Principal Officer, Family Spirit Adoption Services v D (Anonymised)

[2022] NSWSC 142

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142

Hearing dates:

1 February 2022

Date of orders:

1 February 2022

Decision date:

14 February 2022

Jurisdiction:

Equity - Adoptions List

Before:

Sackar J

Decision:

Orders Made

Catchwords:

FAMILY LAW — Children — Adoption — declaration of parentage — whether the child is an Aboriginal child under s 4 of the Adoption Act 2000 (NSW) —placement with non-Aboriginal parents pursuant to s 4(2) or alternatively s 35(3) of the Adoption Act 2000 (NSW)

Legislation Cited:

Adoption Act 2000 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Children’s Guardian Act 2019 (NSW)

Status of Children Act 1996 (NSW)

Cases Cited:

Adoption of BR [2018] NSWSC 1009

Adoption of IEK [2019] NSWSC 171

Adoption of J [2016] NSWSC 1098

Astarita & Cotton (No 2) [2017] FamCA 905

Dent & Rees [2012] FMCAfam 1303

Duckett & Robinson [2015] FCCA 997

GWM v DOCS [2000] NSWSC 1245

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

McAuley & Salberg & Anor [2020] FCCA 1538

ReThe Adoption of Z [2020] NSWSC 1725

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Principal Officer, Family Spirit Adoption Services (Plaintiff)
C (Defendant)

Representation:

Counsel:

Solicitors:
Crown Solicitors of NSW, Ms A Hall (Plaintiff)

File Number(s):

2021/241876

Publication restriction:

Nothing which would identify the child

Judgment

Introduction

1. D was born in July 2006. He has been in the care of the proposed adoptive parents since he was 3 months old pursuant to an Order of the Children’s Court that he be placed under the care of the Minister until he attains the age of 18 years.

2. Family Spirit Adoption Services (Family Spirit) is an organisation accredited by the Office of the Children’s Guardian under the Children’s Guardian Act 2019 (NSW) as an adoption service provider that may provide adoption services (see the Adoption Act 2000 (NSW) s 11(1)(b)).

3. Family Spirit has had the case management responsibility for D since May 2012.

4. On his birth certificate the identity of D’s mother is recorded. His birth certificate does not however record the identity of his father.

5. There is evidence that at the time of D’s birth the mother was residing with a man, C, born in August 1962. Further there is evidence which suggests that C has acknowledged that he is D’s father.

6. In September 2021, C was personally served with a Notice of Motion of an Adoption Application and the application to have him declared D’s father. He has not responded to the service upon him of the various documents.

7. Before me for hearing on 1 February 2022 was a Motion dated 23 August 2021 seeking certain orders. Namely that C be declared to be D’s father with the obvious consequences for D’s birth certificate. Further that for the purposes of s 4(2) of the Adoption Act that the Court being satisfied that D is an Aboriginal child that the Court should determine that he may be placed with the person with whom his best interests will be served having regard to the objects of the Act. Alternatively, that pursuant to s 35(3) of the Adoption Act the Court should be satisfied that the proposed adoptive parents have the capacity to perform the obligations under the Act.

8. Having heard argument and having received detailed written submissions in advance of the hearing I was satisfied I should make the orders sought. These are the reasons for those orders. I should add that no one except the plaintiff participated in the hearing. It therefore proceeded ex parte.

Paternity

9. The evidentiary materials relied upon are relatively straightforward and I will return to those below.

10. The important question that arises immediately is whether the Principal Officer of an accredited agency such as the plaintiff here has standing to bring the current application. Such applications it is submitted are governed by the Status of Children Act 1996 (NSW).

11. Certain nominated persons are authorised to make an application for parentage. They include the Secretary of the NSW Department of Communities and Justice, the Registrar or persons directly related to the child under ss 21(1)(a)-(e) of the Adoption Act, or persons prescribed in the regulations. None of these explicitly include the plaintiff in this case namely the Principal Officer of an accredited adoption agency.

12. However pursuant to s 21(1)(f) of the Adoption Act a person may make an application to the Supreme Court for a declaration of parentage if that person “may be affected by the result”. I should also note that the Court has power pursuant to s 24(2) to give a person an opportunity to be heard if the Court considers that the person’s interests would be affected by a declaration. I would also note that the Court may order that the child be separately represented (s 34(2)).

13. There would not appear to be any case law on the question as to precisely who a person who “may be affected” might be. However, this is remedial legislation which in my view should lend itself to a liberal interpretation.

