The Adoption of Nataly (a pseudonym) and Ali (a pseudonym)

[2023] NSWSC 1069

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Nataly (a pseudonym) and Ali (a pseudonym) [2023] NSWSC 1069

Hearing dates:

19 July 2023

Date of orders:

06 September 2023

Decision date:

06 September 2023

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

The Secretary has made reasonable inquiries as to whether the children are Aboriginal children; the children are Aboriginal children; the prospective adoptive parent has the capacity and knowledge specified in s 35(3) of the Adoption Act 2000 (NSW); the Aboriginal child placement principles have been properly applied; the Secretary has complied with the consultation obligations under s 33 of the Act; an inability of the Secretary to comply with the consultation obligations under s 33(2) of the Act would not itself deprive the Court of jurisdiction to make an order for adoption; declaration of paternal parentage to be made

Catchwords:

CHILD WELFARE – adoption – Aboriginal child placement principles – whether placement for adoption has occurred – whether prospective adoptive parent has capacity under s 35(3) of the Adoption Act 2000 (NSW) – where children with one Aboriginal parent and one non-Aboriginal parent – where prospective adoptive parent is not Aboriginal – where preliminary hearing held under s 80(2) of the Adoption Act 2000 (NSW)

CHILD WELFARE – adoption – consultation by the Secretary with a relevant Aboriginal organisation – whether placement of Aboriginal child for adoption has been made in consultation with such an organisation for the purposes of s 33(2) of the Adoption Act 2000 (NSW) – whether the engagement by the Secretary in such consultation is a condition of the authority of the Court to make an adoption order – whether failure or inability of the Secretary to ensure that the requisite consultation has occurred deprives the Court of the power to make an order for adoption

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW)

Adoption Act 2000 (NSW)

Adoption Amendment Bill 2008 (NSW)

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

Status of Children Act 1996 (NSW)

Status of Children Regulation 2019 (NSW)

Cases Cited:

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591

Clayton v Heffron (1960) 105 CLR 214; [1960] HCA 92

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Tasker v Fullwood [1978] 1 NSWLR 20

The Adoption of Blake (a pseudonym) [2022] NSWSC 1766

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

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

Texts Cited:

New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 25 September 2008

Category:

Procedural rulings

Parties:

Secretary, New South Wales Department of Communities and Justice (Plaintiff)
“Michael” (Defendant)

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Defendant (self-represented)

File Number(s):

2023/171198

Publication restriction:

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

JUDGMENT

1. Nataly and Ali (not their real names) are twins born in 2012.

2. Their mother, Sophia (not her real name), is an Aboriginal woman. Michael (not his real name) who, for reasons I set out below, I am satisfied is the father of the children, is Anglo-Australian.

3. The children have lived with Isabella (not her real name) continuously since they were 14 months old.

4. The Secretary, New South Wales Department of Communities and Justice (“the Secretary”) anticipates that, in due course, he will apply for an order that the children be adopted by Isabella. Sophia will support that application. Michael will oppose it.

5. In the meantime, the Secretary seeks:

1. a determination that the children are descended from an Aboriginal and are thus themselves Aboriginal children for the purposes of s 4(1) of the Adoption Act 2000 (NSW) (“the Act”);

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

3. because Isabella is a non-Aboriginal prospective adoptive parent, a determination that she has the capacity and knowledge specified by s 35(3) of the Act and that the Aboriginal child placement principles referred to in s 35 of the Act have been properly applied;

4. because the children have one Aboriginal parent and one non-Aboriginal parent, a determination that they may be placed with Isabella for the purposes of s 35(4) of the Act;

5. a determination that the Secretary has engaged in appropriate consultation for the purposes of s 33 of the Act; and

6. a declaration that Michael is the father of the children pursuant to s 21(2) of the Status of Children Act 1996 (NSW).

6. As I have said, the children have lived continuously with Isabella since they were 14 months old.

7. On 29 September 2014, the Children’s Court at Goulburn made final orders allocating parental responsibility for the children, along with their sibling Tom (not his real name) to the Minister for Families, Communities and Disability Services until they attain the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). Those orders remain in effect.

