The Adoption of Edward (a pseudonym)
[2022] NSWSC 1488
•1 November 2022
|
New South Wales |
Case Name: | The Adoption of Edward (a pseudonym) |
Medium Neutral Citation: | [2022] NSWSC 1488 |
Hearing Date(s): | 26 October 2022 |
Date of Orders: | 26 October 2022 |
Decision Date: | 1 November 2022 |
Jurisdiction: | Equity - Adoptions List |
Before: | Stevenson J |
Decision: | Orders and declarations made as set out at [1] |
Catchwords: | ADOPTION – whether the child is an Aboriginal child – whether reasonable inquiries have been made as to whether the child to be placed for adoption is an Aboriginal child – whether consultation requirements under s 33 of the Adoption Act 2000 (NSW) satisfied – as child proposed to be placed with non-Aboriginal family whether requirements of s 35(3) of the Adoption Act satisfied – as child has one parent who identifies as Aboriginal and one who does not whether requirements of s 35(4) of the Adoption Act satisfied |
Legislation Cited: | Aboriginal Land Rights Act 1983 (NSW) |
Cases Cited: | Adoption of BR [2018] NSWSC 1009 |
Texts Cited: | P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) |
Category: | Procedural rulings |
Parties: | Secretary, New South Wales Department of Communities and Justice (Plaintiff) |
Representation: | Solicitors: |
File Number(s): | 2022/280819 |
Publication Restriction: | This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW) |
JUDGMENT
On 26 October 2022, at a preliminary hearing under s 80 of the Adoption Act 2000 (NSW) (“the Act”), I made the following orders and directions in these proceedings as sought by the Secretary of the New South Wales Department of Communities and Justice:
(1)Pursuant to s 4(2) of the Act, determine that the child (who I will call “Edward”: not his real name), is of Aboriginal descent, is an Aboriginal for the purposes of s 4(2) of the Act and is an Aboriginal child under the meaning of s 4(1) of the Act;
(2)Declare that, for the purposes of s 35(3) of the Act, I am satisfied the prospective adoptive parents (who I will call “Mr and Mrs Smith”: not their real names):
(a)have the capacity to assist the child Edward to develop a healthy and positive cultural identity, and
(b)have knowledge of or are willing to learn about, and teach the child Edward about his Aboriginal heritage and to foster links with that heritage in his upbringing, and
(c)have the capacity to help the child Edward if he encounters racism or discrimination in the wider community;
(3)Declare that, for the purposes of s 35(4) of the Act, the best interests of the child Edward will be served, having regard to the objects of the Act, were he to be placed for adoption with Mr and Mrs Smith; and
(4)Find, for the purposes of s 34 of the Act, that the Secretary has made reasonable inquiries as to whether the child Edward is an Aboriginal child.
These are my reasons for making those orders and declarations and for not making, at least at this stage, the further order sought by the Secretary in relation to s 33 of the Act.
Edward is currently 17 years of age. He will turn 18 next February.
Edward has lived with the Smiths continuously since May 2005, at which time he was three months old.
On 25 May 2006, the Children’s Court of New South Wales at Broadmeadow made final orders allocating parental responsibility for Edward (and for two of his siblings) to the Minister for Families, Communities and Disability Services until they each attained the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The Smiths wish to adopt Edward and the Secretary wishes, as soon as possible, formally to cause Edward to be placed with the Smiths for adoption for that purpose. Edward has complex medical needs and has been diagnosed as having an Acquired Brain Injury and Severe Developmental Delay. It is estimated that he has the intellectual capacity of a two to three year old child. He does not have the capacity to consent to his adoption nor to understand the concept of adoption.
It is for these reasons that the Secretary sought the orders and declarations to which I have referred.
Edward’s birth parents (who I will call “Rachael” and “Matthew”: not their real names) are in regular contact with Edward and are aware of the Secretary’s intention to seek the orders I have set out.
Much of what follows is taken, with gratitude, from the careful and comprehensive submissions I received from Ms Nicole Hailstone and Ms Shelley Anderson, both Principal Solicitors with the New South Wales Crown Solicitor’s Office.
