The Adoption of John (a pseudonym) and William (a pseudonym)

[2025] NSWSC 109

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of John (a pseudonym) and William (a pseudonym) [2025] NSWSC 109

Hearing dates:

16 December 2024

Date of orders:

18 December 2024

Decision date:

26 February 2025

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

1. Pursuant to s 4(2) of the Adoption Act 2000 (NSW), the Court determines that, on the evidence before the Court, the children are not children of Aboriginal descent, with the consequence that the children are not Aboriginal children within the meaning of s 4(1) of the Act.

2. Determine that, for the purposes of s 34 of the Adoption Act, the Secretary has made reasonable inquiries as to whether the children are Aboriginal children.

Catchwords:

CHILD WELFARE – adoption – Aboriginal placement principles – reasonable inquiries – where children placed with non-Aboriginal carers at a time when not aware that children may be Aboriginal – where birth mother and children strongly identify as Aboriginal –where carers are raising children as Aboriginal – where Secretary of view that children are not Aboriginal – whether Secretary has made reasonable inquiries as to whether the children are Aboriginal children – whether children are Aboriginal children

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW)

Adoption Act 2000 (NSW)

Adoption Regulation 2015 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (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

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

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice (Plaintiff)
“Jennifer” (a pseudonym) (First Defendant)
“Charlie” (a pseudonym) (Second Defendant)

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)
First Defendant (Self-Represented)
Second Defendant (Self-Represented)

File Number(s):

2024/404565

Publication restriction:

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

JUDGMENT

1. The Secretary, New South Wales Department of Communities and Justice (“the Secretary”), anticipates that in due course he will make an application under the Adoption Act 2000 (NSW) (“the Act”) in relation to two children, who I will call “John” (not his real name), now aged 14 years, and “William” (not his real name), now aged 11 years, in favour of “Albert” (not his real name) and “Megan” (not her real name).

2. John and William have lived continuously with Albert and Megan since 2011 and 2013 respectively.

3. In March 2013, the Children’s Court of New South Wales made final orders allocating parental responsibility for John to the Minister for Families and Communities until he attained the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). The same orders were made in respect of William on 16 November 2013. Those orders remain in effect.

4. John’s and William’s mother, “Jennifer” (not her real name), resides in Queensland. John’s and William’s father, “Charlie” (not his real name), resides in New South Wales. As I will discuss below, Jennifer identifies as an Aboriginal person.

5. By Notice of Motion filed on 25 October 2024, the Secretary, New South Wales Department of Communities and Justice, sought the following orders:

1. Pursuant to s 4(2) of the Act, the Court determines that the children are not children of Aboriginal descent, with the consequence that they are not Aboriginal children within the meaning of s 4(1) of the Act.

2. Determine that, for the purposes of s 34 of the Act, the Secretary has made reasonable inquiries as to whether the children are Aboriginal children.

6. It was important for me to consider these matters. The Secretary has a statutory obligation to make these inquiries, especially in circumstances where Albert and Megan are not Aboriginal persons. ^[1] A finding that a child is Aboriginal or not can be of profound importance to the child and the child’s family. ^[2]

   1. See ss 33-36 of the Act, in particular the “Aboriginal Child Placement Principles” contained within s 35.

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

7. Following a preliminary hearing before me on 16 December 2024, held pursuant to s 80(2) of the Act, I made the following determinations:

1. Pursuant to s 4(2) of the Act, the Court determines that, on the evidence filed, the children are not children of Aboriginal descent, with the consequence that the children are not Aboriginal children within the meaning of s 4(1) of the Act.

2. Determine that, for the purposes of s 34 of the Act, the Secretary has made reasonable inquiries as to whether the children are Aboriginal children.

8. These are my reasons for taking that course.

History

9. The Department of Communities and Justice first became aware that John’s and William’s family may be Aboriginal in 2011, prior to John’s birth, when it was noted that Charlie may be Aboriginal. Regrettably, no steps were taken at that time to ascertain further information about the family’s Aboriginality.

