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

The background to this matter is set out in my judgment of 1 November 2022. [1]

I shall use the same abbreviations and adopt the same anonymised references as I did in those reasons.

The Secretary of the Department of Communities and Justice seeks an order that the child, Edward (not his real name), be adopted by Mr and Mrs Smith (not their real names), with whom Edward has been living since he was three months of age.

On 26 October 2022, at a preliminary hearing under s 80 of the Adoption Act 2000 (NSW) (“the Act”), I made the following orders and findings:

Since giving my judgment on 1 November 2022, Edward has now been formally "placed for adoption" with Mr and Mrs Smith and by Notice of Motion filed in court this morning, the Secretary now seeks the adoption orders as foreshadowed earlier.

The Secretary has served notice on Edward's birth parents, Rachael and Matthew (not their real names) and has also given to Rachael and Matthew notice of the Secretary's intention to seek from me an order dispensing with their consent to the adoption. It is clear from the evidence overall that Rachael and Matthew do not oppose the adoption and, indeed, support it. Rachael and Matthew have respectively signed the maternal and paternal adoption plans.

In my judgment of 1 November 2022, I made some observations and expressed some concerns about whether the Secretary had yet complied with the requirements of s 33 of the Act concerning, to adopt the heading of that section, "Aboriginal participation in decision making". This section is relevant because, as I determined on 26 October 2022, Edward is of Aboriginal descent and is an Aboriginal child for the purposes of s 4(1) of the Act.

As Edward is an Aboriginal child, s 33(1)(a) of the Act obliges the Secretary to ensure that a person approved under s 195 of the Act (amongst other people) is "consulted" about the placement of an Aboriginal child.

On 1 November 2022 I was not satisfied that what had occurred to date was such a "consultation". [2]

Since then, the following steps have been taken:

Relevantly Ms Jackson said in the concluding comments of her report of 22 November 2022:

In those circumstances, I am satisfied that the Secretary has now complied with the requirements of s 33(1)(a) to ensure consultation with a person approved under s 195 of the Act.

As Edward is an Aboriginal child, s 33(2) of the Act also requires that the Secretary "must ensure that the placement of the child is made in consultation with a local community based and relevant Aboriginal organisation".

As at 1 November 2022 I was not satisfied that what the Secretary had then done complied with the requirements of that section. [4]

Since then, the Secretary has contacted the Sydney Aboriginal Family Support Service (“the Service”). The Service is Sydney-based and run by professional Aboriginal support workers and consultants, including employees of the Wiradjuri nation. The organisation uses its multidisciplinary expertise to achieve better outcomes for Aboriginal families in care and protection proceedings involving Aboriginal families.

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

The Secretary has caused the following steps to be taken, as summarised in the Secretary’s submissions:

Further, Ms Dehn, Manager Client Services at the Department of Communities and Justice, has deposed that:

I said in my earlier judgment [5] that the language of s 33(2) contemplates an ongoing process, albeit perhaps brief, but one that requires a minimum response of some kind from the organisation in question.

The evidence before me shows that there has been a response from the Service, albeit not a substantive response. However, the note of Ms Kari Anderson, Adoption Manager, made on 16 November 2022 records that "Jeff" from the Service said:

There has been a total of some 12 communications on behalf of the Secretary to the Service.

The requirements of s 33(2), that the Secretary is to ensure consultation with an organisation such as the Service, must be considered in the context that, for reasons such as those set out by "Jeff" in the passage to which I have referred, some such organisations may not feel compelled to actively cooperate in the consultation process contemplated by s 33(2). I think the Court must take a sensitive and realistic view of the sensitivities of Indigenous people to adoption applications of the kind I am now considering.

My conclusion is that, in the circumstances of this case, what has happened constitutes sufficient compliance with s 33(2).

Turning now to the other matters in respect of which I must be satisfied in order to make the adoption orders sought, I am satisfied that the formal requirements of the Act have been complied with.

The Secretary seeks orders dispensing with the consent of Edward's parents, Rachael and Matthew.

In substance, Rachael and Matthew support the adoption order proposed but for reasons including those I mentioned in my earlier judgment, [6] do not feel able to formally give their consent.

Under s 67 of the Act, in circumstances where Mr and Mrs Smith are authorised carers of Edward, I may dispense with the birth parents' consent if satisfied that Edward has established a stable relationship with Mr and Mrs Smith and the adoption order will promote his welfare. I have no doubt about any of those matters.

Because Edward is over 12 years old, s 55(1) provides that I must not make an adoption order without his consent. However, s 55(2) provides that I can make an order in relation to a child incapable of giving consent if satisfied that the circumstances are exceptional and that it would be in the child's best interests to make the order notwithstanding the absence of consent. I am so satisfied.

As to whether it would be in Edward’s best interests that an order for adoption be made, I repeat what I said in my earlier judgment, [7] albeit in the context of consideration of s 35(4) of the Act:

Further as the Secretary has submitted before me today:

The alternative to making an adoption order is first to do nothing, which is out of the question in these circumstances.

Further, in these circumstances, and I make this observation without any criticism of Rachael and Matthew, there is no realistic possibility of Edward's restoration to their care.

It is proposed that Edward's name be changed by causing his surname to be hyphenated with his current surname and that of Mr and Mrs Smith. Rachael and Matthew have expressed their support for that change which also has the support of the author of the report prepared under s 91 of the Act.

It is proposed that Edward's existing given names be retained.

I also note that Edward's birth parents will be included on an Integrated Birth Certificate which will be issued following the making of the orders for adoption.

As I have said, both Rachael and Matthew have signed the adoption plan. I am satisfied that it is appropriate in the circumstances.

Finally, as I recorded in my earlier judgment, Edward is an Aboriginal child. For that reason an order must not be made unless the Secretary of the Department is satisfied that the making of an adoption order is the clearly preferable course. [8] The Secretary has consented, formally, to the adoption order. Although he has not, in terms, said that he is satisfied that the making of the adoption order is clearly preferable and in the best interest of Edward to any other action, I am comfortable, as he has given his formal consent, that this is his view.

I find that the Secretary has complied with his obligations under s 33 of the Act.

I make the following orders: