The Adoption of Mary (a pseudonym) and Michael (a pseudonym)

1. [1]

   The Secretary, New South Wales Department of Communities and Justice, seeks an order that the children, who I will call “Mary” and “Michael” (not their real names) be adopted by a couple to whom I will refer as the “Prospective Adoptive Parents”.

2. [2]

   The mother of both Mary and Michael is a person to whom I will refer as “Audrey” (not her real name). The father of Mary has died. The father of Michael is a person to whom I will refer as “Steven” (not his real name).

3. [3]

   Orders allocating parental responsibility of Mary and Michael to the relevant Minister were made when the children were very young. They were placed with the Prospective Adoptive Parents in September 2015.

4. [4]

   Many years later, in 2020, the Secretary discovered that the children’s maternal grandmother (that is, Audrey’s mother) identified as Aboriginal.

5. [5]

   The Proposed Adoptive Parents are not Aboriginal. Steven is not Aboriginal.

Mary and Michael are Aboriginal children

1. [6]

   As the Secretary has submitted in this case, he finds himself in “the increasingly common and procedurally challenging position” of having become aware of the children’s Aboriginal heritage many years after they were physically placed with the Prospective Adoptive Parents.

2. [7]

   As Sackar J recently observed, the relevant provisions of the Adoption Act 2000 (NSW) (“the Act”) appear to have been drafted on the assumption that a child’s Aboriginality will be detected at an early stage, and before the child is placed with persons who ultimately seek to adopt the child. [1] As this case demonstrates, that does not always occur.

3. [8]

   What happened in this case was that in January 2020, a caseworker employed by the Secretary discovered Departmental records which revealed the current whereabouts of Audrey’s mother and her extended family members. Those records revealed that members of Audrey’s mother’s family identified as Aboriginal. The Departmental caseworker has spoken with Audrey’s mother, who confirmed that she identifies as an Aboriginal woman.

4. [9]

   The Secretary engaged an historian from the Crown Solicitor’s Office, Mr Michael Flynn, to complete a Family History Report which outlined research undertaken into Audrey’s mother’s extended family, who are from the Dunghutti and Kamilaroi nations.

5. [10]

   Mr Flynn has concluded that Mary and Michael “are descendants of ancestors who are identified as or identifiable by inference in the historical record as Aboriginal persons”.

6. [11]

   Mr Flynn’s research traces the children’s maternal Aboriginal heritage back to their great, great, great, great, great grandmother, who Mr Flynn named, and who was “an Aboriginal woman born around the 1850s who was probably living in [an identified area of New South Wales]”.

7. [12]

   In those circumstances, I am satisfied that Mary and Michael are of Aboriginal descent and are therefore “Aboriginal children” within the meaning of s 4(1) of the Act.

The Aboriginal child placement principles

1. [13]

   Division 2 of Pt 3 of Ch 4 of the Act deals with the placement for adoption of Aboriginal children.

2. [14]

   Division 2 contains ss 33 to 36 which refer, variously, to the “placement” and “placement for adoption” of Aboriginal children. It appears clear to me that the legislature intended the expressions “placement” and “placement for adoption” to have the same meaning. That is particularly clear in s 35(2) which sets out the “general order for placement” to be effected by the Aboriginal child placement principles, and refers both to children being “placed for adoption” and simply being “placed”, in circumstances where it is clear that the same activity is being referred to. [2]

3. [15]

   Mary and Michael have been in the care of the Prospective Adoptive Parents since 2015 but, I am satisfied, have not yet been “placed for adoption” with the Prospective Adoptive Parents.

4. [16]

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

5. [17]

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

6. [18]

   Under Pts 3 and 3A, persons who apply to be assessed as suitable to adopt are referred to as “prospective adoptive parents”. [4] If the prospective adoptive parents are successful in the selection process, and any other preliminary issues are dealt with (relevantly in this case, as to whether Mary and Michael are Aboriginal children), the Act refers to them as “proposed adoptive parents”.

7. [19]

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

8. [20]

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

9. [21]

   Because Mary and Michael are Aboriginal children, the Aboriginal child placement principles must be applied in the administration of the Act.

10. [22]

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

11. [23]

    As I have mentioned earlier, it can be seen that reference is made in s 35(2) to both a child being “placed for adoption” and being “placed”, in circumstances where it is clear that the same process is being referred to.

12. [24]

    Section 35(4) provides:

13. [25]

    That section is engaged here because the children have one Aboriginal parent and one non-Aboriginal parent.

