A child, who I will call "A", was born in June 2021.
The day after A's birth, Ms Ruth Wienburg, a Senior Practitioner employed in the Anglicare Sydney Adoption and Guardianship Team, attended Blacktown Hospital to discuss the potential voluntary placement of A for adoption with the Mother and the Father. At that time, the Mother decided to take A home and care for her.
Several days later, the Mother approached Anglicare with a view to placing A for adoption.
On 28 June 2021, the Mother voluntarily placed A in pre-adoptive care with authorised Anglicare carers.
A is currently placed with short term Anglicare authorised carers. A has had a total of five placements during her short life.
On 9 December 2021, the Mother signed an instrument of consent to A's adoption. The Mother has not revoked her consent to the adoption.
On 14 December 2021, this Court ordered, pursuant to s 84(2) of the Adoption Act 2000 (NSW), that parental responsibility for A be granted to the Principal Officer of Anglicare for 12 months from the date of the order.
Since 1 March 2022, Mr and Mrs P (the "Proposed Adoptive Parents") have been identified by Anglicare as suitable persons with whom to place A, with a view to adoption.
Officers of Anglicare have sought to engage with the Father concerning the possibility of the adoption of A. At one point, the Father stated that he would like to parent A himself.
However, on numerous occasions, the Father has failed to engage with Anglicare, including in relation to pre-adoption counselling sessions.
On a number of occasions, Ms Wienburg has informed the Father that due to his lack of engagement with the adoption process, Anglicare may need to apply for an order under s 67 of the Adoption Act dispensing with his consent to any adoption. In a response to one of these attempts, the Father discussed with Ms Wienburg the difficulties that he thought he would have in caring for A. The Father also referred to a current Apprehended Violence Order against him.
Now, by Notice of Motion filed on 4 April 2022, the Principal Officer of Anglicare seeks a preliminary hearing pursuant to s 80 of the Adoption Act and the following orders and notations:
"The Court orders that:
1. Pursuant to Adoption Act 2000 ('the Act'), s 67(1)(c), that the requirement for the consent of the child's birth father … be dispensed with.
The Court notes that:
i. The Principal Officer has made reasonable inquiries, pursuant to s 34 of the Act, as to whether [A] is an Aboriginal child.
ii. While the evidence does not satisfy the Court that [A] is of Aboriginal descent for the purpose of the Act, a cultural plan has been prepared for [A] in recognition of the paternal family's belief that she is a child of Aboriginal descent.
iii. It is proposed that [A] be placed with [the Proposed Adoptive Parents] who are aware of [A's] heritage, and have the capacity to assist [A] to develop a healthy and positive cultural identity, have knowledge of, and are willing to learn and teach [A] about, her Aboriginal heritage, and to foster links with that heritage in her upbringing, and have the capacity to help [A] if she encounters racism or discrimination in the wider community, and being also satisfied that the Aboriginal child placement principles have been properly applied, orders that the Plaintiff is justified in continuing to place [A] with the carers as prospective adoptive parents."
[2]
Should a dispense consent order be made at this stage?
Section 70(1) of the Adoption Act provides that a consent dispense order may be made before or in conjunction with the making of an adoption application. [1]
The Court's power to make a consent dispense order prior to the making of an adoption application has existed since 1965 when the predecessor of the Adoption Act, the Adoption of Children Act 1965 (NSW), was enacted. [2]
An order that a parent's consent be dispensed with prior to the making of an adoption application may be appropriate if the making of such an order would or might:
1. enable the relevant adoption agency "to be reasonably certain that a child is free for adoption before making an adoption placement"; [3]
2. minimise the risk of a child "being passed over in favour of children in respect of whom consent has been given or dispensed with"; [4]
3. increase the range of adoptive parents potentially available;
4. minimise the risk of disruption to a child placed with potential adoptive parents in circumstances where the adoption does not ultimately proceed because of some later difficulty obtaining consent;
5. enable a child's proposed adoptive parents to focus more fully on the child's needs and ensure they are not inhibited in allowing themselves to become fully attached to the child;
6. avoid unnecessary delay in obtaining the adoption; or
7. remove a hurdle or impediment to, or any potential uncertainty about, the placement of the child for adoption or the making of an adoption order. [5]
The overriding question is, of course, whether the making of a consent dispense order prior to the making of an adoption application would promote the best interests of the child, this being the "paramount consideration". [6] This will be a fact specific inquiry in each case.
In considering the question, regard must also be had to the policy of the Adoption Act that respect must be shown to the rights of birth parents, including by obtaining their consent to any adoption.
A reason not to make a consent dispense order prior to the making of an adoption application may be if there is no evidence that the making of such an order will have any bearing on the relevant agency's ability to find suitable proposed adoptive parents for the child. [7]
In this case, there is no suggestion, in the evidence before me, that the making of a consent dispense order now would have any effect on the placement of A with the Proposed Adoptive Parents.
Thus, on 28 March 2022, the Proposed Adoptive Parents wrote to Ms Carol O'Brien, a Senior Practitioner in the Adoption and Guardianship team at Anglicare Sydney:
"We've had a long chat this afternoon and yes we would like to progress with the placement of [A] in our family.
We are committed to ensuring we do everything we can so she grows up with an understanding and respect for Aboriginal culture regardless of what the court determines her Aboriginality status.
Our strong preference is for adoption orders.
We genuinely believe this is the best outcome for [A], we do however understand that depending on the court outcome she may join our family thru foster care or adoption and we accept that.
If it is foster care we both would want to pursue every avenue possible to apply to adopt her when the time is right.
