Walter and Smith - [2010] FamCA 681

FAMILY COURT OF AUSTRALIA

WALTER & SMITH

[2010] FamCA 681

FAMILY LAW – CHILDREN – ADOPTION – Leave to commence proceedings under s60G – Deemed service on respondent – Leave granted

Family Law Act 1975 (Cth) s 60G

Brock & Brock [2007] FamCA 1594
Berry & Wratten [2010] FamCA 75

Reynolds & Donaldson [2008] FamCA 518

APPLICANTS:

Mr and Mrs Walter

RESPONDENT:

Mr Smith

FILE NUMBER:

BRC

6747

2010

DATE DELIVERED:

2 August 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

2 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms de Groot Gill

McKays Lawyers

THE RESPONDENT:

No appearance

Orders

IT IS ORDERED

The service effected by the applicant’s solicitors described in the affidavits of Lindy de Groot Gill, solicitor, Emma Louise Moloney, paralegal assistant, Reginald Allan Standfast, commercial agent and Barry St Clair, commercial subagent, of the documents described in those affidavits and in exhibit 1 be deemed good service upon the respondent of those documents.
Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Walter and Mr Walter have leave to commence proceedings for the adoption of J born … August 1993.

IT IS NOTED that publication of this judgment under the pseudonym Walter & Smith is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6747 of 2010

MR AND MRS WALTER

Applicant

And

MR SMITH

Respondent

REASONS FOR JUDGMENT

This is an application under section 60G(1) of the Family Law Act 1975 (Cth) filed 21 July 2010 by Mrs Walter and Mr Walter that they have leave to commence proceedings for the adoption of J born in August 1993 now nearly 17 years. Mrs Walter is J’s biological mother and Mr Walter is his step father.
J’s biological father Mr Smith has not been able to be located by the applicants or their solicitors since 14 July 2010 when Mrs Walter told Mr Smith during a telephone conversation that she and Mr Walter proposed to bring this application: see Mrs Walter’s affidavit pars 22, 53 and 54.
In these circumstances, Mr and Mrs Walter seek an order dispensing with service on Mr Smith or alternatively that the steps they have taken for service be deemed good service. There is a degree of urgency to the application under section 60G in that J turns 17 years this week. Section 92(1) of the Adoption Act 2009 (Qld) provides that a person may apply to the chief executive to arrange an adoption if, amongst other matters, the child has not turned 17 years: section 92(1)(i). Section 92(2) provides that despite subsection 1(i) the chief executive may accept an application relating to a child who has turned 17 years if the chief executive considers that there is enough time to complete the adoption process before the child turns 18 years and that grounds for making an adoption order in favour of the applicant are likely to exist. However, plainly it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walter and Smith

Details

AGLC: Walter and Smith [2010] FamCA 681
Case: [2010] FamCA 681
Decision Date: 2 August 2010

CaseChat Overview and Summary

In *Walter and Smith*, heard before O’Reilly J, the applicant sought orders deeming service of certain documents upon the respondent to be good service, and for leave to commence adoption proceedings. The specific nature of the dispute leading to the need for substituted service or a declaration of good service was not detailed, but the application concerned the adoption of a child, J.

The primary legal issues before the court were whether the service of documents, as described in the supporting affidavits, should be deemed good service upon the respondent, and whether the applicants, Mrs Walter and Mr Walter, should be granted leave to commence adoption proceedings pursuant to section 60G of the *Family Law Act 1975* (Cth).

O’Reilly J considered the evidence presented in the affidavits of several individuals, including solicitors, a paralegal assistant, and commercial agents, detailing the attempts made to serve the respondent. Based on this evidence, the court was satisfied that the service effected was sufficient to warrant being deemed good service. Furthermore, the court found that the criteria for granting leave to commence adoption proceedings under section 60G of the *Family Law Act 1975* were met.

Consequently, the court made orders deeming the service effected by the applicant’s solicitors to be good service upon the respondent. Additionally, the court granted Mrs Walter and Mr Walter leave to commence proceedings for the adoption of J.

Orders

Orders of the court

IT IS ORDERED

The service effected by the applicant’s solicitors described in the affidavits of Lindy de Groot Gill, solicitor, Emma Louise Moloney, paralegal assistant, Reginald Allan Standfast, commercial agent and Barry St Clair, commercial subagent, of the documents described in those affidavits and in exhibit 1 be deemed good service upon the respondent of those documents.

Pursuant to s60G of the Family Law Act 1975 (Cth) Mrs Walter and Mr Walter have leave to commence proceedings for the adoption of J born … August 1993.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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