14. In submissions I was referred to extraneous materials including the legislative history. It was submitted however that for the purpose of the Status of Children Act 1996 the plaintiff should be considered such a person.

15. The plaintiff is an organisation accredited by the Office of the Children’s Guardian under the Children’s Guardian Act 2019 as an adoption provider that may provide adoption services. “Adoption Service” is defined in the dictionary to the Adoption Act to mean, arrangements for or towards or with a view to the adoption of a child, negotiations for or towards an adoption, arranging for or assisting in the transfer of the care responsibility of or parental responsibility for a child, or arrangements for the provision of post-adoption information or for contact between adult parties to an adoption.

16. There is no doubt as such the plaintiff and hence its Principal Officer is required under the principles found in s 8 of the Adoption Act to consider among other things D’s best interests including his identity. Any child has an obvious interest in knowing his/her identity and that again obviously includes knowledge of his/her birth family and cultural heritage. This is an imperative not a matter which as a matter of discretion can be simply ignored.

17. As an example, pursuant to s 52 of the Adoption Act a Court must not make an order in relation to a child unless consent is given by each parent. Therefore the identity of a parent will need to be the subject of specific consideration at the very least for the purpose of any application for adoption. Consideration of the dispensing with the parent’s consent will also arise. In that context for any number of reasons some formal application may need to be made so that the person’s parentage can be clearly determined. Further the crafting of an appropriate adoption plan providing for contact with a biological parent may require parentage to be formally determined. Those matters alone more than amply provide standing in my view for the plaintiff to seek a declaration of parentage.

18. I was referred to decisions of Hallen J in Adoption of J [2016] NSWSC 1098 at [45] and that of Robb J in Adoption of IEK [2019] NSWSC 171 which whilst there are distinctions broadly further support the argument. For those reasons given the intended scope of an accredited provider I am satisfied the plaintiff has standing to apply for a declaration of parentage.

19. In addition I also agree were it necessary to make such an application the Court in its supervisory jurisdiction would have ample power as briefly commented upon by Hamilton J in GWM v DOCS [2000] NSWSC 1245. That might be particularly so in the context where there is a factual contest needing resolution.

20. It was further submitted that the Court has power pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) to order registration of registrable information about a parent. I took this course in Re The Adoption of Z [2020] NSWSC 1725. There are numerous examples of that approach in cases in the Federal Circuit Court and the Family Court of Australia (McAuley & Salberg & Anor [2020] FCCA 1538; Duckett & Robinson [2015] FCCA 997; Dent & Rees [2012] FMCAfam 1303; Astarita & Cotton(No 2) [2017] FamCA 905).

The Evidence of Parentage

21. It is submitted that in the absence of any of the presumptions arising under ss 12 or s 13 of the Status of Children Act 1996 the Court would admit and consider any evidence relevant to the issue. The strict rules of evidence do not of course apply as such however there is a need to always carefully scrutinise such evidence to evaluate its probative value depending upon the consequences of the finding that is sought.

22. The available evidence on parentage is summarised at [46]-[52] of the plaintiff’s submissions. In particular the summary at [52] is a fair summation of the evidentiary materials deposed to. C was at or around the time of conception in a relationship with the biological mother. The Secretary so it seems conducted the proceedings in the Children’s Court on that basis.

23. C participated in numerous meetings with representatives of the Secretary at which he considered himself the father. He has also had interactions with persons from the plaintiff at which he has not denied he is the father. Importantly he has been served with the motion in this matter and did not appear at the hearing to oppose the relief sought.

24. Ideally there would be evidence of DNA but in all the circumstances I am satisfied there is more than enough evidence to support a finding of parentage and I would make an order accordingly.

25. Apart from a declaration of paternity I would also order that pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995. C’s identity as D’s father be included as registrable information on the Register.

Aboriginality

26. A significant issue in this matter is whether the Court should make an order under s 4(2) of the Adoption Act that D is an Aboriginal child.

27. The claim that D is Aboriginal was on the evidence not initially known to either the Department of Communities and Justice or the plaintiff at the time D was removed from his mother or at the time of his placement with the proposed adoptive parents.

28. It also seems the mother made claims in 2012 six years after his initial removal from her care. She repeated those claims six years later in 2018.

29. Enquiries were made with Link-Up NSW and with Aboriginal Affairs NSW for any evidence supporting the mother’s claim that her paternal grandmother was Aboriginal. No such evidence was found and the matter proceeded on the basis that D was not Aboriginal.