Edward is not yet placed for adoption
Although Edward has been in the care of the Smiths since he was three months old, and thus for over 17 years, I am satisfied that he has not yet been “placed for adoption” for the purposes of the Act.
Part 3A of the Act provides a mechanism by which the Secretary can invite authorised carers, such as the Smiths, to submit an application to adopt a child such as Edward.[1] This is different to the process outlined in Pt 3 of the Act which addresses the selection of prospective adoptive parents other than authorised carers. Under Pt 3A the selection process is focused on a child already in out-of-home care and on the authorised carers, here the Smiths, already caring for the child.
[1] Section 45D.
In Pt 3A matters, placement for adoption does not involve a physical change in the child’s living arrangements. Instead, placement for adoption involves a change in the long-term goal of the placement: moving to adoption instead of continuing in statutory out-of-home care.
Under both Pts 3 and 3A, persons who apply to be assessed as suitable to adopt are specifically referred to as “prospective adoptive parents”.[2] If the prospective adoptive parents are successful in the selection process, and any other preliminary issues are dealt with (relevantly in this case, as to whether Edward is an Aboriginal child), the Act refers to them as “proposed adoptive parents”.
[2] Sections 41 and 45C.
In July 2021, Edward’s Permanency Plan was changed by the Department of Communities and Justice to “adoption”.
Since July 2021, some of the steps under Pt 3A have commenced. For example:
(a)on 27 August 2021 the Smiths were invited to submit an application form to adopt Edward pursuant to s 45D of the Act; and
(b)on 14 January 2022 an Adoption Assessment was undertaken.
Nonetheless I am satisfied, as Ms Hailstone and Ms Anderson have submitted, that Edward has not yet been “placed for adoption” for the purposes of the Act.
Now that I have made the majority of findings and orders sought, the Secretary will complete the remaining tasks under Pt 3A, in particular determining whether the Smiths are suitable to adopt Edward under s 45F of the Act, and the Secretary is able to satisfy himself of the matters referred to under s 36 of the Act. Once that has been done, the Secretary will engage an “authorised person” to prepare a court report under s 91 of the Act and otherwise prepare the adoption application.
I have allocated the hearing date of 14 December 2022 for the hearing of that application.
Is Edward an Aboriginal child?
Section 4 of the Act contains definitions of “Aboriginal” and “Aboriginal child” as follows:
“(1) In this Act—
Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.
Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2).
…
(2) Despite the definition of Aboriginal in subsection (1), the Court may 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.” (Emphasis in original.)
The Aboriginal Land Rights Act 1983 (NSW) defines “Aboriginal person” as follows:
“Aboriginal person means a person who—
(a) is a member of the Aboriginal race of Australia, and
(b) identifies as an Aboriginal person, and
(c) is accepted by the Aboriginal community as an Aboriginal person.” (Emphasis in original.)
As Ms Hailstone and Ms Anderson submitted, it does not appear that Edward satisfies the tripartite definition of “Aboriginal person” in the Aboriginal Land Rights Act. That is because Edward’s intellectual and developmental capacity is such that I cannot conclude that Edward himself identifies as an Aboriginal person for the purposes of the second limb of that tripartite test. I should record, however, that the evidence shows that Edward enjoys engaging with Aboriginal culture, such as dancing to music, walking on Country, learning words in the Wiradjuri language and attending various cultural activities.
Nonetheless, I am satisfied that, more probably than not, Edward is “of Aboriginal descent”, and thus an Aboriginal, for the purposes of s 4(2) of the Act.
In Hackett (a pseudonym) v Secretary, Department of Communities and Justice,[3] Leeming JA[4] held that the effect of s 4(2) of the Act was to expand the class of persons who might come within the definition of “Aboriginal child”[5] and to confer upon the Court a discretionary power to determine that a child is Aboriginal if the child is of Aboriginal descent.[6] Leeming JA held that a Court may determine that a child is of Aboriginal descent even if no ancestor of the child satisfies the tripart definition of “Aboriginal person” in the Aboriginal Land Rights Act.
[3] [2020] NSWCA 83.
[4] With whom Basten and McCallum JJA agreed.
