The Adoption of Richard (a pseudonym)

[2023] NSWSC 364

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Adoption of Richard (a pseudonym) [2023] NSWSC 364

Hearing dates:

3 April 2023

Date of orders:

4 April 2023

Decision date:

12 April 2023

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

The child is of Aboriginal descent; the Secretary has made reasonable inquiries for the purpose of s 34 of the Adoption Act 2000; the requirements of ss 33 and 35 of the Adoption Act 2000 are satisfied

Catchwords:

CHILD WELFARE – Adoption – Aboriginal child placement principles – whether Aboriginal child has been placed for adoption – relationship between ss 33 to 35 of the Adoption Act 2000 – where Aboriginal child has one Aboriginal parent and one non-Aboriginal parent – where child placed with non-Aboriginal prospective adoptive parents – where child now 18 years of age

CHILD WELFARE – Adoption – Aboriginal child placement principles – whether placement of child has satisfied consultation requirements under s 33 of the Adoption Act 2000

Legislation Cited:

Adoption Act 2000 (NSW)

Adoption Regulation 2015 (NSW)

Cases Cited:

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

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)
“Jane” (a pseudonym) (Defendant)

Representation:

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

File Number(s):

2022/368016

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the 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 a young adult who I will call “Richard” (not his real name) in favour of the married couple to whom I will refer as the “Prospective Adoptive Parents”.

2. Richard was born in March 2005.

3. Richard was placed with the Prospective Adoptive Parents in August 2007, when he was two years of age.

4. In November 2007, the Children’s Court of New South Wales made final orders allocating parental responsibility for Richard to the Minister for Families and Communities (formerly the Minister for Families, Communities and Disability Services) until he attained the age of 18 years. As Richard recently turned 18, those orders have now expired.

5. The mother of Richard is a woman to whom I shall refer as “Jane” (not her real name). Jane is an Aboriginal woman of the Guringai nation.

6. The father of Richard is a person to whom I will refer as “Douglas” (not his real name). Douglas is an Anglo-Australian. Douglas has requested the Department of Communities and Justice (“DCJ”) not to contact him in relation to Richard. I have been informed that “DCJ respects the father’s self-determination in this regard”.

7. The Prospective Adoptive Parents are also Anglo-Australian. They did not learn that Richard was of Aboriginal descent until he was seven years of age. By then, Richard had been living in their care for some five years.

8. Following a preliminary hearing held on 3 April 2023 pursuant to s 80(2) of the Act, I made the following determination and declarations:

1. Pursuant to s 4(2) of the Adoption Act 2000, the Court determines that Richard is of Aboriginal descent, with the consequence that he is an Aboriginal child within the meaning of s 4(1) of the Adoption Act 2000;

2. Declare that, for the purposes of s 35(3) of the Adoption Act 2000, the Court is satisfied that the Prospective Adoptive Parents:

1. have the capacity to assist the child Richard to develop a healthy and positive cultural identity, and

2. have knowledge of or are willing to learn about, and teach the child Richard about his Aboriginal heritage and to foster links with that heritage in his upbringing, and

3. have the capacity to help the child Richard if he encounters racism or discrimination in the wider community;

3. Declare that, for the purposes of s 35(4) of the Adoption Act 2000, the best interests of the child Richard will be served, having regard to the objects of the Act, were he to be placed for adoption with the Prospective Adoptive Parents;

4. Declare that, for the purposes of s 34 of the Adoption Act 2000, the Secretary has made reasonable inquiries as to whether the child Richard is an Aboriginal child;

5. Declare that the Secretary has engaged in the consultation required in s 33 of the Adoption Act 2000.

9. These are my reasons for taking that course.

Richard is of Aboriginal descent

10. There is no controversy about this.

11. As Richard’s mother, Jane, is an Aboriginal woman, it follows that Richard is an Aboriginal person, and when these proceedings were commenced on 6 December 2022, he was an “Aboriginal child” under s 4 of the Act.

12. It also follows that the Secretary has made reasonable inquiries as to whether Richard, as “a child to be placed for adoption”, is an Aboriginal child for the purposes of s 34(1) of the Act.

