APP: DIRECTOR GENERAL OF DOCS - CHILD: BCD

[2003] NSWSC 1040

CITATION:	APP: DIRECTOR GENERAL OF DOCS - CHILD: BCD [2003] NSWSC 1040
HEARING DATE(S):	10/11/2003
JUDGMENT DATE:	11 November 2003
JURISDICTION:	EQUITY
JUDGMENT OF:	Bryson J at 1
DECISION:	See [11] - approval of placement of Aboriginal child for adoption.
CATCHWORDS:	ADOPTION - Aboriginal Child Placement Principles s.35 - DOCS proposed to place child with H&W where H is Aboriginal and W is non-Aboriginal - on the facts, the Aboriginal Child Placement Principles have been complied with and the Court is satisfied of the matters in subs.35(3) - declaration accordingly.
LEGISLATION CITED:	Adoption Act 2000
PARTIES :	The Director-General of the Department of Community Services
FILE NUMBER(S):	SC A80097/2003
COUNSEL:
SOLICITORS:	Dept. of Community Services (officers of Department)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTIONS LIST

BRYSON J.

TUESDAY 11 NOVEMBER 2003

A80097/03 The application of the Director General of the Department of Community Services
Child: BCD

JUDGMENT

1 His Honour: Section 180 of the Adoption Act 2000 imposes a restriction on publication of the identity of parties to adoption proceedings. It is an offence to publish the names of any of the parties, or to publish any matter reasonably likely to enable any of them to be identified; the restriction appears more fully in s.180. I have not authorised the publication of names or any identifying matter, and have drafted these observations so as to avoid stating names or giving other identifying information. I propose to publish these reasons, as this is the first application of this kind which has come before the Court, but I point out that it is a punishable offence to publish identifying material.

2 The plaintiff, the Director General of the New South Wales Department of Community Services, applies by Summons of 31 October 2003 for an order approving placement of the child with proposed adopting parents.

3 The decisions which I am called on to make by this application are required by s.8 of the Adoption Act 2000 to be made with regard to the principles set out in s.8, which I have considered. My consideration of those principles has led me to take a favourable view on the present application. Consideration of the placement of the child for adoption is a matter upon which subs.80(2) of the Adoption Act 2000 requires that a preliminary hearing be held. A preliminary hearing was held on Monday 10 November 2003. The birth parents, and also the proposed adoptive parents were notified of the preliminary hearing, in circumstances which gave them an opportunity to attend if they wished to oppose the application or to be heard on it, and they did not do so. The proceedings were heard in camera as required by s.119. Officers of the Director General were the only persons who attended.

4 The child was born early in 2003. She is an Aboriginal child, as both her birth parents are Aboriginal within the meaning of that word as defined in subs.4(1) of the Adoption Act 2000. Accordingly, in the placement of the child for adoption, it is necessary to comply with the provisions of Pt.2 Div.2 of the Adoption Act 2000. The evidence shows that the Director General has complied with s.34 by making inquiries and has established, in a clear way, that the child is an Aboriginal child. Sections 33 to 36 make a number of provisions special to placement of Aboriginal children for adoption. The Aboriginal Child Placement Principles stated in s.35 are to be applied in placing an Aboriginal child for adoption.

5 In my application of the Aboriginal Child Placement Principles it has been a circumstance of high importance that the birth parents and their close families are not willing to undertake care of the child, and in the setting of their cultural practices and the wishes of the birth parents themselves it is not reasonably possible for the relatives to do so. With great intensity, the birth parents wish the birth of the child and the circumstance of the child’s birth to be secret. The Director General wishes the child to be placed for adoption with proposed adoptive parents, the prospective adoptive father being Aboriginal and the mother being non Aboriginal. The prospective adoptive parents are married in a stable marriage. However they have no association with the Aboriginal communities to which the birth parents belong. The child is to be placed with a prospective adoptive parent (being the father) from another Aboriginal community, as referred to in para.(b) of subs.35(2), and is also to be placed with a non Aboriginal prospective adoptive parent, being the mother; so that the placement is not to occur unless, as prescribed by subs.35(3) the Court is satisfied of the matters there set out.

6 The prospective adoptive mother has, I find, the capacity to assist the child to develop healthy and positive cultural identity, she has knowledge of and is willing to teach the child about the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and she has the capacity to help the child if the child encounters racism or discrimination in the wider community. These findings are based on evidence produced by the Director General in support of the application, all of which must be understood in the context of her happy, stable and long-standing marriage to an Aboriginal person. The evidence includes a detailed profile of the proposed adoptive parents, their family background, racial background, their personality, lifestyle, parenting plans and views on adoption, including their readiness for future contacts with the birth parents. The Department has produced a meticulously detailed adoption assessment report prepared by a professional Social Worker, an Aboriginal Cultural Adoption Assessment and a letter of endorsement from an Aboriginal community leader. This material strongly supports the findings I have made.

7 I am satisfied that the Aboriginal Child Placement Principles have been properly applied.

8 Evidence shows that the Director General has explicitly addressed and has made a decision, pursuant to s.36, that he is satisfied that adoption is preferred to any other course of action in respect of the child.

9 As both the birth parents have given general consents to the adoption of the child, the Director General is the guardian of the child having regard to s.75 of the Act. The Director General has asked me to make an interim order under s.84 dealing with parental responsibility for the child, and giving parental responsibility to the Director General. In my view it is not appropriate to make an order under s.84, as on a whole view of that section including subss.(1) and (4) the section relates to a case where there is an application to the Court for an order for the adoption of the child, and the application remains undetermined. In my view guardianship under s.75 continues notwithstanding adoption placement, and will continue until an application is in fact made to the Court for an adoption order. There has not yet been such an application; the present application relates only to placement, and there is no occasion to make an order expressly dealing with parental responsibility or to disturb the Director General’s continuing guardianship under s.75.

10 For these reasons I have made an order pursuant to subs.35(3) approving the placement of the child with the prospective adopting mother. To avoid apparent ambiguity and doubt which might otherwise be created by the terms of the order, the order will record approval for placement with both prospective adopting parents.

11

The order is:

The Court declares that the Court is satisfied, in accordance with subs.35(3) of the Adoption Act 2000 that the prospective adopting parents have the capacities, knowledge and willingness referred to in paras. (a), (b) and (c) of subsection (3), that the Aboriginal Child Placement Principles have been properly applied, and that it is lawful to place the child with the proposed adopting parents for adoption.

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Last Modified: 11/13/2003