The Adoption of Mary (a pseudonym) and Michael (a pseudonym) (No 2)

[2023] NSWSC 1038

Supreme Court

New South Wales

Medium Neutral Citation:	The Adoption of Mary (a pseudonym) and Michael (a pseudonym) (No 2) [2023] NSWSC 1038
Hearing dates:	On the papers; submissions received 17 August 2023
Date of orders:	30 August 2023
Decision date:	30 August 2023
Jurisdiction:	Equity - Adoptions List
Before:	Stevenson J
Decision:	The Secretary has complied with his obligations under s 33 of the Adoption Act 2000 (NSW)
Catchwords:	CHILD WELFARE – Adoption – Aboriginal children – whether Secretary has engaged in the consultations required by s 33 of the Adoption Act 2000 (NSW)
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	The Adoption of Mary (a pseudonym) and Michael (a pseudonym) [2023] NSWSC 149
Category:	Procedural rulings
Parties:	Secretary, New South Wales Department of Communities and Justice (Plaintiff) “Audrey” (a pseudonym) (First Defendant) “Steven” (a pseudonym) (Second Defendant)
Representation:	Solicitors: Crown Solicitor’s Office (Plaintiff) Defendants (self-represented)
File Number(s):	2019/221936
Publication restriction:	This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. I published an earlier judgment in this matter on 27 February 2023. ^[1] I will use the same abbreviations and pseudonyms here.

   1. The Adoption of Mary (a pseudonym) and Michael (a pseudonym) [2023] NSWSC 149.

2. To give effect to that judgment, I have since ordered that:

1. for the purposes of s 34 of the Adoption Act 2000 (NSW) (“the Act”), the Secretary has made reasonable inquiries as to whether Mary and Michael are Aboriginal children;

2. Mary and Michael are Aboriginal children within the meaning of s 4(1) of the Act;

3. the Prospective Adoptive Parents satisfy the requirements of s 35 of the Act; and

4. for the purposes of s 35(4) of the Act, the best interests of Mary and Michael will be served, having regard to the objects of the Act, by being placed for adoption with the Prospective Adoptive Parents.

3. I was not then satisfied that the Secretary had complied with his obligation under s 33(1) of the Act to “ensure” that a person approved in accordance with s 195 of the Act was “consulted about the placement” of Mary and Michael, nor with the requirement in s 33(2) to ensure that the placement of Mary and Michael with the Prospective Adoptive Parents had been made “in consultation with a local, community-based and relevant Aboriginal organisation”.

4. As to s 33(1), I recorded in my 27 February 2023 judgment that the Secretary accepted that the requirements of that subsection were not then satisfied. I noted that the Secretary had engaged Ms Smith to undertake a consultation and that Ms Smith’s report was expected by the end of the month.

5. Ms Smith’s report was to hand on 5 March 2023. Ms Smith expressed the view that none of restoration, guardianship or the allocation of parental responsibility to the Prospective Adoptive Parents, nor the maintenance of the status quo was a preferable or viable option to the making of an adoption order.

6. Ms Smith reported:

“Given that information about the cultural heritage of both [Michael] and [Mary] was confirmed in 2020 and the family are starting to implement the recommendations in the Cultural Plan, the impact and effect of adoption on [Mary] and [Michael] should not impact on their day to day lives, and I do not believe it will impact on their overall cultural perspective.”

7. Ms Smith further reported:

“Given that both [Mary] and [Michael] have birth fathers who are not Aboriginal, the current placement with the [Prospective Adoptive Parents] is appropriate, as DCJ [has] complied with legislation to create a Cultural Plan, with input from Maternal family members, and both [the Prospective Adoptive Parents] are committed to ensuring that [Mary] and [Michael] develop meaningful and sustaining relationships with maternal Aboriginal family members.”

8. I am, in those circumstances, satisfied that the Secretary has now complied with the requirements of s 33(1) of the Act.

9. As to the requirements of s 33(2) of the Act, since my judgment of 27 February 2023, the Secretary has engaged in communications with a local, community-based and relevant Aboriginal organisation. During that consultation, there was an “exchange of views” concerning the placement for adoption of Mary and Michael with the Prospective Adoptive Parents.

10. That organisation stated:

“There were a number of key issues raised, with the majority of them being very positive, due to [the Prospective Adoptive Parents’] parenting skill-set.

It is determined that the children are thriving in their current placement and [the Prospective Adoptive Parents] are doing their best to engage [Mary] and [Michael] with their First Nation relatives. From a Cultural Lens, it is imperative that this continues and it is great to see a level of commitment from [the Prospective Adoptive Parents] once again.

It wasn’t these established relationships that were really their concern. The concern was the generation before.” (Emphasis added.)

11. I accept the Secretary’s submission that he has now complied with his obligation under s 33(2) of the Act.

12. It is therefore not necessary here to consider the question of what course the Court should follow if not persuaded of such compliance.

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