Adoption of F and IR (anonymised)

[2022] NSWSC 262

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of F and IR (anonymised) [2022] NSWSC 262

Hearing dates:

17 February 2022

Date of orders:

18 February 2022

Decision date:

02 March 2022

Jurisdiction:

Equity - Adoptions List

Before:

Sackar J

Decision:

Adoption Orders Made

Catchwords:

FAMILY LAW — Children — Adoption — whether adoption clearly preferable and in the best interests of the child — whether the Court should order that child is an Aboriginal child pursuant to s 4(2) of the Adoption Act — whether the consent of the birth parents ought to be dispensed with — change of name

Legislation Cited:

Adoption Act2000 (NSW)

Cases Cited:

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482

Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Plaintiff)
K-AE (Defendant)

Representation:

Counsel:
Ms C Spain (Plaintiff)
Mr G Moore (Defendant)

Solicitors:
Crown Solicitors of NSW (Plaintiff)
Aboriginal Legal Service (Defendant)

File Number(s):

2021/119153

Publication restriction:

Nothing which would identify the parties in the matter.

Judgment

1. Application is made for the adoption and other orders in respect of two children, F and IR. The orders sought are opposed by the birth mother. However, if the court is disposed to make orders in accordance with the Summons, counsel for the birth mother submits that in each child’s case the court should make orders in accordance with s 4(2) of the Adoption Act2000 (NSW) that each is an Aboriginal child.

Background facts

2. The birth mother of both children was born in July 1980.

3. F was born in January 2011. F’s birth certificate does not record her father’s details, but Department of Communities and Justice (DCJ) records indicate the identity of the putative father of F (Court Book (CB) p 10, Affidavit of Cindy Lee George affirmed 28 April 2021 [18]).

4. F has lived with the proposed adoptive parents since May 2015 when she was 4 years and 3 months old. The Children’s Court made a guardianship order for F in favour of the proposed adoptive parents in November 2015 (CB p 143).

5. IR was born in September 2017. Paternal testing confirmed the identity of the father of IR (CB p 12, Affidavit of Cindy Lee George affirmed 28 April 2021 [30]-[34]). IR’s birth certificate was registered to record this in February 2018.

6. IR has lived with the proposed adoptive parents since she was 4 days old. Pursuant to an Order of the Children’s Court made in April 2018, parental responsibility was allocated to the Minister until IR attains the age of 18 years (CB p 215).

7. The proposed adoptive parents also care for the maternal biological siblings of F and IR, S born in August 2002 and B born in January 2005.

8. S and B were adopted by the proposed adoptive parents in November 2011. S (now 19 years old) and B (now 17 years old) currently live with the proposed adoptive parents, together with F and IR.

9. S, B, F and IR have two other maternal biological siblings, D born in April 1998 and H born in August 1999. D and H are both now adults who live independently.

10. This application was heard on 17 February 2022. I made orders and gave brief reasons on 18 February 2022. I indicated I would provide more detailed reasons in due course, these are they.

Legal principles

11. The question of whether a child is or is not Aboriginal for the purposes of the Adoption Act has recently been considered by the Court of Appeal in Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83. In particular Leeming JA in considering s 4(2) made the following comments at [52]-[56].

[52] Most importantly, the definition of “Aboriginal child” in s 4(1) contains two limbs. It takes the form of a “means and includes” definition, of which form the High Court has said that:

“As a general proposition, the adoption of the definitional structure ‘means and includes’ indicates an exhaustive explanation of the content of the term which is the subject of the definition, and conveys the idea both of enlargement and exclusion. In doing so, the definition also may make it plain that otherwise doubtful cases do fall within its scope”: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145; [2008] HCA 45 at [32] (citations omitted).

[53] I think one thing is clear. There is no requirement in order for a child to be an Aboriginal child for the child to have a specified proportion of genetic inheritance. If for example seven great grandparents of a child were Europeans or Chinese, and the eighth was an Aboriginal as that term is defined, then the child is an “Aboriginal child” as that term is defined. It is also clear that that will be so even if none of the child’s parents or grandparents identified as, or was recognised as, Aboriginal.