[5] At [82].
[6] Ibid.
Leeming JA made clear in Hackett that “[t]here is no requirement in order for a child to be an Aboriginal child for the child to have a specified proportion of genetic inheritance”.[7]
[7] At [53].
Section 126 of the Act enables me to act on any statement, document, information or matter that assists me to deal with the proceedings, whether or not that statement, document, information or matter would be admissible in evidence.
The Secretary has engaged a researcher and genealogist, Mr Maxwell Turner, and an anthropologist, historian and genealogist, Mr Timothy Dauth, to prepare a report concerning Edward’s genealogy.
That report concludes that it is likely Edward’s fourth great grandfather (who I will refer to as “Jarrah Jones”: not his real name) was an Aboriginal man.
Messrs Turner and Dauth drew attention to the “inherent difficulties in genealogical research that add a degree of uncertainty in any findings” but conclude that “a benefit of the doubt approach would reasonably suggest that [Jarrah Jones] was an Aboriginal man”.
Messrs Turner and Dauth summarised their conclusions as follows:
“[Jarrah Jones’] birthplace was recorded as Tasmania on his prison records and also his daughter’s birth record some 25 years earlier, which suggests a reasonable degree of reliability. While it is not known how [Jarrah Jones] came to settle in Mudgee from Tasmania, it is not surprising that shipping records from a domestic voyage have not survived. His prison record does not reflect the claim that [Jarrah Jones] was arrested over 10 times in NSW.
[Jarrah Jones’] prison records mention a kangaroo tattoo on his forearm – presumably a depiction of a kangaroo rather than the word itself – which remains a peculiarity.
Without being able to reliably trace [Jarrah Jones’] parents, it remains a possibility that he was of African or some other heritage.
The oral history from his descendants asserts that he was an Aboriginal man and none of the records found casts any doubt on this conclusion.
Considering records stating [Jarrah Jones’] birthplace in Hobart, it seems more likely that he belonged to an Aboriginal people in Tasmania – the Oyster Bay tribe is a fair possibility – rather than the Wiradjuri people of NSW’s Central West.
[Jarrah Jones] is known to have lived in the Mudgee area for at least nearly 50 years prior to his death in 1923. Two of his sons … are known to have married … granddaughters of [a] well-known Wiradjuri woman.”
In addition to Messrs Turner and Dauth’s conclusions, I have also had regard to the fact that the evidence shows that there is a firm belief within Edward’s extended family, and the community more generally, that Jarrah Jones was an Aboriginal man. Edward’s paternal grandmother identifies as Aboriginal and Edward’s younger siblings also identify as Aboriginal.
Overall, I am satisfied that Jarrah Jones was an Aboriginal man and that, accordingly, Edward is of Aboriginal descent.
A number of matters thereby arise for consideration.
Consultation under section 33 of the Act
Section 33 of the Act provides:
“33 Aboriginal participation in decision making
(1) The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child—
(a) a person approved in accordance with section 195, or
(b) a person nominated by the child’s parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Aboriginal children.
(2) In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation.”
As to the consultation required by s 33(1)(a), s 195 of the Act provides:
“195 Consultation with Aboriginal persons
(1) The Secretary may approve an Aboriginal person as a person who may provide advice and assistance to Aboriginal families or kinship groups in relation to care options for Aboriginal children for the purposes of this Act.
(2) The Secretary must not approve a person under this section unless the Secretary is satisfied that the person has relevant experience in working with Aboriginal children, whether or not in connection with their families or kinship groups.” (Emphasis in original.)
Ms Lisa Jackson is a person approved under s 195.
On 20 October 2022, Ms Sarah Baskin, a case manager from Life Without Barriers, spoke to Matthew concerning the possibility of speaking with Ms Jackson.
Ms Baskin’s note of the conversation reads:
“I called [Matthew] today. I asked if I could speak to [Rachael] and he informed me the phone was on speaker and [Rachael] could hear the conversation. I did not speak directly with [Rachael]. I informed [Matthew] a letter has been sent to his home from the Department providing details of preliminary hearing and that he and [Rachael] had the opportunity to be part of the preliminary hearing should they wish.
I discussed with [Matthew] the consent process again. I explained that [Matthew] and [Rachael] had the right to consult with an Aboriginal person on [Edward’s] adoption and be provided with advice and assistance. I stated the Department would be able to organise this with an approved person, Lisa [Jackson], should they wish to do so. [Matthew] confirmed they did not wish to do this and did not wish to go through the formal consent process. I explained to [Matthew] that he should receive the letter by next week regarding the preliminary hearing. I asked if [Matthew] or [Rachael] had any questions and he said he did not.”
Section 33(1)(a) requires the Secretary to “ensure” that a person approved under s 195 of the Act is “consulted” about the placement of an Aboriginal child.
In Adoption of BR,[8] Brereton J (as his Honour then was) held that for the purposes of s 33(1)(a) “consultation involves the communication of a proposal to the person to be consulted with an invitation to express a view about it, and consideration of any view so expressed”.[9]
[8] [2018] NSWSC 1009.
[9] At [13]; citing R v Secretary of State for Social Services; Ex Parte Association of Metropolitan Authorities [1986] 1 WLR 1 at 4; Angius v Salier; Angius v Angius [2017] NSWSC 198 at [40]; Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25 (especially at [89]).
I cannot see how what has transpired between Ms Baskin, Matthew and Rachael could be seen as a “consultation” for this purpose. There has been no communication of a proposal to the person to be consulted, here Ms Jackson, nor an invitation to express a view, let alone expression of a view.
That said, I see no basis on which the Secretary could, or should, seek to require Matthew or Rachael themselves to “consult” with Ms Jackson. Nor do I see s 33(1) as requiring any particular person, including the birth parents here, to “consult” with the person approved under s 195 of the Act. The subsection is expressed in the passive voice and requires that the relevant person be “consulted”. It would for example be sufficient compliance with s 33(1)(a) if the Secretary himself (or his delegate) were to consult with, here, Ms Jackson. However, there has not yet been compliance with s 33(1)(a) of the Act.
I make these observations notwithstanding the fact that the heading to s 33 refers to “Aboriginal” participation in decision making. That heading is not to be taken to be a part of the Act as it is not a heading to a Chapter, Part, Division or Subdivision of the Act,[10] although it can be taken into account in interpreting the Act.[11] In any event, consultation by the Secretary or his delegate with a person approved under s 195 of the Act would involve “Aboriginal participation” in the decision making process, as such a person must be an Aboriginal person.
[10] Interpretation Act 1987 (NSW), ss 35(1) and (2).
[11] Ibid s 35(5); and see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.110].
As to s 33(1)(b) of the Act, Edward’s father, Matthew, has requested that his extended family not be spoken to about Edward and his placement with the Smiths and has also requested that the community and land councils not be consulted. Matthew has queried why the Secretary would ask people who do not know Edward about his adoption. He also has what has been described as a “fractured relationship” with his sisters and is not close to his parents or wider family network. I am informed that the Secretary respects Matthew’s self-determination in this regard. Caseworkers involved with the case have also mentioned that it may be that Matthew holds feelings of shame for Edward’s circumstances. Accordingly, the Secretary has not sought to engage consultation of the kind referred to in s 33(1)(b) of the Act.
Section 33(2) requires that, in addition to the consultation required by s 33(1), the Secretary “must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation”.
I would construe “relevant” in this regard as meaning an organisation that has knowledge and expertise in the area of Aboriginal children and child protection generally.
On 6 April 2022, Ms Baskin sent an email to an organisation known as “Grandmothers Against Removal NSW” as follows:
“My name is Sarah I am from the Foster Care Agency Life Without Barriers. I work with a young person on Awabakal Country, [Edward], who is 17 years old and we are currently supporting him and his family with a possible adoption. It was suggested by [an officer] from DCJ that I consult with you regarding this matter and was hoping you would be able to do so. Please let me know how I might go about making a referral for consult.”
Ms Baskin received no reply to that email and sent a further email, in the same terms, on 19 April 2022. Ms Baskin received no reply to that email.
