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 1. These proceedings were commenced by a summons for adoption filed in January 2018. Adnan opposed the adoption order and filed a notice of appearance. 2. 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." 1. 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. 2. 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." 1. 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. 2. 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." 1. 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." 1. 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." 1. 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. 2. 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. 3. 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". 4. 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.