The requirements of ss 35(1) - (3) of the Act

13. Division 2 of Pt 2 of Ch 4 of the Act deals with the placement of Aboriginal children for adoption.

14. Division 2 contains ss 33 to 36 which refer, variously, to the “placement” and “placement for adoption” of Aboriginal children. As I said in The Adoption of Mary (a pseudonym) and Michael (a pseudonym),^[1] the legislature intended the expressions “placement” and “placement for adoption” to have the same meaning. That is particularly clear in s 35(2) which sets out the “general order for placement” to be effected by the Aboriginal child placement principles, and refers both to children being “placed for adoption” and simply being “placed”, in circumstances where it is clear that the same activity is being referred to. ^[2]

    1. [2023] NSWSC 149.

    2. Ibid at [14].

15. Richard has been in the care of the Prospective Adoptive Parents since 2007 but, I am satisfied, has not yet been “placed for adoption” with them for the purposes of the Act.

16. Part 3A of the Act provides a mechanism by which the Secretary can invite authorised carers, such as the Prospective Adoptive Parents, to submit an application to adopt a child. ^[3] This is different to the process outlined in Pt 3 of the Act, which addresses the selection of prospective adoptive parents other than authorised carers. Under Pt 3A, the selection process is focused on children already in out-of-home care and on the authorised carers, here the Prospective Adoptive Parents, already caring for the child. ^[4]

    3. Section 45D.

    4. Section 45C.

17. In Pt 3A, placement for adoption does not involve a physical change in the children’s living arrangements. Instead, placement for adoption involves a change in the long-term goal of the placement: moving to adoption instead of a continuation of statutory out-of-home care.

18. Under Pts 3 and 3A, persons who apply to be assessed as suitable to adopt are referred to as “prospective adoptive parents”. ^[5] If the prospective adoptive parents are successful in the selection process, and any other preliminary issues are dealt with, the Act refers to them as “proposed adoptive parents”.

    5. Sections 41 and 45C.

19. I think the Secretary is correct to submit that, in this case, Richard has not yet been “placed for adoption” with the Prospective Adoptive Parents, as the Prospective Adoptive Parents are not yet approved as “suitable to adopt” pursuant to the requirements of Pt 4 of the Adoption Regulation 2015 (NSW).

20. The current position is that Richard is in out-of-home care and living with authorised carers, the Prospective Adoptive Parents, who are proposing to adopt him.

21. Because Richard is an Aboriginal child, the Aboriginal child placement principles must be applied in the administration of the Act.

22. In that regard, ss 35(1) and (2) of the Act provide:

“(1) General principle It is a principle to be applied in the administration of this Act that Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children (which is a concept that is absent in customary Aboriginal child care arrangements).

(2) The general order for placement The Aboriginal child placement principles are as follows—

(a) The first preference for placement of an Aboriginal child is for the child to be placed for adoption with a prospective adoptive parent or parents belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belongs.

(b) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents from another Aboriginal community.

(c) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a non-Aboriginal prospective adoptive parent or parents.” (Emphasis in original.)

23. When considering, for the purpose of these provisions, what is “practicable” and what is in Richard’s best interests in this case, it must be kept in mind that Richard is now 18 and has lived with the Prospective Adoptive Parents for all his remembered life.

24. It is also important to have regard to Richard’s own views.

25. On 24 March 2023, Richard wrote a letter addressed “To the Judge” in these terms:

“To the Judge,

I am writing a letter for my wishes for my adoption.

•   I’ve spoken to that many people over the years telling them what I want and what my needs are … to have my name changed to [the Prospective Adoptive Parents’ surname] and for my adoption to go through; it’s getting to the point where I feel like no one is listening to me.

•   I understand that I have [A]boriginal heritage in my blood and I will identify with my culture as I please, this shouldn’t be something that should hold up my adoption. For the last 16 years Mum and Dad have been saying the same thing on behalf of me and I’ve been saying for myself for the last 9 years yet nothing has changed.

•   I fully understand that [Jane] is my ‘biological mother’ and I understand that [Douglas] is my ‘biological father’ who doesn’t wish to see me and I have accepted that, if I wish to see or contact [Jane] at any given time I’ve got her Facebook and I would be in contact, and that would be up to me to decide and only me. Now that I’m 18 I hope my adoption will go through very fast and there shouldn’t be anymore hold ups.

•   While I have a ‘biological family’ I recognise as a [the Prospective Adoptive Parents’ surname] and see [the Prospective Adoptive Parents’ adopted son] as my brother, [the Prospective Adoptive Parents’ adopted daughter] as my sister and [the Prospective Adoptive Parents] as my mum and … as my dad.

