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[2026] NSWSC 1049
Supreme Court of NSW
2026-09-03
McGrath J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Adoption of Jing Xue [2026] NSWSC 1049
Hearing dates: 2 September 2026
Date of orders: 3 September 2026
Decision date: 03 September 2026
Jurisdiction: Equity - Adoptions List
Before: McGrath J
Decision: Parentage order made for the birth father; the child is an Aboriginal child; the Secretary has made reasonable inquiries for the purpose of s 34 of the Adoption Act 2000 (NSW); the requirements of ss 33, 34 and 35 of the Adoption Act 2000 (NSW) are satisfied
Catchwords: CHILD WELFARE — Adoption — statement of principles — observations about the importance of the “voice of the child” in adoption proceedings
CHILD WELFARE — Adoption — whether a declaration of parentage should be made for the birth father of the child — HELD — declaration of parentage should be made for the birth father of the child
CHILD WELFARE — Adoption — whether the Secretary has made reasonable inquiries as to whether the child to be placed for adoption is an Aboriginal child in accordance with s 34 of the Adoption Act 2000 (NSW) — HELD — reasonable inquiries made
CHILD WELFARE — Adoption — whether the child is an Aboriginal child for the purposes of the Adoption Act 2000 (NSW) — HELD — child is an Aboriginal child by reason of lineal descent from a Tasmanian Aboriginal man
CHILD WELFARE — Adoption — Aboriginal child placement principles — whether an Aboriginal child has been placed for adoption — relationship between ss 33 to 35 of the Adoption Act 2000 (NSW) — where the Aboriginal child has one Aboriginal parent and one non-Aboriginal parent — where child placed in care with non-Aboriginal prospective adoptive parents 10 years ago — where child now 16 years of age — HELD — not practicable or in the best interests of the child for the child to be placed with prospective adoptive parents belonging to any Aboriginal community
CHILD WELFARE — Adoption — Aboriginal child placement principles — whether placement of child has satisfied the consultation requirements under s 33 of the Adoption Act 2000 (NSW) — HELD — consultation requirements satisfied
CHILD WELFARE — Adoption — Aboriginal child placement principles — whether the adoption plan satisfied the requirements under s 35(5) of the Adoption Act 2000 (NSW) to provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs — HELD — adoption plan requirements satisfied
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), s 4
Adoption Act 2000 (NSW), ss 4, 7, 8, 9, 33, 34, 35, 36, 46, 47, 80, 90, 126, 127, 128, 129, 180, 195
Status of Children Act 1996 (NSW), ss 10, 11, 12, 13, 14, 15, 21
Adoption Regulation 2015 (NSW), Pt 4
United Nations, Convention on the Rights of the Child (2 September 1990), Article 12
Cases Cited: Adoption of F and IR (anonymised) [2022] NSWSC 262
Adoption of Maynard (a pseudonym) [2026] NSWSC 921
DM v TH [2023] NSWSC 1421
Farnell v Penhalluriack (No 2) [2008] VSC 214
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83
L & Ors v L [2013] NSWSC 916
Principal Officer, Family Spirit Adoption Services v D (Anonymised) [2022] NSWSC 142
Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239
Re K & the Adoption Act 2000 [2005] NSWSC 858
Re: “M” [2002] NSWSC 158
Re Simon (2006) 68 NSWLR 306; [2006] NSWSC 1410
Re the Adoption of CCS and FLS [2019] NSWSC 71
Re WJP and the Adoption Act 2000 [2014] NSWSC 783
Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171
The Adoption of Ava (a pseudonym) [2024] NSWSC 1448
The Adoption of Edward (a pseudonym) [2022] NSWSC 1488
The Adoption of John (a pseudonym) and William (a pseudonym) [2025] NSWSC 109
The Secretary, NSW Department of Family & Community Services by his delegate, Principal Officer, Barnardos Australia and MLA [2019] NSWSC 290
Texts Cited: Practice Note SC Eq 13
Category: Procedural rulings
Parties: Secretary, New South Wales Department of Communities and Justice (Plaintiff)
George Smith (First Defendant)
Alexandra Xue (Second Defendant)
Representation: Counsel:
RD Turnbull (Plaintiff)
A Petitt (Legal Representative for Jing Xue)
Solicitors:
New South Wales Crown Solicitor’s Office (Plaintiff)
George Smith (No appearance)
Alexandra Xue (Self-represented)
Legal Aid NSW (Solicitor for Jing Xue)
File Number(s): 2026/163415
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).
