Secretary, New South Wales Department of Family and Community Services v Adnan

[2019] NSWSC 467

Supreme Court

New South Wales

Medium Neutral Citation:

Secretary, New South Wales Department of Family and Community Services v Adnan [2019] NSWSC 467

Hearing dates:

26 April 2019

Date of orders:

26 April 2019

Decision date:

29 April 2019

Jurisdiction:

Equity - Adoptions List

Before:

Kunc J

Decision:

Adoption order made

Catchwords:

FAMILY LAW — Children — Adoption

Legislation Cited:

Adoption Act 2000 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Family and Community Services (Plaintiff)

  “Adnan” (Defendant)

Representation:

Counsel:

 

D Ward (Plaintiff)

 

Solicitors:

  Crown Solicitor (Plaintiff)

File Number(s):

A008/2018

Publication restriction:

No

Judgment

Summary

1. At the conclusion of a hearing on 26 April 2019 the Court made orders approving the adoption of Miriam by Caroline and Fiona and dispensing with the consent of Miriam’s birth parents, Adnan and Penny. These are the reasons for those orders.

2. Other than counsel, all of the names in this judgment are pseudonyms. No disrespect is intended to any person by the use of given names.

3. Ms D Ward of Counsel appeared for the plaintiff. I am grateful for her careful presentation of the case and comprehensive written submissions, some parts of which are incorporated in these reasons. In circumstances which I will next explain, there was no appearance for Adnan, the defendant birth father.

Procedural background

4. These proceedings were commenced by a summons for adoption filed in January 2018. Adnan opposed the adoption order and filed a notice of appearance.

5. Once the plaintiff’s evidence was complete, the matter was referred to me in chambers as a contested adoption in October 2018. I appointed a directions hearing for 21 November 2018. On that occasion there was no appearance for Adnan, but I was informed by the plaintiff’s solicitor (T1:29-41):

“I had a telephone conversation with him last night. I have had considerable difficulty making contact with him but I was able to. He indicated that he still wanted to participate and that he would be coming today.

I made a further phone call to him this morning and he indicated that he was not able to get a lift from the ACT where he is at present, so he would not be coming today.

He indicated that he is seeing a solicitor this Friday in relation to the adoption.

We also offered for him to appear via telephone, made a further phone call this morning, and he indicated that he would rather appear in person after he has consulted with a solicitor.”

6. I was also informed that Adnan had been shown the short minutes of order proposed by the plaintiff but had not responded in any way to them.

7. The Court made those orders, which were:

“1. That pursuant to s.118 of the Adoption Act 2000 (“the Act”) the birth father, Adnan, be joined as the Defendant to the proceedings.

2. That leave be granted to the Plaintiff to serve the Summons, and evidence upon which he relies (including the s.91 report) on the Defendant by 5 Defendant 2018 with the following redactions:

a.   The middle name and surname of the proposed adoptive parents;

b.   The proposed adoptive parents’ residential street address, including their suburb, and phone numbers;

c.   The name, street address and suburb of Miriam’s pre-school;

d.   The name of the proposed adoptive parents’ employers and address of the proposed adoptive parents’ place of work;

e.   The middle name, surname and contact details of the referees;

f.   The birth mother’s residential street address, including her suburb; and

g.   The birth mother’s phone number.

3.   That the Defendant serve any evidence in reply by 5.00pm on 16 January 2019.

4.   That the Plaintiff serve any further evidence in reply by 5.00pm on 6 February 2019.

5. That leave be granted to the Plaintiff to provide a copy of the s.91 report and any evidence served by the Defendants in accordance with order 3 above to the proposed adoptive parents.

6.   That the matter be adjourned to 18 February 2019 at 9.30am for preliminary hearing at which time the Court expects to hear from each party personally and on oath, in relation to the nature of their case and the reasons for it, and to settle a list of issues in dispute.

7.   Liberty to any party to apply to relist the matter on 3 days’ written notice by email to the Associate to Kunc J.

8.   Direct the plaintiff to provide a copy of these orders to defendant as soon as practicable.”

8. By the time of the preliminary hearing on 18 February 2019, Adnan had not filed any evidence in accordance with the preceding orders. He did not appear at the hearing but belated contact was able to be made with him by mobile phone. He told me that he had not understood that he was expected to attend the Court in person.

