The Secretary, NSW Department of Family & Community Services by his delegate, Principal Officer, Barnardos Australia and MLA

[2019] NSWSC 290

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	The Secretary, NSW Department of Family & Community Services by his delegate, Principal Officer, Barnardos Australia and MLA [2019] NSWSC 290
Hearing dates:	10 December 2018, 29 January 2019, 14, 15 February 2019, 15 March 2019 (oral submissions)
Date of orders:	22 March 2019
Decision date:	22 March 2019
Before:	Sackar J
Decision:	See paragraphs [147]-[148]
Catchwords:	EQUITY – adoption – whether adoption proposed will promote the best interests of the child – whether dispensing with birth parent consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action   FAMILY LAW AND CHILDREN – adoption – whether child of Aboriginal descent – Aboriginal child placement principles – whether Aboriginal child placement principles applied or mandatory
Legislation Cited:	Aboriginal Lands Rights Act 1983 (NSW) Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 Adoption of BR [2018] NSWSC 1009 Adoption of KH [2015] NSWSC 274 Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 In the matter of S [2017] NSWSC 1198 Plato Films Ltd v Speidel (1961) AC 1090 Re K & the Adoption Act 2000 [2005] NSWSC 858 Re KN and The Adoption Act 2000 [2005] NSWSC 896 Re KSE & The Adoption Act 2000 [2006] NSWSC 92 Re Simon (2006) 68 NSWLR 306 Re WJP and the Adoption Act 2000 [2014] NSWSC 783 Secretary, Dept of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926
Texts Cited:	Macquarie Online Dictionary
Category:	Principal judgment
Parties:	Secretary, NSW Department of Family & Community Services, by his delegate, Principal Officer, Barnardos Australia (plaintiff) MLA(birth mother) JPC (birth father) FBP & FCM (proposed adoptive parents)
Representation:	Counsel: Ms S Christie SC (plaintiff) A Williams (birth mother)   Solicitors: Crown Solicitors (plaintiff) Willoughby Law (birth mother)
File Number(s):	A052/2018

Judgment

Nature of proceedings

1. A summons for adoption of the child XX in favour of the proposed adoptive parents FBP and FCM was filed on 26 March 2018 by the Secretary, NSW Department of Family and Community Services (‘FACS’) by his delegate Principal Officer, Adoptions, Barnardos Australia (‘Barnardos’) (the ‘Plaintiff’).

2. The Plaintiff also sought that the consent of the birth mother, Ms MLA, and the birth father, Mr JPC, be dispensed with under s 67(1)(d) of the Adoption Act 2000 (NSW) (the ‘Act’).

3. On 22 May 2018, Ms MLA was joined as the Defendant to the proceedings.

Background facts

4. XX was born in October 2007, to Ms MLA and Mr JPC [CB1: 35-36]. XX has an older brother XC and a younger half-brother XH [CB1:36]. XC is currently in the care of the paternal grandmother N. XX has contact with XC and N several times a year. XH is currently in the care of his birth father (who has no relation to XX). XX currently has no contact with XH and has expressed a wish not to see him [CB1: 44-45]. XX has frequently expressed distress at the prospect of contact with her birth mother [CB1:48]. There is currently no contact between the birth mother and XX and it is advised that any future conduct should only be considered under the recommendation of a psychologist and in accordance with XX’s wishes [CB1: 48].

5. XX was assumed into care of the Minister of 3 May 2012 under s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) [Plaintiff 2nd sub [8][i]], following reports of significant neglect and abuse [CB1:38]. On 17 April 2013, the Children’s Court of NSW made final orders allocating parental responsibility to the Minister in relation to XX until she attains 18 years of age [CB1: 38-39].

6. XX experienced significant disruption in care. She experienced 7 different carers over 3 years. Some of these placements broke down after concerns were raised about the ability and appropriateness of the carers. The s 91 report notes, ‘In four of these placements the proposed adoptive parents themselves contributed significantly to XX’s change of placement’ [CB1:39].

7. XX commenced living with the proposed adoptive parents in 2015 [CB1: 39]. XX had extremely high emotional needs at the beginning of her placement as a result of the trauma she had experienced as well as the disrupted placement history [CB1:41]. The first year of placement with the proposed adoptive parents was difficult as XX presented with high anxiety, poor sleeping and other extreme behaviours [CB1:41]. Since then however, the proposed adoptive parents have learnt to manage XX’s behaviours and support her to feel like part of the family [CB1:41]. XX has developed a strong bond towards the proposed adoptive parents who she now calls Mum and Dad. XX’s behaviour has improved significantly over the course of the placement and she is now able to relax and have fun with her family [CB1: 41]. XX now enjoys engaging in a range of activities and is developing friendships with other children [CB1:42]. XX initially struggled at school, often acting out, and was required to change schools multiple times as she changed placements [CB1:43]. XX started at a new school in 2017, which was larger and more equipped to meet her developmental needs. She is by all accounts, thriving at her new school, working hard at her studies and making new friends [CB1: 43].

8. Over the course of the proceedings some of the birth mother’s oral family history was revealed. It appears that in 1996 the birth mother’s grandfather, a Mr RT, revealed that he believed he was born to an Aboriginal mother and white Australian father and was one of 14 children. He believes he was then adopted to BD and RT through the Catholic Church in Victoria. It was later revealed that the family believed that T’s last name prior to adoption was potentially ‘B’ or ‘Bs’. Using this oral history and several supplied birth certificates, death certificates and marriage certificates, historian Michael Flynn was able to determine that T’s biological parents were AB and DW and his adoptive parents were RT and Dorothy H. Mr Flynn was not able to find any direct evidence that either of the biological parents had Aboriginal heritage.

Procedural history

9. This matter was set down for hearing on 10, 11 and 12 December 2018, with the Plaintiff supporting Mr FBP and Ms FCM in their application to adopt XX. The Defendant opposed the application for adoption, but is on the other hand not seeking restoration.

10. On the first day of hearing, and for the first time, Mr Williams of Counsel for the Defendant provided an affidavit of Ms MIJ affirmed 10 December 2018, who is the mother of the birth mother (or in other words the birth grandmother). He also provided an outline of written submissions on this day [Transcript of 10/12/18: 1/45].