Jing Xue is 16 years old. She has lived with her Prospective A****doptive P****arents, Sarah and James, for more than 10 years. She has firmly and powerfully expressed the view that she wishes to be adopted by the Prospective Adoptive Parents. Jing has consented to her own adoption by the Prospective Adoptive Parents. I have heard Jing’s “voice”.
Jing’s birth mother, Alexandra Xue, actively opposes the adoption of Jing and is the second defendant in the proceedings. Jing’s putative birth father, Tao Li (also known as George Smith), is the first defendant in the proceedings but has taken no active part in them.
Before the adoption application made by the Secretary of the New South Wales Department of Communities and Justice (DCJ) under the Adoption Act 2000 (NSW) arises for consideration by the court, unexpected but important preliminary issues have arisen which require resolution. It has recently been discovered by the Secretary that if George is the birth father of Jing, then Jing has paternal ancestors who have Aboriginal heritage. It is therefore necessary for me to decide whether George is the birth father of Jing and, if she is, whether Jing is an Aboriginal child within the meaning of s 4 of the Adoption Act. If Jing is an Aboriginal child within that provision, a number of consequential matters then arise under the Adoption Act which must also be determined. Alexandra does not oppose most of the orders sought in this application.
Jing is entering a significant part of her life when she is about to commence the final year of her secondary education, which brings with it unique pressures. I have expedited her proceedings to deal with the preliminary issues as quickly as possible in an effort to seek to bring about the lessening of the anxiety to Jing caused by the uncertainty generated by these proceedings. Jing has already been the subject of numerous earlier proceedings in the Children’s Court of New South Wales and the District Court of New South Wales instigated by Alexandra regarding Jing’s care over many years, which have delayed the making and the consideration of the adoption application in relation to Jing for a considerable period of time.
In short, I have determined that:
George is the birth father of Jing;
Jing is an Aboriginal child for the purposes of the Adoption Act;
the Prospective Adoptive Parents can foster Jing’s cultural identity and her Aboriginal heritage;
Jing was born on 24 January 2010 at Westmead Private Hospital, Westmead, New South Wales.
Jing is well behaved, honest, polite, quiet and emotionally reserved. Jing will shortly commence Year 12 of her secondary education. She is committed to her studies, is achieving academic results at expectations or well-above expectations across all her subjects and is a determined young person. Jing is physically active in several sports.
The delay in the commencement of these proceedings since Jing was placed in the care of the Prospective Adoptive Parents in April 2016 has had a significant impact on Jing’s emotional and mental wellbeing.
Alexandra is the birth mother of Jing. Alexandra was born on 16 October 1980 in Tianya, the People’s Republic of China. She is 45 years old and works full time as a solicitor in her own practice. Alexandra has a Chinese background.
Alexandra opposes the adoption of Jing at the present time, although she agrees that Jing should remain in the care of the Prospective Adoptive Parents until she turns 18 years of age (unless they decide otherwise), at which time Jing can make her own decision without any opposition from Alexandra.
George was born on 9 April 1978. He is 48 years old. George is not identified on the birth certificate of Jing as her birth father. George acknowledges Jing as his daughter but has refused to undergo a paternity test.
George has recently discovered that he has biological Aboriginal ancestry on his maternal side. Further detail of this Aboriginal ancestry is set out below.
George also has an Anglo-Italian background from his birth parents and was adopted himself. He has an adoptive sister. His adoptive parents, Susie and George Adams, separated when he was a child, and he lived with his paternal adoptive grandmother, while his adoptive sister lived with their paternal adoptive grandfather. George has Polish heritage through his adoptive mother, Susie. George also identifies with Chinese culture and prefers to use the name “Tao Li”. George has previously identified as a Catholic and now identifies as Jewish.
George has a significant criminal history involving physical violence and has been incarcerated on numerous occasions between 2018 to 2025.
