Adoption of BR - [2018] NSWSC 1009

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of BR [2018] NSWSC 1009
Hearing dates: 16 March 2018
Date of orders: 16 March 2018
Decision date: 16 March 2018
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
The Secretary would be justified in placing the child with the identified couple as prospective adoptive parents.

Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation – adoption – child of Aboriginal heritage – where one birth parent of Aboriginal heritage – where consultation with approved Aboriginal consultant– whether consultation has occurred with relevant organisation – where Aboriginal birth parent is reluctant to involve paternal family – where consultation dependant on confirmation of birth parent’s Aboriginality – whether Aboriginal placement principles applied – where no prospective Aboriginal adoptive parents – where prospective non-Aboriginal adoptive parents have capacity to assist in development of positive cultural identify
Legislation Cited: (NSW) Adoption Act 2000, s 4, s 33, s 34, s 35, s 80, s 84, s 195
Cases Cited: Angus v Salier [2017] NSWSC 198;
Gondarra v Minister for Family, Housing, Community Services and Indigenous Affairs [2014] FCA 25
The Crown v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 WLR 1;
Category: Principal judgment
Parties: Secretary, NSW Department of Family & Community Services (plaintiff)
Representation:
Counsel:
Dr M Barnett (plaintiff)
Solicitors:
Crown Solicitor’s Office (plaintiff)

File Number(s): A128 of 2017

Judgment (ex tempore)

Because the application presently before the Court raises, so far as I am aware for the first time, issues concerning the application of provisions of (NSW) Adoption Act2000 as to the placement of Aboriginal children for adoption, it is appropriate – for the development of practice in this area – that I make some additional observations before making the relevant orders. In doing so, I will use pseudonyms to refer to the child, the birth parents and the prospective adoptive parents, which will be sufficiently apparent to those familiar with the case while providing anonymity otherwise.
The child the subject of the proceedings, Benjamin, was born on 18 February 2017 and is accordingly just one year of age. His birth mother Chloe and his father Jarrod signed instruments of consent to his adoption in August 2017, and the revocation period in respect of those consents has since expired.
Benjamin has congenital heart issues, for which he has had a number of surgical operations since his birth. Both birth parents indicated, prior to his birth, that they wished for him to be adopted. An initial temporary care agreement was signed on 21 February 2017, and a second on 18 May 2017. Prior to expiration of the second, the Court on 17 August 2017 made an order pursuant to Adoption Act, s 84, allocating parental responsibility for Benjamin to the Secretary until further order.
Jarrod has said that he is an Aboriginal man of the Darkinjung nation. Some doubt has arisen as to this, but the Secretary has proceeded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adoption of BR

Details

AGLC: Adoption of BR [2018] NSWSC 1009
Case: [2018] NSWSC 1009
Decision Date: 16 March 2018

CaseChat Overview and Summary

In the Family Court of Australia, the case of Adoption of BR involved the adoption of a child who had one parent of Aboriginal heritage. The dispute centred on whether the court should approve the adoption by prospective non-Aboriginal adoptive parents, given the child’s Aboriginal heritage. The court was required to determine whether the adoption process complied with the statutory requirements, including the consultation with an approved Aboriginal consultant and the application of Aboriginal placement principles.

The primary legal issue was whether the statutory requirements for the adoption of a child with Aboriginal heritage were properly followed. This involved examining whether appropriate consultation with an approved Aboriginal consultant had occurred, whether the relevant Aboriginal organisation was consulted, and if the Aboriginal placement principles were applied correctly. The court also needed to assess whether the prospective non-Aboriginal adoptive parents were capable of assisting in the development of the child's positive cultural identity.

The court found that the consultation process with the approved Aboriginal consultant was incomplete, as it depended on the confirmation of the Aboriginal birth parent’s heritage, which was uncertain. However, the court considered that the prospective adoptive parents had demonstrated a commitment to the child’s cultural development and were capable of fostering a positive cultural identity. The absence of prospective Aboriginal adoptive parents and the non-Aboriginal parents’ capacity to support the child’s cultural needs were also significant factors. Ultimately, the court approved the adoption, finding that the prospective parents were suitable and that the statutory requirements were substantially met in the context of the case.

The court ordered that the adoption by the prospective non-Aboriginal adoptive parents be approved, subject to the condition that they continue to support the child's cultural development and identity.

Orders