10. Since that time, the maternal and paternal family members have made various representations to the Department of Communities and Justice in relation to their Aboriginal descent:

1. in October and December 2011, the paternal uncle informed a caseworker that his mother, the paternal grandmother, was Aboriginal, but that he himself did not identify as Aboriginal;

2. in February 2012, John was identified in a Care Plan as “not Aboriginal”. That Care Plan stated that Jennifer did not identify John as Aboriginal;

3. in August 2012, the paternal grandmother informed caseworkers that her grandmother was Aboriginal, but could not provide further detail;

4. later that month, Jennifer advised caseworkers that she and Charlie do not identify as Aboriginal, and she did not want John to identify as Aboriginal;

5. in September 2012, Jennifer informed caseworkers that she and Charlie had Aboriginality in their history, but that was from several generations ago, and that she did not consider herself to be Aboriginal;

6. later that month, the paternal uncle contacted caseworkers to express his concern that John’s Aboriginality was not being considered;

7. in August 2013, Jennifer informed a caseworker that her grandmother was half-Aboriginal, and Charlie’s great-grandmother was an Aboriginal woman. Jennifer confirmed that she did not consider herself or the children Aboriginal;

8. in October 2018, Jennifer advised an adoption assessor that Charlie’s grandmother or great-grandmother was Aboriginal, and one of her great-grandparents was Aboriginal, but neither Charlie nor Jennifer herself identify as Aboriginal;

9. in November 2018, the paternal grandmother advised caseworkers that her grandmother was “supposedly Aboriginal”, and was potentially part of the Stolen Generation;

10. later that month, Charlie informed caseworkers that he did not identify as Aboriginal;

11. in December 2018, Jennifer advised that the children’s Aboriginality was from her paternal side of the family, not the maternal side;

12. on 6 March 2019, John’s and William’s paternal half-sibling confirmed that Charlie is Aboriginal, but that he did not identify as Aboriginal and that no one in the paternal family identified as Indigenous except the paternal grandmother;

13. on 20 March 2019, the maternal grandmother advised that Jennifer identified as Aboriginal, and that she was “pretty sure” Jennifer’s second great-grandfather was Aboriginal;

14. on 21 March 2019, John’s and William’s maternal half-sibling advised that there was “may be” distant Aboriginality in the paternal family, and that she had been told this by the maternal grandmother;

15. on that same day, John’s and William’s paternal half-sibling advised that he did not identify as Aboriginal but was aware of some family history of Aboriginality;

16. in November 2019, in the course of an adoption casework conference, the maternal grandmother advised that the maternal grandfather’s grandfather, “or something in that line”, was married to an Aboriginal woman;

17. in April 2020, Jennifer stated in an email that she had spent her entire life being denied her Aboriginal heritage by her own father;

18. in August 2022, the paternal aunt indicated that the family has Aboriginal heritage from their father, but that this was hidden and not recognised when she was growing up;

19. in November 2023, Jennifer advised that the children’s mob was a nominated Nation located in northern New South Wales;

20. on 6 November 2024, at the first listing of this matter before me, Charlie attended in person and indicated to the Court that he did not consider himself, nor the children, to be Aboriginal;

21. on 28 November 2024, Jennifer advised that her great grandmother on her dad’s side was born in northern New South Wales and was Aboriginal and a part of the Stolen Generation.

11. Jennifer now strongly identifies as Aboriginal, and there is a strong family belief within the maternal family that they have Aboriginal heritage. From the family’s perspective, this heritage has not been acknowledged in the past.

12. In addition, on 13 August 2012, a Local Aboriginal Land Council issued a Confirmation of Aboriginality certificate for John, when John was one year of age. It is unclear how the certificate was obtained and by whom.

13. The Aboriginal Culture in Practice Unit, Office of Senior Practitioner at the New South Wales Department of Communities and Justice, has formed the current view that John and William are Aboriginal children.

The Secretary has made reasonable inquiries

14. Section 34 of the Act provides that:

“34 Application of Aboriginal child placement principles

(1) The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child.

(2) The Aboriginal child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is an Aboriginal child for adoption.”

15. The terms of s 34(1) make clear that the time at which reasonable inquiries must be made as to whether a child is an Aboriginal child is prior to the making of an adoption application; hence the section refers to reasonable inquiries being made as to whether a child is “to be placed” for adoption. While John and William have been physically placed in the care of non-Aboriginal carers, Albert and Megan, they have not yet been “placed for adoption” as Albert and Megan have not yet been assessed for their suitability to adopt under the Act. ^[3] Thus, this is the appropriate time for the Secretary to make these inquiries and for a preliminary hearing to be held in this Court about these matters.

    3. See Pt 3A of the Act, “Selection of authorised carers as adoptive parents”, and the Adoption Regulation 2015 (NSW), Pt 4, “Selection of authorised carers as adoptive parents of a child in their care”; see also The Adoption of Edward (a pseudonym) [2022] NSWSC 1488 at [10]-[16] (Stevenson J).

16. The Secretary acknowledges that reasonable inquiries were not undertaken at the time John and William were taken into care. The Secretary now finds himself in the challenging position of having become aware that the children may be Aboriginal children many years after they were placed with non-Aboriginal carers.