George opposes the adoption of Jing, expressing concerns about her Jing’s ability to obtain a European Union (EU) passport should the adoption proceed.
James was born in 1977, is of Croatian background, is an Australian citizen and has resided in New South Wales for 48 years. James is Catholic and goes to church every Sunday.
Sarah was born in 1975, is of Greek background, is an Australian citizen and has resided in New South Wales for 50 years. Sarah is Greek Orthodox and does not go to church regularly other than on special occasions such as Christmas, Easter, weddings, christenings and funerals.
The Prospective Adoptive Parents have been married for more than 20 years. They both have careers in well paid professional positions. They own their own home and an investment property (which have mortgages) and are financially sound. Neither is Aboriginal.
The Prospective Adoptive Parents have two biological daughters, who are now of adult age. Jing resides with the Prospective Adoptive Parents and their biological children at their family home in New South Wales.
Jing has a maternal half sibling, William Chen, who was born on 18 October 2006 and is now an adult. William was removed from Alexandra’s care on 20 May 2009 due to the possibility of serious psychological and/or physical harm, including a direct threat made by George to stab Alexandra and William.
On 21 January 2010, a DCJ caseworker raised a child protection alert for the unborn Jing given the birth family’s domestic history relating to domestic violence perpetrated by George against Alexandra which had resulted in the removal of William from Alexandra’s care.
On 5 February 2010, Jing was removed from the care of her birth parents at 15 days of age, due to domestic violence between them, inadequate supervision, an unacceptable risk of physical and psychological harm and the failure of Alexandra to demonstrate insight into George’s behaviours causing risk to Jing.
On 15 February 2010, the Children’s Court of New South Wales at Parramatta made interim orders for the Minister for Families, Communities and Disability Services to have parental responsibility for Jing.
On 26 May 2011, the Children’s Court ordered that Jing be restored to Alexandra’s care and restored sole parental responsibility for Jing to Alexandra for six months on the condition that Alexandra and George undertook not to have contact with each other until Jing turned 10 years old and Jing’s contact with George was to be supervised for two years. It was also found that there was no realistic possibility of restoration of the care of Jing to George.
On 8 August 2011, Jing was fully restored to Alexandra’s care.
Between 2011 and 2017, numerous reports by DCJ raised issues of concern about Jing in the care of Alexandra, including her being raised by different family members in Australia and China, George having regular unsupervised contact with Jing, George being the primary carer for Jing, Jing living in poor accommodation and George causing harm to Jing.
On 29 April 2016, when Jing was six years old, the Children’s Court at Bidura made interim orders that the Minister assume parental responsibility for Jing following an attempt by George to collect Jing from school while Alexandra was absent in China.
On 3 May 2016, Jing was placed in emergency care with the Prospective Adoptive Parents and has resided with them continuously since then. Creating Links has responsibility for the case management of Jing.
On 30 March 2017, final orders were made by the Children’s Court allocating parental responsibility to the Minister until Jing turns 18 years old.
On 30 April 2018, Alexandra filed an unsuccessful application in the Children’s Court seeking to rescind the final orders made on 30 March 2017. Alexandra’s appeal of that decision in the District Court was unsuccessful.
Jing has had no contact with George for more than a decade, since her second assumption into care on 29 April 2017. There is no contact between the Prospective Adoptive Parents and George.
From when Jing came into the care of the Prospective Adoptive Parents in May 2016, visits with Alexandra occurred roughly every month. Since September 2017, the frequency of the visits decreased. In September 2018, Jing said that she would prefer not to see Alexandra again. From April 2019, Jing has refused to see Alexandra and they have not seen each other since then.
Sarah provides Alexandra with regular email updates on Jing’s progress after Jing has approved sharing the information they contain. Jing does not allow photographs of her to be provided to Alexandra.
The Prospective Adoptive Parents have encouraged Jing to be involved in Chinese culture. Jing has no interest in engaging with either her Aboriginal or Chinese heritage or either of those cultures and is unwilling to do so.
On 21 April 2026, the Secretary commenced these proceedings by filing the summons. George was made a defendant to the proceedings as a parentage order of George as the father of Jing was also sought.