9. Adnan informed the Court that the sole basis for his objection to the adoption order was that because he was Miriam’s biological father he wanted to be the one to raise her. He said that he was in the course of obtaining legal advice, including making an application for Legal Aid, and that at any hearing he would apply to have Miriam restored to him. The preliminary hearing included this exchange between me and Adnan (T3:33-4:13):

“Q. Can I ask you this, Sir: If the Court was of the view that your daughter should not be restored to you, do you

A. Yes.

Q. have any other objection to the proposed adoptive parents becoming the lawful parents of this little girl?

A. Yes, your Honour. I would like to know why is the matter listed today. I would like to know why because I come from a very well respected family.

Q. Well my question would be, was really premised on the fact that if for some reason the Court

A. Yes.

Q. was of the view that it was not appropriate for the child to be restored to you. do you have any other particular objection that should be dealt with in relation to the proposed adoptive parents?

A. Umm, yes your Honour. What I would just like to seek more legal advice and any, like, other objections I mean for her care with the foster parents and

at the end of the day I respect what they are doing basically and at the end of the day they want what is best for my daughter and definitely so do I as well, but I just think that me being her biological father that she will be more content with me so like with me obviously being her father then she has got my mother there and all the support there that she will need and that is where I am just trying to see what is wrong with that.

Q. So as far as the Court is concerned would I be correct in proceeding on the basis that when this comes on for hearing

A. Yes.

Q. your application will be for her to be restored to your care?

A. Yes, correct. Yes, your Honour.”

10. The Court made orders to prepare the matter for a contested hearing to be held on 26 April 2019. Adnan confirmed his address for service and that the plaintiff’s solicitor also had his personal email address. I then had this exchange with Adnan (T6:10-37):

“HIS HONOUR: I am going to fix this case for hearing on Friday, 26 April.

BIRTH FATHER: One second your Honour. Can I please check one matter, is that okay?

HIS HONOUR: Yes, and we will send you, or the solicitor for the Secretary will send you the orders that I am making today but most importantly for present purposes the hearing of the actual case will be on Friday 26 April.

BIRTH FATHER: One second your Honour, sorry yes, that is Friday, yep,

26 April, yes.

HIS HONOUR: That will be here in Sydney so you will have to attend.

BIRTH FATHER: Yes.

HIS HONOUR: And, Mr XXX, you will have to attend if you wish

BIRTH FATHER: Yes.

HIS HONOUR: whether or not you have legal representation.

BIRTH FATHER: Yes, yes, yep.

HIS HONOUR: If you don't attend then you must understand that the case is likely to proceed in your absence and I may make orders in your absence.

BIRTH FATHER: Yes.”

11. After the terms of the orders had been agreed, this exchange ensued: (T8:48-T9:27):

“HIS HONOUR: These orders will be sent to you by the plaintiff but there are two very important dates which you should make a note of now.

BIRTH FATHER: I will just do that right now your Honour, yes.

HIS HONOUR: The first date is that you must serve any evidence on which you propose to rely by 29 March.

BIRTH FATHER: Yes. Give me one sec your Honour, sorry, I will just write that down, sorry, yes. So your Honour

HIS HONOUR: So your evidence, you must serve your evidence by 29 March.

BIRTH FATHER: Yes.

HIS HONOUR: There will be an opportunity for the plaintiff to file some material in reply and these orders, which I won't take time to read to you now, also make provision for the filing of written submissions in the couple of weeks before the hearing.

BIRTH FATHER: Yes.

HIS HONOUR: But you will be able to read that, or your lawyer, if you have a lawyer, will be able to read that.

BIRTH FATHER: My lawyer, yes.

HIS HONOUR: The other important date is 26 April, that is the hearing date.

BIRTH FATHER: I will just write that down your Honour, yes.”

12. It will be clear from the foregoing that there can be no doubt that Adnan knew the date of the final hearing. The plaintiff tendered further evidence to demonstrate that since the February hearing further material proposed to be relied upon by the plaintiff had been sent or emailed to the postal and email addresses nominated by Adnan.

13. Despite all of this, when the matter was called on for hearing, there was no appearance for Adnan. Nor had he filed any evidence. The plaintiff sent an email to Adnan the afternoon before the hearing reminding him of the hearing. There was no response to that email. The plaintiff’s solicitor also made two attempts to telephone Adnan on his mobile phone shortly before the hearing commenced. There was no answer and a message was left on his voicemail.

14. Given Adnan’s pattern of non-participation or procrastination, I could see no point in further adjourning the proceedings. The hearing therefore proceeded in Adnan’s absence. In reaching this conclusion I was mindful that s 8(1)(e1) of the Act provides that in making a decision about the adoption of a child, one of the principles to which the Court should have regard is that “undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare”.