11. The effect of the birth grandmother’s evidence was that in 1996 her father, RT, told her that his own birth mother was of entirely Aboriginal descent and had been adopted via the Catholic Church by Mr RT and Ms DB. This would mean that the birth grandmother is, as it were, one quarter Aboriginal, the birth mother one eighth Aboriginal, and the child XX one sixteenth Aboriginal.

12. Ms Christie SC for the Plaintiff requested a short adjournment to obtain instructions given this new factual element introduced into the evidence and into the proceedings [Transcript of 10/12/18: 1/45].

13. The Defendant’s submissions questioned whether there had been sufficient inquiry into the Aboriginality of XX, and whether the particular requirements of the Act dealing with adoption of Aboriginal children had been met, including those requirements set out in Division 2 of the Act [Def 1st sub [11]-[13]].

14. There is now before me a question of whether XX satisfies the definition of “Aboriginal child” as per the Act and should be treated by the law accordingly.

15. The issue of Aboriginality has been previously raised in the evidence by the mother, who herself has expressed her identification as being Aboriginal. That is, in her affidavit of 28 June 2018 (incorrectly dated 2016), apparently filed into evidence on 5 July 2018, the birth mother stated “I maintain that XX is a child of Aboriginal descent” implicitly expressing the view that she herself is also Aboriginal.

16. The evidence before me at that stage, was that the issue of Aboriginality had only come to Barnardos’ attention in a review meeting in June 2017. Barnardos then made an inquiry with LinkUp, but it is apparent that this investigation did not lead anywhere [Transcript of 10/12/18: 9/32-10/13].

17. The birth mother ultimately expressed the view that she wished the hearing of this contested adoption to be adjourned to allow for her and her solicitors to investigate more fully her heritage and the question of their asserted Aboriginal descent. The Plaintiff resisted this application for adjournment, particularly on the basis of the undesirability of delaying proceedings any further and the distress this would cause to the proposed adoptive parents and the child in their care.

18. The factual material gives rise to a number of issues under the Act, particularly that the birth grandmother and birth mother’s evidence would suggest that the process required by the Act in Division 2 concerning Aboriginal children has not been complied with. Barnardos has evidently taken a particular view of the facts and did not regard XX as falling within the definition of an “Aboriginal child” for the purposes of the Act.

19. After considering all the circumstances of the case as it unfolded on the first day of hearing, I formed the view that the issue of Aboriginality was potentially a significant aspect of the case and the birth mother should be given the opportunity to investigate her descent and family history to uncover if possible further information to corroborate her grandfather’s assertions of being half Aboriginal. I adjourned the hearing until 14 December 2018 for the birth mother to provide an update on her investigations into her grandfather.

20. On 14 December 2018 Counsel for the birth mother provided an outline of the various lines of investigation undertaken by her solicitor Ms Violet Willoughby [Transcript of 14/12/18: 1/18-2/1]. Although to some extent it appeared to me various lines of enquiry had been opened by Ms Willoughby but no fruitful outcomes had emerged as of yet [Transcript of 14/12/18: 2/13-16], I formed the view that it was important, given the emphasis the Act gives to the status of Aboriginal peoples, to allow the birth mother further opportunity for investigations [Transcript of 14/12/18: 8/28]. I fixed a hearing for February 2019 and stood the matter over for further directions.

21. When the matter returned for directions on 29 January 2019, it was revealed that the birth family believed the surname of Mr RT’s birth parents had been ‘B’ or ‘Bs’ [Transcript of 29/01/19: 2/34-37]. Ms Willoughby requested further opportunity to pursue these new lines of inquiry and requested that the hearing dates in February be vacated [Transcript of 29/01/19: 5/1-12]. I declined to adjourn the hearing dates again and the matter remained listed for February [Transcript of 29/01/19: 5/14-18].

22. When the matter returned on 7 February, for directions, FACS had been able to identify Mr RT’s biological father and was following up leads in Births, Deaths and Marriages in NSW [Transcript of 07/02/19: 2/20-31]. Ms Willoughby requested the hearing dates be vacated in order to continue to pursue leads relating to the birth mother’s Aboriginality [Transcript of 07/02/19:1/41]. I declined to adjourn the hearing further due to the likely stress placed on XX. However I informed the parties I would reserve judgement for several weeks after the hearing and take written submissions were any further information relating to the birth mother’s Aboriginality to arise in the weeks following the hearing [Transcript of 07/02/19: 3/19-24].

23. The hearing of the evidence took place on 14 and 15 February 2019. Before me was the evidence of Mr Michael Flynn who had conducted substantial investigations into XX’s heritage. I then adjourned the matter to give the parties the opportunity to make final submissions and to see if any further evidence relating to XX’s Aboriginal heritage would arise. On 10 March 2019 the Court received the addendum to the affidavit of Mr Flynn, dated 6 March 2019. I received final submissions from the Plaintiff on 11 March and from the Defendant filed late on 14 March. The matter returned for final submissions on 15 March 2019. During hearing, I was informed of some final evidence that had been uncovered by Mr Flynn’s’ investigations as evidenced in the affidavit of Marjorie Collins sworn on 12 March 2019. Given the late filing of the Defendant’s submissions, I allowed the Plaintiff a short time to file submissions in response. On 18 March 2019, the Plaintiff filed final submissions in response.

Submissions   

Plaintiff

Plaintiff’s first submission

24. The Secretary seeks an order for the adoption of XX, dispensing with the consent of the birth parents [Plaintiff’s 1st sub [6]]. The Secretary notes that XX was removed in May 2012 after reports of severe abuse and neglect and has since formed a stable relationship with the proposed adoptive parents [Plaintiff’s 1st sub [8]]. The Secretary contends that it would be in the best interests of XX to make the adoption order, taking into account various factors such as XX’s wish to be adopted [Plaintiff’s 1st sub [23(a)]], the strong bond she has formed with the proposed adoptive parents, and their ability to meet her physical and emotional needs [Plaintiff’s 1st sub [23(i)]]. The Secretary notes that the proposed adoptive parents have supported and facilitated XX’s relationship with her brother and family on her father’s side [Plaintiff’s 1st sub [23(f)]], and notes the psychological benefits to XX from finding a stable, permanent placement [Plaintiff’s 1st sub [23(j)]]. It appeared from the submissions that Barnardos had formed the view that XX had no Aboriginal heritage [Plaintiff’s 1st sub [23(c)]].

