The Adoption of Edward (a pseudonym)

1. [1]

   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 directions in these proceedings as sought by the Secretary of the New South Wales Department of Communities and Justice:

   1. (1)

      Pursuant to s 4(2) of the Act, determine that the child (who I will call “Edward”: not his real name), is of Aboriginal descent, is an Aboriginal for the purposes of s 4(2) of the Act and is an Aboriginal child under the meaning of s 4(1) of the Act;

   2. (2)

      Declare that, for the purposes of s 35(3) of the Act, I am satisfied the prospective adoptive parents (who I will call “Mr and Mrs Smith”: not their real names):

   3. (3)

      Declare that, for the purposes of s 35(4) of the Act, the best interests of the child Edward will be served, having regard to the objects of the Act, were he to be placed for adoption with Mr and Mrs Smith; and

   4. (4)

      Find, for the purposes of s 34 of the Act, that the Secretary has made reasonable inquiries as to whether the child Edward is an Aboriginal child.

2. [2]

   These are my reasons for making those orders and declarations and for not making, at least at this stage, the further order sought by the Secretary in relation to s 33 of the Act.

3. [3]

   Edward is currently 17 years of age. He will turn 18 next February.

4. [4]

   Edward has lived with the Smiths continuously since May 2005, at which time he was three months old.

5. [5]

   On 25 May 2006, the Children’s Court of New South Wales at Broadmeadow made final orders allocating parental responsibility for Edward (and for two of his siblings) to the Minister for Families, Communities and Disability Services until they each attained the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW).

6. [6]

   The Smiths wish to adopt Edward and the Secretary wishes, as soon as possible, formally to cause Edward to be placed with the Smiths for adoption for that purpose. Edward has complex medical needs and has been diagnosed as having an Acquired Brain Injury and Severe Developmental Delay. It is estimated that he has the intellectual capacity of a two to three year old child. He does not have the capacity to consent to his adoption nor to understand the concept of adoption.

7. [7]

   It is for these reasons that the Secretary sought the orders and declarations to which I have referred.

8. [8]

   Edward’s birth parents (who I will call “Rachael” and “Matthew”: not their real names) are in regular contact with Edward and are aware of the Secretary’s intention to seek the orders I have set out.

9. [9]

   Much of what follows is taken, with gratitude, from the careful and comprehensive submissions I received from Ms Nicole Hailstone and Ms Shelley Anderson, both Principal Solicitors with the New South Wales Crown Solicitor’s Office.

Edward is not yet placed for adoption

1. [10]

   Although Edward has been in the care of the Smiths since he was three months old, and thus for over 17 years, I am satisfied that he has not yet been “placed for adoption” for the purposes of the Act.

2. [11]

   Part 3A of the Act provides a mechanism by which the Secretary can invite authorised carers, such as the Smiths, to submit an application to adopt a child such as Edward. [1] 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 a child already in out-of-home care and on the authorised carers, here the Smiths, already caring for the child.

3. [12]

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

4. [13]

   Under both Pts 3 and 3A, persons who apply to be assessed as suitable to adopt are specifically referred to as “prospective adoptive parents”. [2] 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 Edward is an Aboriginal child), the Act refers to them as “proposed adoptive parents”.

5. [14]

   In July 2021, Edward’s Permanency Plan was changed by the Department of Communities and Justice to “adoption”.

6. [15]

   Since July 2021, some of the steps under Pt 3A have commenced. For example:

7. [16]

   Nonetheless I am satisfied, as Ms Hailstone and Ms Anderson have submitted, that Edward has not yet been “placed for adoption” for the purposes of the Act.

8. [17]

   Now that I have made the majority of findings and orders sought, the Secretary will complete the remaining tasks under Pt 3A, in particular determining whether the Smiths are suitable to adopt Edward under s 45F of the Act, and the Secretary is able to satisfy himself of the matters referred to under s 36 of the Act. Once that has been done, the Secretary will engage an “authorised person” to prepare a court report under s 91 of the Act and otherwise prepare the adoption application.

9. [18]

   I have allocated the hearing date of 14 December 2022 for the hearing of that application.

Is Edward an Aboriginal child?

1. [19]

   Section 4 of the Act contains definitions of “Aboriginal” and “Aboriginal child” as follows:

2. [20]

   The Aboriginal Land Rights Act 1983 (NSW) defines “Aboriginal person” as follows:

3. [21]

   As Ms Hailstone and Ms Anderson submitted, it does not appear that Edward satisfies the tripartite definition of “Aboriginal person” in the Aboriginal Land Rights Act. That is because Edward’s intellectual and developmental capacity is such that I cannot conclude that Edward himself identifies as an Aboriginal person for the purposes of the second limb of that tripartite test. I should record, however, that the evidence shows that Edward enjoys engaging with Aboriginal culture, such as dancing to music, walking on Country, learning words in the Wiradjuri language and attending various cultural activities.

