The Adoption of Richard (a pseudonym)

1. [1]

   The Secretary, New South Wales Department of Communities and Justice (“the Secretary”), anticipates that in due course he will make an application under the Adoption Act 2000 (NSW) (“the Act”) in relation to a young adult who I will call “Richard” (not his real name) in favour of the married couple to whom I will refer as the “Prospective Adoptive Parents”.

2. [2]

   Richard was born in March 2005.

3. [3]

   Richard was placed with the Prospective Adoptive Parents in August 2007, when he was two years of age.

4. [4]

   In November 2007, the Children’s Court of New South Wales made final orders allocating parental responsibility for Richard to the Minister for Families and Communities (formerly the Minister for Families, Communities and Disability Services) until he attained the age of 18 years. As Richard recently turned 18, those orders have now expired.

5. [5]

   The mother of Richard is a woman to whom I shall refer as “Jane” (not her real name). Jane is an Aboriginal woman of the Guringai nation.

6. [6]

   The father of Richard is a person to whom I will refer as “Douglas” (not his real name). Douglas is an Anglo-Australian. Douglas has requested the Department of Communities and Justice (“DCJ”) not to contact him in relation to Richard. I have been informed that “DCJ respects the father’s self-determination in this regard”.

7. [7]

   The Prospective Adoptive Parents are also Anglo-Australian. They did not learn that Richard was of Aboriginal descent until he was seven years of age. By then, Richard had been living in their care for some five years.

8. [8]

   Following a preliminary hearing held on 3 April 2023 pursuant to s 80(2) of the Act, I made the following determination and declarations:

   1. (1)

      Pursuant to s 4(2) of the Adoption Act 2000, the Court determines that Richard is of Aboriginal descent, with the consequence that he is an Aboriginal child within the meaning of s 4(1) of the Adoption Act 2000;

   2. (2)

      Declare that, for the purposes of s 35(3) of the Adoption Act 2000, the Court is satisfied that the Prospective Adoptive Parents:

   3. (3)

      Declare that, for the purposes of s 35(4) of the Adoption Act 2000, the best interests of the child Richard will be served, having regard to the objects of the Act, were he to be placed for adoption with the Prospective Adoptive Parents;

   4. (4)

      Declare that, for the purposes of s 34 of the Adoption Act 2000, the Secretary has made reasonable inquiries as to whether the child Richard is an Aboriginal child;

   5. (5)

      Declare that the Secretary has engaged in the consultation required in s 33 of the Adoption Act 2000.

9. [9]

   These are my reasons for taking that course.

Richard is of Aboriginal descent

1. [10]

   There is no controversy about this.

2. [11]

   As Richard’s mother, Jane, is an Aboriginal woman, it follows that Richard is an Aboriginal person, and when these proceedings were commenced on 6 December 2022, he was an “Aboriginal child” under s 4 of the Act.

3. [12]

   It also follows that the Secretary has made reasonable inquiries as to whether Richard, as “a child to be placed for adoption”, is an Aboriginal child for the purposes of s 34(1) of the Act.

The requirements of ss 35(1) - (3) of the Act

1. [13]

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

2. [14]

   Division 2 contains ss 33 to 36 which refer, variously, to the “placement” and “placement for adoption” of Aboriginal children. As I said in The Adoption of Mary (a pseudonym) and Michael (a pseudonym), [1] 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]

   Richard has been in the care of the Prospective Adoptive Parents since 2007 but, I am satisfied, has not yet been “placed for adoption” with them for the purposes of the Act.

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 a child. [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. [4]

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”. [5] If the prospective adoptive parents are successful in the selection process, and any other preliminary issues are dealt with, the Act refers to them as “proposed adoptive parents”.

7. [19]

   I think the Secretary is correct to submit that, in this case, Richard has not yet been “placed for adoption” with the Prospective Adoptive Parents, 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 Richard is in out-of-home care and living with authorised carers, the Prospective Adoptive Parents, who are proposing to adopt him.

9. [21]

   Because Richard is an Aboriginal child, 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]

    When considering, for the purpose of these provisions, what is “practicable” and what is in Richard’s best interests in this case, it must be kept in mind that Richard is now 18 and has lived with the Prospective Adoptive Parents for all his remembered life.

12. [24]

    It is also important to have regard to Richard’s own views.