25. During the hearing commencing on 14 February, I asked Counsel for the Plaintiff whether it was relevant to their case, and if so whether or not, Barnardos had made reasonable inquiries into XX’s heritage [T6/20]. Accepting that the birth mother did not raise Aboriginality at the Children’s Court proceedings, I questioned whether or not there had been any proactive activity on the part of Barnardos in answering this question [T7/39-43]. Counsel submitted that had XX been identified as an Aboriginal at the time of her referral to Barnardos from FACS, Barnardos would not have accepted her into their program [T10/46-50]. Counsel further stated that there was a form used by Barnardos and filled out with the birth family after a referral is made that specifically canvases the issue of Aboriginality [T11/5-14]. However, Counsel submitted that there had been no contact between Barnardos and the birth mother of a direct kind at the time of placement in this case [T23/3-5] and it appeared unlikely that such a form was completed [T32/3-5]. There was further no evidence that Barnardos had ever ‘went behind the information they had received from the Department’ to inquire into XX’s Aboriginality [T23/8-10]. I further inquired into the arrangement by which FACS refers children to Barnardos, in particular under the terms of the Deed [T23/45]. Counsel submitted that Barnardos had relied on the information provided to them by FACS [T29/45-49]. Counsel stated that it was difficult to obtain evidence about what exactly Barnardos had done in this case, but admitted that there appears to have been a 2010 meeting where XC’s Aboriginal heritage was raised [T31/29]. It was further noted that the birth mother raised Aboriginality with Barnardos in August 2016 not July 2017 as initially advised [T33/20-24].

Plaintiff’s second submission

26. The Plaintiff filed further submissions after the close of evidence. The Plaintiff reiterated the importance of adoption for XX over a long-term care order [Plaintiff 2nd sub [53]-[65]]. They referred to several expert’s reports who reiterated the importance and permanency that adoption could provide for XX and the particular benefits to her in terms of her self-esteem and anxiety [Plaintiff 2nd sub [53]-[65]]. They note that XX frequently expresses her desire to be adopted and that she is thriving in her current home [Plaintiff 2nd sub [54]-[57]]. With regards to the issue of Aboriginality, the Plaintiff says the issue in question is whether XX is of Aboriginal descent under s 4(2) [Plaintiff 2nd sub [72]]. It is uncontroversial that XX cannot be considered an Aboriginal child under s 4(1) as her birth mother has not been accepted as part of the Aboriginal community [Plaintiff 2nd sub [69]]. They state that the evidence of lineage is predominately based on oral history given that the significant work undertaken by Mr Flynn returned no documentary evidence of Aboriginal ancestry [Plaintiff 2nd sub [76]-[77]]. They submit that this oral history is insufficient to make a finding of Aboriginality, especially given that many aspects of the original story (for example the fact that RT had thirteen siblings) were not born out [Plaintiff 2nd sub [76]-[77]].

27. The Plaintiff further submits that even if the Court made a finding now that XX was an Aboriginal child, because the Secretary was in fact informed by the birth mother that XX was not Aboriginal when she was questioned, the Act imposes no obligations on the Secretary regarding placement [Plaintiff 2nd sub [82]-[83]]. The failure to make enquiries into a child’s heritage when that heritage has been provided would be reasonable [Plaintiff 2nd sub [83]]. The Plaintiff further submits that even if there was a failure to make reasonable inquiries the Act still requires that the Court must act in the best interests of the child and adoption would still be the clearly preferable option [Plaintiff 2nd sub [84]-[85]]. They state that s 36 does not apply after a child has been placed [Plaintiff 2nd sub [88]-[89]]. The Plaintiffs do concede, however, that if the Court were to make a finding that XX was of Aboriginal descent, the adoption plan would have to be amended [Plaintiff 2nd sub [86]].

28. During hearing of submissions on 15 March 2019, Counsel for the Plaintiff submitted that it was irrelevant to take into account the Aboriginal identity of XX’s two uncles. It was argued that given XX could only be an Aboriginal child by descent under s 4(2), it did not matter that people who she was not directly descended from had been identified and accepted as Aboriginal [T53/15-19].

29. With regards to the evidence of Aboriginality, the Plaintiff submitted that although the family’s oral history was indeed admissible, it needed to be weighed against all the other available evidence that had come to light. Counsel emphasised that many aspects of the original story had not been born out and that there had been no direct evidence of Aboriginality found despite extensive inquiries and the availability of many birth certificates including that of RT [T53/21-34].

30. Counsel further noted that s 34 only imposed requirements prior to placement and in any case, it was still open to Barnardos to make the placement if they were of the opinion it was in the best interests of XX [T56/28-57/20]. Counsel stated that many of the Aboriginal child placement principles (‘placement principles’) seemed difficult to comply with in this case, for example it was impossible to know who consultation was to take place with given that it was unclear which community XX could possibly belong to [T58/14-28].

Plaintiff’s third submission

31. The Plaintiff filed further submissions in reply on 18 March 2019. The Plaintiff reiterated that it was not challenging the fact that conversations between MIJ and her father took place, but rather argued that this evidence needed to be weighed up alongside the other evidence discovered by Mr Flynn [Plaintiff 3rd sub [2]-[3]]. The Plaintiff noted that s 4(2) was permissible rather than directive, allowing the Court a level of discretion [Plaintiff 3rd sub [7]]. Additionally the section uses the words for the ‘purposes of this Act’ implying the Court should consider the consequences of any such finding as to the benefit of the child [Plaintiff 3rd sub [8]]. It is submitted that the evidence does not support a finding on the balance of probabilities that XX is an Aboriginal child [[Plaintiff 3rd sub [9]].