30. I should say at this point that the Court is aware that from time to time the moving party in such proceedings has access to an historian or an anthropologist. Sometimes because there is no real issue the need for such specialist assistance is not warranted. However the assertion and hence the issue can never be taken lightly, too much is at stake. There is a mandate that requires that consideration and therefore resources must be appropriately allocated to the process of identifying Aboriginal children. The impact on such a finding is profound often upon the individual but as a matter of statutory mandate very significant upon the Secretary and or the relevant delegate, see ss 33-39 of the Adoption Act.

31. The process requires real decision making and proactivity not indifference. I hasten to make clear there is no suggestion here of anything other than diligence but the fact remains that this issue because of its importance will require ongoing resources to be available so that the children whose rights and interests are at stake are given the paramount consideration that those matters require under the Adoption Act.

32. In this case D’s Aboriginal heritage through his paternal family was first raised with the plaintiff in 2017. It was suggested and for the first time that the paternal grandmother was an Aboriginal. In an interview she subsequently confirmed her heritage. However she also said she did not identify as Aboriginal and had no further information.

33. However subsequent research conducted by Link-Up NSW at the plaintiff’s request indicates that D is descended from Aboriginal persons through his paternal family. Some of his ancestors were Ngunnawal people.

34. The plaintiff thereafter proceeded on the basis that D was Aboriginal.

35. This Court in Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83, decided importantly that a child with a single great grandparent who was Aboriginal qualified as an Aboriginal child for the purposes of s 4(2) of the Adoption Act even though the child had not had ancestors for several generations and who had not identified as Aboriginal or had been accepted by any Aboriginal community as Aboriginal, Leeming JA at [53]-[55], Basten JA at [145] and McCallum JA at [176].

36. The decision in Hackett enables a court to determine a child is Aboriginal provided it determines the child is Aboriginal by descent even though no ancestor satisfies the tripartite test in the definition in the Act and regardless of a child having any particular specified proportion of genetic inheritance.

37. Given the evidence in this case the Court is asked to find not that D is a child “descended from an Aboriginal” within the meaning of s 4(1) of the Act but rather he is of Aboriginal descent and thereby should make a determination pursuant to s 4(2).

38. The evidence on that issue is set out in detail in [71]-[81] of the plaintiff’s submissions.

39. The evidence is in my view compelling. I have careful regard to it and to the comments made by their Honours in Hackett. I am satisfied on the basis of that evidence as a whole that I should make a determination D is Aboriginal for the purpose of s 4(2) of the Act.

40. In particular the historical materials obtained by Link-Up when taken together with the uncontradicted statements of D’s paternal grandmother. Her position is not entirely straightforward because although she is an elder she does not identify as Aboriginal. However Link-Up has concluded that some of D’s ancestors were Aboriginal but only on his paternal side.

41. Whilst I acknowledge the approach taken by the Court in Hackett in that case as I have previously remarked the evaluation of the evidence in each case is a matter for the trial judge. The impact on all concerned of a finding of Aboriginality is such that it is appropriate that the Secretary or the principal officer apply resources at an early stage so as to discharge their statutory obligations. Diligence and careful scrutiny is what is called for with special attention directed to the best evidence. That may simply and plausibly be provided by oral history but as is clear for any number of reasons that may not suffice. All reasonable efforts must be employed at the earliest possible time. This may not always be necessary but it should not be assumed the decision under s 4(2) if that is what is required can be lightly taken and unsurprisingly the Court will expect that in the appropriate case relevant expert evidence whether it be from an historian or anthropologist will be not just desirable but necessary. The obvious profound impact such findings have on all concerned given the placement principles cannot be underestimated.

42. Having decided that I should make the relevant finding pursuant s 4(2) in this case lead to a discussion on some issues of complexity,

43. Where Aboriginality is found the Aboriginal child placement comes readily into focus, see s 8(1)(f) and s 90(1)(e).

44. Here of course there are other issues because D has been with the proposed adoptive parents (who are non-Aboriginal) since he was three months old and it is only belatedly the issue has been confronted and resolved.

45. D’s background gives rise to one further complexity, namely again on the evidence the better view is that he has one Aboriginal parent and one non-Aboriginal parent. In turn that means either ss 35(3)–(5) apply.

46. An Aboriginal child is not pursuant to s 35(3) to be placed with a non-Aboriginal prospective adoptive parent except under somewhat strict conditions which involve an assessment of the proposed adoptive parent’s capacity and the application of placement principles.

47. If on the other hand if a child has one non-Aboriginal parent, he/she can nonetheless be placed (by implication) with a non-Aboriginal person again provided that person has the requisite capacity (s 35(4)) but more importantly it must be in the best interests of the child. An appropriate adoption plan must be put in place.