15. Because the hearing then proceeded, in practical terms, as an uncontested matter, and because it was clear beyond doubt that the making of an adoption order was in Miriam’s best interests, I am able to set out my reasons in relatively short form.

Miriam

16. At the time of the hearing Miriam was five and a half years old.

17. She was assumed into the care of the Minister for Family and Community Services when she was one day old. Final orders placing her in the parental responsibility of the plaintiff were made when she was eight months old.

18. Her assumption into care and consequent Children’s Court proceedings arose from the fact that Miriam’s two older maternal half-siblings, Ben and Lizzie, had themselves been the subject of Children’s Court proceedings the previous year. In the course of those proceedings an expert report identified significant cognitive disability and depressive symptomology in Penny. This offers some explanation for Penny’s apparent inability to maintain stable accommodation, provide constant care for the children and to attend to her own antenatal care at the time. In addition, during the Children’s Court proceedings Penny tested positive for cannabis, amphetamine and opiates while pregnant with Miriam.

19. Both Ben and Lizzie have Fragile X syndrome, developmental delay and autism. Ben is more severely affected than Lizzie.

20. The expert medical evidence is that Miriam has mild intellectual disability, autism spectrum disorder of moderate severity, severe language disorder and suspected ADHD. In combination these may have a significant impact in many areas of her development and functioning such as:

1. impaired communication skills and social functioning;

2. impaired adaptive skills, difficulties in planning, organisation and copying with changes during late childhood/adolescence and young adult life;

3. impaired behavioural functions;

4. increased risk for mental health disorders from late childhood through adult life;

5. reduced academic performance, cognition, low self-esteem and higher risk of dropping out of school;

6. as an adult there is a higher chance of poor social/psychological outcomes;

7. increased vulnerability in adolescence and young adult years due to expected difficulties in social communication, emotional immaturity, understanding social overtures, appropriate understanding of social cues and the like.

21. The evidence does not suggest that Miriam will inevitably go on to develop all or any of these functional difficulties. However, there is no doubt that Miriam will need focused and attentive parents who can give her the assistance that she needs. The expert medical evidence was to the effect that “Miriam will require additional interventions (educational, allied health and behavioural intervention) throughout pre-school and school years and likely after that. Many of those will assume rather intensive and long term engagements of her family/carers in the intervention program”.

22. Miriam exhibits challenging behaviours from time to time. She has already had some difficulties adjusting to preschool and there have already been instances when Caroline or Fiona has had to “drop everything” to attend the preschool and provide assistance.

23. Due to her age, Miriam has no awareness of adoption but apparently understands that she has two families.

Penny

24. There was some contact between Penny and Miriam during the first three months of Miriam’s life. Since then, Penny has regularly declined offers to see Miriam, but has not foreclosed the possibility of seeing Miriam at some time in the future.

25. In the report provided for the purposes of s 91 of the Act, the adoptions assessor records that during an interview with Penny:

“She said she supported the plan for Caroline and Fiona to adopt Miriam. She said that she knew that Caroline and Fiona would give Miriam a better life than she could. She said “They will give her love and affection and everything she needs”. Penny said she knew Fiona and Caroline would “look after Miriam”. The process of formally consenting to the adoption was explained to Penny at this interview, but she replied, “I don’t want to formally consent, this is too much for me”. She, however, reaffirmed the verbal consent to the adoption of Miriam.”

Adnan

26. Adnan has not seen Miriam since 2013. They are strangers to each other despite efforts having been made to permit him to maintain contact.

27. In November 2013 he said that he did not wish to have any further contact with Miriam. In November 2016 Adnan met with a caseworker to discuss his slow introduction into Miriam’s life, initially by sending photographs. Adnan did not follow through with providing photographs and has not otherwise sought contact with Miriam.

28. In 2017 Adnan was convicted of dishonesty offences and was sent to prison. In connection with that conviction a psychiatric report dated 19 September 2017 was prepared. That report was tendered in these proceedings. The report concluded that Adnan was suffering from probable emerging psychotic illness, learning disorder and mild intellectual disability. It included:

“The diagnosis of a probable emerging psychotic illness is based on the history of auditory hallucinations giving rise to what seem to be a delusional belief regarding the existence of an invisible companion, the account of his behaviour and the morbid change described by his sister, the information in the documents, in particular, Mr XXX’s account of Mr XXX’s concern about the decline in Adnan’s mental health, and aspects of Adnan’s presentation during the interview, which, notwithstanding what seemed to be an attempt to create the impression that he was mentally ill, were consistent with the presence of an underlying or emerging psychotic illness such as schizophrenia.