32. The Plaintiff went on to consider the operation of s 90(1)(e). Although it was accepted that s 90(1)(e) was mandatory, it was argued that if the Court made a finding that XX was an Aboriginal child that the placement principles in any case had been properly applied. The word ‘properly’ is a qualitative description that relates to the particular facts of the case, and in this case given that the birth mother had been represented and participated in Children’s Court proceedings where Aboriginality was not in issue, meant that it was reasonable on the part of Barnardos to not make further inquiries [Plaintiff 3rd sub [10[a]]. Given that many of the placement principles require a knowledge of a specific community, when a child is explicitly identified as non-Aboriginal, there is no way that many of the placement principles can be applied and it is therefore reasonable not to do so [Plaintiff 3rd sub [10][a]].

33. The Plaintiff submitted that if the Court were to make a finding that XX was Aboriginal and that the placement principles had not been applied then the matter should be adjourned as the inquiries were ongoing [Plaintiff 3rd sub [10][b]].

Defendant

Defendant’s first submission

34. The Defendant opposes the prospective adoption [Def 1st sub [1]]. She does not object to XX remaining in the care of the prospective adoptive parents, nor does she pursue any reunification with XX [Def 1st sub [2]]. Rather the birth mother opposes the adoption on the grounds that XX is an Aboriginal child and contends that the requirements in the Act relating to Aboriginal children have not been complied with [Def 1st sub [11]-[13]]. The Defendant argues that when there is an open question as to the Aboriginality of a child, adoption of the child by non-Aboriginal parents would unduly eliminate the opportunity for the child to consider her Aboriginal identity and would not be ‘clearly preferable’ as required by s 90(3) [Def 1st sub [19]-[20]].

35. During hearing on 10 December, Counsel for the Defendant submitted that the hearing should be adjourned in order to undertake further investigations into XX’s heritage [Transcript of 10/12/18: 6/12]. It was further noted that even if XX could not be considered an Aboriginal child under s 4(1), there was the open possibility that she could be identified under s 4(2) [Transcript of 10/12/18: 14/19-26].

Defendant’s second submission

36. Counsel for the Defendant filed further submissions after the close of evidence. It was submitted that XX could only be found to be an Aboriginal child by descent as under s 4(2) of the Act. Counsel reiterated that XX had two maternal uncles who identify as Aboriginal and have been accepted as part of the Aboriginal community [Def 2nd sub [7]-[8]], and that MA’s own claim to Aboriginal heritage is derived from the same place as the belief of her mother and brothers [Def 2nd sub [10]]. Counsel submits that evidence of what was said by Mr RT was adduced as evidence of the fact that he was of Aboriginal descent, as permitted under s 73 of the Evidence Act 1995 (NSW) [Def 2nd sub [11]]. It cannot be said then that the evidence of Ms MIJ of what her father told her, is only evidence of the conversation not of Aboriginality. Counsel further noted that the expert evidence given by Mr Flynn was ultimately not able to confirm or deny any Aboriginal ancestry [Def 2nd sub [14]], and submitted that the Court should find Aboriginal ancestry on the basis of the oral history of the family [Def 2nd sub [15]].

37. Counsel further noted that were the Court to make a finding that XX was an Aboriginal child, no order for adoption should be made [Def 2nd sub [16]]. It was submitted that there was no evidence that the placement principles contained within Part 2, Division 2 had been applied. Particularly, there is no evidence that s 34(1), which imposes an obligation to make reasonable inquiries as to whether a particular child is an Aboriginal child, was complied with. It was argued that the requirements in s 34 were not temporally bound to the time of placement and thus imposed a mandatory obligation over the whole process of placement [Def 2nd sub [20]]. Counsel referred to Minutes of the case management transfer meeting, when XX was transferred to Barnardos’ adoption program, which were tendered during hearing.

38. Under s 90(1)(e), therefore the placement principles had not been ‘properly’ applied and no adoption could be ordered [Def 2nd sub [20]].

39. Counsel submitted that were the Court to find that XX was an Aboriginal child and that there was compliance with the placement principles, an adoption order should still not be made. It was argued that this would permit a triumph of form over substance and create an incentive to those in the position of the Plaintiff to fail to make reasonable inquiries to after placement [Def 2nd sub [21]]. Counsel submitted that in any case an adoption order should not be made given that an adoption order would not be clearly preferable compared with the option of permanent placement [Def 2nd sub [24]].

Legal principles

The definition of “Aboriginal”

40. Section 4 of the Act provides a definition of “Aboriginal” and “Aboriginal child” for the purposes of the Act:

4 Meaning of “Aboriginal” and “Torres Strait Islander”

(1) In this Act:

Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.

Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2).

…

(2) Despite the definition of Aboriginal in subsection (1), the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent.

41. The definition of “Aboriginal” in the Act adopts the definition in the Aboriginal Lands Rights Act 1983 (NSW) which is as follows at s 4:

Aboriginal person means a person who:

(a) is a member of the Aboriginal race of Australia, and

(b) identifies as an Aboriginal person, and

(c) is accepted by the Aboriginal community as an Aboriginal person.

42. This is a cumulative test which needs all three requirements to be met. The first requirement is lineal descent, the second requirement is identification as an Aboriginal person. These are necessarily factual questions in my view which may give rise to issues of credit. The third requirement is whether the person “is accepted” by the Aboriginal community as an Aboriginal person and was the subject of some discussion before me. In my view the most sensible construction of the third requirement is that it is likewise a factual consideration that does not involve merely theoretical acceptance, as in the person “is capable of being accepted” but that there is an actual fact of acceptance by the community on the evidence. This accords with the genesis of the definition in lands rights legislation.

43. However, s 4(2) of the Act makes it clear that on the basis of descent alone (the first of the three requirements) for the purposes of the Act the Court may determine that a child is Aboriginal.

