A117/2016

[2016] NSWSC 1958

Supreme Court

New South Wales

Medium Neutral Citation:

A117/2016 [2016] NSWSC 1958

Hearing dates:

17 October 2016

Date of orders:

17 October 2016

Decision date:

17 October 2016

Jurisdiction:

Equity - Adoptions List

Before:

Slattery J

Decision:

Liberty to apply granted for a date for the return of subpoenas to assist in searches for the father of the children proposed for adoption.

Catchwords:

ADOPTIONS – Adoption Act, 2000, s 67(1)(a) - application to dispense with the consent of the father of children proposed for adoption – whether the father cannot after reasonable enquiry be found or identified – evidence of reasonable enquiry inadequate – whether a preliminary hearing should be appointed under Adoption Act, s 80 for the return of subpoenas to assist in searches for the father.

Legislation Cited:

Adoption Act 2000 ss 7(a), 67 (1)(a), 80

Category:

Principal judgment

Parties:

First applicant: not published
Second applicant: not published
First respondent: not published
Second respondent: not published
Third respondent: not published

Representation:

Solicitors:

 

Plaintiff: K. Neville, Branston Neville Lawyers Ltd

  Defendant: L. Maitland, Legal Aid NSW

File Number(s):

2016/A117

Publication restriction:

No

Judgment

1. The applicants seek orders for the adoption of the three children of the applicant plaintiff (“the mother”) by her previous marriage to a man, who for the purposes of these proceedings will be called “the former husband”. The evidence suggests that the three children are now apparently living in happy and contented circumstances with the first applicant, the proposed adoptive father, and with the mother in a Sydney suburb. The evidence further suggests that the former husband was an inconstant father who was involved in illicit drugs and had abusive relationship with the mother and the three children. The evidence further suggests that once the mother was divorced from the former husband in 2010 he had little to do the children and indeed only last saw them in November 2012. The mother says she does not now know the whereabouts of the former husband. Some enquiries have been made in an attempt to find him. The Court is not making any findings about the former husband’s conduct in these reasons. He has not had any opportunity to respond to the mother’s evidence.

2. The evidence concerning the attempts to find the former husband is not yet sufficient. The evidence is otherwise generally in order to justify an adoption order being made in respect of the three children.

3. Adoption Act 2000 (NSW) (“Adoption Act”), s 67 (1)(a) requires that for the Court to make an order dispensing with the consent of the children’s biological father to the adoption of the children, then the Court must be satisfied that a person, such as the former husband, “cannot, after reasonable enquiry, be found or identified” . The Summons seeks an order dispensing with the former husband’s consent pursuant to s 67(1)(a).

4. Adoption Act, s 67(1)(a) requires reasonable enquiry to be made, not only to provide procedural fairness to the children’s father, the former husband, but to serve the objects of the Act, which “emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice”: Adoption Act, s 7(a). If adoption orders were to be made in this case without further attempts to find the children’s biological father and if he did later reappear in their lives, he would only then be finding out for the first time that an adoption order had been made. Such a situation may perhaps cause him to behave unpredictably and in ways that may be distressing or even potentially harmful to the children.

5. The Court must be satisfied that the former husband, “cannot after reasonable enquiry be found or identified”. The evidence filed does not set out the searches for him that were undertaken in detail. The evidence presented is only in a very summary form, which is not yet satisfactory. Although the evidence indicates some contact with the former husband’s mother took place in early 2015, the evidence does not rise to the level of indicating that she was even told that there was going to be an adoption application made. Nor was she requested to attempt to get in touch with her son to warn him of the possibility that an adoption order would be made without his consent. Some of the filed evidence is adduced from the mother about the search for the former husband through his mother. Her evidence would be more compelling, had it been followed up with evidence of attempts by the solicitors for the applicant to make contact with the former husband.

6. The evidence does not indicate whether or not the former husband had any other siblings, or any other family apart from his mother, or any friends through whom contact with him might be able to be made. Given that the mother was married to the former husband between September 1998 and 2010 it is not unlikely that there would be some person who she met in that period who was associated with the former husband and who may still have contact with him and may yet be able to give indications of where he might now be. The mother was able to find the former husband in November 2012 to arrange some contact that took place in the city of Sydney. Although she says she has not seen him since then.

7. Searches can be difficult without having the power to compel information. But that capability is available through the Court. If the applicants wish to avail themselves of the Court’s power to issue subpoenas to assist their searches then they should notify my Associate and the proceedings can be listed before the Court under Adoption Act, s 80 for the return of subpoenas.

8. If the Court is not satisfied with any additional evidence that is submitted, then the matter will be relisted for a preliminary hearing under Adoption Act, s 80 for the giving of interim directions for the undertaking of any further necessary searches.

9. The following orders are therefore made:

1. The Court notes that the applicants have not as yet adduced sufficient evidence to satisfy the Court for the making of an order under Adoption Act, s 67(1)(a).

2. Grant leave to the applicants to approach my associate for the return of subpoenas to assist the gathering of evidence in relation to Adoption Act, s 67(1)(a).

3. Grant liberty to apply.

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Decision last updated: 12 September 2017