On 6 May 2026, a directions hearing was held in the proceedings before me, at which I made various orders, including that Alexandra be joined as the second defendant in the proceedings, the Legal Aid Commission of New South Wales be requested to appoint a separate legal representative for Jing and setting a timetable for the preparation of evidence.
On 3 June 2026, a directions hearing was held in the proceedings before me, at which Alexandra appeared for herself, Ally Pettitt appeared as Jing’s separate legal representative and the timetable for the preparation of evidence was extended.
On 31 July 2026, the Secretary filed the notice of motion in the proceedings seeking the orders that I have determined in this judgment.
On 6 August 2026, a preliminary hearing was held in the proceedings before me, at which I made various orders, including providing a timetable for the preparation of the evidence and submissions in relation to this application.
On 13 August 2026, I made orders in chambers extending the time for the provision of evidence and written submissions in relation to this application.
On 2 September 2026, a hearing of this application was held before me. The Secretary appeared through counsel, RD Turnbull, Alexandra appeared for herself and Jing appeared through her separate legal representative, Ms Pettit.
From March to July 2026, multiple attempts were made by DCJ caseworkers and the Crown Solicitor’s Office by telephone, email, text and registered post (using mobile phone, email address and home address details provided by George) to inform George of these proceedings and the progress of them. Despite all of these attempts, George has failed to appear or otherwise engage with the proceedings.
At the preliminary hearing on 6 August 2026, I made an order dispensing with the requirement for the Secretary to serve the summons commencing the proceedings and any evidence upon George.
I am satisfied that George is on notice of the proceedings and has determined that he does not wish to participate in them.
Before dealing with the preliminary issues, I have set out below some observations about the importance of the “voice of the child” in adoption proceedings. These observations are particularly apposite in these proceedings because of the clarity with which Jing has expressed her “voice”.
The “views”, the “wishes” and the “feelings” of the child play an important role in adoption proceedings. Without putting any gloss on the use of those words in the Adoption Act, the shorthand term of hearing the “voice of the child” has developed in adoption proceedings as referring to the child’s expression of their views, wishes and feelings and for the court to take them into account in the appropriate way.
Hearing the “voice of the child” is a consistent legislative commitment and obligation enshrined in the Adoption Act. The informed participation of the child throughout the adoption process is a central organising principle which is essential to the making of decisions that affect the child.
Section 9 of the Adoption Act dictates the informed participation of the child in any decisions made under the Adoption Act about them in the following terms:
(1) To ensure that a child is able to participate in any decision made under this Act that has a significant impact on his or her life, the decision maker is responsible for providing the child with the following—
(a) adequate information, in a manner and language that the child can understand, concerning the decision,
(b) the opportunity to express his or her views freely, according to his or her abilities,
(c) information about the outcome of the decision and an explanation of the reasons for the decision,
(d) any assistance that is necessary for the child to understand the information and to express his or her views,
(e) appropriate counselling when the child’s consent is required to his or her adoption.
(2) In the application of this principle, due regard must be had to the age and developmental capacity of the child.
(3) Decisions about the adoption of a child that have a significant impact on the life of the child include, but are not limited to, decisions relating to the following—
(a) the placement for adoption of the child,
(b) the development of any adoption plan concerning the child and the views of the child’s parents about the plan,
(c) an application for an order for the adoption of the child,
(d) contact with birth parents or others connected with the child.
Accordingly, it is clear that, at the very least, an opportunity must be given to the child to express their “views” freely according to their abilities as part of their participation in all decisions concerning their placement, their adoption plan, the application for their adoption and contact arrangements for them.
Section 8 of the Adoption Act reinforces these principles in relation to a decision about the adoption of a child, setting out the principles and matters to which the court is to have regard in making that decision. Amongst those principles, the wishes of the child are emphasised in the following provisions:
Section 8(1)(a) of the Adoption Act states that in making a decision about the adoption of a child, the court is to have regard to the principle that “the best interests of the child, both in childhood and in later life, must be the paramount consideration”.
Section 8(2)(a) of the Adoption Act states that in determining the best interests of the child, the court is to have regard to “any wishes expressed by the child”.