Cases on the definition of “Aboriginal”

44. In the case In the matter of S [2017] NSWSC 1198 Black J said (at [26]-[27]):

The Crown Solicitor draws attention to the definition of “Aboriginal child” in s 4(1) of the Adoption Act as “a child descended from an Aboriginal”, including a child who is determined to be Aboriginal under s 4(2) of the Adoption Act, and to the definition of “Aboriginal” in the Adoption Act as having the same meaning as “Aboriginal person” has in s 4(1) of the Aboriginal Land Rights Act 1983 (NSW). That term is there defined as requiring, not only descent from an Aboriginal person, but also identification as an Aboriginal person and acceptance as such within the Aboriginal community. Even if K’s submission could be treated as evidence, rather than only as a submission, it goes no further than to raise the possibility that S is descended from an Aboriginal person and the possibility of self-identification by K as an Aboriginal person and does not establish any acceptance of K as such by the Aboriginal community, or even any contact between K and the Aboriginal community seeking such acceptance.

The Crown Solicitor also refers to the observations of Drummond J in Gibbs v Capewell (1995) 54 FCR 503, approved in Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113 at [118], that descent is necessary but not sufficient for a person to be an “Aboriginal person”; that a small degree of Aboriginal descent coupled with genuine self-identification or community recognition may be sufficient for eligibility to be an Aboriginal person; a substantial degree of descent, and general community recognition of Aboriginality that usually accompanies it, may also be sufficient of itself for eligibility as an Aboriginal person; and that communal recognition as an Aboriginal person may be the best evidence of Aboriginal descent. Those observations emphasise the significance of the absence, in this matter, of any evidence of recognition of K as an Aboriginal person by any Aboriginal community. The Crown Solicitor also referred to Re Simon [2006] NSWSC 1410; (2006) 68 NSWLR 306 where Campbell J observed, as is apparent from the language of s 4(1) of the Aboriginal Land Rights Act, that each of the three elements of the definition of “Aboriginal person” in that section must be satisfied before a person is eligible as an Aboriginal person under that Act.

45. However, importantly in my mind Black J did not explicitly deal with the application of s 4(2) and the appropriate principles.

46. In Re Simon (2006) 68 NSWLR 306 Campbell J likewise analysed the tripartite requirement of “Aboriginal person” stating that all three requirements needed to be satisfied (at [26]). Although in that case the individual Mr Q identified in one sense as an Aboriginal person and was accepted by such, his Honour found that he was not linearly descended to be Aboriginal and thus did not satisfy the requirement. However his Honour expressed the view that what was required for s 4(2) was lineal decent.

47. A further case provided to me was Adoption of BR [2018] NSWSC 1009, the decision of Brereton J, however this case does not provide much analysis on the specific question before the Court, because in that case in one sense the Secretary had proceeded on the assumption that the child had Aboriginal heritage and was an Aboriginal child for the purposes of the Act.

The requirements for “Aboriginal children”

48. Division 2 of the Act provides specific requirements for the placement of Aboriginal children for adoption, particularly at ss 33-36:

Division 2 Aboriginal children

33 Aboriginal participation in decision making

(1) The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child:

(a) a person approved in accordance with section 195, or

(b) 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.

(2) In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation.

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.

35 Aboriginal child placement principles

(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.

(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.

(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.

(5) If a child to whom subsection (4) applies:

(a) is placed with a person who is not within an Aboriginal family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs, or

(b) is placed with a person who is within an Aboriginal community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Aboriginal community to which the child belongs.

36 Alternatives to placement for adoption to be considered

An Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child.

49. In addition, s 64 of the Act provides:

64 Consent to adoption of Aboriginal child

(1) Before a person gives consent to the adoption of an Aboriginal child:

(a) he or she is to be given adoption counselling by a person approved in accordance with section 195, or

(b) if he or she is offered, but refuses, adoption counselling by such a person he or she must:

(i) be provided by the Secretary or appropriate principal officer with written information on Aboriginal customs and culture and any other matters the Secretary or principal officer considers would have been raised by the person, and

(ii) sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information.

(2) A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b).

(3) In this section:

adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Aboriginal customs and culture.

50. Section 195 of the Act provides:

195 Consultation with Aboriginal persons

(1) The Secretary may approve an Aboriginal person as a person who may provide advice and assistance to Aboriginal families or kinship groups in relation to care options for Aboriginal children for the purposes of this Act.

(2) The Secretary must not approve a person under this section unless the Secretary is satisfied that the person has relevant experience in working with Aboriginal children, whether or not in connection with their families or kinship groups.

51. Also note the additional requirements under s 67(1)(d)(iii) and s 90(e) (sections extracted below) with relation to Aboriginal children.

Reasonable Inquiries

52. Section 34 necessitates that the Secretary or appropriate principal officer make ‘reasonable inquiries’ as to whether a particular child is an Aboriginal child, and satisfy themselves accordingly.

53. White J considered reasonable inquiries in Re K & the Adoption Act 2000 [2005] NSWSC 858. He states (at [22]):

Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made.

54. This decision has subsequently been endorsed in the following: Re WJP and the Adoption Act 2000 [2014] NSWSC 783; Re KSE & The Adoption Act 2000 [2006] NSWSC 92; Re KN and The Adoption Act 2000 [2005] NSWSC 896; Secretary, Dept of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007.

The best interests of the child

55. Sections 7 and 8 of the Act provide:

7 What are the objects of this Act?

The objects of this Act are as follows:

(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,

(b) to make it clear that adoption is to be regarded as a service for the child concerned,

(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

(d) to recognise the changing nature of practices of adoption,

(e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,

(f) to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,

(g) to encourage openness in adoption,

(h) to allow access to certain information relating to adoptions,

(i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.

8 What principles are to be applied by persons making decisions about the adoption of a child?

(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:

(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b) adoption is to be regarded as a service for the child,

(c) no adult has a right to adopt the child,

(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare,

(f) if the child is Aboriginal—the Aboriginal child placement principles are to be applied,

(g) if the child is a Torres Strait Islander—the Torres Strait Islander child placement principles are to be applied.

(2) In determining the best interests of the child, the decision maker is to have regard to the following:

(a) any wishes expressed by the child,

(b) the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c) the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d) any disability that the child has,

(e) any wishes expressed by either or both of the parents of the child,

(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h) the nature of the relationship of the child with each proposed adoptive parent,

(i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

56. With respect to adoption plans s 46 of the Act provides:

46 What is an adoption plan?

(1) An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:

(a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:

(i) the child’s medical background or condition,

(ii) the child’s development and important events in the child’s life,

(iii) the means and nature of contact between the parties and the child, and

(b) any other matter relating to the adoption of the child.

