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

[2018] NSWSC 617

Supreme Court

New South Wales

Medium Neutral Citation:	Secretary, New South Wales Department of Family and Community Services v Michael [2018] NSWSC 617
Hearing dates:	7 May 2018
Date of orders:	07 May 2018
Decision date:	07 May 2018
Jurisdiction:	Equity - Adoptions List
Before:	Kunc J
Decision:	Orders for adoption made
Catchwords:	FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Practice and procedure – Adoption orders made in absence of defendant birth father – No issue of principle
Legislation Cited:	Adoption Act 2000 (NSW)
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (Plaintiff)
Representation:	Counsel: C. McGorey (Plaintiff)   Solicitors: Crown Solicitor (Plaintiff)
File Number(s):	A75/2017
Publication restriction:	No

EX TEMPORE Judgment (REVISED)

1. This is an application for the adoption of siblings Jocelyn (born 2006), Margaret (born 2007) and George (born 2009) (together, the “children”) to Max and Heidi pursuant to the provisions of the Adoption Act 2000 (NSW) (the “Act"). The defendant, Michael, is the birth father of the three children. The birth mother of the children, Denise, has not formally opposed the adoption or become a party to the proceedings, but has been made aware of the course of the litigation at every stage. All the names in these reasons are pseudonyms and no disrespect is intended by the use of given names.

2. The Court is well satisfied that it is in the best interests of the children for them to be adopted by Heidi and Max. But for the fact that this has been, in form, a contested adoption, I would not normally deliver reasons on the issue of adoption. I have directed that the helpful and comprehensive outline of submissions prepared by Mr C McGorey of Counsel, who appeared for the plaintiff, should remain with the papers. I do not propose to repeat what is set out in those submissions, but note that the Court accepts and acts upon them in making the adoption orders.

3. These reasons are necessitated only because today's hearing is proceeding in the absence of Michael. It is to that circumstance that these reasons are directed rather than to the substantive issue of the adoption of the children.

4. The proceedings were commenced by summons filed in May 2017. Shortly thereafter, Michael entered an appearance. As a result, the matter entered the Adoptions List of this Court as a contested adoption.

5. The original proceedings were originally listed before me on 5 October 2017. Michael does not live in Sydney, but had been in contact with the plaintiff. I was provided with a set of consent short minutes of order which had been signed by the solicitor for the plaintiff and by Michael, which orders I made in chambers on 5 October 2017. Those orders included that Michael be joined as a party to the proceedings and be provided with the evidence in the proceedings. Directions were made to prepare the matter for preliminary hearing. The matter was adjourned to 13 November 2017 for preliminary hearing, the orders including the statement that "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".

6. When the matter was called on 13 November 2017 for preliminary hearing, there was no appearance for Michael, although the Court was satisfied that he was aware of the hearing date. The Court was informed that a solicitor apparently instructed by Michael (but not formally on the record for him) had been in touch with the plaintiff. There was some correspondence which suggested that Michael's opposition to the adoption could be resolved by various amendments being made to the adoption plan which was to be registered.

7. Therefore, on 13 November 2017 I adjourned the preliminary hearing to 16 February 2018 and made the notation:

“Note that if it appears that the adoption will proceed as an uncontested adoption, then provided the Court is given at least 48 hours’ notice of that fact, the fixture for the preliminary hearing can stand as a fixture for the making of the adoption orders, if the Court is otherwise satisfied that those orders should be made."

8. On 22 December 2017, during a contact visit, a serious incident of violence occurred which required the nature of any future contact to be reconsidered. It is unnecessary for me to set out the details of that incident. The plaintiff, however, was of the view that it was sufficiently serious that further expert advice should be obtained from a qualified psychologist in relation to how any future contact could proceed.

9. When the matter came before me on 16 February 2018, when I was again satisfied that Michael knew of the hearing date, directions were made for the filing and service of further evidence, including the proposed expert psychological report. The preliminary hearing was again adjourned, this time to 20 April 2018 on the express basis:

"That the proposed adoptive parents and Defendant are required to attend on that day...if the defendant fails to comply with [the order for attendance] the Court may determine the summons for adoption in his absence on an uncontested basis.”

10. When the matter came before me on 20 April 2018, there was again no appearance for Michael and no explanation as to why. The plaintiff was not in a position to prove formal service and, in any event, some further amendment to the paperwork was necessary because of the new expert psychological evidence. Accordingly, I made directions for the filing and service of a further amended summons and amended contact plans on the defendant, with a view to either conducting the preliminary hearing or making final orders today.

11. I am satisfied on the basis of affidavit evidence that has been read today, that the orders I made on 20 April 2018 for service of the various material on the defendant have been complied with and I find that Michael is aware of today's hearing.

12. The affidavit evidence to which I have just referred included:

“18. I also advised [Michael] that the matter was next listed before the Supreme Court on 7 May 2018 in which if he failed to make an appearance, either in person or via a legal representative, the Judge may make an order in his absence.

19. The birth father indicated that he would not only be making a statement as to the current contents of the proposed paternal adoption plan, but would also be in attendance on 7 May 2018".

13. On 2 May 2018 the officer with the carriage of the matter had a further phone call with Michael concerning some changes that he wanted made to the adoption plan. Those changes were agreed. The officer's file note of that conversation included:

“'I asked Michael whether he was still planning on turning up to Court on Monday and he said he was. I asked whether he was still planning on contesting the adoption. He said he was, he wants FACS to remain involved in the kids to make sure they stay safe until they returned home to him or Denise.'"

14. When the matter was called on for hearing this morning, Michael did not appear either by himself or by a legal representative. I had him called outside the Court and there was no appearance. There was no explanation for his absence. In the circumstances, I am satisfied that the Court should proceed to hear the application on a final basis in his absence as an uncontested matter.

15. As I have indicated, the Court is satisfied that orders for the adoption of the children by Heidi and Max should be made for the reasons set out in Mr McGorey's submissions.

16. The Court is also satisfied that the amended registered maternal adoption plan and amended registered paternal adoption plan are in accordance with the best interests of the children and reflect and adopt the advice of the expert psychologist as to how future contact should, if it can, be restored and maintained after any such restoration. I should note that, in the case of Denise, she has been provided by the plaintiff with the latest version of the amended registered maternal adoption plan. She has informed the plaintiff that she is content with that document, but does not wish to sign it.

17. Being satisfied that all the formal prerequisites have been met and that it is in the best interests of the children for them to be adopted by Heidi and Max, I will make orders for the adoption. I also rely on that conclusion for the purposes of making an order dispensing with the consent of Michael and Denise, that dispensation being in the best interests of the children so as to enable the adoption to proceed. I will also order the respective paternal and maternal adoption plans to be registered.

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Decision last updated: 07 May 2018