48. Whichever part of s 35 of the Adoption Act might however be the relevant one it is my view on the evidence that D’s best interests are served clearly by him remaining with the proposed adoptive parents.

49. However, what this case throws up and it is not the first or the last time the point will arise is where the determination of Aboriginality occurs long after a successful placement has been effected and that placement as here has been with a non-Aboriginal family. The placement principles cannot in cases such as this and as a matter of practical reality be strictly applied retrospectively as is intended by the legislation. In most if not all cases it will happen without any attributable blame levelled at anyone in the process.

50. I have however formed the very firm view that the plaintiff has acted reasonably in all the circumstances. I accept the plaintiff’s submissions on this topic set out in [90]-[97]. In particular here by the time the plaintiff actually learnt of D’s Aboriginal heritage he had been with the proposed adoptive parents for almost eleven years.

51. I note at this point that although the language used in s 33 for example is mandatory, “must ensure” the provisions dealing with the placement principles are to have a qualified application if placement with an Aboriginal person is either not practicable or much more importantly not in the child’s best interests, see ss 35(2)(b) and (c).

52. One of the real difficulties with cases such as this is that the legislation proceeds upon the assumption that Aboriginality will be detected at an early stage which of course permits the consultation process to take place before placement. But as I have already noted even if a decision is made prior to placement it may neither be practicable nor in the child’s best interests to be placed in accordance with the “first preference”, see s 35(2).

53. The obligation under s 33 is mandatory but there are obvious limitations in its application in a case such as this. Brereton J in Adoption of BR [2018] NSWSC 1009 discussed the consultation process. His Honour thought the consultation process could be quite wide and not just involve the birth parents. Here I accept as outlined at [103]-[104] of the plaintiff’s submissions that not only was an Aboriginal consultant engaged but also the paternal grandmother.

54. Although the term consultation is not defined as a matter of practical reality given the matters referred to in [103]-[106] and [110]-[112] of the plaintiff’s submissions I am of the view that more than ample consultation has taken place in this case. The activities especially those described at [110]-[112] qualify as appropriate consultation for the purposes of the Act.

55. A question may arise here as to when s 35(3) for example might be engaged. I have earlier said the situation here is that D should be considered a person with at least one Aboriginal parent (that term not being defined) I have carefully read the written submissions provided in the matter especially commencing at [114] and following. In particular, I note the very helpful discussion on the legislative history at [124] and following.

56. The legislative history as the submissions make clear is uninformative as to the meaning of Aboriginal parent.

26. By parity of reasoning given the remarks of Leeming JA in Hackett at [65]-[66] (of the judgment) the better view is that the term encapsulates both a birth parent but should of course also include any person who may satisfy the tripartite test as well. However, it seems to me that the submissions made by the plaintiff here at [144]-[146] are correct and the term “Aboriginal parent” in s 35(4) should be given wide import so that it includes a parent who is descended from an Aboriginal person even if they would not satisfy the tripartite test. That has the effect which in my view is more consistent with the child focused nature of the legislation.

27. The application in this case of such an interpretation is that s 35(4) would have application because C is descended from an Aboriginal person and hence is an “Aboriginal parent” the mother being non-Aboriginal. In turn s 35(5) therefore has application. Here neither of the proposed adoptive parents are Aboriginal therefore the relevant provision is s 35(5)(a).

28. The legislation contemplates an adoption and cultural plan. I have carefully considered the plans exhibited to the Delegate’s affidavit and I am of the view it is entirely appropriate. In my view they will work together to achieve the legislative goals.

29. Had I not been satisfied that D is the child of an Aboriginal parent and a non-Aboriginal parent attention would need to be given to ss 35(2) and (3).

30. If that were to have occurred, I would have been satisfied that it was in D’s best interests to remain with the proposed adoptive parents. Given his needs and the length of time he has been with them it would in my view be utterly impracticable to remove him from their care. In my view I would have found s 35(2) applied to him in which case the evidence would support a finding that he should remain with the proposed adoptive parents in accordance with s 35(2)(c). In that regard I accept as correct the plaintiff’s submissions made at [154]-[155].

31. For the above reasons I made the orders sought in the short minutes of order which were handed up on the day of the hearing.

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Amendments

23 February 2022 - Plaintiff: Principal Officer, Family Spirit Adoption Services

23 February 2022 - Plaintiff: Principal Officer, Family Spirit Adoption Services

02 March 2022 - para [56] - are to is

Decision last updated: 02 March 2022