8. As it is proposed that the children now be formally placed for adoption with Isabella, and as Isabella is not an Aboriginal person, I held a preliminary hearing on 19 July 2023 pursuant to s 80(2) of the Act.

9. At that hearing I heard submissions from Ms Hailstone for the Secretary. Isabella, Sophia and Michael attended the preliminary hearing remotely. Michael requested, and I ordered, that he be given until 1 September 2023 to reply to the Secretary’s submissions in relation to the above issues. He has not done so.

Placement for adoption

10. Although Nataly and Ali have been in the care of Isabella since 2013, they have not yet been “placed for adoption” with Isabella. Isabella is an authorised carer of the children. Part 3A of the Act provides a mechanism whereby the Secretary can invite Isabella, as an authorised carer of the children in out of home care, to submit an application for their adoption. As I have observed on previous occasions, this is a different process to that outlined in Pt 3 of the Act. Under Pt 3A, the selection process is focused on a child or children already in out of home care and the authorised carer or carers are already caring for that child or children.

11. In Pt 3A matters, placement for adoption does not involve a physical change in the living arrangements of the child or children.

12. Under both Pts 3 and 3A of the Act, an individual who applies to be assessed as suitable to adopt is referred to as a “prospective adoptive parent”. ^[1] If the prospective adoptive parent is successful in the selection process, and any other requirements of the Act are satisfied, the Act refers to the prospective adoptive parent as a “proposed adoptive parent”.

    1. Sections 41 and 45C of the Act.

13. These reasons are concerned with the requirements of the Act which arise because of the Aboriginal heritage of the children.

14. Since 26 March 2019, when the long term goal in relation to Nataly’s and Ali’s care plan was changed to adoption, some of the steps required under Pt 3A have commenced. For example, on 22 November 2021, Isabella was invited to submit an application form to adopt the children pursuant to s 45D of the Act. On 26 May 2022, an Adoption Assessment was undertaken by Ms Smith (not her real name).

15. Once I have dealt with the matters referred to in this judgment, the Secretary will complete the remaining tasks under Pt 3A; in particular, determining whether the prospective adoptive parent, Isabella, is suitable to adopt under s 45F of the Act, and satisfying himself that adoption is clearly preferable and in the best interests of the children under s 36 of Act. Once that has happened, the Secretary will engage an “authorised person” to prepare a court report pursuant to s 91 of the Act and otherwise to prepare the adoption application.

The children are Aboriginal children

16. A child is an “Aboriginal child” if a child is descended from an Aboriginal or is of Aboriginal descent. ^[2]

    2. Sections 4(1) and 4(2) of the Act.

17. The Act defines “Aboriginal” as having the same meaning as an “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW), namely a person who:

1. is a member of the Aboriginal race of Australia, and

2. identifies as an Aboriginal person, and

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

   3. Section 4.

18. The Secretary’s careful submissions make clear that the children are themselves “Aboriginal persons” as each satisfies the tripartite definition of an “Aboriginal person” in the Aboriginal Land Rights Act.

19. The children are also descended from an Aboriginal person. When the children first entered care, Sophia did not identify as Aboriginal. Having now connected with her father, Brian (not his real name), Sophia now identifies as Aboriginal and is on her own journey to learn about her culture. Brian is an Aboriginal person and as the children are descended from him, they are descended from an Aboriginal and are thus themselves Aboriginal children.

Reasonable inquiries as to the children’s Aboriginality – section 34 of the Act

20. Section 34 of the Act requires the Secretary to make reasonable inquiries as to whether a child or children to be placed for adoption is or are an Aboriginal child or children.

21. When the children first became known to the Department of Communities and Justice, there was uncertainty as to whether they should be identified as Aboriginal because, as I have said, Sophia did not then identify as an Aboriginal person.

22. Since then, Sophia now identifies as an Aboriginal person, and substantial and more specific inquiries have been made which have been summarised in the detailed submissions made on behalf of the Secretary. I am satisfied that the Secretary has made reasonable inquiries.

