The Adoption of Edward (a pseudonym) - [2022] NSWSC 1488

Supreme Court

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) Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Family Law Act 1975 (Cth) Interpretation Act 1987 (NSW)
Cases Cited:	Adoption of BR [2018] NSWSC 1009 Angius v Salier; Angius v Angius [2017] NSWSC 198 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25 Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 R v Secretary of State for Social Services; Ex Parte Association of Metropolitan Authorities [1986] 1 WLR 1
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: Crown Solicitor’s Office (Plaintiff)
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…

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.

Keep reading for free

Create a free CaseChat account to read The Adoption of Edward (a pseudonym) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1488
Decision Date: 1 November 2022

CaseChat Overview and Summary

The case of The Adoption of Edward involves the adoption of an Aboriginal child, Edward, who has one Aboriginal parent and one non-Aboriginal parent. The primary legal issue before the court was whether the adoption process complied with the statutory requirements under the Adoption Act 2000 (NSW) in relation to Aboriginal children. Specifically, the court had to determine if the adoption agency, Life Without Barriers, had satisfied the consultation requirements outlined in sections 33 and 35 of the Act.

The court examined whether Life Without Barriers had reasonably ensured consultation with an approved Aboriginal person, as required by section 33(1)(a) of the Act. The case manager from Life Without Barriers, Ms Sarah Baskin, had informed the prospective adoptive parents, Matthew and Rachael, about the possibility of consulting with Ms Lisa Jackson, an approved Aboriginal person. However, Matthew and Rachael declined this offer, choosing not to proceed with the formal consent process. The court considered the definition of consultation as articulated in previous cases, which involves communicating a proposal, inviting a view, and considering the view expressed. The court found that the case manager had fulfilled her duty by offering the consultation, even though it was declined.

Given the specific circumstances, the court concluded that Life Without Barriers had satisfied its obligations under the Act by offering the consultation, despite the prospective adoptive parents declining it. The court held that the statutory requirements were met, and the adoption process was valid. The court did not find it necessary to further explore the provisions of section 35, which pertain to additional considerations when the child is to be placed with non-Aboriginal parents or has mixed heritage.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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]).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.