[54] The respondent submitted, as part of his basis for accepting the construction in Fischer v Thompson that this result tended against Belinda’s biological father’s construction. It was said:

“The consequence of the Applicant’s proposed construction of s 4(2) would be that the Aboriginal child placement principles in s 35 would apply to the adoption of any child where one distant ancestor was identified as an Aboriginal person, despite subsequent generations not self-identifying, not being accepted by the Aboriginal community as an Aboriginal person, or both.”

[55] I disagree. The Secretary’s submission is directed to s 4(2) and the inclusive limb of the definition of “Aboriginal child”. But the first limb of that definition, namely, “means a child descended from an Aboriginal”, has the consequence that a child who for generations has no ancestors who identify as Aboriginal or have been accepted by any Aboriginal community is nonetheless an “Aboriginal child”. I do not see how the child in the example I have given above, with a single Aboriginal great grandparent, is not “a child descended from an Aboriginal”. If this be a consequence which (as the Secretary’s submissions imply) this Court should strain to avoid, then it is not a consequence of s 4(2). It is a consequence of the straightforward language of the first limb of the definition of “Aboriginal child”.

[56] However, another thing is much less clear. Although anyone who is “a child descended from an Aboriginal” is undoubtedly an “Aboriginal child” because he or she falls within the first limb of the definition, the definition also contains a second, inclusive, limb. Subsection 4(2) empowers the Court to determine that a child “is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent”. What does s 4(2) achieve? What is the legal meaning of “Aboriginal descent”?

12. In considering the factual material tendered in that case his Honour further commented at [90] as follows:

[90] … However, the evidence available to this Court comfortably establishes that a man established to have been one of Belinda’s great-great-great-grandfathers, who was born around 1895, had been supplied rations at a reserve by a contractor retained by the Aborigines Protection Board in February and March 1919 and is recorded in a local newspaper dated 26 November 1915 as having pleaded guilty to a charge of disorderly conduct at the same reserve in 1915. The evidence to which Basten JA refers at [163]-[167] is confirmatory of the position. I am satisfied that Belinda is of Aboriginal descent, meaning that she is descended from the people who lived in this country before British colonisation.

13. Basten JA in referring to the evidential issues which his Honour remarked “loomed large” (at [160]) criticised the trial judge’s findings in that case (see [163]-[166]). His Honour further commented as follows:

[167] In short, the evidence before the judge was that Belinda’s mother identified as Aboriginal, there was clear evidence that her maternal great grandmother was Aboriginal, and there was evidence of acceptance by two Aboriginal corporations whose identity and relevance should not have been called into question without a basis. Further, Belinda’s adoptive mother clearly accepted that Belinda was of Aboriginal descent and had taken steps to help her have contact with her Aboriginal culture. She stated that Belinda “now knows where to find her mob on the indigenous map of all the countries”. In the case of Belinda’s mother, there was objective evidence of Aboriginal ancestry (arguably strong, though that need not be determinative) which was combined with self-identification as Aboriginal and acceptance by community organisations that she, and hence her child, were Aboriginal. That should have been sufficient on any basis to conclude that Belinda was an Aboriginal child.

[168] The courts can only work with the materials placed before them. In most cases, the courts will be dependent on material supplied by the Secretary.

14. It is true that s 126 of the Adoption Act 2000 (NSW) mandates that a court in hearing adoption proceedings may act on any statement, document, information or matter that may in its opinion assist it to deal with the matter of proceedings whether or not that statement would be admissible in evidence.

15. However, the Court of Appeal, in Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474, said that regardless of the evidentiary standards which apply the Court must base its decisions upon material which carries probative value (Meagher JA at 492-493), citing the decision of Brennan J then President of the Administrative Appeals Tribunals in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492 which is discussed further below.

16. There is no doubt that in Hackett Basten JA took the view that a good deal of flexibility needed to be exhibited when assessing evidence in such cases. It is clear that not only direct evidence but hearsay evidence which in many cases such as this is best described as oral history can be taken into account by a court in determining Aboriginality. Equally, identification as Aboriginal is important as is acceptance by Aboriginal organisations of a person as Aboriginal. The difficulty here which I address below is how to weigh the competing materials.

