Pinter and Anor and Gilliardo

[2014] FamCA 1205

FAMILY COURT OF AUSTRALIA

PINTER AND ANOR & GILLIARDO [2014] FamCA 1205

FAMILY LAW – ADOPTION – permission to adopt granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Pinter and Ms Pinter

RESPONDENT: Mr Gilliardo

FILE NUMBER: MLC 8898 of 2014

DATE DELIVERED: 3 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: T J Mulvany & Co

SOLICITOR FOR THE APPLICANT: Mr Sayer

THE RESPONDENT: No appearance

Orders

1. That the orders made on 16 November 2009 by the Suburb C Magistrates Court are discharged.

2. That pursuant to s 60G(1) of the Family Law Act 1975 (Cth), the applicants are granted leave to commence proceedings for the adoption by Mr Pinter of B born … 2006.

3. That the applicants have equal shared parental responsibility for the child.

4. That the reasons this day be transcribed.

5. That the application filed on 3 October 2014 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8898 of 2014

Mr Pinter and Ms Pinter

Applicant

And

Mr Gilliardo

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Pinter in the capacity as the mother of B, who is eight years of age.  The biological father is Mr Gilliardo, who is the respondent in the application.  There seems to be little doubt that he has no interest in the matter.  He has been called this morning, and there is no appearance on his behalf.  The second applicant in the proceedings, is Mr Pinter, to whom Ms Pinter is married, and together they seek an order under section 60G of the Act to permit them to make an application to the County Court of Victoria to adopt – for them, and more particularly for Mr Pinter, to adopt the child. 

2. The function of this Court, in relation to these proceedings, is to examine whether such an order is in the best interests of the child, bearing in mind that if the order is made, it will end the capacity of the biological parent to seek parenting orders, even if an adoption order was made.  In this particular case, the facts are modestly simple.  Leaving aside the history prior to 2009, Mr Gilliardo and Ms Pinter appeared before the Suburb C Magistrates Court in November 2009, and sought the Court to make orders in relation to the child.  There are two significant orders that came out of that day. 

3. The first, is that Mr Gilliardo was to be able to spend time on special occasions.  The times were designated in the orders, for a period of four hours, providing he gave seven days written notice to the mother.  As I rhetorically questioned, those special occasions look remarkably like an adult enjoying the time rather than the child and, rather than them being part of some sort of parental responsibility.  Be that as it may, it seems Mr Gilliardo either did not bother, or realised that he had very little to offer the child, because he did not participate thereafter.

4. In any event, even if he had have made the request, the order then went on to provide that his time was to be supervised, and I am told by the solicitor for the applicants, that the basis for that supervision, which to some extent is clear from the order itself, is that there was family violence, a lack of interest, and also drug usage.  The second thing that came out of the order was there was a curiously drafted provision that said that the parties agreed that the child’s surname could be changed, and that surname was to be changed to Ms Pinter’s pre-marriage name.  That now seems to have been superseded by an arrangement to which Mr Gilliardo agreed, enabling the child’s name to be registered with the Registrar of Births Deaths and Marriages as “Pinter”.

5. The affidavit upon which the applicants rely sets out the fact that there has been no relationship between the child and her father.  There are two inferences to be drawn from that.  The first is that Mr Gilliardo has moved on with his life, and has little interest in his daughter.  The other is that he accepts that the child is in good hands, and as he obviously was aware of the marriage between Ms Pinter and her husband, he must be concluded to have thought that the child was in appropriate care.  One way or the other, he is not here today, nor has he had any significant role in this child’s life.

6. Bearing in mind what section 60B of the Act sets out as the aspirations of the Australian Community for Children, I can presume that the father does not really dispute any of the facts upon which the applicants rely.  The applicants have actually indicated that in respect of Mr Pinter, he has a close and loving relationship with the child, and one which he describes as analogous to a biological paternal relationship.  Mr and Ms Pinter now have a child of their union, so the child has a sibling. 

7. All of the evidence otherwise indicates that the parties are clearly able to care for the child, and are indeed doing so, and are now taking that final step to shut the door in respect of Mr Gilliardo, not that it would seem that he has any real interest in opening it anyway.  Having regard to the evidence of the applicants filed in the affidavit of 3 October, I am satisfied that it is in the best interests of the child that the order be made under section 60G. 

RECORDED : NOT TRANSCRIBED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 December 2014.

Associate: 

Date:  24 December 2014