Pandetikis and Manna

[2010] FamCA 841

FAMILY COURT OF AUSTRALIA

PANDETIKIS & MANNA [2010] FamCA 841

FAMILY LAW – ADOPTION – Dispense with service

APPLICANT: Ms Pandetikis

RESPONDENT: Mr Manna

FILE NUMBER: SYC 3417 of 2010

DATE DELIVERED: 9 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 9 September 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Mackay
Christopher Mackay Lawyer

Orders

1. That the requirements of the applicant to comply with section 60I are hereby dispensed with.

2. That the requirement of service of this application on the natural father MR MANNA is hereby dispensed with.

3. That leave is granted to the applicant and her husband MR C, the prescribed adopting parents, under s60G of the Family Law Act to commence adoption proceedings in the State of New South Wales for J born … July 1999.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3417 of 2010

MS PANDETIKIS

Applicant

and

MR MANNA

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother of J, who is 11 years old and was born in July 1999, for leave for herself and her present husband, Mr C, to adopt the child and to dispense with the requirements of section 60I of the Family Law Act.  That is the requirement that there be dispute resolution proceedings before the matter goes further.  As well, there is an application to dispense with service on the child’s natural father who is named as the respondent to these proceedings.

2. The mother and father were married in 1998 and separated in mid 2000.  They were divorced on 3 August 2001 and, at the time of the divorce, consent orders were made for the future care of the child.  They allowed the father to have contact with the child but gave what is, in effect, a right to make decisions for the child’s upbringing solely to the mother and provided that the child would live with the mother. The father made no attempt to see the child in the first few years of her life. 

3. I am satisfied from what the mother says in her affidavit, particularly from the tone of the affidavit, that the mother has never attempted to prevent the father from having contact with the child and has, in fact, encouraged such contact. If given the chance, she would have given him more encouragement to contact.  What happened is that the father actually last saw the child in mid 2000 when the child was only about a year old.  She took the child to meet the father at a shopping centre in Sydney where, among other things, he said, “I’m not made for this,” referring to fatherhood. After that he made no further attempt to see the child.

4. Up till that time, from the time of separation, he had never allowed the mother to know where he lived, although she could usually contact him by phone or through his sister who lived in Sydney.  In 2001, the child was hospitalised. She needed an operation.  The mother contacted the father and told him of this and asked him to visit the child in hospital.  He said he would, but he failed to do so.  From the time of separation, the father has never provided any support, either by way of formal child support or otherwise, for the child.  The mother has taken the whole burden of the cost of the child’s care.

5. In 2003, the mother obtained the father’s phone number from the father’s sister.  By telephoning him she discovered that he was in Italy.  She asked him to provide an address so she could send him papers which would allow the child to obtain an Australian passport.  She sent the papers to him after he provided an address, but heard no more.  He did not sign them and sent them back.  She contacted him and asked him to do so again but he refused.  After a short time, she contacted him again. This time he agreed to sign. However, he failed to return any papers to the mother and did not sign anything. She then wrote to the father at his given address and tried to call him but received no response from either of these types of attempt.  She waited a while and, in 2004, she telephoned him again.  She spoke to him and he said he was in Italy but still refused to give an address.  In 2008, she again contacted him by telephone and he would not give her his address or his father’s address, although his father is believed by the mother to be living in Italy.  The mother believes the father’s mother is dead.

6. Until recently, the mother lost touch with the father’s sister, but by searching Facebook, she discovered where she was.  The sister told the mother that she did not know where the father is.  She has no other channels to contact the father and, in the circumstances that the father does not wish to be contacted, and that can be inferred from all of the previous facts that I have referred to, there seems to be little point, and no injustice, in permitting the mother to proceed with the proceedings that are before me without having served the father. 

7. The mother remarried in 2006. Since that time she and the child have lived with her husband who is the other person who is sought to be the adoptive parent for the child.  I am satisfied that the child has a normal and good relationship with Mr C and more regards him as a father than she regards her father, who she refers to by his first name.  Mr C and the mother live in a home owned by a company which Mr C’s family controls and owns. 

8. The C family itself is an affluent one and, financially, one can expect the child to be better off if she is adopted than if she is not adopted because she will have a legal entitlement to any property Mr C has. One does not know what, if any, property her father has and what, if any, rights she might have to it or what ability she might have to assert those rights in view of her natural father’s failure to have any interest in her, failure to try to support her and unwillingness to allow the mother to know where he lives.  An unwillingness which, one can infer, could well be partly or wholly motivated by an unwillingness to be made legally responsible for the child’s support.

9. In all of the circumstances, this is an appropriate case where the child should have the opportunity to be adopted. Her best interests are served by her ceasing to be a child of the marriage between the mother and father, because of the reasons that I have said, and becoming a child with legal entitlements of the mother and her current husband. I have considered both section 60F(4)(a) of the Act as well as section 60G of the Act in coming to these conclusions and I am also of the view that there is no purpose in allowing section 60I of the Act to continue to apply in these proceedings.

10. I shall make the orders that the mother seeks in her initiating application, filed on 31 May 2010.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 9 September 2010.

Associate:     

Date:              22 September 2010