Wentworth and Matthews

[2011] FamCA 701

FAMILY COURT OF AUSTRALIA

WENTWORTH & MATTHEWS [2011] FamCA 701

FAMILY LAW – CHILDREN – change of name by consent - leave to adopt

Family Law Act 1975 (Cth)

APPLICANTS: Mr Wentworth and Ms Wentworth

RESPONDENT: Mr Matthews

FILE NUMBER: SYC 928 of 2011

DATE DELIVERED: 26 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 August 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: CBD Legal

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. B born … 1995 (“the child”) live with Ms Wentworth and Mr Wentworth.

2. Ms Wentworth and Mr Wentworth have joint parental responsibility for the child. 

3. The child’s name be changed to B Wentworth and Ms Wentworth and Mr Wentworth be permitted to do all things necessary to cause the child’s birth certificate to be amended accordingly as soon as practicable.

4. The child be allowed to be issued with an Australian passport in the name of B Wentworth.

5. Pursuant to s 60(1) Family Law Act 1975 leave be granted to the applicants to commence proceedings for the adoption of the child B, also known as the child B Matthews, born … 1995.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 928 of 2011

Mr Wentworth and Ms Wentworth

Applicant

And

Mr Matthews

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings concern parenting arrangements in relation to the child B, also known as the child B Matthews, born in 1995 (“the child”).  The parties have agreed on orders relating to parental responsibility, with whom the child will live and the surname on her birth certificate and passport.  I have made consent orders in the terms of paragraphs 4, 5, 6 and 7 of the Application for Final Orders filed by the applicants on 17 February 2011. 

2. The application before me is a contested application whereby Ms Wentworth and Mr Wentworth make a joint application to be granted leave, pursuant to s 60G(1) Family Law Act (“FLA”) to commence proceedings for the adoption of the child.

3. Section 60G FLA is in the following terms:

   (1)  Subject to subsection 2 the Family Court may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2)  In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests [and I note, in that regard, the section refers me to s 60CB through to s 60CG FLA] having regard to the effect of s 60F(4)(a) and of s 61E and s 65J FLA.

4. The definition of prescribed adopting parent is contained in s 4 of the Act and includes “the spouse of a parent of the child”. Ms Wentworth is the mother of the child and Mr Wentworth is her husband and therefore Mr Wentworth is a prescribed adopting parent within the definition contained in s 4 FLA.

5. Section 60F(4)(a) FLA says that the effect of what I am being asked to do is to grant leave for adoption proceedings to be commenced and when I do that the child ceases to be a child of the marriage of Mrs Wentworth and Mr Matthews. I have regard to the fact that that is one effect of the order that I am being asked to make.

6. Section 61E FLA is in the following terms:

   This section applies if a child is adopted and immediately before the adoption a person had parental responsibility for the child whether in full or to a limited extent or whether because of s 61C or because of a parenting order.

7. Section 61E(2) FLA says a person’s parental responsibility for the child ends on the adoption of a child unless the adoption is by prescribed adopting parent and leave was not granted under s 60G. So the effect of my granting leave would be to enable the Wentworths to apply for adoption and in those circumstances Mr Matthews’s parental responsibility for the child would end. I have regard to that fact.

8. Section 65J FLA is the other section I have to take into account. That section is in similar terms to the previous section, except it relates to the effect of a current parenting order and says that that stops being in force if the child is adopted and I take that into account the order sought has that effect.

9. It is common ground between the parties that they separated in 2001.  At that time the child was about 6 years of age.  I have heard evidence today about the movements of the mother and the child after the separation.  The mother commenced living together with Mr Wentworth in Suburb C in Sydney in about 2002 and the father continued to see the child after the separation up until 2004. 

10. It is agreed that in 2004 an incident took place at a shopping centre.  That incident is described in the mother’s affidavit and the father does not take issue as to the fact that on that occasion the child ran away from him.  He asserts that that was a situation which was a “set up”. I find it is not necessary to make findings of fact about events which took place prior to this time.  

11. It is an agreed fact that since that event in 2004, the child has not had any contact with her father, either face to face or by any other means nor has any member of his extended family. 

