Shields and Anor and Summers

[2011] FamCA 696

FAMILY COURT OF AUSTRALIA

SHIELDS & ANOR & SUMMERS [2011] FamCA 696

FAMILY LAW – CHILDREN – equal shared parental responsibility – outstanding applications otherwise dismissed

Family Law Act 1975 (Cth)

1st APPLICANT: Mr Shields

2nd APPLICANT: Ms Shields

RESPONDENT: Mr Summers

FILE NUMBER: MLC 2214 of 2011

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 July 2011

REPRESENTATION

COUNSEL FOR THE 1^st AND 2^nd

APPLICANTS:

Mr Sayer

SOLICITOR FOR THE 1^st AND 2^nd

APPLICANTS:

T J Mulvany & Co

ORDERS

1. That the applicant have leave to proceed without service of the application upon the respondent and all requirements for service are waived.

2. That Mr Shields and Ms Shields have equal shared parental responsibility for the child B born in 2001.

3. That the child live with the applicants.

4. That for the purposes of s 26 of the Births, Deaths and Marriages Registration Act 1996 (Vic), the Court approves the change of name for the child B SUMMERS to B SHIELDS.

5. That pursuant to s 60G (1) of the Family Law Act 1975 (Cth), the applicants have leave to commence proceedings for adoption of the said child.

6. That all outstanding applications are otherwise dismissed.

7. That pursuant to s.65DA (2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Shields and Anor & Summers 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 2214 of 2011

Mr Shields and Ms Shields

Applicant

And

Mr Summers

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed on 17 March 2011, by Mr Shields and his wife Ms Shields in relation to the child, B.  B was born in 2001.  The child’s father is Mr Summers.  On the last occasion, the Court made orders that, as attempts have been made to serve Mr Summers unsuccessfully about the proceedings, a notice should be put in the Melbourne newspaper.  Today I read an affidavit by the parties confirming and providing a copy of the notice indicating that the proceedings were listed for hearing today, and that should Mr Summers wish to be heard on the subject, he have the opportunity to come along have his say.  It’s quite clear from the record that he has not taken any further part in these proceedings.

2. The background is set out in the affidavit of Mr and Mrs Shields.  It is quite comprehensive.  What it clearly indicates is that the respondent and Ms Shields separated in early 2003 and there has been no involvement in the child’s life by her father.  In those circumstances, I think I can fairly safely conclude that there is no interest in the child by her father.  Mr and Mrs Shields have married.  They began their relationship in 2003, so it is of some longevity, and they married in 2006 and they have two children.  All of the evidence suggests that the child, who is the subject of these proceedings, is very much enmeshed in this family, and what the parties want to do is to cement that situation by ultimately proceeding to seek orders in another court.

3. My function is to make orders if it is in the best interests of the child.  Looking at that material, I am satisfied that all of the aspects that the Court would be required to consider in section 60CC and section 60CA of the Act have been fulfilled. 

4. I am satisfied that it is in the best interests of the child that the orders be made that Mr and Mrs Shields have equal shared parental responsibility relating to long‑term issues, and that they be granted leave under the Act to apply for an adoption of the child into their household. 

5. There is an added difficulty in that the child, who subsequently becomes a child of another family, has a different surname which creates embarrassment for the child, let alone the parents.  In this case, the application also seeks that the parties have the opportunity to go to the Victorian Births, Deaths and Marriage Registration Department and change the child’s name so that it coincides with the other two children and theirs.  I am satisfied that it is in the best interests of this child that that order also be made. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 July 2011.

Associate: 

Date:  14 July 2011