Isabella’s capacity and knowledge – section 35(3) of the Act

23. Aboriginal children are not to be placed for adoption with a non-Aboriginal prospective adoptive parent unless the Court is satisfied of the matters referred to in s 35(3) of the Act, namely that the prospective adoptive parent has:

1. the capacity to assist the children to develop a healthy and positive cultural identity; and

2. knowledge, or a willingness to learn about and teach the children about, the children’s Aboriginal heritage and to foster links with that heritage in the children’s upbringing; and

3. the capacity to help the children if the children encounter racism or discrimination in the wider community.

24. The Secretary has provided detailed submissions as to the steps that Isabella has taken to ensure that Nataly and Ali are connected with their Aboriginal culture, identity and Country and to demonstrate Isabella has, herself, also participated in events showing her willingness to learn and teach the children about their Aboriginal heritage and to foster these links in their upbringing.

25. My attention has been drawn to many examples of Isabella engaging in this way. Isabella has recently discussed with an Out of Home Care Adoption Caseworker how the children’s school endorses and supports their Aboriginality, that the children have recently been involved in creating a cultural garden at their school, and have participated in a yarn circle and in weaving and storytelling. The children quite recently worked on artwork to submit to a local council for NAIDOC and travelled to Canberra for a visit to the Aboriginal Exhibition of Objects and Stories in the National Art Museum.

26. Ms Jones (not her real name), a Counsellor and Independent Indigenous Consultant, has prepared a report for the purpose of s 195 of the Act. Ms Jones speaks of Isabella’s engagement “proactively in community-based activities” and of her “promoting maternal family contact in the way that meets both [Nataly’s] and [Ali’s] needs but also provides a level of safety and security for the maternal family”. Ms Jones also notes that “it is not often that Aboriginal community members support adoption for Aboriginal children to non-Aboriginal people” and yet there is “community support for adoption of [Nataly] and [Ali] to [Isabella]”. Ms Jones speaks of Isabella’s “commitment to ensuring both girls keep connected to their culture on a community basis and a family basis, in a safe and empowering way”.

27. It is important to keep these matters steadily in mind.

28. I find it important to set out this passage from Ms Jones’ report:

“While the Aboriginal community generally do not consider adoption of Aboriginal children to be appropriate due to the ongoing impact of previous policies and legislative requirements which resulted in the Stolen Generation and current transgenerational trauma experienced by many Aboriginal people, current adoption practices and policies have been developed to ensure that Adoption is now open and inclusive, with contact with the birth family encouraged, and the child or young person encouraged to be proud of their cultural heritage. It is rare for Aboriginal families and community to come together to advocate for the adoption of children to non-Aboriginal people, yet, the support that [Isabella], [Nataly] and [Ali] have had to finalise this process, has been strong and consistent.”

29. I am comfortably satisfied that Isabella has the capacity and knowledge called for by s 35(3) of the Act.

Aboriginal child placement principles – section 35(3) of the Act

30. The Aboriginal child placement principles in s 35 of the Act provide that, for Aboriginal children, the first preference is placement with prospective adoptive parents belonging to the Aboriginal community of the children’s birth parents or, if that is not practicable or in the best interests of the child, with prospective adoptive parents of another Aboriginal community or, if that is not practicable or in the best interests of the child, with non-Aboriginal prospective adoptive parents.

31. Section 35(3) requires that where, as here, Aboriginal children are to be placed with a non-Aboriginal prospective adoptive parent, I must be satisfied that the Aboriginal child placement principles have been properly applied.

32. Ms Smith has summarised the consideration given to the Aboriginal child placement principles at the time that Nataly and Ali were taken into care. At the time of the Children’s Court proceedings, consideration was given to the placement principles in s 13 of the Care Act, which are in similar, although not exactly the same, terms as in s 35 of the Act. ^[4]

    4. The primary differences between s 13 of the Care Act and s 35 of the Act are: (1) s 13 prioritises members of a child or young person’s family or kinship group as the first preference for placement; (2) s 13 relates to the child or young person’s Aboriginal community rather than the Aboriginal community of the birth parents (though these are likely to be the same in most cases); (3) s 13 specifies that the placement of a child or young person in another Aboriginal family/community is to be in the vicinity of the child or young person’s usual place of residence; and (4) s 13 provides that a non-Aboriginal placement may only be approved after consultation with extended family/kinship groups and appropriate Aboriginal organisations, which is not required by s 35(2) of the Act.