(2) Without limiting the matters for which an adoption plan may make provision:

(a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and

(b) it may provide for the giving of certain financial and other assistance as referred to in section 201.

(2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.

(2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.

(3) An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a).

(4) If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.

Dispensing with consent

With respect to disposing of consent of birth parents to the adoption of a child, s 67 of the Act provides:

67 When can Court dispense with consent of person other than the child?

(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that:

(a) the person cannot, after reasonable inquiry, be found or identified, or

(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:

(i) the child has established a stable relationship with those carers, and

(ii) the adoption of the child by those carers will promote the child’s welfare, and

(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

57. There have been several cases which consider the issue of dispensing with consent. In Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 Brereton J said (at [193]):

Although the interests of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents, as is evident from the requirement for their consent. The amendment made in the course of the Parliamentary debate to s 67(1)(c) is an illustration of this, representing a withdrawal from the position under s 32(1)(e) of the former Act - under which it was sufficient to authorise a dispensation with consent that to do so in order that an adoption order might be made would promote the interests and welfare of the child - by superadding the requirement that there be serious cause for concern as to the welfare of the child.

58. Similarly in Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142, Palmer J noted (at [52]):

An adoption order is not to be made lightly. The relationship between a child and its natural parents is to be preserved unless the Court is satisfied that the child’s best interests dictate otherwise

59. In Adoption of RCC and RZA [2015] NSWSC 813 Brereton J also said (at [17]):

Because the birth mother has not given consent, an adoption order can be made only if her consent is dispensed with. Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child’s welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child’s sense of belonging and permanence in the carers’ family notwithstanding that there is no concern about the child’s current welfare (as distinct from the child’s welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] – endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] – the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child’s present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child.

Clearly Preferable

60. Section 90 of the Act likewise provides:

90 Court to be satisfied as to certain matters

(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied:

(a) that the best interests of the child will be promoted by the adoption, and

(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and

(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and

(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

(e) if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and

(f) if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and

(g) if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and

(h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

(2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.

61. Particularly, in accordance with s 90(3), the Court cannot make an adoption order unless it is clearly preferable to any other action that could be taken (for example, a long-term parenting order, restoration, etc). Brereton J said of the section, in Adoption of KH [2015] NSWSC 274 (at [46]):

This requires identification of the likely effects of adoption, and of the various available alternatives, and their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is or is not clearly preferable to all others

62. In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to section 8 (at [14]-[17]):

In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.

Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007]NSWSC 762;(2007) 37 Fam LR 595, [25]].

The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:

• Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;

• Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and

• Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.

In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption.

63. What is meant by ‘clearly preferable’ has been considered in a number of authorities. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J stated that the phrase required ‘something more than a slight preponderance of considerations in favour of adoption over the alternatives (at [14]). Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926, stated (at [99]):

The words ‘clearly preferable’ in s 90(3) do not require the court to be satisfied ‘beyond reasonable doubt’. Rather “the word ’clearly’ serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision”: Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [52] (Palmer J) and that the order for adoption be “obviously, plainly or manifestly preferable” to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J).

64. In Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142, Palmer J states that (at [67]):

The test required by the Act is not whether the child can manage without an adoption order; rather it is whether the child’s best interests throughout life are best served without an adoption order. Put another way, if the child clearly can manage better with an adoption order than without one, then an adoption order satisfies the requirement of s 90(3) that is clearly preferable to any other form of care order.

Evidence

Plaintiff’s evidence

Ms Denise Kay Berry

65. Ms Berry affirmed two affidavits on 26 March 2018 and 13 July 2018.

66. In her first affidavit Ms Berry confirmed she was a Principal Officer for Barnardos Australia. She described how XX has been living with the proposed adoptive parents since September 2015, finding a stable home after four years of disturbed placements in the out-of-home-care system.

67. She provides details on the circumstances surrounding XX’s removal from her mother and her placement into care. She notes that XX was removed after several severe abuse and neglect reports. She states that XX was removed in May 2012 and that the Minister was awarded parental responsibility in the Children’s Court in April 2013.

68. In her first affidavit, she outlines the various placements XX has had since her removal;

1. 3 May 2012 until 23 November 2012, XX was placed with three separate Community Services Carers,

2. 23 November 2012 until 7 July 2013, XX was placed with an intake carer,

3. 7 July 2013 until 21 February 2014, XX was placed with a long term permanent carer but removed due to concerns about the carer’s alcohol abuse, and

4. 21 February 2014 until 26 September 2015, XX was placed with four different intake carers and two respite carers.

69. She goes on to describe XX’s incredible progress since settling with the proposed adoptive parents. Although XX had proved challenging during the first year of placement due to the severe trauma she had suffered, she has since settled well with the proposed adoptive parents. She is doing well at school, has made friends and participates in various co-curricular activities. She informs that XX has expressed her wish to be adopted and her desire to be part of a family. She states that the birth parents have not sought contact with XX, and that XX currently does not wish to see either of her birth parents.

70. In her first affidavit, Ms Berry outlines the steps taken by Barnardos after being notified of XX’s potential Aboriginality in June 2017. Ms Berry notes that investigations done through Link-up NSW found that evidence of XX’s Aboriginality was inconclusive. Ms Berry further notes the psychological and emotional benefits to XX upon having found a stable and permanent placement and the harm caused by continuing to delay the adoption.

71. In her second affidavit she further details the steps taken by Barnardos in investigating the possibility of XX’s Aboriginal descent. She states that she informed Link-Up of the birth great-grandfather’s adoption and was informed that there were no records of the adoption and that there would therefore be significant difficulty in identifying his birth parents.

Ms June Eileen Shine    

72. Ms Shine affirmed one affidavit on 16 November 2017.

73. Ms Shine advised she was a Senior Case Manager, Adoptions, Barnardos Australia and is an authorised person under 91(2A) of the Act. She provided a report in which she concludes that XX has thrived in the placement. She states that the proposed adoptive parents have provided a loving, stable home for XX, and see her as part of the family. She concluded the report by recommending an adoption order, noting it would give XX a true sense of stability after years of disruption.