It may be that those communications could be described as a “consultation” within the meaning of Brereton J’s observations in Adoption of BR in that Ms Baskin has communicated a proposal to the organisation and invited it to express a view.
However, unlike s 33(1)(a), which requires that the Secretary ensure that the relevant person is “consulted”, s 33(2) obliges the Secretary to ensure that the placement of the child is made “in consultation with” the relevant organisation. That requires something beyond simply making an unanswered enquiry of such an organisation. The language used in s 33(2) contemplates an ongoing process, albeit perhaps brief, but involving at a minimum a response of some kind from the organisation in question.
Ms Baskin’s unanswered emails do not amount to compliance with this requirement.
Reasonable inquiry – section 34 of the Act
Section 34 of the Act requires the Secretary to make reasonable inquiries as to whether a child to be placed for adoption, here Edward, is an Aboriginal child.
For the reasons I have set out above, I was satisfied that the Secretary has made reasonable inquiries and, accordingly, made the finding to which I have referred.
Aboriginal child placement principles – section 35 of the Act
Section 35 of the Act provides:
“35 Aboriginal child placement principles
(1) General principle It is a principle to be applied in the administration of this Act that Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children (which is a concept that is absent in customary Aboriginal child care arrangements).
(2) The general order for placement The Aboriginal child placement principles are as follows—
(a) The first preference for placement of an Aboriginal child is for the child to be placed for adoption with a prospective parent or parents belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belongs.
(b) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents from another Aboriginal community.
(c) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a non-Aboriginal prospective adoptive parent or parents.
(3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent—
(a) has the capacity to assist the child to develop a healthy and positive cultural identity, and
(b) has knowledge of or is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and
(c) has the capacity to help the child if the child encounters racism or discrimination in the wider community,
and that the Aboriginal child placement principles have been properly applied.
Note—
Placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing—see section 80.
(4) Child with one Aboriginal parent and one non-Aboriginal parent If a child has one Aboriginal parent and one non-Aboriginal parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act.
(5) If a child to whom subsection (4) applies—
(a) is placed with a person who is not within an Aboriginal family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs, or
(b) is placed with a person who is within an Aboriginal community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Aboriginal community to which the child belongs.” (Emphasis in original.)
The Smiths are not of Aboriginal background. Thus, s 35(3) is engaged and requires that Edward must not be placed with the Smiths for adoption unless I am satisfied of the matters referred to in subss (3)(a) to (c).
I received detailed evidence and submissions as to the steps that the Smiths have taken to ensure that Edward connects with his Aboriginal culture, identity and Country. That evidence and those submissions left me in no doubt that I could be so satisfied. Accordingly, I made the declaration to which I have referred.
Although Matthew identifies as being Aboriginal, Rachael does not. Accordingly, s 35(4) is also engaged. The evidence before me pointed, overwhelmingly, to the conclusion that for the purposes of s 35(4) the placing of Edward with the Smiths for adoption will promote his best interests. As I have said, it is estimated that Edward has the intellectual capacity of a two to three year old child. He has complex medical needs which have been admirably met by the Smiths over a long period. Matthew and Rachael have indicated that they would not be able to meet Edward’s complex medical and emotional needs and are supportive of his adoption by the Smiths. It appears that because of Edward’s complex and significant needs, he will never be able to live independently. I think that Ms Hailstone and Ms Anderson were correct to submit that adoption is the only option which is viable for Edward.
For those reasons I made the declaration to which I have referred.
In due course it will be necessary for an adoption plan to be provided to comply with s 35(5)(a) of the Act.
Alternatives to placement for adoption – section 36 of the Act
Section 36 of the Act provides:
“36 Alternatives to placement for adoption to be considered
An Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child.
Note—
Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.” (Emphasis in original.)
Only the Secretary is able to achieve the level of satisfaction required by s 36 of the Act. That function cannot be delegated to a person other than the Secretary.[12]
[12] Schedule W to the Act, effective 22 April 2021.
The Secretary’s views will formally be sought under this section in due course.
Conclusion
It is for these reasons that I made the declarations and orders set out above but have not found that the Secretary has complied with his obligations under s 33 of the Act.
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Amendments
15 December 2022 - Typographical error amended
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