Section 8(1)(d) of the Adoption Act states that in making a decision about the adoption of a child, the court is to have regard to the principle that “if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances”.
Section 90(1)(b) of the Adoption Act states that one of the matters of which the court must be satisfied before an adoption order can be made is:
that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them.
As pre-empted by ss 8 and 9 of the Adoption Act, taking into account the “wishes and feelings of the child” is not just limited to the court determining an application for an adoption order. Section 127(1) of the Adoption Act extends the requirement for the court to “take into account any wishes and feelings of the child (considered in the light of the child’s age and understanding) that are expressed by the child” in “proceedings before it”. The result is that in all proceedings under the Adoption Act, the court must take into account the “wishes and feelings of the child”.
The breadth of the means by which the court can be informed of the “wishes expressed by a child” is stated in s 128 of the Adoption Act in the following terms:
The Court may inform itself of wishes expressed by the child—
(a) by having regard to anything contained in a report made to the Court by the Secretary or the appropriate principal officer, or
(b) subject to rules of court, by such other means as the Court considers appropriate.
Section 128 of the Adoption Act is broad. While it contemplates the principal means by which the court is informed of the child’s wishes will be a report made to the court, the residual basis for the court to be informed by “other means” is important. It opens up the possibilities of the child’s wishes potentially being communicated through various methods (including directly to the court) or through the child’s legal representative, if one has been appointed.
Importantly, a child cannot be required by the court or any person to express their wishes in relation to any matter: s 129 of the Adoption Act.
The Adoption Act does not prescribe a single method by which the wishes and feelings of the child must be obtained. Section 126 of the Adoption Act facilitates the means by which the wishes and feelings of the child may be placed before the court by allowing the court to “act on any statement, document, information or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination, whether or not that statement would be admissible in evidence”.
The Supreme Court Practice Note SC Eq 13 – Adoptions at [26]–[30] endeavours to capture these matters concerning the “voice of the child” in the following way:
26. The voice of the child. Section 9 of the Adoption Act obliges decision makers to ensure that a child participate in any decision made under the Adoption Act that will have a significant impact on the child’s life.
27. When making a decision under the Adoption Act that will affect a child, including a decision as to whether to make an order for the adoption of a child, any decision concerning an adoption plan, and any decision to dispense with the requirements under the Adoption Act for notice of or consent to the adoption, the Court will seek to hear the voice of the child.
28. In each case the trial judge will, prior to making any order under the Adoption Act including for the adoption of the child, take all steps that are practicable and appropriate in the particular circumstances of the case and taking into account the age and understanding of the child to ensure that the voice of the child is heard.
29. It is the expectation of the Court that it will hear of the voice of the child in the report provided to the Court under Adoption Act s 91.
30. The voice of the child can include, but is not limited to, evidence given in Court in the conventional manner or by audio visual means, but may also include such other communication to the Court whether verbally or by means of visual representations as the Court considers best reflects the child’s voice.
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
These are profound principles of human rights woven throughout child welfare and care law in Australia.
It is important that the “wishes and feelings” of a child are ascertained and due weight is given to them because the decisions in adoption proceedings are amongst the most serious and grave that can be made about a child. For example, an order for adoption is one of great magnitude, particularly because the legal and social consequences that flow from an adoption are far-reaching (for the child themselves as well as for the persons connected to the child) and involve a particular degree of finality: Re the Adoption of CCS and FLS [2019] NSWSC 71, Hallen J at [157], citing Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, Sir Thomas Bingham at 251G-H. As observed by Hallen J in Adoption of CCS and FLS at [150]:
An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents’ family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect of an adoption order is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents and the adoptive parents.
The decision to permit a child to be adopted by a parent or parents, who are not their biological parents, is a life-altering and life-defining decision because it brings about permanent change in a child’s legal identity, their family relationships and their future.
In making such profound and complex decisions about a child, depending on the age and understanding of the child, there is a need to ensure that the child remains central to the procedurally fair process by which that decision is made. It is only the child who knows what they have experienced and what they want to experience. Each child has their own hopes, dreams, fears, ambitions, aspirations and wishes. Each child understands the relationships that they have with the central people in their lives — parents, siblings, carers and friends. They also usually know where safety lies for them.
