised of his mother, Mr Pacton, the child and his siblings, be given legal status.

18. Pursuant to s 60G of the Family Law Act 1975 (Cth), I grant leave for proceedings to be commenced for the child’s adoption.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 February 2018.

Associate: 

Date:  22 February 2018