12. I have to take into account the matters set out, particularly in s 60CC(2) and (3) FLA. In doing that, I have particular regard to the contents of the evidence given by a very experienced family consultant in her affidavit sworn 2 June 2011. She met with the child. She reports that the child is currently going to school in City D, having moved there this year from Sydney. She reports that the child presented as a delightful, articulate and mature young woman. The child was unequivocal in her view that she wants Mr Wentworth, whom she calls “Dad”, to “officially” be her father. She has always known that he is not her biological father and has memories of Mr Matthews and her mother together and of her visits to him post separation but says that she is clear in her mind that Mr Wentworth is in every way “my dad”. The child says that she is known everywhere as “Wentworth” but would like that name to be on her birth certificate so that it will not be “embarrassing” when she applies for a passport, a driver’s licence or goes to get a job and to his credit the father has recognised that today and has agreed to consent orders in that regard.

13. B told the family consultant that she feels that she is old enough to make her own decision about this and that it is “about time”.  She wants “all this” to be over with.  She clearly has an affectionate and proud relationship with Mr Wentworth as reported by the family consultant. The child told the family consultant that she wanted Mr Wentworth, her mother and herself to be a “proper family”.  The family consultant clearly states that it was the child’s current view that she did not want to see Mr Matthews or know anything about him and she cannot imagine a time when she might want to.  In conversation with the family consultant, the child reported that she only had negative memories of her father and did not think of him or anyone else who might be in his family as her “family”. 

14. The family consultant expresses the opinion that the child has clearly given the matter of her being adopted by Mr Wentworth serious consideration and is in no doubt that that is what she wants.  The family consultant also expresses the opinion that the child is of sufficient maturity that her views ought to be given considerable weight. 

15. I find on the evidence that currently the child does not have any relationship with her biological father. 

16. Mr Matthews in his affidavit and in his oral evidence has expressed the view that it is through no fault of his own that he has not been in his daughter’s life.  He places the entire blame in relation to that circumstance at the foot of the child’s mother and Mr Wentworth.  He says it is not for want of trying and that he has been intimidated and worn down by the mother and Mr Wentworth.  I am not, in these reasons, going to make any findings about that assertion one way or the other.  I find it is not relevant for me to make those findings in order to be able to determine the application that is before me.  Whatever happened, happened in 2004 and at a time prior to 2004.  Mr Matthews has not since that time, made any application to any court for any parenting order.

17. Mr Matthews acknowledges that given the child’s age, it is up to her as to whether or not she wants him in her life or not and on the basis of the family consultant’s reporting of the child’s views, I think he accepts that at the current time she is expressing a clear and mature view that she does not want him in her life. 

18. Mr Matthews however says that he does not want to be legally severed from her life by way of Mr Wentworth legally adopting her and that correctly summarises the legal effect of what is being applied for.  He also asserts that he in his own mind does not believe that the child is mature enough at the age of nearly 16 to make up her own decisions about this.  Mr Matthews lives in the hope that one day, despite the negative influences he sees from the mother and Mr Wentworth, that the child will still want to have him as part of her life and he is resisting this application primarily because he does not want the child to lose that opportunity. 

19. I take all those matters into account when weighing the considerations that I must weigh under s 60CC(2) and (3) FLA in attempting to work out what might be in the child’s best interests.

20. An order granting leave to adopt and any subsequent adoption does not of course mean that the child, when she gets older, cannot seek Mr Matthews out and seek to re-establish a relationship with him.  I concede that it might make it slightly less likely that she do so but that will only arise in circumstances where the child has a strong desire for it to happen and a formal adoption in my view will not fetter that to any great degree one way or the other. 

21. I take into account the fact that it is an agreed fact that the child does not currently have, and has not had for some seven years, any effective relationship with her biological father.  It is important in my view to have the child’s voice recognised and have her wishes taken strongly into account.  The child, a mature young woman, is expressing a very articulate view.

22. I find it is in the child’s best interests to make the order that the applicants are seeking.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 26 August 2011.

Associate:

Date:  31.8.2011