There is a need to discern those matters and then listen to them because they reflect the lived reality for that child. The closer the court gets to understanding the real life for that child, the more likely it is to be able to arrive at decisions that are fully informed and in the best interests of that child.
Listening to the wishes and feelings of a child brings with it benefits beyond reaching a better decision. It tells the child that they matter, that they are trusted, that they are respected and that they are important within their own lives. Many of the children involved in adoption proceedings may feel that they do not matter in everything which has swirled around them in their short lives. They may have been repeatedly ignored in many significant respects and on multiple occasions.
Decisions made with the informed involvement of the child in adoption proceedings after giving due weight to their wishes and feelings will demonstrate that those children are at the heart of their own lives. A decision made in that way will be one that the child is less likely to feel has been imposed upon them. It is the difference between a decision made exercising “power over” a child rather than a decision made exercising “power with” a child. The process and the decision must respect the humanity and dignity of the child. In turn, if that respect is given to the child, they are more likely to trust the decision and respect the process by which it was reached.
None of these matters involve asking a child to determine their own outcome in adoption proceedings. By listening to a child, the court does not delegate the decisions to be made about the child to them. The child is not asked to be or feel responsible for the determination that is made. Instead, their views richly inform the decision made by the court, along with all of the other matters which must be considered and weight given.
Ascertaining the wishes and feelings of the child will fundamentally depend upon their age, maturity, understanding and life experiences. For some children, words will flow easily from speech given their age, education and confidence. It may be from the child making a statement to the court. It may be recorded on video. For others, it may be written in letters, sometimes addressed to the court. Young children may find a drawing or play is the only way they can demonstrate what they want or feel.
For more than ten years, Jing has consistently expressed a firm desire to be adopted. Jing has said that she wants to stay with the Prospective Adoptive Parents “forever”.
At the preliminary hearing held on 6 August 2026, Jing was present by audio link. At that time, Jing made the following statement to the court (T7–8):
Thank you for giving the opportunity to speak to you today. Being able to voice to you in my own word[s] what this adoption means to me is something I have been trying to do for over ten years, and I feel that no one has been listening.
I have been in care since I was six and a half years old. I still remember the day I walked through the front door of my home for the first time. I was so little and I knew something had changed. I was so happy when I should have been scared, but for the first time in a long time, I felt safe. I felt cared for, I felt like I mattered. Most importantly, I felt like I belonged and that feeling has never changed.
For over ten years, James and Sarah and my sisters have loved me, cared for me, supported me, protected me and raised me. They have been there for every important moment in my life. They have celebrated my achievements, comforted me when I was upset, encouraged me when things were difficult and stood beside me no matter what. They are the people I call when I need help. They are the people I want to make proud. They are the people I love. To me, they are not foster parents, they are my parents. I cannot and don't want to imagine my life anywhere else but with them because there is where I belong.
For more than ten years, I have been saying exactly the same thing. I want to be adopted by James and Sarah. It has been my deepest wish for most of my life. One of the things that has bothered me the most has been the feeling of never actually having belonged to them completely. I know it is just a feeling, but despite being part of this family for so long and knowing that I am not leaving this family, I struggle with the fact that I am still not legally a part of it.
I can honestly say that not a day goes by that I do not think about the fact I am still considered a foster child. I hate that word and I hate that feeling and it's not fair. Why can't it be official? Why can't it be finalised for once and for all? It is stressful knowing that decisions about my future are still being discussed by everyone else and not listening to what it is that I want, which is this adoption.
I don't want any part of my past before I went into care. If I decide to explore that part of my background, then I will. That is my decision to make and if I decide to explore any part of it, then I will know where to go for support.
I have often wondered why my voice has not been heard enough. For over ten years, so many people have been able to give their opinions about my life, yet I am the person who has to live that life every single day. I say this respectfully, but I hope that today my voice can finally be heard by everyone in the room so that the best decision can be made for me, and not for anyone else but me.
I hope my wishes can be given the weight they deserve, because this decision will affect the rest of my life. This process has affected me deeply. It has caused me sadness, stress and frustration for many years. I want to move forward and focus on my future without this weighing me down.