74. During oral examination, Ms Shine confirmed that she had prepared the reports and adoption plans on the basis that XX was not an Aboriginal child [T5/35-38].

Ms Marilyn Kay Geddes

75. Ms Geddes affirmed one affidavit on 16 October 2018.

76. Ms Geddes is a Senior Case Manager Adoptions, Barnardos Australia. In her affidavit she provides an update on XX following on from the 13 July 2018 affidavit of Ms Berry.

77. She reports that she contacted Ms FM on 22 August 2018, who reported that XX has been continuing to ask about the adoption and question why it was taking so long. She reports that the contact had occurred between XC and XX on 29 September 2018 to celebrate XX’s birthday. She states that Ms FM reported the contact went well. She reports that XX is performing well academically at her school.

116. As I have already said if and only if the requisite satisfaction as to Aboriginality is reached then s 33 and thereby s 195 in particular are engaged. Thereafter s 35 and where relevant its various subsections govern placement. For example if it is not practicable or in the best interests of the child, an Aboriginal child can be placed in a particular Aboriginal community, or can be placed with a non-Aboriginal prospective adoptive parent or parents. If a child is Aboriginal but has only one Aboriginal parent the best interests of the child determines the outcome (s 35(4) and (5)).

117. If the Secretary or Principal Officer is satisfied pursuant to s 35 (2)(c) that a non-Aboriginal person is more suitable as an adoptive parent the legislation contemplates, again before such placement, an approach is to be made to the Court pursuant to s 80(2) so as to satisfy the Court that the proposed person has the requisite qualities contemplated by s 35(3)(a), (b) and (c).

118. It is therefore clear that the Act treats the placement principles as mandatory (s 8(1)(f)). That much is also obvious from the liberal use of the word “must”, at s 33(1) and (2), s 80(2), s 90(1).

119. Section 90 requires that the Court prior to making an order for adoption must be satisfied of various matters. In the case of an Aboriginal child it cannot make an order for adoption unless the placement principles have been “properly” applied. The word “properly” should in that context be construed as “correctly” or “strictly” applied. Unless the Court therefore is relevantly “satisfied” the placement principles have been applied, it has no jurisdiction to order adoption. This only serves to underscore the importance of the need to be proactive in making the reasonable enquiries pursuant to s 34 in the first place.

120. It is apparent on the evidence that when the Secretary referred XX to Barnardos, there was no indication one way or the other what if any inquiries had been made or the results of such inquiries. Barnardos then it appears, did not complete any intake forms, or make its own inquiries. For example, the Minutes of the transfer meeting held in 2013, in which XX’s care was transferred from the Secretary to Barnardos would appear to indicate that at that point there was no inquiry into Aboriginality. It also appears from the Plaintiff’s submissions that Barnardos relied on the fact that there was no evidence of Aboriginality in the Children’s Court proceedings in 2012, although there is evidence that MA had discussed her Aboriginality as early as 2010 in regards to her son, XC. The better view is that on the evidence, neither the Secretary nor Barnardos made reasonable enquiries prior to placement. That state of affairs is not only contrary to the legislation but had the potential to cause unnecessary stress and difficulties to all concerned. As I have previously commented active investigation really only started in June 2017.

121. As the evidence now stands there have been in my view reasonable inquiries on the part of Barnardos with the assistance of information provided by the birth mother. Mr Flynn was engaged and various lines of inquiry have been followed up and it is likely both of RT’s likely birth parents and adoptive parents have been identified. As I have already said, it appears to me that, despite comprehensive inquiries, there is no persuasive or reliable evidence establishing that XX has any Aboriginal heritage. It would follow that had reasonable inquiries been made in 2013, it would have been open to the Secretary and/or Barnardos to have been “satisfied” that XX was not an Aboriginal child, and accordingly to make the placement with Mr FP and Ms FM.

Should an adoption order be made?

129. Having decided that XX is not an Aboriginal child, I still must be satisfied that various formalities have been complied with. Further I must be satisfied as to the various matters contained within s 90 and that the adoption order would indeed be in the best interests of XX.

130. There are certain formalities under the Act that must be complied with. I am satisfied that XX was present in the State of New South Wales when the application for the adoption order was filed. I am also satisfied that the proposed adoptive parents have lived together for a continuous period substantially exceeding two years. I am also satisfied that they have been assessed as suitable to adopt XX under the Act and have signed an application to do so under s 43.

131. The Act requires that the Court act in the best interests of the child. Section 7 of the Act sets out the objects of the Act, and particularly the clear emphasis of the legislation is that “the best interests of the child concerned” is the “paramount consideration” in adoption law and practice. This is repeated in s 8(1)(a) of the Act, which again emphases that any decision maker (including the Court) in making a decision about the adoption of a child is to have regard to the principle that “the best interests of the child, both in childhood and in later life, is the paramount consideration”.

132. Paramount in this context means “above others in rank or authority” or “chief in importance; supreme; pre-eminent”: Macquarie Online Dictionary.

133. The Act also provides a number of other considerations and relevant factors to be taken into account by a Court in making a decision about the adoption of a child. These factors need not be exhaustive, as a Court may if relevant and/or necessary take into account other considerations that emerge in the individual facts of each case, consistent with the objects of the Act.

134. In determining the best interests of XX I am to have regard to the matters within s 8(2). A number of further factual considerations inform my assessment of the best interests of XX. It is clear to me that XX has decidedly and frequently expressed her wish to be adopted. She is close to approaching the age in which she can herself consent to adoption and is considered bright and mature and by all accounts she has a clear understanding of the legal effects of adoption. XX has expressed wishes that she does not want to have contact with her birth mother. This in one sense is not strictly relevant because no application for restoration is made. However her wishes are in my opinion entirely congruent with a wish for adoption.