14. [26]

    Plainly, Steven is not an Aboriginal person.

15. [27]

    On the other hand, Audrey, as a person who is descended from an Aboriginal person, should herself be seen as an Aboriginal parent.

16. [28]

    In that regard, I agree with the observations of Sackar J in Principal Solicitor, Family Spirit Adoption Services v D, [5] where his Honour said:

17. [29]

    For the purposes of s 35(4), I am satisfied that it is in the interests of Mary and Michael that they be “placed”, that is to say, placed for adoption, with the Prospective Adoptive Parents. The children have lived with the Prospective Adoptive Parents for all their remembered lives. Further, the Prospective Adoptive Parents have shown the capacity and knowledge referred to in s 35(3), which I discuss below. In those circumstances, I am satisfied that the children’s best interests will be served if they are “placed” for adoption, with the Prospective Adoptive Parents. Whether a final order for adoption is made is a matter to be determined at the hearing of these proceedings.

18. [30]

    Section 35(5) provides that if children with one Aboriginal and one non-Aboriginal parent are placed with persons who are not within an Aboriginal family or community, the Adoption Plan must make provision for the children to have the opportunity to develop an identity with the Aboriginal community to which the child belongs. It appears that the current Proposed Adoption Plan will satisfy this requirement. That, however, is a matter that can be considered further at the hearing.

19. [31]

    The Secretary submitted that the effect of s 35(4), when engaged, is to displace the requirements of s 35(2) and of s 35(3), to which I will turn shortly, and pointed to observations by Sackar J in Family Spirit Adoption Services which, it was said, supported that view. [8]

20. [32]

    I do not agree that, when engaged, s 35(4) displaces ss 35(2) or 35(3).

21. [33]

    That is made clear by the terms of section 35(3), that provides:

22. [34]

    Section 35(3) is expressed in mandatory terms. A child “is not to be placed”, that is placed for adoption, with a non-Aboriginal prospective adoptive parent unless it is shown that:

    1. (1)

       the prospective adoptive parents have the capacity and knowledge specified in ss 35(3)(a), (b) and (c); and

    2. (2)

       as is stated in the soulier to the subsection, the Aboriginal child placement principles “have been properly applied” with a non-Aboriginal person.

23. [35]

    Section 35(3) refers to the placement with a non-Aboriginal prospective adoptive parent of any Aboriginal child. That will include a child with one Aboriginal and one non-Aboriginal parent. Section 35(4) refers, generally, to the placement of a child having one Aboriginal and one non-Aboriginal parent. The circumstances contemplated by the subsections are not mutually exclusive. Both subsections may be engaged. One does not overrule or displace the other.

24. [36]

    In this case, both subsections are in fact engaged. That is because it is proposed that Mary and Michael, who each have one Aboriginal and one non-Aboriginal parent, and who are therefore both of Aboriginal descent and thus Aboriginal children, be placed for adoption with non-Aboriginal prospective parents.

25. [37]

    Accordingly, as is in terms required by s 35(2), it is necessary to apply the Aboriginal child placement principles.

26. [38]

    As I have set out, the “first preference” referred to in the Aboriginal child placement principles is that an Aboriginal shall be placed for adoption with prospective adoptive parents belonging to the Aboriginal community to which the birth parent of both parents belong. The second preference, if the first is not practicable or in the best interests of the child, is that the child be placed with prospective adoptive parents from another Aboriginal Community. If neither of those options is practicable or in the best interests of the child, the child “is to be placed” with non-Aboriginal prospective adoptive parents.

27. [39]

    Here, the children have been placed, albeit not yet for adoption, with the Prospective Adoptive Parents for over seven years. Their Aboriginality was only discovered in 2020. The evidence shows that the children are happy and settled with the Prospective Adoptive Parents. I cannot see how it would be practicable or in the best interests of the children that they now be placed with different prospective adoptive parents.

The requirements of s 35(3) of the Act

1. [40]

   I have set out above the requirements contained in s 35(3) as to the capacity and knowledge required of non-Aboriginal prospective adoptive parents, such as the Prospective Adoptive Parents.

2. [41]

   Audrey has submitted that “there is no proof that [the Prospective Adoptive Parents] understand Aboriginal beliefs and culture so that they have the ability to pass on to my children” and that a “non-Aboriginal family wouldn’t understand the Aboriginal culture”.

3. [42]

   I fear that these comments overlook the evidence that has been adduced in support of the Secretary’s application.