I am currently in Year 11 and preparing for my preliminary exams which are only a few weeks away. Next year, I will sit my HSC. I work hard at school because I want to give myself the opportunity to get into the best university and make my parents proud. I am proud of how far I have come and everything I have achieved. However, this never ending vicious cycle has overshadowed all of this and I do not want it to continue affecting my education. I want to focus on being a teenager, on my studies, my goals and the life ahead of me.
One of the things that means the most to me is being able to take on my family's surname. To some people, it may seem like just a name, but to me it represents so much more. It symbolises who I am and where I am from. It represents the family that chose me and the family I chose. I want my name to reflect the people who have loved and raised me.
I also hope that adoption will finally allow me to live a normal life. For over ten years, I have grown up with meetings, assessments, reviews, contact schedules, cultural carers, and case workers being involved in my life. I understand why those things exist, but after all this time I simply want to live like any other 16 year old.
I don't want any of those things any more. They are a constant reminder that I am in foster care in the eyes of the law and it has been too long. I want to focus on my family, my friends, my education and my future without constantly being reminded that I am still in care, and worrying about this one thing that has controlled so much of my life.
To everyone present today, I ask you to please hear my voice. Please allow me to finally put this chapter behind me and move forward with my life. Please allow me to get adopted without having to face another obstacle. Thank you for listening to me. Please respect my wishes.
You can inform Jing that I have heard every word of what she said. A transcript of that has been taken and it will be given its appropriate weight in the decisions that I have to make as part of this [whole] process. And I also hope that Jing can understand that I am moving as swiftly as I possibly can to have this preliminary issue dealt with before we can then move onto her formal adoption.
As mentioned above, except as otherwise provided by the Adoption Act or the regulations made under the Adoption Act, a court in the hearing of any adoption proceedings or in determining any application or matter under the Adoption Act or the regulations, may act on any statement, document, information or matter that may in its opinion assist it to deal with the matter of the proceedings or before it for determination, whether or not that statement would be admissible in evidence: s 126 of the Adoption Act.
Regardless of the evidentiary standards that apply, the court can only work with the material placed before it and must base its decisions on material which carries probative value: Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83, Basten JA at [168] and [174]; Adoption of F and IR (anonymised) [2022] NSWSC 262, Sackar J at [15], citing Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171, Meagher JA at 492–493.
The materials and information on which decisions concerning whether a child is Aboriginal are based in adoption proceedings was considered further in Adoption of F and IR by Sackar J at [16]–[17], [19] and [28]–[32]:
[16] There is no doubt that in Hackett Basten JA took the view that a good deal of flexibility needed to be exhibited when assessing evidence in such cases. It is clear that not only direct evidence but hearsay evidence which in many cases such as this is best described as oral history can be taken into account by a court in determining Aboriginality. Equally, identification as Aboriginal is important as is acceptance by Aboriginal organisations of a person as Aboriginal. The difficulty here which I address below is how to weigh the competing materials.
[17] What appears to have been uppermost in Leeming JA’s appreciation of the facts in Hackett was the evidence that his Honour referred to at [90] which provided a direct link between the child in that case and one of her great-great-great grandfathers. On the other hand, Basten JA appears to have adopted a much more liberal approach in respect of the reception and evaluation of available materials. As I have observed, his Honour was somewhat critical of the primary judge’s scepticism concerning some of the evidence but observed that courts can only work with the evidence that is before them (at [168]). However, Basten JA also appears to have embraced a broad definition of the concept of descent and suggested that biological descent in that context may be unduly restrictive. In quoting from the Australian Law Reform Commission Report (at [148] of the judgment), his Honour appears to have contemplated the possibility of social descent.
…
[19] The finding that a child is Aboriginal or not can be of profound importance. Most obviously because of the need for the relevant agencies to engage with the placement principles but it does not stop there. It may well have a profound effect on the individual concerned, especially when it is made in relation to a child who has no capacity to express a view one way or the other.
…
[28] The materials that will be germane to such an issue will be myriad in nature. Of course the best evidence would be clear evidence of biological descent no matter how far back that descent might go. It would be expected that that type of evidence if reliably sourced would usually be conclusive.