4. [22]

   Nonetheless, I am satisfied that, more probably than not, Edward is “of Aboriginal descent”, and thus an Aboriginal, for the purposes of s 4(2) of the Act.

5. [23]

   In Hackett (a pseudonym) v Secretary, Department of Communities and Justice, [3] Leeming JA [4] held that the effect of s 4(2) of the Act was to expand the class of persons who might come within the definition of “Aboriginal child” [5] and to confer upon the Court a discretionary power to determine that a child is Aboriginal if the child is of Aboriginal descent. [6] Leeming JA held that a Court may determine that a child is of Aboriginal descent even if no ancestor of the child satisfies the tripart definition of “Aboriginal person” in the Aboriginal Land Rights Act.

6. [24]

   Leeming JA made clear in Hackett that “[t]here is no requirement in order for a child to be an Aboriginal child for the child to have a specified proportion of genetic inheritance”. [7]

7. [25]

   Section 126 of the Act enables me to act on any statement, document, information or matter that assists me to deal with the proceedings, whether or not that statement, document, information or matter would be admissible in evidence.

8. [26]

   The Secretary has engaged a researcher and genealogist, Mr Maxwell Turner, and an anthropologist, historian and genealogist, Mr Timothy Dauth, to prepare a report concerning Edward’s genealogy.

9. [27]

   That report concludes that it is likely Edward’s fourth great grandfather (who I will refer to as “Jarrah Jones”: not his real name) was an Aboriginal man.

10. [28]

    Messrs Turner and Dauth drew attention to the “inherent difficulties in genealogical research that add a degree of uncertainty in any findings” but conclude that “a benefit of the doubt approach would reasonably suggest that [Jarrah Jones] was an Aboriginal man”.

11. [29]

    Messrs Turner and Dauth summarised their conclusions as follows:

12. [30]

    In addition to Messrs Turner and Dauth’s conclusions, I have also had regard to the fact that the evidence shows that there is a firm belief within Edward’s extended family, and the community more generally, that Jarrah Jones was an Aboriginal man. Edward’s paternal grandmother identifies as Aboriginal and Edward’s younger siblings also identify as Aboriginal.

13. [31]

    Overall, I am satisfied that Jarrah Jones was an Aboriginal man and that, accordingly, Edward is of Aboriginal descent.

14. [32]

    A number of matters thereby arise for consideration.

Consultation under section 33 of the Act

1. [33]

   Section 33 of the Act provides:

2. [34]

   As to the consultation required by s 33(1)(a), s 195 of the Act provides:

3. [35]

   Ms Lisa Jackson is a person approved under s 195.

4. [36]

   On 20 October 2022, Ms Sarah Baskin, a case manager from Life Without Barriers, spoke to Matthew concerning the possibility of speaking with Ms Jackson.

5. [37]

   Ms Baskin’s note of the conversation reads:

6. [38]

   Section 33(1)(a) requires the Secretary to “ensure” that a person approved under s 195 of the Act is “consulted” about the placement of an Aboriginal child.

7. [39]

   In Adoption of BR, [8] Brereton J (as his Honour then was) held that for the purposes of s 33(1)(a) “consultation 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 view so expressed”. [9]

8. [40]

   I cannot see how what has transpired between Ms Baskin, Matthew and Rachael could be seen as a “consultation” for this purpose. There has been no communication of a proposal to the person to be consulted, here Ms Jackson, nor an invitation to express a view, let alone expression of a view.

9. [41]

   That said, I see no basis on which the Secretary could, or should, seek to require Matthew or Rachael themselves to “consult” with Ms Jackson. Nor do I see s 33(1) as requiring any particular person, including the birth parents here, to “consult” with the person approved under s 195 of the Act. The subsection is expressed in the passive voice and requires that the relevant person be “consulted”. It would for example be sufficient compliance with s 33(1)(a) if the Secretary himself (or his delegate) were to consult with, here, Ms Jackson. However, there has not yet been compliance with s 33(1)(a) of the Act.