33. Ms Smith has summarised what occurred as follows:

“The Aboriginal Placement Principles under section 13(1) of the [Care Act] have been considered as part of the recommendation regarding permanency for [Nataly] and [Ali]. The hierarchy of placement for Aboriginal children is for them to be placed first with family and kin; then with a member of the Aboriginal community to which the child belongs; then with another Aboriginal family residing near where [Nataly] and [Ali] were living; and finally with another suitable person approved by the Secretary in consultation with family and Aboriginal organisations.

When [Nataly] and [Ali] entered care, restoration to the care of [Sophia] was determined to be unsuitable. [Michael] was considered a suitable option but withdrew his application to care for [Nataly] and [Ali]. [Sophia’s mother] was determined not to be suitable. It was noted on record no other family member was available to care for [Nataly] and [Ali].

When [Nataly] and [Ali] entered care and until 2014 (after final orders had been made), [Nataly] and [Ali] were not known to be [Aboriginal] girls. In 2013, [Brian] had identified with [an identified] mob only, stating this is where his connections were, as his mother was born on this country. Therefore, placement options were not sought with the [identified Aboriginal] community. DCJ records show attempts were made to locate Aboriginal carers for [Nataly], [Ali] (and [Tom]), without success, including consulting with local Aboriginal [out of home care] agencies. Due to this DCJ decided to prioritise placement stability and confirm the placement with [Isabella].

Section 13(4) and (5)(a) of the [Care Act] also states ‘a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act’ and that if the child ‘is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture’.

It is considered while perhaps additional searches and consultation with family and community could have been completed at the time [Nataly] and [Ali] entered [out of home care], the placement principles were followed, particularly when considering section 13(4) and (5)(a). [Isabella’s] ability to support the cultural and family time needs of [Nataly] and [Ali] will be discussed further below.”

34. In that context, I have received the following further submissions from the Secretary, which I have carefully considered and which I accept:

“There have not been any recent inquiries with the children’s Aboriginal community (the [identified] mob), or another Aboriginal community about the children being placed with such carers, being the preferred placement options according to subs (a) and (b) of s 35(2) because clearly it [is] not practicable or in the children’s best interests for them to be placed with anyone other than the prospective adoptive parent.

This Court must consider s 35 in the context of the children having lived with the prospective adoptive parent since … they were 14 months old. The Court should have regard to the fact that the prospective adoptive parent is seen by the children as their mother. The children are securely connected to her, and she meets all of their psychological, emotional and physical needs. As [Ms Smith] states in her assessment report:

‘[Isabella] has been assessed as having sufficient life skills and experience to parent [Nataly] and [Ali] as adopted children and raise them to adulthood in a stable, secure and beneficial emotional and physical environment. This is evident by her meeting all their needs already, independently of the agency, including their physical and emotional health … [Nataly] and [Ali] strongly identify with [Isabella] as their mother, and given their birth parents, [Sophia] and [Michael] have often not been able to be present for them, it is noted that this relationship is even more important. [Isabella] considers [Nataly] and [Ali] her daughters and her motivation to adopt them stems from this relationship and as such is considered child focused.’

[A different social worker, Ms French, not her real name] also recorded in her 2020 assessment that [Nataly] and [Ali] demonstrate a strong primary attachment to [Isabella], and they identify completely with their extended foster family’.

Accordingly, it would not be practicable or in the children’s best interests to be removed from the care of the prospective adoptive parent, even if it were in order for them to be placed with a carer from the [identified] mob, given the nature of the girls’ relationship with [Isabella], and the length of time they have resided in the placement. Further, it would be contrary to the express wishes of the girls’ maternal birth family (the maternal grandfather and mother) as referred to above.

The children’s own views and wishes about the placement should also factor into the Court’s consideration of s 35(2). [Ms French] in her 2020 assessment states ‘[Nataly] and [Ali] were both able to describe what adoption meant to them. [Nataly] said ‘It means that I want my mummy to be my legal mummy’, whilst [Ali] said ‘It means that [Sophia] could not look after us and the police came, and we went to our mummy who loves us and looks after us’. [Nataly] and [Ali] have both written letters to the Secretary confirming their love of [Isabella] and their view of her as their mother.