13. [25]

    On 24 March 2023, Richard wrote a letter addressed “To the Judge” in these terms:

14. [26]

    In these circumstances I am comfortably satisfied that it is neither practicable nor in Richard’s best interests that he be placed for adoption in accordance with either subss (2)(a) or (2)(b) of s 35 of the Act. It is both practicable and in Richard’s best interests that he be placed for adoption with the couple with whom he has been living for the last 16 years: the Prospective Adoptive Parents.

15. [27]

    Section 35(3) of the Act provides:

16. [28]

    I accept the Secretary’s submissions that the Prospective Adoptive Parents are able to satisfy the obligations and responsibilities outlined in that subsection.

17. [29]

    The Prospective Adoptive Parents have:

18. [30]

    The Prospective Adoptive Parents have, however, faced some difficulty in their ability to meet Richard’s cultural needs given Richard’s lack of desire to engage in cultural activities. Nonetheless, the evidence establishes that the Prospective Adoptive Parents are committed to assisting Richard develop a healthy and positive cultural identity in a manner that respects Richard’s wishes. I agree that it is important to allow Richard autonomy in relation to his choice of whether or not to engage in such cultural activities.

19. [31]

    I accept the Secretary’s submissions that the evidence shows that it is clear Richard’s best interests will be served by him remaining with the Prospective Adoptive Parents and being “placed for adoption”.

20. [32]

    I am satisfied in relation to the matters set out in s 35(3) of the Act.

The requirements of s 35(4) of the Act

1. [33]

   Section 35(4) of the Act provides:

2. [34]

   This subsection is engaged as Richard has one Aboriginal parent and one non-Aboriginal parent.

3. [35]

   For the same reason that I have set out above, I am satisfied that Richard’s best interests will be served by him being placed for adoption with the Prospective Adoptive Parents and that the requirements of s 35(4) of the Act are satisfied.

The consultations required by s 33 of the Act

1. [36]

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

2. [37]

   In this case, the Secretary has consulted Ms Jones (not her real name), a Counsellor and Independent Indigenous Consultant and a person approved under s 195 of the Act.

3. [38]

   Ms Jones prepared a report on 27 January 2023 in which she stated:

4. [39]

   In her report Ms Jones opined:

5. [40]

   Ms Jones concluded:

6. [41]

   Section 33(2) also obliges the Secretary to “ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation”.

7. [42]

   The Secretary has now had communications with an organisation ("the Organisation"). The Organisation is an Aboriginal specific service, supporting vulnerable children and their families within the community. Their services include supporting family time, mentoring, providing respite care, transport services, carer and restoration assessments and family group conferences. The Organisation has statewide approval throughout New South Wales.

8. [43]

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

9. [44]

   On 10 March 2023, Mr Lee (not his real name), the Managing Director of the Organisation, wrote to DCJ:

10. [45]

    On 22 March 2023, Mr Lee said:

11. [46]

    Mr Lee, and thus the Organisation, is enthusiastically supportive of an adoption by the Prospective Adoptive Parents of Richard.

12. [47]

    In these circumstances, I am satisfied that Richard’s placement with the Prospective Adoptive Parents has been made “in consultation with” an Aboriginal organisation of the kind specified in s 33(2) of the Act. The ongoing process called for by s 33(2) has occurred. [7]

Jane’s position

1. [48]

   Jane is fundamentally opposed to the making of an adoption order of Richard in favour of the Prospective Adoptive Parents. Jane explained her position with great dignity and eloquence at the preliminary hearing on 3 April 2023.

2. [49]

   Jane referred to “the harm which has occurred to Aboriginal children in interracial adoption families” and said that “adoption is alien to our way of life”.

3. [50]

   Jane emphasised that “in my culture children are responsible for their extended family, not just biological parents alone. Even under normal circumstances the extended family plays an important role in the upbringing of Aboriginal children where the biological parents cannot do so”. Jane spoke of the “extended family structure” in Aboriginal communities.

4. [51]

   Jane also said “proceedings in adoption goes against [the] Aboriginal concept of shared parenting” and “adoption is contrary to the Aboriginal custom of interracial adoption and is known to be contrary to the best interests of the Aboriginal child in the great majority of cases”.

5. [52]

   Jane also said that “I have always and I continue to always put my son first, hence the reason why I never went back for restoration”.

6. [53]

   These are matters to which I will return when considering whether to make an order for adoption, once the Secretary is in a position to make an application for that order.