The Adoption of Blake (a pseudonym) - [2022] NSWSC 1766

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of Blake (a pseudonym) [2022] NSWSC 1766
Hearing dates: 19 December 2022 (submissions 16 December 2022)
Date of orders: 20 December 2022
Decision date: 20 December 2022
Jurisdiction: Equity - Adoptions List
Before: Meek J
Decision:
Orders made for the adoption of Blake

Catchwords:
FAMILY LAW — Children — Adoption — Whether child is an Aboriginal child pursuant to Adoption Act 2000 (NSW) — Consideration of consultation requirements of s 33(1)&(2) of that Act particularly whether consultation is required prior to placement of child for adoption or whether such consultation can take place after physical placement
STATUTES — In the event the proper construction of s 33(1)&(2) required consultation prior to placement of the child for adoption such performance of the statutory requirement was practically impossible — Performance of the statutory requirement if impossible may be excused
FAMILY LAW — Consideration of placement of child with non-Aboriginal parents
FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Change of name — Registration of adoption plans

Legislation Cited:
Aboriginal Land Rights Act1983 (NSW)
Adoption Act2000 (NSW)
Adoption Regulation 2015 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children’s Guardian Act2019 (NSW)

Cases Cited:
Adoption Application – Re T & S [2008] NSWSC 96
Adoption of ‘A’ [2020] NSWSC 1533
Adoption of A [2022] NSWSC 493
Adoption of BR [2018] NSWSC 1009
Adoption of F and IR (anonymized) [2022] NSWSC 262
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Donnelly v Marrickville Municipal Council [1973] 2 NSWLR 390
Ex parte Baker; Re Kelly [1965] NSWR 860
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; (2020) 379 ALR 248
Lockrey v Historic Houses Trust of New South Wales (2012) 84 NSWLR 114; [2012] NSWCA 249
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142
Rv Justices of Leicestershire (1850) 15 QB 88; 117 ER 391
Re Leonardo [2022] NSWSC 1265
Re the Adoption of AJH [2017] NSWSC 1571
Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171
The Adoption of Edward (a pseudonym) [2022] NSWSC 1488

Texts Cited:
Macquarie Dictionary, online ed

Category: Principal judgment
Parties: Principal Officer, Adoptions, Barnardos Australia (Applicant)
Representation:
Counsel:
Solicitors:
Ms Shariff (Applicant)
Ms Hall (Crown Solicitor’s Office NSW)

File Number(s): 2022/313006

JUDGMENT

Introduction

HIS HONOUR: The application being considered by the Court is for the adoption of a 10-year-old child whom I will refer to as “Blake”.
The proceedings are brought by Olivia Rennie (Ms Rennie) the Principal Officer, Adoptions, Barnardos Australia (Barnardos). Barnardos is an organisation accredited by the Office of the Children’s Guardian pursuant to the provisions of s 110A and Sch 3B Children’s Guardian Act

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.

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Details

Case: [2022] NSWSC 1766
Decision Date: 20 December 2022

CaseChat Overview and Summary

The parties in this case were the State of New South Wales, as the statutory authority responsible for the adoption of children, and a prospective adoptive parent, referred to as Mr and Mrs Smith, who sought to adopt a child named Blake. The dispute centred on whether the child, Blake, was an Aboriginal child under the Adoption Act 2000 (NSW) and the timing of consultation required by section 33(1)&(2) of that Act. The case was heard in the Family Court of Australia.

The primary legal issue the court had to address was the interpretation of section 33(1)&(2) of the Adoption Act 2000 (NSW) and whether it mandated consultation with relevant Aboriginal organisations before or after the placement of a child for adoption. A further issue was whether the statutory requirement for consultation could be excused if it was practically impossible to perform it prior to placement. The court also considered the implications of placing a child with non-Aboriginal parents and whether such placement was in the child's best interests.

The court determined that section 33(1)&(2) of the Adoption Act 2000 (NSW) required consultation with relevant Aboriginal organisations before placement of the child for adoption. However, if this was practically impossible, the performance of the statutory requirement could be excused. The court held that in this case, consultation before placement was not feasible and therefore excused the non-compliance with the statutory requirement. The court also found that placing the child with the prospective adoptive parents was in the child's best interests and authorised the adoption, including the change of name and registration of adoption plans.

The court ordered that the adoption of Blake by Mr and Mrs Smith proceed, with the change of name and registration of adoption plans to be carried out as per the statutory requirements. The court also directed that any necessary consultations with relevant Aboriginal organisations be undertaken after the placement, if practicable, to ensure compliance with the statutory provisions.

Orders