The Adoption of Grant (a pseudonym)

[2023] NSWSC 1583

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Grant (a pseudonym) [2023] NSWSC 1583

Hearing dates:

20 November and 12 December 2023

Date of orders:

12 December 2023

Decision date:

14 December 2023

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Reasonable inquires made under s 34 of the Adoption Act 2000 (NSW); insufficient evidence to satisfy s 4 of the Adoption Act 2000 (NSW)

Catchwords:

CHILD WELFARE – adoption – Aboriginal placement principles – definition of “Aboriginal child” – whether Secretary has made reasonable inquiries as to possible Aboriginal heritage

Legislation Cited:

Adoption Act 2000 (NSW)

Aboriginal Land Rights Act 1983 (NSW)

Status of Children Act 1996 (NSW)

Cases Cited:

Adoption of F and IR (anonymised) [2022] NSWSC 262

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

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice (Plaintiff)
“Mother” (First Defendant)
“Father” (Second Defendant)

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s):

2021/324051

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. These proceedings concern the adoption of a child who I will call Grant (not his real name) by a couple to whom I will refer to as the “Proposed Adoptive Parents”.

2. Grant is now four. He has been cared for by the Proposed Adoptive Parents since he was a little over a year old.

3. Grant’s biological parents (who I will call the “Mother” and the “Father”) no longer oppose the making of an adoption order, although they did not formally consent to such an order being made.

4. On 12 December 2023, for the reasons I gave that day, I made an order that Grant be adopted by the Proposed Adoptive Parents, an order dispensing with the consents of the Mother and the Father, an order changing Grant’s surname to reflect that of the Proposed Adoptive Parents, and an order under the Status of Children Act 1996 (NSW) declaring that the Father is Grant’s father.

5. However, because the Mother and the Father identify as Aboriginal, it was also necessary for me to determine whether the Secretary of the New South Wales Department of Communities and Justice (the “Secretary”) had, for the purposes of s 34 of the Adoption Act 2000 (NSW) (the “Act”), made reasonable inquiries as to whether Grant is an Aboriginal child.

6. This was important, not only because of the Secretary’s statutory obligation to make these inquiries, but because a finding that a child is Aboriginal or not can be of profound importance to the child and the child’s family. ^[1]

   1. See, for example, Adoption of F and IR (anonymised) [2022] NSWSC 262 at [19] (Sackar J).

7. There are two ways in which a child may be found to be an Aboriginal child for the purpose of the Act.

8. First, a child may be Aboriginal if the child is descended from an Aboriginal.

9. “Aboriginal” has the same meaning as “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW). ^[2] That legislation adopts the well-recognised tripartite test for Aboriginality, namely that a person:

1. is a member of the Aboriginal race of Australia;

2. identifies as an Aboriginal person; and

3. is accepted by the Aboriginal community as an Aboriginal person. ^[3]

   2. Section 4(1) of the Act.

   3. Aboriginal Land Rights Act, s 4(1).

10. Second, the Court has a discretion under s 4(2) of the Act to determine that a child is Aboriginal if the Court is satisfied that the child is of Aboriginal descent.

11. Essentially, s 4(2) allows the Court to determine that a child is of Aboriginal descent, despite no ancestor satisfying the tripartite test above. ^[4]

    4. Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [86] (Leeming JA).

12. I should record that the Secretary accepted that both the Mother and the Father identify as Aboriginal and acknowledged the importance of self-identification amongst Aboriginal people generally.

13. Nonetheless, the Secretary sought a determination that, for the purposes of s 4 of the Act, there is insufficient evidence to find that Grant is an Aboriginal child.

14. There was, before the Court, a careful and comprehensive report prepared by a senior family history researcher employed by the Crown Solicitor’s Office, Mr Timothy Dauth. Mr Dauth has over 20 years’ experience in this field and has examined, with great care, such records as are available which might cast light on the question of whether either the Mother or the Father has Aboriginal ancestry that would warrant a conclusion that Grant is an Aboriginal child.

15. Mr Dauth has been unable to confirm from independent records that the Mother is of Aboriginal descent and, because of uncertainty as to the Father’s great grandfather’s paternity, unable to reach a conclusion as to whether the Father is of Aboriginal descent.

16. A preliminary hearing under s 80 of the Act was held on 20 November 2023. The Father did not appear on that occasion. The Mother did appear by AVL and, with great dignity, confirmed that she no longer opposed the making of an adoption order. The Father had earlier stated to a caseworker that “I have a different cultural understanding and it just doesn’t line up. You shouldn’t have to prove your identity”. It is, of course, not necessary that the Father or the Mother prove their identity. I saw no reason to doubt that they both identify as Aboriginal people. But the Act obliged the Secretary to make reasonable inquiries as to whether Grant is an Aboriginal child and this obliged me to determine whether, as a matter of probability, this is so.

17. For that reason, on 20 November 2023, the Mother agreed to provide me with any submissions she wished to make concerning Mr Dauth’s conclusions by 4 December 2023. She did not do so.

18. On the maternal side of the family, the Mother believes that her maternal grandmother was Aboriginal. Mr Dauth’s research has showed that it is likely that that person was born in Leeds in the United Kingdom and that it is improbable that she was Aboriginal. Mr Dauth’s research has also showed that the Mother’s paternal family can be traced to English and Irish immigrants to Australia.

19. The position on the paternal side of the family is less clear. The Father came to know of what he understands to be his Aboriginal heritage about three years ago through his mother and uncle.

20. Mr Dauth was not able to confirm independently that the Father has Aboriginal ancestry or possibly identify a recorded Aboriginal ancestor. There is uncertainty as to the paternity of the Father’s grandfather, which led Mr Dauth to say that he was unable to reach a conclusion as to Aboriginal ancestry on the Father’s side.

21. In July 2023, the Father completed an AncestryDNA test, the results of which did not suggest any Aboriginal ancestry. Mr Dauth has counselled against placing overdue weight on this as “an AncestryDNA ethnicity estimate showing no Aboriginal heritage is not reliable insofar as estimates are estimates only and may not account for more distant ancestry” and “need to be treated with considerable caution”.

22. Nonetheless, a Comparable Ethnicity Assessment that Mr Dauth was able to access concerning the Father’s grandfather suggests, although not conclusively, ancestry of roughly 42% from England and north-western Europe, 20% from Ireland, 10% from Wales and 5% from Germanic Europe.

23. Mr Dauth’s conclusion was that he is not able to rule out the possibility that the Father has Aboriginal heritage but that there was no information independently to confirm such heritage.

Conclusion

24. I was satisfied that the Secretary has made reasonable inquiries as to whether Grant has Aboriginal ancestry.

25. My conclusion was that, as the Secretary submitted, there was insufficient evidence to find that Grant is of Aboriginal descent and is an Aboriginal child within the meaning of s 4(1)-(2) of the Act.

26. I am not meaning to conclude that Grant is not an Aboriginal child. It is important to be clear about that. It will be for Grant to determine, in due course, whether he wishes to embark on his own journey in exploring his ancestry and heritage.

27. However, for the purpose of these proceedings, on 12 December 2023, I made the following determinations.

28. First, for the purpose of s 34 of the Act, the Secretary had made reasonable inquiries as to whether Grant is an Aboriginal child.

29. Second, for the purpose of s 4 of the Act, there was insufficient evidence to find that Grant is an Aboriginal child within the meaning of s 4(1)-(2) of the Act.

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Endnotes

Decision last updated: 14 December 2023