Sunden & Anor and Reeve

[2015] FamCA 41

FAMILY COURT OF AUSTRALIA

SUNDEN AND ANOR & REEVE [2015] FamCA 41

FAMILY LAW – CHILDREN – Section 60G – application by prescribed adopting parent – application unopposed by biological parent.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sunden and Ms Sunden

RESPONDENT: Mr Reeve

FILE NUMBER: MLC 6917 of 2008

DATE DELIVERED: 14 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lane

SOLICITOR FOR THE APPLICANT: Lander & Rogers

THE RESPONDENT: No appearance

Orders

1. That pursuant to s 60G(1) of the Family Law Act 1975 (Cth), the applicants have leave to commence proceedings for the adoption by the first-named Applicant, MR SUNDEN for the children.

2. That the application otherwise filed 5 November 2014 is dismissed.

3. That the reasons this day be transcribed and be placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sunden and Anor & Reeve 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 6917 of 2008

Mr Sunden and Ms Sunden

Applicant

And

Mr Reeve

Respondent

REASONS FOR JUDGMENT

1. This is a discrete application by Mr and Ms Sunden for permission, under section 60G of the Family Law Act, for Mr Sunden, as the prescribed adopting parent as defined in the Act, to institute proceedings for an adoption of J, H and B. Mr Reeve is the acknowledged biological father of the children.

2. On 5 January 2015, at the request of Mr and Ms Sunden, Mr Reeve signed an agreement which discharged orders of the Federal Circuit Court made in 2009 and thereafter granted Mr and Ms Sunden equal shared parental responsibility for those three children and that they live with them.

3. The 2015 order provided that the children spend time and communicate with Mr Reeve at such time as may be agreed between the parties. That is an interesting order, having regard to the fact that if I make the order under section 60G, it ends all of the parental rights of Mr Reeve under the Family Law Act 1975 (Cth) (“the Act”) upon the adoption taking place.

4. The only person who seems to be prejudiced by either the order of 9 January or the order that I am about to make is Mr Reeve.  He has been called this morning and has not attended.  I am satisfied, on the affidavit of Tamara Cook, that

   (a)he was served by post; and

   (b)he acknowledged, by signing a document, that he had received the relevant documents.

   I now have an affidavit by Ms Sunden to indicate that having looked at the signature she recognises it as that of Mr Reeve.  Accordingly, Mr Reeve has been provided with procedural fairness and has had every opportunity to participate in the proceedings and absent his attendance here today, the case should proceed accordingly.

5. Section 60G provides that the Court can grant leave for the adoption to take place but the Court must consider whether granting leave would be in the children’s best interests, having regard to a number of factors some of which are not really relevant here.

6. The affidavit upon which the applicants rely was that of each of them sworn on 3 November and filed on 5 November.  Significant evidence comes from Ms Sunden.  She goes back in time in relation to the history and particularly the separation but for my purposes, the significant part is that since August 2011, Mr Reeve had not only not spent any time with these children, but he has not communicated with them.  He has not contacted them on their birthdays or on other special occasions.

7. That statement has to be seen in the context of the document that I have just earlier mentioned, signed by Mr Reeve on 5 January.  The document that he then signed clearly made reference to Mr Sunden and on that basis I am entitled to conclude that he was well aware that these children were in the care of not only their mother but also their mother’s new partner.

8. There are some sad reflections on Mr Reeve in this affidavit that I do not intend to read out but from a positive point of view, all of the evidence supports the fact that these children have a much better life in the family in which they are now living.

9. The deponent refers to the fact that Mr Sunden is actively involved in the children’s lives and that they share a close bond with him.  He assists their homework with enthusiasm and he enjoys teaching them and passing on knowledge.  The children seek him out for advice, including on emotional issues.  There is evidence also the children want to use the surname that their mother has now adopted, which is her partner’s surname.

10. The family has enjoyed the benefits of travelling interstate and overseas and they do many activities together.  They also have an extended family now that they did not have previously.

11. In the circumstances and absent some complaint by Mr Reeve about the way in which these children are being raised, which one would have to be somewhat cynical about, bearing in mind that he has not seen them for over three years now, I think it is in the best interests of the children that an order is made excluding Mr Reeve from their lives. Accordingly I will make an order pursuant to section 60G of the Act.

12. Otherwise dismiss the application filed on 5 December 2014.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2015.

Associate: 

Date:  2 February 2015