Thomas & Anor and Johns

[2011] FamCA 282

FAMILY COURT OF AUSTRALIA

THOMAS AND ANOR & JOHNS [2011] FamCA 282

FAMILY LAW – ADOPTION –By step-parent

1st APPLICANT: Ms Thomas

2nd APPLICANT: Ms Thomas

RESPONDENT: Johns

FILE NUMBER: MLC 1418 of 2011

DATE DELIVERED: 15 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 March 2011

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Mr Smith

SOLICITOR FOR THE 1ST APPLICANT: Mark Shenken

COUNSEL FOR THE 2ND APPLICANT: Mr Smith

SOLICTOR FOR THE 2ND APPLICANT: Mark Shenken

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That leave is granted pursuant to s 60G(1) of the Family Law Act for proceedings to be commenced for the adoption of L born … October 2000 by Mr Thomas.

2. That my reasons for judgment given this day shall be transcribed, retained on the court file and a copy forwarded to the applicants.

3. That otherwise the application filed 21 February 2011 shall be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Thomas and Anor & Johns is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1418 of 2011

Ms Thomas and Mr Thomas

Applicant

And

Johns

Respondent

REASONS FOR JUDGMENT

1. This is an application, pursuant to s 60G of the Family Law Act, in which the applicants seeking leave for proceedings to be commenced for the adoption of a young girl L born in October 2000, now aged almost ten-and-a-half. 

2. The application was filed on 21 February 2011 and is supported by an affidavit of her mother Ms Thomas and her mother’s husband Mr Thomas. 

3. This story can be summarised very briefly.  According to the material, Ms Thomas had a very brief relationship with L’s biological father.  She knew his first name as Johns.  He was a sailor at the time.  She conceived L and, according to her, once Johns knew that she was pregnant, she never saw him again or had any further contact with him again. 

4. L was born as I said in October 2000 in Southeast Asia.  Her birth certificate states that her father was unknown.  According to the material, the mother has never had any further contact at all with Johns and has absolutely no way of making any contact with him.  They have no-one in common, and she has no information at all as to his likely whereabouts. 

5. She met Mr Thomas in November 2004, when L was four years old.  They became engaged in 2005, when L was almost five years old.  She immigrated to Australia in March 2006 and she and Mr Thomas married in December 2006.  Ms Thomas and L have now become Australian citizens, I am told from the bar table today. 

6. Mr Thomas’ affidavit, as well as Ms Thomas’ affidavit, make it clear that from the time that they started a relationship, Mr Thomas has effectively treated L as his own daughter, and that has certainly been the case since she has been living with him in Australia. 

7. He has twin girls from his previous marriage, C and M, born in December 2000.  Those girls spend their time week about in the Thomas household and in the household of their own mother.  The evidence is that they get on very well with L and that the children are simply raised as sisters, now joined by Mr and Ms Thomas’ biological daughter, J, born in May 2009.  The picture that is portrayed in the affidavit material is of the four girls being raised together, without distinction being drawn between any of them. 

8. Pursuant to s 60G of the Family Law Act, I must make this decision as to leave, taking into account L’s best interests, having regard to the effect of certain paragraphs set out in s 60G(2) of the Act.

9. The important aspects of section 60G(2), for current purposes, are to be found in s 61E of the Act. I must take into account the effect of adoption on the parental responsibility for L, and that she would, if adopted, cease to be the child of the relationship, such as it was, between Ms Thomas and Johns.

10. In terms of best interests, I am satisfied on this material that L has a meaningful relationship with Mr Thomas as well as her mother, that she is close to both of them, cared well for by both of them, is close to her sisters and very much part of a family unit that is important to her.  I am satisfied that any cultural issues that are important to her by way of her heritage can be well met by her mother.  There is nothing to suggest that Mr Thomas is anything but respectful of that.  And I am satisfied in considering all the s 60CC factors that the matters I have referred to are the significant ones, and that it is in the child’s best interests that these orders are made.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 15 March 2011.

Associate: 

Date:  15 March 2011