The Adoption of Richard (a pseudonym) (No 2)

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.

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:

As I explained in the judgment, [2] Richard had not then been “placed for adoption” with the Prospective Adoptive Parents.

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.

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.

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.

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.

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.

Nevertheless, he has made clear that he not only consents to the making of the proposed adoption order but wishes it to be made.

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:

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.

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.

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.

Because Richard is now 18 years of age, Jane’s consent to the proposed order for adoption was not required. [3]

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.

Jane continued to oppose the making of an order for adoption. I summarised Jane’s position in my earlier judgment as follows:

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”.

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.

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.

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 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.

In that regard, “Ms Jones” (not her real name) has stated in her report under s 91 of the Act:

Richard has requested that his name be changed so that he has the same surname as the Proposed Adoptive Parents.

Although Jane is opposed to this, I concluded that priority should be given to Richard’s wishes. I made the order that he requested.

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.

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]

Nonetheless, the Act makes provision for the adoption of Aboriginal children. The Act imposes the requirements in Div 2 concerning:

I discussed the operation of these provisions in the circumstances of this case in my earlier judgment.

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.

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.