There is a family history of mental illness, as Adnan and his sister reported that their older brother had a form of mental illness that was thought to have been triggered by drug use, but which is now diagnosed as schizophrenia and has contributed to his ongoing disability. There is no information to suggest that Adnan had any form of substance use disorder.”

29. The plaintiff also tendered a casenote report from the New South Wales Department of Corrective Services dated 2 February 2019 in relation to Adnan’s probation which included:

“Adnan arrived for scheduled interview. Appeared in good health. … Reports that he is still taking his medication for schizophrenia and feels good. Stated nil negative peers or associates. Nil issues at home. Spending time with family and looking after mother. …”

30. In summary, the Court has no other evidence about Adnan’s circumstances beyond the fact that he appears to be living at home with his parents and that he has a schizophrenic condition which is currently being successfully controlled by medication. He has failed to take any of the opportunities extended to him to adduce any evidence of his circumstances. He has had no contact with Miriam since her birth. Taking all of those matters together, and compared to the strength of the evidence supporting the conclusion that adoption is in Miriam’s best interests, any application he might have made for Miriam to be restored to him would have failed.

Fiona and Caroline

31. Fiona and Caroline are, respectively, a nurse and a teacher. They are in their late 30s and have been in a relationship since 2012. They are in regular employment and jointly own a home which is subject to a mortgage that they are able to service as part of their ordinary outgoings. It is sufficient to record that the Court is satisfied that, in a material sense, they are well able to provide for Miriam’s needs.

32. All of the evidence supports the conclusion that Miriam has formed a close and loving relationship with Fiona and Caroline. They are the only parents she has known. Miriam calls them “Mumma” and “Mummy”. Emotionally, socially and practically they are a family unit. Fiona and Caroline have already demonstrated their practical willingness and capacity to deal with Miriam’s challenging behaviour from time to time. It is clear that they love her, are proud of her, and can and will do everything necessary to ensure she develops to the best of her potential as and when she is able.

Consideration

33. I have no doubt that, in accordance with s 8(1)(a) and s 90(1)(a) of the Act, the application of the paramount consideration of the best interests of Miriam, both in childhood and in later life, means that what is already her social reality should become a legal reality by ordering her adoption by Fiona and Caroline. In reaching that conclusion, I have taken into account and accepted the evidence to that effect by the adoptions assessor who prepared the report under s 91 of the Act.

34. Having regard to s 8(2) of the Act, I have taken into account the following:

1. Miriam strongly identifies as a member of Fiona and Caroline’s family and that they are her parents. Of all the people in her life, they are best able to meet her physical, emotional and educational needs (s 8(2)(c) of the Act).

2. Fiona and Caroline are best placed to help Miriam cope with and, as far as possible, overcome any manifestations of the intellectual and related disabilities with which she has been diagnosed (s 8(2)(d) of the Act).

3. Penny supports Miriam being adopted by Fiona and Caroline. While Adnan has said he opposes the adoption, his conduct in relation to this litigation demonstrates that he is either unable or unwilling (or both) to provide the Court with any basis on which it might conclude that restoration to his care would be in Miriam’s best interests as opposed to being adopted by Fiona and Caroline (s 8(2)(e) of the Act).

1. Miriam has no relationship with either Penny or Adnan. That state of affairs has come about as a result of the deliberate decision of each of Penny and Adnan (s 8(2)(f) of the Act).

2. Fiona and Caroline are obviously committed to being the best parents they can be for Miriam and have a mature and realistic appreciation of the responsibilities of parenthood, in particular the challenges that they are committing themselves to help Miriam face. As I have observed in paragraph [32] above, each of them has a warm and loving relationship with Miriam. The Court is satisfied on all of the evidence that each of Fiona and Caroline is suitable and has the capacity (both practically and emotionally) to provide for Miriam’s needs, including her emotional and intellectual needs (s 8(2)(g), (h), (i) of the Act).

3. By reference to all of the previous considerations and what appears in paragraph [35] below, having considered the alternatives to the making of an adoption order and the likely effect on Miriam in both the short and longer term of changes in her circumstances caused by the adoption, this is an obvious case where adoption is the best way to meet Miriam’s needs and is clearly preferable in her best interests than any other action that could be taken by law in relation to her care (s 8(2)(k) and s 90(3) of the Act).