17. What appears to have been uppermost in Leeming JA’s appreciation of the facts in Hackett was the evidence that his Honour referred to at [90] which provided a direct link between the child in that case and one of her great-great-great grandfathers. On the other hand, Basten JA appears to have adopted a much more liberal approach in respect of the reception and evaluation of available materials. As I have observed, his Honour was somewhat critical of the primary judge’s scepticism concerning some of the evidence but observed that courts can only work with the evidence that is before them (at [168]). However, Basten JA also appears to have embraced a broad definition of the concept of descent and suggested that biological descent in that context may be unduly restrictive. In quoting from the Australian Law Reform Commission Report (at [148] of the judgment), his Honour appears to have contemplated the possibility of social descent.

18. Those remarks of Basten JA in my view are obiter in any event and as I have previously said, the evidence in any particular case is a matter for evaluation of the particular judge concerned. Importantly, the sentiments expressed by Brennan J in Pochi mentioned above are in my view telling. It is to be acknowledged that rules of evidence even when strictly applied are not there to obstruct the administration of justice they are there to aid it by ensuring that findings and the determination of parties’ rights and obligations are based on the best evidence available that has rational probative force, as explained in Pochi (Brennan J at 492-493):

The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force", as Hughes C.J. said in Consolidated Edison Co. v. National Labour Relations Board (15). To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott: "Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'" (16). That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (17) said: "These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue" (18). Lord Denning M.R. in T. A. Miller Ltd. v. Minister of Housing and Local Government said much the same: "Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law" (19), and he repeated that observation in Kavanagh v. Chief Constable of Devon and Cornwall (20). In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz, Administrative Law, Boston, 1976, pars. 115 et seq.), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edison judgment (21) required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding (see Schwartz, par. 118). But in Richardson v. Perales (22) the Consolidated Edison case was construed in this way: "The contrast the Chief Justice was drawing ... was not with material that would be deemed formally inadmissible in judicial proceedings but with material 'without a basis in evidence having rational probative force'. This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case" (23).

19. The finding that a child is Aboriginal or not can be of profound importance. Most obviously because of the need for the relevant agencies to engage with the placement principles but it does not stop there. It may well have a profound effect on the individual concerned, especially when it is made in relation to a child who has no capacity to express a view one way or the other.

20. As Leeming JA remarked in Hackett at [16] the differences in the way the Adoption Act treats the adoption of an “Aboriginal child” and the adoption of a child who is not an “Aboriginal child” should not be overstated. The primary consideration in every case is the best interest of the child and where that clashes with the Aboriginal child placement principles, the best interests of the child have priority.

21. The Act has bespoke provisions dealing with the adoption of Aboriginal and Torres Strait Islander children.

22. In the first instance it falls to the Secretary to be satisfied, having made reasonable inquiries, that a child who is to be placed for adoption is an Aboriginal child, (s 34). Once satisfied there is an obligation to enter a consultation process, (s 33).

23. The application of the Aboriginal placement principles and the consultation process are mandatory. It follows that the Secretary must have in place appropriate persons and hence resources to ensure a timely determination takes place.

24. However, as Leeming JA pointed out in Hackett, the placement principles will if needs be give way to what is in the child’s best interests. But there is another powerful factor and that is where possible and of course appropriate the child’s wishes should be taken into account. There are multiple provisions of the Act laying emphasis to this factor, (see ss 8(1)(d), 8(2)(a), 9(1), 55 and 63).

25. The determination that a child is Aboriginal may be a matter of consensus between the relevant parties or it may be contested. A preliminary hearing for example is to be conducted pursuant to s 80(2)(a) and (b) when relevant.

26. And if there is to be a contest the sooner it is resolved the better. As I have already observed, the Act in s 126 provides the court with significant flexibility in relation to those materials it may have regard to in making the relevant decision under the Act and a determination a child is Aboriginal is no exception. But there are some important qualifications contained in that section. The first and most obvious from the very terms of the section is that the court exercises a discretion in two respects. First it “may” take into account various materials in the event that they “may” assist the court in fulfilling its statutory functions notwithstanding the rules of evidence.

27. Despite the obviously flexible approach intended to be adopted it should be appreciated that such a finding especially on the child concerned both in terms of the child’s own identity but also the identity of the person or persons who are eligible to become the child’s legal parent.