We are excited for the possibility of being her loving parents and giving her a stable loving home within our family."
The generous sentiments thus expressed by the Proposed Adoptive Parents bespeak an unconditional commitment on their part to A's placement with them and, in due course, their adoption of A.
It is obviously important, as Ms O'Brien has stated in her affidavit, that A forms a primary attachment with the Proposed Adoptive Parents "at the earliest point in time possible while her foundational neurological pathways are being laid down".
But, on the evidence before me, there is no reason why that should not happen forthwith.
It is true that the Father has expressed ambivalent views about his support for the adoption of A.
Thus, for example:
1. on 2 November 2021, a letter was sent to the Father acknowledging his desire to care for A but his difficulty in doing so;
2. on 10 November 2021, the Father indicated that he wished to care for A, although he acknowledged the difficulty he would have in caring for her;
3. on 8 February 2022, the Father stated in an SMS message that he wanted A to be adopted as he could see it would be in A's best interests that she would be adopted and that "I would like her to be in a happy family"; and
4. on 29 March 2022, the Father said "I never really wanted her adopted but given the circumstances and where I live, she will have a happier life being adopted".
As was submitted on behalf of the Principal Officer, if the Father's consent is not dispensed with, "it leaves open the possibility that the Father will change his mind at some stage prior to the adoption application being made".
That appears to me to be most unlikely.
In any event, there is no evidence to suggest that such a possibility is an impediment to A being placed, forthwith, with the Proposed Adoptive Parents.
For those reasons, I do not see a basis upon which I should, at the moment, make an order under s 67 of the Adoption Act in relation to dispensing with the Father's consent.
If circumstances change, a further application can be made on short notice and will be dealt with promptly.
[3]
Have reasonable inquiries been made under s 34 of the Adoption Act?
Section 34 of the Adoption Act provides that:
34 Application of Aboriginal child placement principles
(1) The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child.
(2) The Aboriginal child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is an Aboriginal child for adoption.
The terms of s 34(1) make clear that the time at which reasonable inquiries must be made as to whether a child is an Aboriginal child is prior to the making of an adoption application; hence the section refers to reasonable inquiries being made as to whether a child is "to be placed" for adoption.
On behalf of Anglicare, the Crown Solicitor's Office has engaged Mr Timothy Dauth, a Research Officer at the Crown Solicitor's Office with qualifications in anthropology, to research the family history and ancestry of A.
The basis on which it is suggested that A might be an Aboriginal child is the fact that the Father identifies as an Aboriginal person by reason of what he understands to be his father's (that is, A's grandfather's) Aboriginal heritage.
Mr Dauth has made a lengthy and comprehensive report dealing with his inquiries and has concluded:
"6. The available information is insufficient for me to be able to confirm or rule out Aboriginal descent.
7. I have insufficient information to be able to identify [the Father's father] … This means that without further family information or the assistance of DNA analysis, it would not be possible to confirm that he was an Aboriginal person.
8. My research into [the Father's] maternal … family history has not identified any recorded Aboriginal history. But there are uncertainties including an unknown father of [the Father's] maternal grandmother …
9. Due to standard limitations in genealogical research, as well as particular unrecorded and unidentifiable ancestors in this case, I am not able to confirm or rule out Aboriginal heritage."
Based on Mr Dauth's comprehensive report, I am satisfied that the Principal Officer has made reasonable inquiries, for the purposes of s 34 of the Adoption Act, as to whether A is an Aboriginal child.
In any event, as the notation proposed by the Principal Officer reveals, any adoption of A by the Proposed Adoptive Parents will be made on the basis of a cultural plan prepared in recognition of "the paternal family's belief that [A] is a child of Aboriginal Descent".
Further, it is clear that the Proposed Adoptive Parents are committed to fostering such Aboriginal heritage as A may be shown to have.
Thus, Ms O'Brien said, following a meeting with the Proposed Adoptive Parents on 28 March 2022:
"The [Proposed Adoptive Parents] conveyed to me that they are committed to undertaking further research into [A's] heritage, should she be placed with them, and that they would support [A] to discover more about her cultural heritage in the future. The [Proposed Adoptive Parents] also have family members who are Aboriginal and are confident that [A] would spend time with those family members and be in a position to learn more about Aboriginal culture through those connections. Prior to my discussions with the [Proposed Adoptive Parents], [the Proposed Adoptive Mother] had sought the views of these family members regarding their proposed adoption of an Aboriginal child. The family members expressed their enthusiasm to support [A] in understanding and embracing their Aboriginal heritage."
In those circumstances I find, for the purposes of s 34 of the Adoption Act, that the Principal Officer of Anglicare has made reasonable inquiries as to whether A is an Aboriginal child.
[4]
Endnotes
Sections 70(1)(a) and (b) of the Adoption Act 2000 (NSW).
Sections 32(2) and (3) of that Act.
See, New South Wales, Parliamentary Debates, Legislative Council, 8 December 1965, pp 3046-3047 (A D Bridges, Minister for Child Welfare).
To adopt the words of Kunc J in Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 at [63].
See, generally, Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 (Kunc J) and Re LJC (No 2) [2015] NSWSC 264 at [7]-[8] (Darke J).
Section 8(1)(a) of the Adoption Act 2000 (NSW).
As Darke J found in Re LJC [2015] NSWSC 21 at [15]-[17], prior to his Honour's later decision in Re LJC (No 2) [2015] NSWSC 264.
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Decision last updated: 10 May 2022
Legislation Cited (3)
Adoption of Children Act 1965(NSW)
Adoption Act, the Adoption of Children Act 1965(NSW)