35. I accept the evidence of the adoptions assessor that an adoption order is preferable to any of the alternatives, including the status quo, allocating parental responsibility to Fiona and Caroline or restoration to either of Penny or Adnan. In relation to this last aspect, Penny consents to the adoption and Adnan has completely failed to demonstrate any basis on which the Court could contemplate it being in Miriam’s best interests to be restored to him. It is in Miriam’s best interests that she have the security of being a member of Fiona and Caroline’s family for life, which can only be achieved by the making of an adoption order.

36. I also accept Ms Ward’s submission that there is a further and very important consideration in favour of the making of an adoption order. Ms Ward put the submission as follows, acknowledging that it would be open to the Court to make a parental responsibility order in favour of Fiona and Caroline rather than an adoption order. She submitted that it might be thought that this would address the practical limitations of the current arrangements but it would not address the evidence about Miriam’s particular psychological needs.

37. Ms Ward referred to the expert medical evidence from a specialist general paediatrician that:

“Attachment as [sic] a major developmental milestone in the child’s life that remains an important issue through the lifespan, affects children’s physical, psychological, behavioural and developmental wellbeing and is a fundamentally important issue for child protection. The role of attachment becomes [an] even more important consideration in children with history of neglect, abuse, developmental and behavioural disorders ... and numerous other paediatric problems … having a strong attachment is a critical protective factor and helps maintain positive relationships during unavoidable negative interactions between children with behavioural disorders and their families. Taking into consideration Miriam’s background, developing and maintaining good attachment carries a particularly increased importance for her.”

38. Recognising the strength of Miriam’s attachment to Fiona and Caroline now, the Court accepts Ms Ward’s submission that the consideration identified by the paediatrician is a decisive one in favour of adoption being preferable to any other action that could be taken at law in relation to Miriam. More than giving effect to her to lived reality (which is itself a significant factor) it is an adoption order that will best support the familial bond, extending beyond 18 years of age and providing the strongest possible foundation for Miriam and her adoptive parents to rely upon, should any of the potential behavioural and relationship difficulties that the expert medical witness identifies, actually eventuate for Miriam.

39. Having reached the conclusion that it is in Miriam’s best interests that an adoption order be made in favour of Fiona and Caroline, there are three final matters that should be briefly noted.

40. First, the plaintiff sought an order dispensing with the consent of each of the birth parents pursuant to s 67(1)(d) of the Act. Section s 67(1)(d)(i) requires the Court to be satisfied that Miriam has established a stable relationship with the proposed adoptive parents (who are authorised carers pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW)).

41. I have already set out why I was satisfied that Miriam has established a stable relationship with Fiona and Caroline. Section 67(2) of the Act provides that the Court “must not make” a consent dispense order unless it is satisfied that to do so is “in the best interests of the child”. For the reasons set out in paragraphs [33] to [38] above, I am satisfied that it is in Miriam’s best interests that an adoption order be made in favour of Fiona and Caroline. For such an order to be made, it is necessary in the circumstances of this case to dispense with the consent of the birth parents. Because that order is necessary to enable the adoption order to be made, it is in the best interests of Miriam for the consent dispense order to be made.

42. Second, I should record that the Court is satisfied that the adoption plans proposed in relation to Miriam are in her best interests and are proper in the circumstances for the purposes of s 90(2) of the Act. The paternal and maternal adoption plans each provide means whereby Penny and Adnan can commence to establish a relationship with Miriam if they wish. Each plan does so appropriately by allowing for the sensitive management of the process, including that the current adoption agency or the Secretary’s department would be involved in the process by passing on contact details and conducting an initial risk assessment.

43. The maternal adoption plan also provides for ongoing contact between Miriam and her maternal half-siblings, Ben and Lizzie. Miriam has enjoyed the contact that there has been to date with her maternal half-siblings. Those contacts have also been attended by Penny’s mother. The plan provides for Penny’s mother to continue to be involved with ongoing contact if she wishes to do so.

44. Finally, the orders which the Court made provided for Miriam’s surname to be changed to a hyphenated compound of the surnames of Fiona and Caroline (s 101(1)(b) of the Act). Penny supported that name change. It is well understood that someone’s name is an essential part of their identity, with the surname indicating their familial identity. Changing Miriam’s surname in the way proposed is in her best interests because it confirms to her and manifests to all the world her social, and now legal, reality as Fiona and Caroline’s daughter.

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Decision last updated: 29 April 2019