17. Since 2018, the Secretary has made inquiries as to whether John and William are Aboriginal children. The Secretary has made referrals to Link Up (NSW) Aboriginal Corporation and Link Up (Qld) Aboriginal Corporation, engaged the Crown Solicitor’s Office Family Research Team to undertake family history research, made enquiries with Queensland Child Safety in relation to the maternal family, and engaged with the extended maternal and paternal families.

18. On this application, the Secretary relied on 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 Jennifer or Charlie has Aboriginal ancestry that would warrant the conclusion that John and William are Aboriginal children.

19. As I have said, the basis on which it is suggested that John and William may be Aboriginal children is the fact that Jennifer identifies herself as an Aboriginal person by reason of what she understands to be her great-grandmother’s Aboriginal heritage.

20. I have read Mr Dauth’s report with great care. I will discuss the findings of his report below. I was also assisted by the written submissions prepared by Ms Hailstone, who appeared for the Secretary, as to the evidence.

21. I was satisfied that the Secretary has now made reasonable inquiries as to whether John and William are Aboriginal children. I acknowledge the difficulty of making these inquiries in circumstances where records may be lost due a history of members of the maternal and paternal families being in out-of-home-care, and because historical policies and practices have attempted to break the ongoing connections that Aboriginal persons have with their culture, country, and kin.

Whether John and William are Aboriginal children within the meaning of the Act

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

23. First, a child may be Aboriginal if the child is descended from an Aboriginal. “Aboriginal” has the same meaning as “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW). ^[4] That legislation adopts the well-recognised tripartite test for Aboriginality, namely that the 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. ^[5]

   4. The Act, s 4(1).

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

24. 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. Essentially, s 4(2) allows the Court to determine that a child is of Aboriginal descent, despite no ancestor satisfying the tripartite test above, ^[6] if the Court reaches the requisite state of satisfaction.

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

The Secretary’s submissions

25. As I have said, the Secretary relied on Mr Dauth’s report to support the conclusion that it is unlikely that John and William are of Aboriginal descent.

26. There is no independent corroborating evidence that the maternal or paternal families have Aboriginal ancestry. The written record suggests that John’s and William’s ancestry in both the maternal and paternal families can be traced back to the United Kingdom and Europe.

27. There is no evidence of either the maternal or paternal family being accepted by an Aboriginal community, other than the Confirmation of Aboriginality issued by the Local Aboriginal Land Council for John on 13 August 2012. ^[7] I accept that at the time the certificate was issued, the Local Aboriginal Land Council formed the view that there was sufficient evidence to justify the issuing of the certificate. However, I am informed that the current practice of the Local Aboriginal Land Council is not to issue a confirmation unless the person is an adult member and is accepted by a meeting. John was one year of age at the time the certificate was issued, and it is unclear how the certificate was obtained and by whom. William has not been issued with any Confirmation of Aboriginality.

    7. See [12] above.

Jennifer’s submissions

28. At the preliminary hearing, I was able to hear directly from Jennifer as to her position and her response to Mr Dauth’s report. Jennifer told me:

“I’m sorry to say that those boys are of Aboriginal descent. Somewhere along - as to what I’ve heard, my family denied their Aboriginality for so long that no one has any proof anymore because as far as everyone is concerned, the tribe that my family come from, it’s deceased. Everyone is deceased from that tribe which is not correct. And my - I’ve been told that the lady in my family that was Aboriginal, all her daughters were born black. All her sons were born white with Aboriginal facial features.

Now, I can tell you first hand that every single one of my children, all six of them, were born with the little Aboriginal noses. All six of them. So, you can’t sit there and tell me that there is no Aboriginal in my family when every child in my family, this includes my three grandkids and all my sisters - all my nieces and nephews were all born with the Aboriginal nose. That can’t be possible if there is no Aboriginal in my family.

Somewhere along the line there is Aboriginal in my family. Now, I’ve got people trying to find out this info, trying to find connections that we know it’s there. It’s just that my family denied it for so long that no one has any info because my family or my ancestors were bullied really, really badly to the point where they decided that they no longer wanted to be a part of their tribe. They no longer wanted to acknowledge their tribe. Well, I do. I want to acknowledge it and I want my kids to know the tribe. So, from my understanding the tribe is dead so my family are the only ones that are a part of the tribe now that doesn’t even exist.”

29. I am grateful to Jennifer for the dignity with which she expressed herself at the preliminary hearing.

Albert’s and Megan’s commitment

30. Since being informed that John’s and William’s maternal and paternal families may be Aboriginal, Albert and Megan have undertaken significant efforts to ensure John and William develop a healthy and positive cultural identity and a connection to their Aboriginal ancestry.