4. [43]

   The evidence establishes that the Prospective Adoptive Parents have engaged in cultural competence training, have travelled on two occasions to meet with Aboriginal family members and to attend NAIDOC Week, have agreed to the terms of Cultural and Adoption Plans, and have consistently encouraged the children to learn about and express their culture, especially at school.

5. [44]

   The author of the report commissioned under s 91 of the Act has stated:

6. [45]

   The Prospective Adoptive Mother has stated:

7. [46]

   The Prospective Adoptive Father has stated:

8. [47]

   The evidence also establishes that the Prospective Adoptive Parents are assisting the children to know their life story and develop meaningful relationships with their parents and extended family members.

9. [48]

   The author of the s 91 report has stated:

10. [49]

    Finally, the Prospective Adoptive Parents have undertaken a number of steps which assist to equip them with skills to help the children with racism and develop a strong sense of pride in their cultural identity.

11. [50]

    The requirements of s 35(3) are satisfied in this case.

Aboriginal participation

1. [51]

   Section 33(1) of the Act requires that the Secretary “must ensure” that a person approved in accordance with s 195 of the Act is “consulted about the placement of an Aboriginal child”. [11]

2. [52]

   The Department of Communities and Justice has attempted to offer consultation with Audrey. Audrey initially refused to discuss the matter and did not want to identify as being Aboriginal. More recently, when offered an opportunity to consult with Ms Smith (not her real name), a person approved in accordance with s 195 of the Act, Audrey declined to participate.

3. [53]

   The Secretary accepts that the requirements of s 33(1)(a) are not yet satisfied. The Secretary has engaged Ms Smith to undertake a consultation. Ms Smith’s report is expected at the end of this month. Until then, the Secretary accepts that I cannot make a determination that he has complied with s 33(1).

4. [54]

   Section 33(2) provides:

5. [55]

   In Adoption of BR, [12] Brereton J (as his Honour then was) said that a “consultation” for the purposes of s 33(2) “involves the communication of a proposal to the person to be consulted with an invitation to express a view about it, and consideration of any views so expressed”. [13]

6. [56]

   In The Adoption of Edward (a pseudonym), [14] I expressed a slightly different view:

7. [57]

   I would go a little further. In order for it to be said that the placement of the child in question has been made “in consultation” with a relevant organisation, it is necessary that the response received from the organisation involve some kind of exchange of views, perhaps only briefly, [16] about the proposed placement.

8. [58]

   In each case, a careful examination of the nature of the relevant communications will be necessary in order to ascertain whether it can be concluded that the placement of the child in question is made “in consultation with” a local community.

9. [59]

   In this case, on 14 January 2022, an officer of the Department wrote to a local Aboriginal organisation nominated by the maternal extended family ("the Organisation").

10. [60]

    The Department’s email read:

11. [61]

    The Organisation replied:

12. [62]

    The Department replied by naming the children and stating where they were currently located.

13. [63]

    The Organisation replied:

14. [64]

    The Department replied two months later:

15. [65]

    The Organisation replied the same day:

16. [66]

    I cannot see how I could conclude that a placement of Mary and Michael with the Prospective Adoptive Parents made after this email exchange could be said to be one made “in consultation with” the Organisation.

17. [67]

    Although the Organisation made an enquiry as to the names and location of the children, and asked about the “case plan goals”, it expressed no view about the children’s placement with the Prospective Adoptive Parents. Rather it stated, emphatically, that it did not wish to engage at all about the prospective placement because it “did not support adoption for Aboriginal children”. This is a view the Court must respect. The Court must be respectful of the sensitivities of Aboriginal people to applications of the kind I am now considering. [17] The fact remains, in my opinion, that there has been no relevant consultation.

18. [68]

    In March 2022, the Department also contacted another organisation:

19. [69]

    There was no reply.

20. [70]

    In these circumstances, I am not satisfied that the requirements of s 33(2) of the Act have yet been satisfied.

The satisfaction of the Secretary

1. [71]

   Section 36 of the Act provides that an Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of an adoption order is clearly preferable, in the best interests of the child, over any other action that could be taken.

2. [72]

   On 14 March 2022, the Secretary formally and in writing consented to the making of an adoption order in favour of the Prospective Adoptive Parents. I infer from that, that the Secretary has achieved the state of satisfaction referred to in s 36.

Conclusion

1. [73]

   I invite the Secretary to prepare short minutes of the orders needed to give effect to these reasons.

2. [74]

   In the meantime, as I ordered on 20 February 2023, the matter is listed for directions on 5 April 2023.