Thank you and I am hoping you take my wishes for my life and let my adoption go through.”

26. In these circumstances I am comfortably satisfied that it is neither practicable nor in Richard’s best interests that he be placed for adoption in accordance with either subss (2)(a) or (2)(b) of s 35 of the Act. It is both practicable and in Richard’s best interests that he be placed for adoption with the couple with whom he has been living for the last 16 years: the Prospective Adoptive Parents.

27. Section 35(3) of the Act provides:

“(3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent—

(a) has the capacity to assist the child to develop a healthy and positive cultural identity, and

(b) has knowledge of or is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and

(c) has the capacity to help the child if the child encounters racism or discrimination in the wider community,

and that the Aboriginal child placement principles have been properly applied.

Note—

Placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing—see section 80.”

28. I accept the Secretary’s submissions that the Prospective Adoptive Parents are able to satisfy the obligations and responsibilities outlined in that subsection.

29. The Prospective Adoptive Parents have:

1. acknowledged Richard’s Aboriginality and are willing to assist him understand and participate in his culture;

2. supported Richard’s attending cultural classes and events and his relationship with his maternal half sibling;

3. attended training in cultural competency in caring for an Aboriginal child; and

4. encouraged and supported Richard’s relationship with an appropriate mentor.

30. The Prospective Adoptive Parents have, however, faced some difficulty in their ability to meet Richard’s cultural needs given Richard’s lack of desire to engage in cultural activities. Nonetheless, the evidence establishes that the Prospective Adoptive Parents are committed to assisting Richard develop a healthy and positive cultural identity in a manner that respects Richard’s wishes. I agree that it is important to allow Richard autonomy in relation to his choice of whether or not to engage in such cultural activities.

31. I accept the Secretary’s submissions that the evidence shows that it is clear Richard’s best interests will be served by him remaining with the Prospective Adoptive Parents and being “placed for adoption”.

32. I am satisfied in relation to the matters set out in s 35(3) of the Act.

The requirements of s 35(4) of the Act

33. Section 35(4) of the Act provides:

“(4) Child with one Aboriginal parent and one non-Aboriginal parent 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 this Act.”

34. This subsection is engaged as Richard has one Aboriginal parent and one non-Aboriginal parent.

35. For the same reason that I have set out above, I am satisfied that Richard’s best interests will be served by him being placed for adoption with the Prospective Adoptive Parents and that the requirements of s 35(4) of the Act are satisfied.

The consultations required by s 33 of the Act

36. Section 33(1) obliges the Secretary to ensure that a person approved in accordance with s 195 of the Act is “consulted about the placement of an Aboriginal child”.

37. In this case, the Secretary has consulted Ms Jones (not her real name), a Counsellor and Independent Indigenous Consultant and a person approved under s 195 of the Act.

38. Ms Jones prepared a report on 27 January 2023 in which she stated:

“[Richard] has clearly, consistently and coherently expressed his desire to be adopted, has consented to this adoption and would like to be legally and formally a member of the [Prospective Adoptive Parents’ surname] family. Therefore, alternatives to adoption have been considered and the adoption is the preferred option for [Richard].”

39. In her report Ms Jones opined:

“However, it should be noted that [Richard] is very angry that his cultural heritage is the one component that has impacted adversely on this adoption process. This has subsequently led to [Richard] viewing his Aboriginality as an obstacle to becoming a member of the [Prospective Adoptive Parents’ surname] family legally and could potentially lead to [Richard] rejecting his Aboriginality in the future.

Aboriginality should never be weaponised to the point where it impacts on the long term decision making for a child/young person. Everyone learns their culture in different ways; there is no set plan for how culture is learnt. By weaponising Aboriginality, it could potentially lead to a child/young person not identifying in the future because they associate it with trauma and rejection.”

40. Ms Jones concluded:

“While [Richard’s] cultural heritage was never in doubt, his immersion and cultural learnings have appeared to be benchmarked against non-Aboriginal people’s expectations of what cultural learning looks like, and as such, the adoption process for [Richard] had been placed on hold due to DCJ wanting more information about his cultural heritage. This in turn has not only been a source of frustration for [Richard], but anger in that his heritage could potentially halt his adoption and formalisation in the [family of the Prospective Adoptive Parents]. This paternalistic view of Aboriginality is something that could potentially adversely impact on [Richard’s] identity as an Aboriginal person, as he could associate it with trauma and rejection, instead of some[thing] to be proud of. At 17 years of age, ^[6] [Richard] has the capacity to self-identify how he chooses and should not be pressured into justifying this to anyone. [Richard] has contributed to his own cultural plan, has sought his own mentor and is comfortable with his own knowledge about his culture and is open to learning more, in a time and place that is comfortable for him, and this should be encouraged and valued.”

