Ungerman and Anor and Nelly

[2014] FamCA 756

FAMILY COURT OF AUSTRALIA

UNGERMAN AND ANOR & NELLY [2014] FamCA 756

FAMILY LAW – CHILDREN – ADOPTION – Application by step-parent – Leave to commence adoption proceedings pursuant to s 60G – Where biological father has had minimal involvement in the child’s life – Where it is in the best interests of the child to grant leave

Family Law Act 1975 (Cth)

FIRST AND SECOND APPLICANTS: Ms Ungerman and Mr Ungerman

RESPONDENT: Mr Nelly

FILE NUMBER: BRC 6597 of 2014

DATE DELIVERED: 8 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 September 2014

REPRESENTATION

SOLICITOR FOR THE FIRST AND

SECOND APPLICANTS:

Ms Black, Solicitor, MacDonnells Lawyers

SOLICITOR FOR THE RESPONDENT: In person by telephone

Orders

It is ordered that:

1. Pursuant to section 60G of the Family Law Act 1975 (Cth), leave is granted to the First and Second Applicants to commence adoption proceedings in respect of the child, N born … 2004.

1. The First and Second Applicants have leave to publish the Orders and Reasons for Judgment made today to the relevant adoption authorities in pursuing the said child’s adoption.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ungerman and Anor & Nelly 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 BRISBANE

FILE NUMBER: BRC 6597 of 2014

Ms Ungerman and Mr Ungerman

First and Second Applicants

And

Mr Nelly

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This application concerns the child N (“the child”), who was born in 2004 and is now 10 years of age. The applicants, Ms Ungerman, the mother of the child and her husband Mr Ungerman, apply pursuant to s 60G of the Family Law Act 1975 (Cth) (“the Act”) that they be granted leave to commence adoption proceedings with respect to the child.

2. Ms Ungerman and Mr Ungerman commenced a relationship when the child was approximately six weeks old.  They became engaged in 2005, commenced cohabitation in February 2006, and married in August of 2006.  Their child, C, was born in 2007, and is now seven years of age.

3. Section 60G provides in subsection (2) that in these proceedings for leave the Court must consider whether granting leave would be in the child’s best interests.

4. I am satisfied on the evidence before me that Mr Ungerman has been part, and an important part, of the child’s life virtually for the whole of his life.  Mr Ungerman has treated the child as if he was his own biological son.  For a long time now he has provided financial support for the child’s health and medical needs, which I will refer to again shortly.  Thus it is that, for all intents and purposes, Mr Ungerman has regarded the child as his own biological son and has treated him as such, and has provided for him financially as such. 

5. Regrettably, at paragraph 10 of her affidavit, the mother sets out the limited degree of involvement of the child’s biological father Mr Nelly in the child’s life, and she there deposes that the last visit, and I think the only visit, of the biological father to the child was when he was about four or five weeks of age. 

6. At paragraph 13 of her affidavit the mother sets out the range of medical and health difficulties confronting the child.  He has been diagnosed with autism, dyslexia, dysgraphia and an auditory processing disorder.  He requires regular treatments with an occupational therapist, and he needs specific equipment for school and for ongoing learning assistance.  I note that well before Mr Ungerman and Ms Ungerman married, Mr Ungerman was providing financially for the additional medical and health needs of the child. 

7. Against the above background, I am comfortably satisfied that it is in the child’s best interests that the application be granted.  Mr Nelly confirmed in an appearance before Registrar Books on 27 August 2014 that he consented to the applicants pursuing the adoption of the child, and Mr Nelly, who appears by telephone before me today, again confirms his consent.  It seems to me that not only is it in the child’s best interests for the application to be granted, but it is fortuitous for the child, in the circumstances that confront him in terms of his medical and health difficulties, that Mr Ungerman is prepared to undertake, and seeks to undertake, effectively, parental responsibility for the child with all that entails given the child’s difficulties.

8. As is pointed out by Mr Ungerman in his affidavit, at least part of the reason for him seeking formal adoption for the child is to provide for the unfortunate events if the child’s mother became sick or injured or, indeed, passed away, such that Mr Ungerman would be able to maintain the child’s care and living circumstances in his familiar environment, together with his half-sibling C, born in 2007, who is now seven years of age. 

9. For these reasons I am satisfied it is in the child’s best interests for the application to be granted. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 September 2014.

Associate:

Date: 8 September 2014