It is submitted the Court can be comfortably satisfied that s 35(2)(c) can be applied in this case.” (Footnotes omitted.)

The placement of the children where one of their parents is not Aboriginal – section 35(4) of the Act

35. Section 35(4) of the Act provides that 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 the Act”.

36. Although the Act does not define “Aboriginal parent” I think it clear that Sophia should be so regarded. The expression “Aboriginal parent” should be given a wide meaning and should be read as including a parent who is descended from an Aboriginal person, even if that parent does not satisfy the tripartite test in the Aboriginal Land Rights Act.

37. Here Sophia, even if not herself previously identifying as an Aboriginal person (a matter about which it is not necessary for me to express a view), is clearly descended from an Aboriginal person.

The best interests of the children

38. I think it clear that in this case, it is in the best interests of the children that they be placed for adoption with Isabella.

39. I find particularly important this opinion expressed by Ms Jones:

“[Sophia’s] voice, while minimising this process, has been strong in maintaining that adoption [is] the only outcome for [Nataly] and [Ali]. [Brian], maternal grandfather and family elder, also supported adoption of [Nataly] and [Ali], despite his own personal history of being removed from his family, his culture and his community, however his voice has been minimised too.”

40. Brian is a member of a land council and, as the Secretary has submitted, is a culturally significant person for the children. I find it most significant that, although Brian does not support the adoption of Aboriginal children in general and understands why this is not supported by many Aboriginal people, he has expressed strong support for the children’s adoption by Isabella, and has done so now for many years.

41. Section 35(5) provides that if there is a placement of the kind referred to in s 35(4), any adoption plan must provide for the relevant child to have the opportunity to develop an identity with the Aboriginal community to whom the child belongs.

42. The Secretary proposes to ensure that any forthcoming proposed adoption plan will satisfy this requirement.

The consultation required by section 33 of the Act

43. Section 33 of the Act requires that the person approved in accordance with s 195 of the Act is “consulted about the placement of an Aboriginal child”^[5] and that such placement is made “in consultation with a local, community-based and relevant Aboriginal organisation”. ^[6]

    5. Section 33(1)(a).

    6. Section 33(2).

Consultation under section 33(1) of the Act

44. As I have said, Ms Jones is a person approved in accordance with s 195 of the Act and has provided a report. Ms Jones recommends that the adoption of the children by Isabella should proceed. However, the presently relevant point is that she has been consulted in relation to the placement of the children with Isabella for adoption so as to satisfy s 33(1) of the Act.

Consultation under section 33(2) of the Act

45. As I have observed in earlier decisions, the process required by s 33(2) of the Act, that the Secretary ensure that the placement of an Aboriginal child is made “in consultation with” a relevant Aboriginal organisation, requires the Court to come to a different state of satisfaction than is called for by s 33(1).

46. In The Adoption of Edward (a pseudonym),^[7] I held that s 33(2) requires “consultation with” an “organisation that has knowledge and expertise in the area of Aboriginal children and child protection generally”. ^[8]

    7. [2022] NSWSC 1488.

    8. At [45].

47. Additionally, I held that the requirement in s 33(2) that the placement of an Aboriginal child for adoption be made “in consultation with” an Aboriginal organisation of the kind referred to required more than something beyond making an unanswered enquiry and an “ongoing process, albeit perhaps brief, but involving at a minimum a response of some kind from the organisation in question”. ^[9]

    9. At [49].

48. Later, in The Adoption of Mary (a pseudonym) and Michael (a pseudonym),^[10] I held that in order for the placement of the child to be made “in consultation” with a relevant Aboriginal organisation, it was necessary that “the response received from the organisation involve some kind of exchange of views, perhaps only briefly, about the proposed placement”. ^[11]

    10. [2023] NSWSC 149.

    11. At [57].

49. Section 33(2) was inserted into the Act by the Adoption Amendment Bill 2008 (NSW). ^[12]

    12. This Bill also inserted a corresponding section, s 37(2), in relation to the adoption of children with a Torres Strait Islander background.