28. The materials that will be germane to such an issue will be myriad in nature. Of course the best evidence would be clear evidence of biological descent no matter how far back that descent might go. It would be expected that that type of evidence if reliably sourced would usually be conclusive.

29. It will be relevant for example when the issue of Aboriginality is first raised, by whom and the circumstances and context in which it is raised. Oral history may be important and recognition by relevant bodies is obviously a factor. Self-recognition by a birth parent or relative without more may or may not carry substantial weight. Much again depends on the context and timing of such matters.

30. Depending on the age of the child, the child’s wishes will also be important, indeed very important. A good deal depends on the age of the child, his/her capacity to understand the issues, the time and context in which the child expresses those views and of course to whom the views are expressed. The mode and manner by which the child’s wishes are to be considered are amply set out in ss 127-129 of the Act.

31. Almost without exception the issue of Aboriginality is often dealt with based on written materials filed with the court. Witnesses are rarely called in person and even less frequently cross examined. Indeed this is the usual procedure followed in adoption hearings proper.

19. The decision by a court as to whether a child is Aboriginal is clearly an important one which is not to be taken lightly. A court should in my view be comfortably satisfied that a determination is appropriate. By that I do not mean to suggest the threshold need be high but a court in the child’s interest does need to reach a particular level of satisfaction and it would come as no surprise to observe that it is a factual exercise to be determined on the available materials.

20. In this case one factor that did play a significant part in my reasoning was the views not only of one of the children concerned but their older siblings with whom they have and will continue to reside and who had been adopted previously. I discuss this in detail below.

Consideration

Should the children be declared to be Aboriginal?

34. Mr Moore of Counsel who appeared for the birth mother identified a number of items of evidence found in the Court Book (CB) as supporting the conclusion that each child should be found to be Aboriginal as follows.

1. The birth mother identifies as Aboriginal (CB p 850, Affidavit of birth mother, [7]).

2. The maternal grandmother identifies as Aboriginal (CB p 832-833).

3. There are certificates of Aboriginality for the birth mother’s paternal second cousin (CB pp 354-355).

4. A genogram of S and B is relied upon (CB pp 353-354).

5. In a report prepared by a case worker, Ms Cassandra Oliver, in part contributed to by a Ms Jade Morgan (CB p 326). It is noted that in December 2014 a daughter of the birth mother’s paternal second cousin advised DCJ that she was Aboriginal and her mob was from the Kyogle area. Further in January 2015 in an Affidavit to court regarding her own daughter she stated her Aboriginal heritage came from her maternal grandmother and that she was Bunjalung. Her grandfather was the paternal uncle of F and IR’s maternal grandmother.

6. At CB p 423 there is recorded in a document prepared by New South Wales Communities and Justice that in the opinion of the author, identified as Kate Alexander, Senior Practitioner DCJ in February 2002 that “[F] and [IR] are Aboriginal”. It is also recorded that “[S] and [B] were adopted as Aboriginal children”.

7. At CB p 413 there is recorded in a document described as Aboriginal Cultural Plan for F (CB p 410) that “[F] attends school and is identified at school as Aboriginal.”

8. In the same report it is recorded (CB p 411) that members of the two children’s distant family had “Aboriginal heritage”.

9. There are also letters (CB pp 357, 373-377) where reference is made in correspondence from the maternal family about Aboriginal heritage

10. At CB p 321 it is noted again in a report of a case worker that Link Up NSW neither confirms nor denies Aboriginality.

11. The proposed adoptive parents accept that not only S and B but that F and IR are also Aboriginal.

12. Further in the birth mother’s Affidavit affirmed on 21 July 2021 at [29], [31], [32], [33], [35], [36] (CB pp 852-853) is further evidence of the birth mother’s identification as Aboriginal and involvement in an Aboriginal Corporation.

35. In my view the question of whether or not one or both children are or should be declared as Aboriginal in the circumstances of this case does not in my view affect the ultimate outcome here. That is partly because the proposed adoptive parents regard these children as Aboriginal and have adopted care plans which I am satisfied would have the effect if that was necessary of preserving their Aboriginal culture. In addition, it has not been submitted here for example that the Secretary has failed under s 34 of the Act to make reasonable enquiries. The Secretary has through its case-worker conducted interviews and has had resort to Link-Up and made numerous enquiries over the years it seems in relation to all four children. The Secretary however opposes the finding of Aboriginality in this case.