135. In particular I have taken into account and am satisfied on the evidence that there is a strong psychological bond between XX and her proposed adoptive parents. I am also satisfied that her emotional, physical, and educational needs will properly be catered for by the proposed adoptive parents. It is clear that the proposed adoptive parents are fully aware of the responsibilities of parenthood and are able more than adequately to fulfil that role. It is clear that the proposed adoptive parents have been able to and will continue to support XX in developing her relationship with her brother XC. I am on the whole entirely satisfied that the proposed adoptive parents have given XX a loving and supporting home.

Whether adoption is clearly preferable

136. I must be satisfied that the adoption order is clearly preferable, in the best interests of XX to any other option (s 90(3)). As the mother is not seeking restoration, the other options available to me are either to maintain the status quo, leaving the proposed adoptive parents caring for XX and the Minister retaining parental responsibility, making a long term care order in favour of the proposed adoptive parents, or ordinary adoption.

137. As I have said the birth mother is not seeking restoration, nor does it appear that XX currently wants any contact with her birth mother. It is further not contested that the proposed adoptive parents have provided a safe, stable and loving home for XX, and that it is in her best interests to remain in their care in any case. The birth mother does not suggest otherwise. There has been no question raised as to the suitability of the proposed adoptive parents, nor their capacity to parent. I am satisfied that they are more than capable of adequately caring for XX.

138. With this in mind, in my view what is in the best interests of XX is further stability and certainty. To maintain the status quo, with later application for restoration theoretically open to the birth parents, would only add further uncertainty and instability to XX’s life. XX has had a difficult and by all accounts traumatic experience in care. She experienced many different placements and carers within a very short time. There is strong evidence that XX has struggled with her past insecurity. She has been diagnosed with post-traumatic stress disorder and frequently expresses her anxiety about being removed from her current home. Since 2015, the proposed adoptive parents have been able to provide a loving and supportive environment for XX. They have evidenced a genuine concern and ability to consider XX’s needs, and actively involve her in decision-making about her life in an age-appropriate manner on the available evidence. XX has expressed a clear desire to be adopted and a desire to remain with Mr FBP and Ms FCM, and to live together as a family.

139. I have had regard to and given careful consideration to a long term care order versus adoption. The latter it is notoriously accepted as productive generally of a more stable relationship for the child. Here I have no doubt it will have that effect. The most preferable outcome for XX is the one most likely to provide stability and certainty. In my view, the best interests of XX warrants adoption as it would facilitate further stability and certainty to XX’s life. On the evidence before me, the proposed adoptive parents have and will provide a supportive and loving environment for XX now and into the future.

Dispensing with consent

140. Section 90(1)(d) of the Act requires that consent to XX’s adoption has been given by every person whose consent is required under the Act, or that consent has been, or should be, dispensed with. Section 52 provides that the Court cannot make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child. Both birth parents were provided with a copy of the mandatory written information in respect of adoption.

141. Although both the birth parents indicated that they did not consent to adoption, XX’s birth father has not engaged in proceedings before this Court and according to the s 91 report, Mr JC only wanted the best outcome for XX [CB1: 46]. Ms MLA has consistently opposed adoption. Although she does not seek restoration, nor does she doubt the ability of the proposed adoptive parents to care for XX, she has continued to state that she believes XX to be Aboriginal and thus should not be adopted.

142. Orders are sought under s 67(1)(d) that the consent of XX’s birth parents to the adoption be dispensed with. Making an order dispensing with consent is a serious decision, that must only be made in the best interests of the child. Mr FBP and Ms FCM are the authorised carers of XX for the purposes of 67(1)(d), and it is clear that XX has established a stable relationship with them (for the purposes of s 67(1)(d)(i)) and that making an order dispensing with consent would in my view promote XX’s welfare (for the purposes for s 67(1)(d)(ii)). As already noted, it is clear that XX has a strong bond with the proposed adoptive parents, they have been her longest carers to date and have been able to provide her with a loving and stable home. I am therefore satisfied that dispensing with consent is in the best interests of XX (s 67(1)(d)(2)).

Adoption plan

143. Section 90(2) of the Act states the Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances. Section 90(1)(h) of the Act requires, in the case of a child (other than an Aboriginal or Torres Strait Islander child) that the culture, any disability, language and religion of the child, and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. Section 50 sets out the circumstances where an adoption plan can be registered. Adoption plans do not have to be signed by the non-consenting birth parents to be registered.

144. There are two adoption plans in place for XX, a maternal adoption plan and a paternal adoption plan. The paternal adoption plan states there is currently no provision for face-to-face contact between XX and her birth father, as is recommended by XX’s psychologist and reflective of her wishes. The plan acknowledges that there may be contact in the future but this will only be in accordance with XX’s wishes and in consultation with a psychologist. The paternal adoption plan further makes arrangements for contact with XC and N, and specifies that visits are to occur six times a year for a minimum of two hours. The plan further makes arrangements for visits with XX’s paternal aunts and cousins. There were no issues raised about the paternal adoption plan throughout the proceedings.

145. The maternal adoption plan similarly states that there is currently no contact between XX and her birth mother. The plan acknowledges that there may be contact in the future but this will only be in accordance with XX’s wishes and in consultation with a psychologist. The plan notes that there is currently no contact between XX and her half-sibling XH, although acknowledge that future contact may take place in accordance with XX’s wishes and in consultation with a psychologist. Given the questions as to XX’s heritage that were raised throughout these proceedings, there was some question about whether the adoption plan should be amended to reflect that XX may have Aboriginal heritage. Given that I am satisfied that XX is not an Aboriginal child I do not consider the need for any amendments to the proposed adoption plans.

146. I am satisfied that the adoption plans are in the best interests of XX and are proper in the circumstances. The plans are reflective of XX’s wishes and acknowledge her difficult relationship with her birth parents. The plans make for adequate contact with XX’s brother XC, and acknowledge that there may be future contact with her half-brother XH.

Conclusion

147. In all the circumstances I am of the view that adoption is in the best interests of XX now and for the future, and is the clearly preferable course to take above all others. Accordingly, I would also dispense with the consent of the birth parents and approve the registration of the adoption plan(s).

148. I would propose therefore to make Orders accordingly.

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Amendments

10 May 2019 - anonymising addition in [36]

Decision last updated: 10 May 2019