The Adoption of Richard (a pseudonym) (No 2)
[2023] NSWSC 1459
•27 November 2023
Supreme Court
New South Wales
Medium Neutral Citation: The Adoption of Richard (a pseudonym) (No 2) [2023] NSWSC 1459 Hearing dates: 27 November 2023 Date of orders: 27 November 2023 Decision date: 27 November 2023 Jurisdiction: Equity - Adoptions List Before: Stevenson J Decision: Order for adoption made
Catchwords: CHILD WELFARE – adoption – Aboriginal child – non-Aboriginal proposed adoptive parents – where child now 18 – where child had been placed with proposed adoptive parents since infancy – where Aboriginal birth mother opposed adoption – where child expressed strong view that he wishes to be adopted
Legislation Cited: Adoption Act 2000 (NSW)
Cases Cited: Adoption of RCC and RZA [2015] NSWSC 813
The Adoption of Richard (a pseudonym) [2023] NSWSC 364
Category: Principal judgment Parties: Secretary, New South Wales Department of Communities and Justice (Plaintiff)
“Jane” (a pseudonym) (Defendant)Representation: Counsel:
Solicitors:
R Dart (Plaintiff)
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
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The background to this matter is set out in my judgment of 12 April 2023. [1] I shall use the same abbreviations and pseudonyms here.
1. The Adoption of Richard (a pseudonym) [2023] NSWSC 364.
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In that judgment, I found that “Richard” (not his real name) was an Aboriginal child within the meaning of s 4(1) of the Adoption Act 2000 (NSW) (the “Act”) and declared that:
the Prospective Adoptive Parents (as they then were) have the capacity and knowledge referred to in s 35(3) of the Act;
for the purpose of s 35(4) of the Act, Richard’s best interests would be served were he to be placed for adoption with the Prospective Adoptive Parents;
for the purpose of s 34 of the Act, the Secretary had made reasonable inquiries as to whether Richard was an Aboriginal child; and
the Secretary had engaged in the consultation required by s 33 of the Act.
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As I explained in the judgment, [2] Richard had not then been “placed for adoption” with the Prospective Adoptive Parents.
2. At [13]-[20].
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The Secretary anticipated that this would occur shortly after 12 April 2023 and that he would then be in a position to make an application for an order for adoption.
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That has now occurred, and by Notice of Motion filed on 28 July 2023, the Secretary seeks an order that Richard be adopted by the Proposed Adoptive Parents, as they now are, and an order approving Richard’s surname to be the same as that of the Proposed Adoptive Parents.
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As I also explained in my earlier judgment, Richard, who is now 18 years of age, was placed with the Proposed Adoptive Parents in August 2007, when he was two years of age.
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He has had no contact with his birth father, who I have called “Douglas” (not his real name) since he was placed into care. Richard’s father has requested that he not be contacted in relation to Richard.
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Richard understands that his mother, who I have called “Jane” (not her real name), is an Aboriginal person and thus he is also, for that reason, an Aboriginal person.
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Nevertheless, he has made clear that he not only consents to the making of the proposed adoption order but wishes it to be made.
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I think it important to repeat what I said in my earlier judgment that 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 Proposed 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 any more hold ups.
• While I have a ‘biological family’ I recognise as a [the Proposed Adoptive Parents’ surname] and see [the Proposed Adoptive Parents’ adopted son] as my brother, [the Proposed Adoptive Parents’ adopted daughter] as my sister and [the Proposed 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.”
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The hearing of this application was originally fixed for 16 October 2023. On that occasion, on Jane’s application and with the consent of the Secretary, the hearing was adjourned until today on the basis that Jane informed the Court that she was not well enough to attend on the earlier hearing date. I made it clear to Jane on that occasion that the matter would proceed to finality today and that no further adjournment would be permitted.
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My Associate received an email shortly before Court today from Jane stating that she did not intend to appear. In that email, Jane reiterated her opposition to the making of an adoption order.
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Nonetheless, I was persuaded that an order for adoption should be made. I made the adoption order at the hearing and said I would give my reasons later. These are those reasons.
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Because Richard is now 18 years of age, Jane’s consent to the proposed order for adoption was not required. [3]
3. Section 54(1)(d) of the Act.
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Jane had previously stated that she was happy for Richard to remain with his placement with the Proposed Adoptive Parents and did not dispute that Richard has, throughout the 16 years he has been living with the Proposed Adoptive Parents, been well cared for.