50. The section was added to the Act to respond to concerns of Aboriginal groups that Aboriginal organisations were not being involved “in considering how the child’s cultural heritage will be protected” by an order for adoption. ^[13]

    13. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 25 September 2008 at 10111-2.

51. When considering how s 33(2) is to be construed, and when considering the difficulties, of which the Court is aware, of the possibility of compliance with the requirements of the section, it is necessary for the Court to bear in mind that adoptions are not part of Aboriginal culture, and that the process of removing Aboriginal children to be placed with other carers carries, for significant sections of Aboriginal communities in Australia, negative connotations associated with the practices of the Stolen Generation. ^[14]

    14. Ibid.

52. This case is a good example of the difficulty that can arise in relation to compliance with the provisions of s 33(2).

53. The Secretary submits that the only organisation located that could satisfy the consultation requirement in s 33(2) is an organisation that I will call “the Organisation”. The Organisation’s website states that its purpose is to deliver holistic community services which improve the wellbeing of the local Aboriginal communities.

54. On 17 April 2023, a Departmental officer, who I will call Ms Fisk (not her real name) wrote to the Organisation:

“I am currently working with young [Aboriginal] girls and their family who are progressing towards adoption. The girls, [Nataly] & [Ali] reside in New South Wales and with the support of their grandfather have learnt of their Aboriginal heritage and their … descendants. [Nataly’s] and [Ali’s] great grandmother … was born [near an identified river]. [Nataly’s] and [Ali’s] paternal grandfather [Brian] was born on [identified] land and is recognised as [an identified Aboriginal nation] man. [Nataly] and [Ali] maintain connection with [an identified Aboriginal Elder] who resides in [an identified regional town]. The girls alongside their grandfather visit on country annually and participate in local NAIDOC and smoking ceremonies. [Nataly] and [Ali] maintain an ongoing connection with their country.

While adoption is the least preferred permanency option for an Aboriginal child, in this instance Adoption has been considered the most suitable plan for [Nataly] and [Ali] and has the support of both of their mother, grandfather and approval from DCJ Deputy Secretary.

As part of the Adoption legislation it is a requirement that consultation occurs with an Aboriginal organisation from the same country or mob where [Nataly’s] and [Ali’s] ancestors are from … who has knowledge and expertise in the area of Aboriginal children and child protection generally. The consultation is in relation to the proposal of adoption for [Nataly] and [Ali], their placement and a review of the Adoption Plan and Cultural Plan in meeting [Nataly’s] and [Ali’s] needs should they be adopted.”

55. Ms Fisk ultimately spoke to Ms Gillies (not her real name), a Team Leader at the Organisation.

56. Ms Fisk described her conversation with Ms Gillies as follows:

“On 9 June 2023 I spoke with Ms [Gillies] about the children. Ms [Gillies] stated that as an Aboriginal organisation [the Organisation] does not support adoption. The Cultural Plan was discussed but the draft Adoption Plan was not. She stated that she was not prepared to provide a written consultation but she was happy for me to email the points that we had discussed and seek her feedback to ensure this accurately reflected our conversation.”

57. After their conversation, Ms Fisk sent an email to Ms Gillies summarising the “key points from [their] discussion” as follows:

“• You identified that your role as Team Leader at [the Organisation]. You are directly involved at the intake level of child protection, you offer guidance and support as Aboriginal consultancy and assist with placement and development of cultural plans and Aboriginal children and their families.

• As an Aboriginal Organisation you do not support adoption.

• The Cultural Plan was discussed, specifically the ancestry from [identified] Mob. It was advised that further work could be completed in this area in establishing cultural connection. This is where [Nataly’s] and [Ali’s] great, great grandparents lived.

• The Cultural Plan is a living document.

• It was acknowledged that [Brian] identifies as [being from an identified Aboriginal nation]. Both [Brian’s] and [Nataly’s] and [Ali’s] Aboriginal Certification does not identify the Mob they identify with.

• There was additional discussion about building and evidence of return to country in Cultural Plan.

• There was no discussion of the adoption plan as adoption is not supported.”

58. Ms Gillies replied:

“In response to your below email and further follow up with the families mob details, I agree that the family can identify as [being from an identified Aboriginal nation] .”

