Simmons and Anor and Zuckermann

[2011] FamCA 1037

FAMILY COURT OF AUSTRALIA

SIMMONS & ANOR & ZUCKERMANN [2011] FamCA 1037

FAMILY LAW – ADOPTION – by step-parent – consent of the biological father obtained informally – consent of the biological father was not in accordance with the instrument of consent prescribed by the Adoption Act 1993 (ACT) – consent dispensed with – leave to commence proceedings – adoption order made

Adoption Act 1993 (ACT), ss 30, 35
Family Law Act 1975 (Cth), s 60G

1st APPLICANT: Mr Simmons

2nd APPLICANT: Ms Simmons

RESPONDENT: Ms Zuckermann

FILE NUMBER: CAC 1572 of 2011

DATE DELIVERED: 20 December 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 20 December 2011

REPRESENTATION

SOLICITOR FOR THE 1ST AND 2ND APPLICANTS: Ms Campbell, Campbell & Co

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. The application in relation to B Zuckermann (born … 2004) be properly commenced in this Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT).

2. Pursuant to s 60G of the Family Law Act (1975) (Cth) leave is hereby granted to Mr Simmons and Ms Simmons to commence adoption proceedings in relation to Mr Simmons’s adoption of B.

3. Pursuant to s 35 of the Adoption Act 1993 (Cth) the consent of Ms Zuckermann, as required by s 30 of the Adoption Act 1993 (ACT) and the Adoption Regulation 1993 made thereunder, is dispensed with.

4. An Adoption Order is pronounced in relation to B Zuckermann who resides in the Australian Capital Territory, who is under 18 years of age and who shall be known as B Simmons.

5. The Registrar-General of Births, Deaths and Marriages in the Australian Capital Territory provide a Birth Certificate for the child, B Zuckermann in terms of the attached ‘Memorandum of Adoption’ such that the registration is as follows:

   a.   Full name of the child: B Simmons

   b.   Mother: Ms Simmons

   c.   Father: Mr Simmons

   d.   Date of Birth: … 2004

6. The report prepared by the delegate of the Chief Executive be released to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmons & Anor & Zuckermann 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 CANBERRA

FILE NUMBER: CAC 1572 of 2011

Mr Simmons and Ms Simmons

First and Second Applicants

And

Ms Zuckermann

Respondent

REASONS FOR JUDGMENT

1. In this matter, it is necessary, under the Adoption Act 1993 (ACT) (“the Act”), that there be a consent from Mr Zuckermann for a variety of matters beyond his control, notwithstanding his willingness for the procedure to occur. The consent is not available in the form prescribed by s 30 of the Act. Accordingly, I need to give consideration to the question of dispensing with that consent pursuant to s 35 of the Act, notwithstanding that consent, and in any normal lay person sense of the word, has been obtained informally.

2. I should also indicate formally that, under s 60G of the Family Law Act1975, I grant leave for the proceedings to be commenced in this Court and I note the matters that I have discussed with the parents and with Mr Zuckermann this morning.

3. I note and accept the memorandum of adoption order which will be transmitted by the Registrar of this Court as is required under the Act.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 20 December 2011.

Associate:

Date:  31 January 2012