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

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’).

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’).

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

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].

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].

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].

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].

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.

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.

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].

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.

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].

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]].

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.

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.

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].

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.

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.

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.

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.

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].

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].

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.

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)]].

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].

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]].

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]].

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].

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].

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].

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]].

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]].

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]].

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]].

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].

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]].

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.

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

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]].

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

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:

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.

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.

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

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

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.

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.

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

In addition, s 64 of the Act provides:

Section 195 of the Act provides:

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

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.

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

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.

Sections 7 and 8 of the Act provide:

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

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]):

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

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

Section 90 of the Act likewise provides:

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]):

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

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]):

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

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

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.

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.

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

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.

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.

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 Shine affirmed one affidavit on 16 November 2017.

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.

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 Geddes affirmed one affidavit on 16 October 2018.

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.

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.

Ms FCM is the proposed adoptive mother. She affirmed one affidavit on 21 March 2018.

In her affidavit, she outlines her previous education and employment. She states that she has been in a relationship with FP, the proposed adoptive father, since 2010 and that they have lived together since 2015. She states that her previous employment ended on 16 February 2018 as the company relocated to Melbourne and she did not want to move and disrupt XX. She explains how she is receiving $819 a fortnight in care allowance and has jointly purchased a home with an estimated value of $1.2 million, on which mortgage repayments are $3,829 per month.

She states that she is helping XX understand her history and legal status through use of a story book and through committing to having open and honest communications with XX. She is working to maintain her connection with XX’s birth family through preparing updates to XX’s birth parents and facilitating face to face visits with XX’s brother XC and her paternal grandmother N. She states she is committed to maintaining these visits after XX’s adoption. She states that she is committed to continuing to support XX’s current schooling and participation in various co-curricular activities such as swimming and dancing. She states she believes that an adoption order will give XX the certainty that they will be a family forever.

During cross examination, Ms FCM reiterated her commitment to XX and her desire to continue to care for her if an adoption order was not made [T15/34]. She states that she would respect XX’s wishes regarding matters such as her future care and contact with her birth mother [T15/18].

Mr FBP is the proposed adoptive father. He affirmed one affidavit on 21 March 2018.

In his affidavit, he outlines his previous education and employment. He states that he is currently employed and earning $2,120 per week. He states he is helping XX understand her history and legal status through use of a story book. He states that XX is constantly asking about her adoption and he is working on having open and honest communications with XX about how the process is taking place. He reiterates the comments of Ms FCM about supporting visitation with XX’s brother and paternal grandmother.

In cross examination, Mr FBP confirmed his commitment to XX and desire to continue to care for her if an adoption order was not made [T18/22-29]. Mr FBP also stated that he would respect XX’s wishes in matters regarding her future care and contact with her birth family [T19/29-20/39].

Three referees provided affidavits in which they vouched for the proposed adoptive parents’ ability to care for and love XX.

Ms Collins is a solicitor employed in the Office of the Crown Solicitor of New South Wales. She affirmed one affidavit on 12 March 2019.

In her affidavit, she states that she sent a letter to the Co-ordinator of the Adoption Information Unit, Adoption and Permanency Services, Department of FACS on 1 March 2019. She notes that on 5 March 2019 she received a child card for a child named BFT. She states that the child card identifies BFT’s date of birth as 26 June 1927 and his adopting parents as Mr and Mrs T T.

Ms MLA is the birth mother of XX. She affirmed two affidavits on 5 July 2018 and 28 January 2019

In her first affidavit, she states that she opposes the adoption order because she believes XX to be of Aboriginal descent. She says that she first notified Barnardos that her grandfather, XX’s great-grandfather was Aboriginal in July 2017. She claims that she was aware of her Aboriginal identity as early as 1996 but did not identify as such. She states she informed Community Services she was of Aboriginal descent when she was pregnant in 2014. She says she and her mother now identity as Aboriginal but have sought no formal recognition of this. She raises issues with the investigations done by Barnardos into XX’s Aboriginal identity.

She disputes many of the allegations of child abuse and neglect that lead to XX’s removal and states that she was pressured into consenting to a permanent care order in the Children’s Court. She disputes that she has not sought contact with XX. She further states she is concerned about the effect that an adoption order will have on XX’s brother XC, who is currently in care with XX’s paternal grandmother.