59. The Court understands that it is the view of many, if not most or all, local, community-based and relevant Aboriginal organisations that they do not support the adoption of Aboriginal children at all, and particularly by non-Aboriginal people.

60. That was the view expressed by Ms Gillies to Ms Fisk in their conversation.

61. Accordingly, where the Court is dealing with a circumstance where the best interests of an Aboriginal child appear to favour placement for adoption with a non-Aboriginal person, being the third preference under the Aboriginal child placement principles in s 35 of the Act, it is to be expected that the local, community-based and relevant Aboriginal organisations referred to in s 33(2) may well wish to, and obviously be entitled to, confine any “consultation” of the kind referred to in s 33(2) to a statement of the position that the organisation “does not support adoption”, as was stated by Ms Gillies to Ms Fisk.

62. When, as has occurred here, an organisation such as the Organisation agrees to be consulted about the proposed adoption of Aboriginal children by a non-Aboriginal person but offers no more than a statement that the organisation “does not support adoption”, that should be regarded as an exchange of views about the proposed placement which is sufficient to satisfy the consultation requirement under s 33(2) of the Act.

63. This approach acknowledges the legislative requirement in s 33(2) of the Act, but also an acceptance by the Court of Aboriginal communities’ position in relation to adoption.

64. In these circumstances, in my opinion the exchange between Ms Fisk and Ms Gillies is sufficient to satisfy the requirements of s 33(2).

65. In case I am wrong in coming to this conclusion, and that the exchange between Ms Fisk and Ms Gillies is not sufficient to satisfy the requirements of s 33(2), I have given consideration to the question of whether or not the Court could in due course make an order for adoption, notwithstanding the fact that there had not been compliance with s 33(2).

66. Recently, in similar but not identical circumstances, Meek J expressed the tentative view that it would be open to the Court to excuse compliance by the Secretary with the requirements of s 33(2) by reason of the principle of lex non cogit ad impossibilia (“the law does not compel a man to do that which he cannot possibly perform”). ^[15]

    15. The Adoption of Blake (a pseudonym) [2022] NSWSC 1766 at [202]-[209].

67. I prefer to deal with this question by considering whether it can be concluded that it was the legislature’s intention that the Secretary’s failure or inability to comply with the requirements of s 33(2) should be seen as removing the Court’s power to determine that the Aboriginal child has been placed for adoption and, more broadly, to make an order for adoption.

68. To consider the above question, it is first necessary to examine the broader principles of interpreting legislation.

69. When the Court interprets and applies legislation, it must look to the intention of the enacting Parliament. ^[16]

    16. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [41] (Brennan CJ).

70. The Court is to seek “the meaning of the words which Parliament used” and “not what Parliament meant but the true meaning of what they said”. ^[17]

    17. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613 (Lord Reid).

71. Section 22 of the Act provides:

“Proceedings for the making of adoption orders and other orders under this Act are to be heard and determined by the Supreme Court”.

72. The effect of an order of this Court derives from the Court’s status as a superior court of record, rather than from the statute that confers the relevant jurisdiction; in this case, the Act.

73. When interpreting s 33(2) of the Act:

“The ultimate question of construction is whether the statute makes taking the consideration into account a condition of the authority which the statute confers on the court to make an order of that kind. Determining that question, like determining any question of whether non-compliance with a mandated step in a decision-making process transgresses the limits of decision-making authority conferred by statute, requires attention to ‘the language of the relevant provision and the scope and object of the whole statute’.”^[18]

18. Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [19] (Gageler J), citing Project Blue Sky Inc v Australian Broadcasting Authority (supra) at [93] (McHugh, Gummow, Kirby and Hayne JJ), quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24 (Hope, Glass and Samuels JJA).

74. Section 33(2) does not purport to impose any requirement on the Court to have regard to a specific consideration before making, or as a condition precedent to making, an order for adoption. Rather, it imposes on the Secretary a requirement to ensure the placement of an Aboriginal child is made “in consultation with” the specified type of Aboriginal organisation.