31. John and William are being raised by Albert and Megan as belonging to a particular Aboriginal Nation. Albert and Megan have worked with John’s and William’s caseworkers to develop Life Story Work folders. Albert and Megan also support the children to attend Aboriginal cultural events and to participate in events at school that further involve them with their culture.

32. In addition, Albert and Megan have engaged with a local Indigenous Church. They attend the church weekly with John and William, and have done so since 2018. John and William are mentored at the Church by a pastor who arranges for them to attend cultural workshops run by the Church and go onto country with elders from the Church. That pastor has indicated his strong commitment to supporting the children to develop their Aboriginal identities and experience culture.

33. At the preliminary hearing, Jennifer and I had this exchange:

“HIS HONOUR: [Albert] and [Megan] are, I think you understand, actively exposing the boys to their country and heritage. Does that give you any comfort?

[JENNIFER]: It does because I need them to know at least something, but they need to be acknowledged as Aboriginal because that’s what they are. We may be white but we are still Aboriginal.”

John’s and William’s self-identification

34. Indeed, John and William believe they are Aboriginal and proudly identify with their Aboriginal heritage and culture.

35. At the preliminary hearing, the Secretary tendered letters written by John and William, each addressed “Dear Judge”. I was grateful to receive these letters from John and William. In his letter, John wrote:

“I love my culture and learning about my culture and I can play the digeridoo.”

36. And, in his letter, William wrote:

“I’m a proud Aboriginal and I go to the Indigenous church and I like learning about my culture.”

37. It was very important for me to read John’s and William’s letters and take them into account on this application. I must have regard to the best interests of the child or, in this case, the children, as the paramount consideration in the making of any decision under the Act. ^[8] I was able to hear directly from John and William as to their wishes and feelings through these letters. ^[9]

    8. The Act, ss 7(a), 8(1)(a).

    9. The Act, s 8(2)(a).

Conclusion

38. In the hearing of proceedings under the Act, this Court may act on any statement, document, information or matter that may in its opinion assist it to deal with the matter of proceedings, whether or not that matter would be admissible in evidence. ^[10] However, the Court can only work with the materials placed before it. ^[11]

    10. The Act, s 126.

    11. Hackett (a pseudonym) v Secretary, Department of Communities and Justice (supra) at [168], [174] (Basten JA).

39. I was faced with the difficult task of weighing up the Secretary’s evidence regarding the written record against Jennifer’s oral family history and her, John’s and William’s strong self-identification as Aboriginal. ^[12] I acknowledge the considerable difficulties that Jennifer and the maternal family have faced in attempting to investigate their family history, in circumstances where historical policies and practices have attempted to break the ongoing connections that Aboriginal persons have with their culture, country, and kin.

    12. Adoption of F and IR (anonymised) (supra) at [16] (Sackar J).

40. Ultimately, I could not reach the requisite level of satisfaction on the evidence before me, and I wish to emphasise that caveat, that John and William are children of Aboriginal descent. ^[13] The consequence was that I could not be satisfied , on the basis of the evidence before me, that John and William are Aboriginal children within the meaning of s 4(1) of the Act.

    13. Hackett (a pseudonym) v Secretary, Department of Communities and Justice (supra) at [82] (Leeming JA).

41. I have made that finding only for the purpose of these proceedings. My conclusion should not be read as an affirmative finding that John and William are not Aboriginal children. I also do not mean to conclude that Jennifer herself is not an Aboriginal person.  It is important that I be clear about that. Indeed, Mr Dauth’s report makes clear the possibility that the records he has consulted are not all accurate or complete.

42. I have no doubt that Jennifer will continue to investigate her and the children’s family history. Ms Hailstone has also assured me that if any further information about John’s and William’s family history becomes known to the Secretary, then that information will be shared with Albert, Megan, the pastor, and the children, and appropriate steps will be taken to engage them with their culture.

43. If the children are to be placed for adoption, the Secretary will, in due course, have to take into account John’s and William’s culture and have regard to the principle that a child’s identity and cultural ties should, as far as possible, be preserved. ^[14]

    14. See the Act, s 32(1), for children other than Aboriginal and Torres Strait Islander children.

44. I am confident that my findings will not affect Albert’s and Megan’s commitment to exposing John and William to their culture, and to supporting John and William to develop a healthy and positive cultural identity and maintain connections with Jennifer and their siblings.

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Endnotes

Decision last updated: 26 February 2025