10. [42]

    I make these observations notwithstanding the fact that the heading to s 33 refers to “Aboriginal” participation in decision making. That heading is not to be taken to be a part of the Act as it is not a heading to a Chapter, Part, Division or Subdivision of the Act, [10] although it can be taken into account in interpreting the Act. [11] In any event, consultation by the Secretary or his delegate with a person approved under s 195 of the Act would involve “Aboriginal participation” in the decision making process, as such a person must be an Aboriginal person.

11. [43]

    As to s 33(1)(b) of the Act, Edward’s father, Matthew, has requested that his extended family not be spoken to about Edward and his placement with the Smiths and has also requested that the community and land councils not be consulted. Matthew has queried why the Secretary would ask people who do not know Edward about his adoption. He also has what has been described as a “fractured relationship” with his sisters and is not close to his parents or wider family network. I am informed that the Secretary respects Matthew’s self-determination in this regard. Caseworkers involved with the case have also mentioned that it may be that Matthew holds feelings of shame for Edward’s circumstances. Accordingly, the Secretary has not sought to engage consultation of the kind referred to in s 33(1)(b) of the Act.

12. [44]

    Section 33(2) requires that, in addition to the consultation required by s 33(1), the Secretary “must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation”.

13. [45]

    I would construe “relevant” in this regard as meaning an organisation that has knowledge and expertise in the area of Aboriginal children and child protection generally.

14. [46]

    On 6 April 2022, Ms Baskin sent an email to an organisation known as “Grandmothers Against Removal NSW” as follows:

15. [47]

    Ms Baskin received no reply to that email and sent a further email, in the same terms, on 19 April 2022. Ms Baskin received no reply to that email.

16. [48]

    It may be that those communications could be described as a “consultation” within the meaning of Brereton J’s observations in Adoption of BR in that Ms Baskin has communicated a proposal to the organisation and invited it to express a view.

17. [49]

    However, unlike s 33(1)(a), which requires that the Secretary ensure that the relevant person is “consulted”, s 33(2) obliges the Secretary to ensure that the placement of the child is made “in consultation with” the relevant organisation. That requires something beyond simply making an unanswered enquiry of such an organisation. The language used in s 33(2) contemplates an ongoing process, albeit perhaps brief, but involving at a minimum a response of some kind from the organisation in question.

18. [50]

    Ms Baskin’s unanswered emails do not amount to compliance with this requirement.

Reasonable inquiry – section 34 of the Act

1. [51]

   Section 34 of the Act requires the Secretary to make reasonable inquiries as to whether a child to be placed for adoption, here Edward, is an Aboriginal child.

2. [52]

   For the reasons I have set out above, I was satisfied that the Secretary has made reasonable inquiries and, accordingly, made the finding to which I have referred.

Aboriginal child placement principles – section 35 of the Act

1. [53]

   Section 35 of the Act provides:

2. [54]

   The Smiths are not of Aboriginal background. Thus, s 35(3) is engaged and requires that Edward must not be placed with the Smiths for adoption unless I am satisfied of the matters referred to in subss (3)(a) to (c).

3. [55]

   I received detailed evidence and submissions as to the steps that the Smiths have taken to ensure that Edward connects with his Aboriginal culture, identity and Country. That evidence and those submissions left me in no doubt that I could be so satisfied. Accordingly, I made the declaration to which I have referred.

4. [56]

   Although Matthew identifies as being Aboriginal, Rachael does not. Accordingly, s 35(4) is also engaged. The evidence before me pointed, overwhelmingly, to the conclusion that for the purposes of s 35(4) the placing of Edward with the Smiths for adoption will promote his best interests. As I have said, it is estimated that Edward has the intellectual capacity of a two to three year old child. He has complex medical needs which have been admirably met by the Smiths over a long period. Matthew and Rachael have indicated that they would not be able to meet Edward’s complex medical and emotional needs and are supportive of his adoption by the Smiths. It appears that because of Edward’s complex and significant needs, he will never be able to live independently. I think that Ms Hailstone and Ms Anderson were correct to submit that adoption is the only option which is viable for Edward.

5. [57]

   For those reasons I made the declaration to which I have referred.

6. [58]

   In due course it will be necessary for an adoption plan to be provided to comply with s 35(5)(a) of the Act.

Alternatives to placement for adoption – section 36 of the Act

1. [59]

   Section 36 of the Act provides:

2. [60]

   Only the Secretary is able to achieve the level of satisfaction required by s 36 of the Act. That function cannot be delegated to a person other than the Secretary. [12]

3. [61]

   The Secretary’s views will formally be sought under this section in due course.

Conclusion

1. [62]

   It is for these reasons that I made the declarations and orders set out above but have not found that the Secretary has complied with his obligations under s 33 of the Act.