75. This may be contrasted with ss 89, 90 and 91 of the Act which provide that:

1. the Court “must not” make an adoption order until the revocation period for each consent given by an adult to the adoption has expired, and a period of 30 days from any consent of the child; ^[19]

2. the Court “must not” make an adoption order unless satisfied about a number of matters including that the best interests of the child will be promoted by the adoption,^[20] the relevant consents have been obtained or dispensed with,^[21] and if the child is an Aboriginal child, that the Aboriginal child placement principles have been properly applied; ^[22] and

3. the Court “may not” make an adoption order unless the parties have agreed to an adoption plan,^[23] the Court has considered that an adoption order is clearly preferable in the best interests of the child to any other action that could lawfully be taken in relation to care of the child,^[24] and the Court has been provided with a written report concerning the proposed adoption of the kind required in s 91 of the Act.

   19. Sections 89(a) and (b) of the Act.

   20. Section 90(1)(a) of the Act.

   21. Section 90(d) of the Act.

   22. Section 90(1)(e) and see generally the requirements in s 90(1)(a)-(h) of the Act.

   23. Section 90(2) of the Act.

   24. Section 90(3) of the Act.

76. The position would be different if s 33(2) was phrased, for example, “the Court must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation”.

77. Assignment of responsibility to the Secretary, rather than the Court, to engage with relevant Aboriginal organisations signifies that Parliament did not intend to restrict the jurisdiction of the Court, but rather to place a preliminary obligation on the Secretary, in order to ensure, so far as possible, that the opinions and perspectives of relevant Aboriginal organisations are placed before the Court. Indeed, the Act does not oblige the Secretary to adopt any views expressed to him by the consulted Aboriginal organisation or to take any particular position following the consultation.

78. This is consistent with other provisions of the Act that prescribe various requirements to be undertaken by the Secretary so as to give Aboriginal people the opportunity to participate in the decision making process with as much self-determination as possible, including:

1. consultation with a person approved under s 195 of the Act, or 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; ^[25] and

2. application of the Aboriginal child placement principles, so far as is practicable and in the best interests of the child. ^[26]

   25. Sections 33(1)(a) and (b) of the Act.

   26. Sections 34 and 35 of the Act.

79. Thus, the Act does not make taking the consideration specified in s 33(2) into account, the requirement that the Secretary engage in the consultation there described, “a condition of the authority which the statute confers on the Court”^[27] to make an adoption order.

    27. See [73] above.

80. Of course, the Secretary must seek to comply with his obligation under s 33(2) to ensure the appropriate consultations are made. The extent of any such consultation is a matter for the Court to weigh up in the evaluative process of considering whether, in all the circumstances, an order for adoption should be made. If, in a particular case, the Secretary, despite his best endeavours, has not been able to ensure that the placement of an Aboriginal child has been made in consultation with a local, community-based and relevant Aboriginal organisation, that is a matter for the Court to consider when giving effect to the Aboriginal child placement principles. It may constitute a reason why the Court would not, in all the circumstances, make an order for adoption. But it would not deprive the Court of jurisdiction to make an adoption order if the Court concluded that the making of such an order was in the best interests of the child, and that the other relevant considerations pointed to the conclusion that the Court should so order.

The Secretary’s satisfaction – section 36 of the Act

81. Section 36 of the Act provides that an Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of an adoption order would be clearly preferable in the best interests of the child to any other action that could be taken by law.

82. The Secretary will consider this in due course.

Declaration of parentage

83. The children’s birth registrations do not currently name their father.

84. Under s 21(1)(d) of the Status of Children Act 1996 (NSW), the Secretary is authorised to bring an application for a declaration of parentage.

85. On 22 May 2018, following a DNA Parentage Testing Procedure, Genomic Diagnostics reported that the relative chance of Michael being the children’s biological father was 99.9992%.

86. Although the genomic report does not precisely comply with the form prescribed under the Status of Children Regulation 2019 (NSW), it is to the same effect as a compliant report.

87. Sophia is clear that Michael is the children’s biological father. Michael has identified as the biological father of the children.

88. I am satisfied that the paternity of the children is proven on the balance of probabilities and that it is in the children’s best interests that a declaration of parentage be made that Michael is their biological father.

Conclusion

89. The Secretary should bring in short minutes to give effect to these reasons.

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Endnotes

Decision last updated: 06 September 2023