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

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.

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.

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.

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

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 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.

The Court made those orders, which were:

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.

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):

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):

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

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.

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.

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”.

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.

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

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.

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.

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

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:

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”.

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.

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

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.

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

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

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.

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 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:

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 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.

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.

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.

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

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.

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.

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

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.

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.

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)).

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.

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.

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.

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.