36. There is no doubt that the Act (s 35(2)(a)) identifies that a first preference in each case of an Aboriginal child is that the child be placed for adoption with a proposed adoptive parent belonging to an Aboriginal community to which the birth parents belong. However, the Act also makes clear (ss 35(2)(b)-(c)) that if it is not practical or in the best interests of the child to be so placed then another Aboriginal community or a non-Aboriginal proposed parent can be appointed instead. Section 35(3) obviously requires the court to consider if a child is to be placed with a non-Aboriginal proposed adoptive parent that the proposed adoptive parent is able to undertake the tasks set out in that subsection. Section 35(4) posits a case where the child may have one Aboriginal and one non-Aboriginal parent in which case again the court can place the child with any person provided the best interests of the child is appropriately served.

37. I am satisfied in this case leaving other issues to one side that the proposed adoptive parents are more than capable of and indeed committed to assisting the children develop the requisite understanding and appreciation of Aboriginal heritage.

38. It does seem to be that on the basis of the approach adopted in Hackett there are some factors in this case that would support a finding that the children should for the purposes of s 4(2) be declared to be Aboriginal. One piece of evidence which is singularly lacking though is any person to whom either child is related to even distantly by way of biological descent and who can with any degree of certainty be identified as Aboriginal. This case is unlike Hackett where there was a distinct piece of evidence which Leeming JA found to be of particular significance which was the evidence that the child’s great-great-great grandfather was an Aboriginal person at [90]. However, as I have commented above, Basten JA took into account matters from a variety of sources in addition no doubt to that matter to which Leeming JA referred.

Should Declarations be made here:

39. Each case must as I have said be determined on its own facts in my view. On balance I am not prepared in this case to make the declarations sought.

40. It is the fact that in 2017 the adoptions of S and B were neither consented to nor opposed. I observe that those orders were made by Ball J in Chambers in November 2017. In fairness to the birth mother, she had only just given birth to IR in September of that year. That said no application was made at that point that S and B be declared Aboriginal children. That may be explained by reason of the fact that in the Affidavit of Ms Jade Morgan affirmed on 24 August 2017 there is an adoption court report from August 2017 pursuant to s 91. It is recorded in that report (pp 10-11) that S and B did not identify as Aboriginal because they felt they did not know enough about their background. It is further noted that they tried to talk to the maternal family about their heritage, but they could not provide them with any information. It is also clear from that report that the proposed adoptive mother tried to make contact with the relevant Land Council who refused to provide information because she was not the birth mother. The report also records that in March 2017 S and B were consulted on the development of a cultural plan and again both children did not wish to identify as Aboriginal due to the limited information available. Indeed, in July 2017 it appears that S and B had expressed a reluctance to sign the adoption consent paperwork as Aboriginal persons given they did not actively identify as such.

41. It is also apparent from the Affidavit of Ms Cindy George affirmed on 28 April 2021 that very detailed enquiries have over the years been made in relation to the Aboriginal status of IR and F see [230]-[255] (CB pp 40-44). It is also true that in February 2020 the Senior Practitioner Ms Kate Alexander produced a Practice Opinion in relation to the proposed adoption of the children F and IR. Although it is critical to some extent of the Department of Communities and Justice’s attempts to explore Aboriginal heritage, it nonetheless recommends adoption as the best permanency option for the children. It also importantly notes F as being adamant about her wish to be adopted. Ms Alexander also noted that although the birth mother had consistently not supported the adoption of F and IR, B and S had however strongly advocated for their adoption saying that this would legally make them a family.

42. I also note that in the earlier Report of Ms Lisa Jackson Aboriginal Consultant at Department of Communities and Justice and dated 22 June 2019 (CB p 361) she also observed that S and B had chosen not to self-identify as Aboriginal. Ms Jackson also made note that F was present during a consultation conducted for the purposes of the report in June 2019 in which she apparently stated that “she wanted to be adopted so she could be part of the [proposed adoptive] family, like [S] and [B]. [F] stated that she does not feel like she is Aboriginal and would like to be given the opportunity to choose to identify as Aboriginal or not” (CB p 369).