In her second affidavit she reinforces her belief that XX is a child of Aboriginal descent and thus should not be adopted. She states that she has doubts about the inquiries Barnardos conducted into XX’s Aboriginal identity and believes that they did not take her statement that she was of Aboriginal descent very seriously. She said that in the past she has suffered from anxiety and depression and that conducting extensive and expensive research into her Aboriginal heritage felt impossible. Since reconnecting with her mother in 2018 she has become more active in researching her grandfather and has been in communication with Tharawal Aboriginal Lands Council, an organisation who assists people establish Aboriginality. By December 2018, she was able to save up enough money to obtain her mother’s birth certificate to assist with the investigations. She states that Tharawal will be unable to begin conducting searches in this case until sometime mid-February.

During the trial, focus returned to the issue of Aboriginality, and the steps, if any, taken by the Secretary and Barnardos to determine whether XX had any specific cultural or religious needs. Ms MLA stated that she had never been given a Barnardos intake form [T35/1-5] which specifically asks the question of Aboriginality during the early stages of XX’s out-of-home-care. She recalled that in 2014 she was seeing an Aboriginal social worker while she was pregnant with her son XH, who had been assigned to her by FACS [T35/16-17].

During cross examination Ms MLA admitted that she had not identified ‘on paper’ as Aboriginal during XX’s Children’s Court proceedings but insisted that she had identified to herself at this time [T35/48-36/10]. She stated she did not recall conversations with Barnardos caseworkers in 2017 where she stated XX had Aboriginal relatives but she herself did not identify as such [T36/12-15]. She further stated that she did not fully recall conversations with Barnardos caseworkers in 2016 where they had inquired about XX’s heritage, but stated ‘I told them everything that I know’ [T36/46]. She continued to reiterate that she ‘always felt that [she] was’ Aboriginal since she had found out about her heritage from her grandfather [T38/31-33].

Ms MLA admitted that the research into her heritage confirmed that some parts of her grandfather’s story were now unlikely (for example it is now clear he did not have 13 brothers and sisters) [T37/25-49]. However she said that although the research remained inconclusive, she continued to believe what she had been told, that she was Aboriginal [T38/37].

Upon re-examination it became clear that although Ms MLA had wishes of being accepted by a particular Aboriginal community, she was unlikely to be accepted without further information about her grandfather and heritage [T44/1-6].

Mr MT affirmed one affidavit on 28 January 2019.

Mr MT is the maternal uncle of XX. He states that he has identified as Aboriginal since 1996, after his grandfather told him that he was Aboriginal and had been adopted through the Catholic Church. He states that he was enrolled as an Aboriginal student throughout both primary school and high school and has been the recipient of ABSTUDY since the age of 11 or 12 years old. He states he was never contacted by Barnardos or Community Services in relation to MLA’s Aboriginality or that of her children.

Mr MT was not cross-examined.

Mr MD affirmed one affidavit on 28 January 2019.

Mr MD is the maternal uncle of XX. He states that his mother, Ms MIJ, informed him in about 1996 that his grandfather was Aboriginal. He states that his mother told him that his grandfather was adopted through the Catholic Church. He states he was enrolled as an Aboriginal student throughout high school. He states that while he was incarcerated he was categorised as an Aboriginal inmate and received support from an Aboriginal caseworker. He states that after forming a close relationship with an Aboriginal Elder while incarcerated he has been accepted by the Wiradjuri people. He states that he has never sought formal documentation confirming his Aboriginality.

Mr MD was not cross-examined.

Ms MIJ affirmed one affidavit on 10 December 2018.

Ms MIJ is the maternal grandmother of XX. She recalls that her father told her of his Aboriginality some time in 1996, after being told by a Centrelink employee that she and her eldest daughter were clearly Aboriginal and needed to apply for ABSTUDY. Her father informed her that he was adopted through the Catholic Church in Victoria when he was around two years old and that he did not know his birth parents but that his mother was a ‘completely Aboriginal’ woman and his father a white man. She states that he told her he was the youngest of 14 children. She states that to her knowledge he was never issued with a birth certificate as he had told her he was born in the bush in a tent. He informed her that he was bullied throughout school for being ‘half-caste’ and was a private man who did not identify as Aboriginal throughout his life.