6. As I have noted, Richard is now 18.

41. Section 33(2) also obliges the Secretary to “ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation”.

42. The Secretary has now had communications with an organisation ("the Organisation"). The Organisation is an Aboriginal specific service, supporting vulnerable children and their families within the community. Their services include supporting family time, mentoring, providing respite care, transport services, carer and restoration assessments and family group conferences. The Organisation has statewide approval throughout New South Wales.

43. I am satisfied that the Organisation is a “local, community-based and relevant Aboriginal organisation” for the purposes of s 33(2) of the Act.

44. On 10 March 2023, Mr Lee (not his real name), the Managing Director of the Organisation, wrote to DCJ:

“After reading through the evidence and consulting a specific specialist friend, it is my professional opinion [Richard] should be allowed to be adopted by his foster carers.

1. [Richard] has been with them since aged 2.

2. [Richard] is about to turn 18 years old and his opinion should be heard.

3. [Richard] is proud of his First Nation Aboriginal heritage which is a reflection [of] his upbringing AND his identity.

4. [Richard] is [gainfully employed] which in itself is a reflection of his family / mentors / upbringing etc. In short, [Richard] has thrived under their care (the Foster Carers have earnt the right also).

5. It is unfortunate [Richard’s] Mother is not supportive. That’s understandable. There is not enough evidence to suggest her relationship with [Richard] is strong enough for her to have influence though.

6. It is good that [Richard’s] Father is supportive of the proposed adoption.

7. The fact there are a number of Aboriginal Teams within OOHC supporting this is great. These professionals are behind [Richard’s] request.

8. It is my understanding this needs to be done also, in the best interests of the Foster Carers, in the event there is a Will. The Will can go uncontested by other family members if the Adoption is finalised.

Putting it all together, I believe as an Aboriginal Elder, [Richard] should be allowed his wishes. It’s a YES from me.”

45. On 22 March 2023, Mr Lee said:

“You know when I first read your email I thought Adoption would be an automatic no because of my peoples history of the stolen generation, but I reflected on the information by unpacking it and also spoke to another highly respected Aboriginal elder … about this consult. After much reflection I could not only hear [Richard’s] voice but also became aware of the commitment and connection between [Richard] and his Carers.”

46. Mr Lee, and thus the Organisation, is enthusiastically supportive of an adoption by the Prospective Adoptive Parents of Richard.

46. In these circumstances, I am satisfied that Richard’s placement with the Prospective Adoptive Parents has been made “in consultation with” an Aboriginal organisation of the kind specified in s 33(2) of the Act. The ongoing process called for by s 33(2) has occurred. ^[7]

    7. See The Adoption of Edward (a pseudonym) [2022] NSWSC 1488 at [49].

Jane’s position

48. Jane is fundamentally opposed to the making of an adoption order of Richard in favour of the Prospective Adoptive Parents. Jane explained her position with great dignity and eloquence at the preliminary hearing on 3 April 2023.

49. Jane referred to “the harm which has occurred to Aboriginal children in interracial adoption families” and said that “adoption is alien to our way of life”.

50. Jane emphasised that “in my culture children are responsible for their extended family, not just biological parents alone. Even under normal circumstances the extended family plays an important role in the upbringing of Aboriginal children where the biological parents cannot do so”. Jane spoke of the “extended family structure” in Aboriginal communities.

51. Jane also said “proceedings in adoption goes against [the] Aboriginal concept of shared parenting” and “adoption is contrary to the Aboriginal custom of interracial adoption and is known to be contrary to the best interests of the Aboriginal child in the great majority of cases”.

52. Jane also said that “I have always and I continue to always put my son first, hence the reason why I never went back for restoration”.

53. These are matters to which I will return when considering whether to make an order for adoption, once the Secretary is in a position to make an application for that order.

**********

Endnotes

Amendments

13 April 2023 - Insertion of par 47.

09 August 2023 - References in paragraphs [37], [38], [39], [40], [42], [43], [44], [45], [46] anonymised.

Decision last updated: 09 August 2023