43. In the materials (CB p 832) there is explained what appears to be the basis for at least the birth mother’s beliefs as to Aboriginality. One family “theory” is that a distant relative, born in 1901 was Aboriginal “possibly” due to her mother having an affair with an unknown Aboriginal man. That distant relative it seems went on to marry a non-Aboriginal man.

44. Another family theory is that two of that relative’s children (one being IR and F’s great maternal grandfather) were not the biological children of her marriage to a non-Aboriginal man, but a result of her having an affair with an Aboriginal man, whose identity was unknown.

45. I regard these materials as far too uncertain and speculative to be reliable, and self identification by the birth mother however passionate and sincerely held as a belief may be no more than that. Any person is in effect able to believe anything they wish about their culture and background. Here I accept the birth mother and some of her relatives believe they have Aboriginal heritage. They may well have convinced others to that effect but those beliefs must be weighed against other factors and in this case what appears to be the attitude and wishes of the children, as siblings. In passing I note from the available record of their adoption it does not appear to be accurate at all to suggest that S and B “were adopted as Aboriginal children”, (CB p 423).

46. Acceptance by others including schools is of course relevant but again I do not regard those matters as carrying determinative weight.

47. The other materials relied upon by Mr Moore, I also regard as unreliable because they either are to be sourced to the birth mother who in turn has been I consider much affected by what she regards as her family history. When carefully examined this history is based upon speculation rather than anything tangible.

48. I acknowledge the considerable difficulties often faced by such persons in attempting to investigate their family history. Often I accept the trail is occluded by indigenous ancestors sadly embarrassed about their heritage and who would prefer to be known or identify as anything but Aboriginal. That makes the task difficult if not impossible and serves to underline the importance on the part of the Secretary providing appropriate resources in the form of experts whether anthropologists or historians to ensure a thorough and objective investigation.

49. In the circumstances I have been persuaded that F’s views as recorded along with the view of S and B as against what I regard as speculative materials should be regarded as having great significance in this case.

50. The birth mother’s self identification deserves to be respectfully acknowledged, and the process of investigation can of course continue. Nothing I have said should in any way affect the attitude of the adoptive parents towards the children’s cultural plan. Indeed it cannot be gainsaid that every young person in Australia irrespective of cultural background should be educated about Aboriginal culture and heritage.

51. In the circumstances I am not satisfied on the evidence as a whole but more importantly given the wishes of F and the attitude of her older siblings, that the Court should declare the children Aboriginal. I do acknowledge IR is too young to be able to express a view one way or the other.

Should the orders be made?

52. The next question is what the preferable course is. There is no doubt that the children should remain with the proposed adoptive parents, and that adoption is clearly the preferable course. A very powerful factor in favour of that course is that the children will live with their maternal siblings who have already been adopted in 2017 by the same adoptive parents. Adoption in my view will therefore bring the legal status into step with the factual reality. Along with their older siblings they will be one family and happily in all of the circumstances able to remain together.

53. In addition I am entirely satisfied that the proposed adoptive parents are fit and appropriate to parent and nurture the two children concerned as they have done successfully on the evidence with the two older siblings. This is especially so given the attitude both have adopted in relation to the Aboriginal heritage of all children concerned.

54. I am satisfied in all other respects that all formal requirements of the Act have been complied with.

55. Consistent with my finding that adoption is the preferable course. In my view it would consolidate the stability and security of these children if their names were changed to accord with their proposed adoptive parents and most importantly their siblings. Although a serious step, I regard it as important for their wellbeing and in their best interests

56. Because I regard adoption as the clearly preferable course, it follows that I will dispense with the consent of the birth parents.

57. I am satisfied that the evidence amply supports the fact that the putative father is the father of F. There is ample evidence supporting paternity, see Affidavit of Cindy Lee George [23]-[29] (CB pp 10-11).

58. I am also satisfied there is ample evidence that the father registered on the birth certificate of IR is the father of IR, see Affidavit of Cindy Lee George [30]-[35] (CB p 12).

59. Because I am of the view that adoption is the preferable course, I would dispense with the consent of each of the relevant birth parents. I am satisfied that in all of the circumstances a change of the name for each of the children is both desirable and necessary in terms of consolidating the family unit and hence aiding or enhancing their sense of security.

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