She states that since then she has identified as Aboriginal. She ticks ‘yes’ to being Aboriginal on various paperwork such as Centrelink forms and doctors forms, and that her two sons identify strongly as Aboriginal. She recalls that when her daughter’s children were first removed she attempted to apply to care for them but was refused application by the Community Services Centre. She was therefore unable to discuss with Barnardos or anyone else, her and XX’s Aboriginal identity.

During cross examination, Ms MIJ stated that her sons had identified as Aboriginal from a young age, but MLA had not grown up identifying as Aboriginal [T46/10-16]. She stated that MLA, ‘didn’t see that it’s necessary for anybody to know whether she was Aboriginal or not’, and had never written or formally indicated that she was Aboriginal [T46/32-35].

Mr Michael Flynn swore one affidavit on 12 February 2019.

Mr Flynn is a research officer and historian employed by the Crown Solicitor’s Office, working in the Constitutional and Native Title Practice Group. He states that the purpose of the affidavit is to update the Court on recent enquiries made into XX’s genealogical heritage. He states that the focus of his search was into XX’s maternal great-grandfather, RT, who the family believes was half-Aboriginal and adopted informally through the Catholic Church in or around the late 1920s early 1930s. Based on evidence from the M family, who believed that Trevor’s last name prior to adoption was T or Ts, he also conducted searches in this name. He states that he performed various searches in Births Deaths and Marriages in NSW, made various searches using Ancestory.com and spoke to certain individuals believed to be relatives of RT and his supposed adoptive father, RT. He states that he relied on evidence given by the M family including the family’s oral history and various birth and marriage certificates.

In his report annexed to the affidavit, Mr Flynn states that he has found two different males and two different females who could potentially be the birth or adoptive parents of RT or T. There was some evidence that one of Trevor’s potential birth fathers could be Aboriginal but that more research was needed. He further noted that there was likely to be a birth certificate for Trevor Reay but he would need further time to research this.

In an addendum to his affidavit, dated 6 March 2019 and filed after the close of evidence, Mr Flynn provided some updates on his research. He stated that he had received further information from FACS, NSW including a ‘child card’ for a BFT and some marriage certificates. Based on this further information Mr Flynn was able to satisfy himself that he had discovered the biological and adoptive parents of RT. Further investigations into the biological parents of RT indicate that there is a possibility based on oral family history, that RT’s paternal grandmother (XX’s great-great-great grandmother), BR, was of Aboriginal descent however there was no evidence to support this. It seemed less likely that there was any Aboriginality on RT’s maternal side of the family.

During hearing on 15 March 2019, I was informed that in the time since filing the addendum, Mr Flynn was able to find a grant of probate to BR. This appeared to indicate that it was likely BR was a legitimate child of the purported birth parents. Neither of the birth parents birth certificates was before the Court [T55/30-38].

Over the course of this matter, various pieces of evidence were filed and relied upon, purportedly establishing or denying XX’s Aboriginal heritage.

The Defendant primarily relied upon the family’s oral history. As noted above, it appears that in 1996 RT told his daughter, MIJ and various grandchildren including MLA that he believed that his father was white and his mother was ‘completely Aboriginal’.

The account given by RT to MIJ is not of itself capable of being challenged. However that account cannot objectively be substantiated given the subsequent research of Mr Flynn. The oral history referred to several specific facts that have been in my view clearly disproven in the course of the matter. Assertions that Mr RT was one of 14 children, born in Victoria and adopted through the Catholic Church, have not been substantiated. In fact the evidence establishes that Mr RT was in fact born in New South Wales and there is no evidence of his having numerous siblings. The oral history further pointed to the belief that Mr RT’s birth mother was Aboriginal, however it now appears that it is extremely unlikely that there is any Aboriginal heritage on Mr RT’s maternal side. It must be remembered that when MIJ first filed her affidavit in these proceedings on 10 December 2018, she did not know or recall the birth surname of her father. It was only after her solicitor, Ms Willoughby made additional inquiries that another name was discovered. It was this additional information that enabled Mr Flynn to conduct a more detailed and thorough investigation. Therefore it appears Mr Flynn’s investigations directly undermines the oral family history as understood.

Although I accept that Mr RT had no reason to lie when expressing his belief to his children and grandchildren, and although this was not a ‘dying declaration’ as such, I accept that he may have genuinely held this belief, with the qualification that, as will appear below he has likely been the subject of a wholly inaccurate account of his own family history and hence origins.