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Jane continued to oppose the making of an order for adoption. I summarised Jane’s position in my earlier judgment as follows:
“Jane is fundamentally opposed to the making of an adoption order of Richard in favour of the [Proposed] Adoptive Parents. Jane explained her position with great dignity and eloquence at the preliminary hearing on 3 April 2023.
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’.
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.
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’.
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’.” [4]
4. At [48]-[52].
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Jane has also said that “… any child in care who is Aboriginal and/or Torres Strait Islander should not be considered for these major changes” and that “I highly believe that my son has been coached and groomed over the years to his decision even though he may not recognise or understand this”.
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I think that Jane is mistaken to believe that Richard has been “coached and groomed” (presumably by the Proposed Adoptive Parents) about this matter. I think it clear that Richard has reached his own independent decision about what he wishes the Court to do.
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As a part of that decision he has chosen, since 2020, not to exercise contact with Jane. That is a matter that Richard may be able to reconsider in the future after the issues in these proceedings are resolved.
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In her report to the Court pursuant to s 195 of the Act, the Aboriginal Consultant “Ms Smith” (not her real name) engaged for the purpose of that section recorded that the Proposed Adoptive Parents have “exposed [Richard] to Aboriginal culture as best they could with the information that they had access to” and that:
“… 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 [Proposed Adoptive Parents’] 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.”
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It is otherwise clear that it is in Richard’s best interests that an order for adoption be made, and that the making of an adoption order is clearly preferable, in the sense of there being “more than a slight preponderance of considerations in favour of adoption over the alternatives”,[5] in the best interests of Richard over any other action that could be taken by law in relation to his care.
5. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J, as his Honour then was).
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In that regard, “Ms Jones” (not her real name) has stated in her report under s 91 of the Act:
“Therefore, an order for adoption is considered to be the most appropriate legal order for [Richard]. He is a much-loved family member and is loved as a son by [the Proposed Adoptive Parents] and their families. An adoption order will allow [the Proposed Adoptive Parents] the authority to continue to raise [Richard] for the rest of their lives.”
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Richard has requested that his name be changed so that he has the same surname as the Proposed Adoptive Parents.
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Although Jane is opposed to this, I concluded that priority should be given to Richard’s wishes. I made the order that he requested.
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For those reasons, earlier today I made an order that Richard be adopted by the Proposed Adoptive Parents and approved Richard’s change of name.
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I think it important to add although I came to the conclusion that the best interests of Richard would be served by the making of an order for adoption, the Court understands that for many Aboriginal people, including in this case Jane, the making of an order that an Aboriginal child be adopted by non- Aboriginal people is a contentious matter. Many peak Aboriginal bodies are opposed to the making of such orders. Indeed, the Act recognises, in terms, that adoption “is a concept that is absent in customary Aboriginal child care arrangements”. [6]
6. Section 35(1).
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Nonetheless, the Act makes provision for the adoption of Aboriginal children. The Act imposes the requirements in Div 2 concerning:
Aboriginal participation in decision making; [7]
the Aboriginal child placement principles; [8]
placement of an Aboriginal child with non-Aboriginal people; [9]
the position of a child with one Aboriginal parent and one non-Aboriginal parent; [10] and
the need for the Secretary to be satisfied, prior to the placement of an Aboriginal child for adoption, that the making of an order for adoption of an Aboriginal child is clearly preferable in the best interests of the child to any other action that could lawfully be taken for the care of the child. [11]
7. Section 33.
8. Sections 34, 35(1) and 35(2).
9. Section 35(3).
10. Sections 35(4) and 35(5).
11. Section 36.
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I discussed the operation of these provisions in the circumstances of this case in my earlier judgment.
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The Court respects the views that Aboriginal people have expressed about the process of adoption and I respect the views that Jane has expressed in this case.
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I nonetheless concluded that Richard’s best interests, which are the paramount consideration,[12] required that an adoption order be made and that, particularly now that Richard is an adult, the upholding of Richard’s dignity required that his wish that he be adopted be granted.
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12. Section 7(a) of the Act.
Endnotes
Decision last updated: 27 November 2023
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