Counsel for the birth mother raised s 73 of the Evidence Act 1995 (NSW). In my view this section does not help her case. Section 73 makes relevant evidence of reputation in particular evidence of family history or family relationships. No objection was taken to the admissibility of the family history only its weight. The family history must be weighed against other information to determine its likely truth. The very nature of evidence as to reputation is that it only goes to prove that how a person is or has been perceived. As Lord Denning, pithily observed in Plato Films Ltd v Speidel (1961) AC 1090 at 1138, reputation is what others think of the person. Given the important consequences that flow from a finding of Aboriginality, the Court has to be comfortably satisfied that a child is indeed Aboriginal. In my view, there simply is not sufficient credible evidence on balance to make a positive finding of Aboriginality. Indeed the objective evidence that is in my view available is contrary to such a finding. I am not therefore satisfied XX is an Aboriginal child and I am unable to find accordingly.

Although this issue does not now strictly arise given my finding on Aboriginality, I nonetheless propose to comment on some aspects of the evidence because of its importance generally.

As White J said in Re K and the Adoption Act 2000 in a slightly different context, the reasonableness of an enquiry is to be evaluated from the perspective of the person about whom the enquiry is to be made and by implication the importance of that enquiry in the proceedings.

Section 90(1)(e), applies when a child is an Aboriginal child, and thus a failure to properly apply the placement principles in that event does prevent a Court from making an order for adoption. In my view it appears given the discussion which follows that reasonable inquiries were not made here until the earliest June 2017, which is when the process of enquiry was initiated. However in this case for obvious reasons it is of no real moment.

The obligation to make reasonable inquiries is governed by s 34 of the Act. The first step is for the Secretary or Principal Officer (a person referred to in s 14) “to make reasonable enquiries”. That is a directive in my view for the relevant person to be proactive, and that such inquiries are to be made prior to placement. It is not for another person (whether birth parent or otherwise) to raise the issue, although that would place the Secretary for example on clear notice. Of course even if the birth parent claims a child is Aboriginal, reasonable enquiries need still in my view to be made as the claim may be based on a mistaken belief or worse be bogus. However, if having made reasonable enquiries the relevant person is not “satisfied” the child is Aboriginal, the placement principles do not apply. Indeed this is explicitly contemplated by s 34(2).

On the other hand, having made reasonable enquires and having reached the requisite satisfaction positively on the issue, obligations pursuant to s 35 arise which require for example, consultation with a particular Aboriginal community or communities. The Act contemplates further active and detailed inquiries to ensure that the appropriate community is identified and thereby consulted.

It is further clear that all of these inquiries must be made prior to placement. The words ‘to be placed’, in my view, makes that abundantly clear. It follows that whoever is responsible or involved in the placement of the child bears an obligation to make these inquiries. Whether that is the Secretary or some other party will depend on the factual circumstances of the case. Contractual arrangements between the Secretary and Barnardos for example cannot absolve a relevant party of clear statutory obligations. It arose during proceedings, that there existed certain contractual arrangements between FACS and Barnardos. A Deed had been entered into between the Minister and Barnardos in 2007 which contained cl 4.2 which states in part; “you will not be delegated the parental responsibility for Aboriginal and Torres Strait Islander children and young people under this Deed.” Unsurprisingly, neither the Deed nor this clause featured materially in the Plaintiff’s submissions. The simple reason being that it cannot dilute clear statutory obligations.

As a matter of practical reality it may well be that the burden to make these inquiries rests in first instance upon the Secretary who has as it were taken a child into care. The result of those enquiries may govern the activities of the relevant designated agency and the Secretary thereafter undertakes. In any event it would seem in any given case the Secretary would be best placed to make those inquiries. However if placement is the province of a designated agency then that is where the obligation would clearly rest. The Secretary and the designated agency should however as a matter of common sense liaise with each other to ensure one of them at least has made reasonable inquiries before placement. Proactivity is what is called for under s 34. It contemplates in my view either the Secretary or Principal Officer explicitly addressing the issue at the first available opportunity.

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)).

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).

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).

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.

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.

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.

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.

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.

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”.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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)).

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.

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.

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.

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.

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).

I would propose therefore to make Orders accordingly.