[29] It will be relevant for example when the issue of Aboriginality is first raised, by whom and the circumstances and context in which it is raised. Oral history may be important and recognition by relevant bodies is obviously a factor. Self-recognition by a birth parent or relative without more may or may not carry substantial weight. Much again depends on the context and timing of such matters.
[30] Depending on the age of the child, the child’s wishes will also be important, indeed very important. A good deal depends on the age of the child, his/her capacity to understand the issues, the time and context in which the child expresses those views and of course to whom the views are expressed. The mode and manner by which the child’s wishes are to be considered are amply set out in ss 127-129 of the Act.
[31] Almost without exception the issue of Aboriginality is often dealt with based on written materials filed with the court. Witnesses are rarely called in person and even less frequently cross examined. Indeed this is the usual procedure followed in adoption hearings proper.
[32] The decision by a court as to whether a child is Aboriginal is clearly an important one which is not to be taken lightly. A court should in my view be comfortably satisfied that a determination is appropriate. By that I do not mean to suggest the threshold need be high but a court in the child’s interest does need to reach a particular level of satisfaction and it would come as no surprise to observe that it is a factual exercise to be determined on the available materials.
21 Applications for declarations in the Supreme Court
(1) Any of the following persons may make an application to the Supreme Court for a declaration of parentage under this section-
(a) a person who alleges that the relationship of parent and child exists between the person's child and any named person, or
(b) a person who alleges that the relationship of parent and child exists between the person and another named or identified person, or
(c) the Registrar when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or
(d) the Director-General when seeking a determination that the relationship of parent and child exists between a named person and another named or identified person, or
(e) a person prescribed by the regulations who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person, or
(f) a person who may be affected by the result who seeks a determination that the relationship of parent and child exists between a named person and another named or identified person.
(2) On any such application, the Supreme Court may make a declaration that a named or identified person is a child's parent.
I can make a declaration of parentage if one of the following six presumptions arise under Part 3, Division 1 of the Status of Children Act:
presumptions of parentage arising from marriage (s 9 of the Status of Children Act);
presumption of paternity arising from cohabitation (s 10 of the Status of Children Act);
presumption of parentage arising from registration of birth (s 11 of the Status of Children Act);
presumption of parentage arising from findings of courts (s 12 of the Status of Children Act);
presumption of parentage arising from acknowledgments (s 13 of the Status of Children Act); or
presumptions of parentage arising out of use of fertilisation procedures (s 14 of the Status of Children Act).
Section 15 of the Status of Children Act stipulates that all of the above presumptions are rebuttable except those arising from the findings of courts or those arising out of the use of fertilisation procedures: ss 12(1) and 14(1)–(3) of the Status of Children Act.
The court's power to make a declaration of parentage under s 21 of the Status of Children Act is not limited to any particular evidentiary basis and, if appropriate, the court can make that declaration on a basis other than the tender of a report of parentage testing procedures, as relevantly observed in “M” [2002] NSWSC 158, Campbell J at [7], cited in L & Ors v L [2013] NSWSC 916, Hallen J at [7], DM v TH [2023] NSWSC 1421, Elkaim AJ at [33] and The Adoption of Ava (a pseudonym) [2024] NSWSC 1448, Nixon J at [15].
The standard of proof necessary to establish a particular evidentiary basis in relation to the making of a parentage declaration is the balance of probabilities. This has been observed in Farnell v Penhalluriack (No 2) [2008] VSC 214 by Bell J at [4] (references omitted), quoted with approval by Elkaim AJ in DM v TH at [34]:
Serious though the issue of paternity is, an application for a declaration of paternity is a civil application, and the standard of proof applicable in such proceedings is the ordinary civil standard, namely the balance of probabilities. As the High Court held in G v H in reference to the essentially beneficial nature of the paternity provisions of the Family Law Act 1975 (Cth), it was not necessary, in applications under those provisions, to prove paternity according to the higher civil standard that applies when the question involves a grave allegation. I think the paternity provisions of the Status of Children Act are analogous in this respect. Therefore, in an application for a declaration of paternity, it is sufficient to prove the facts according to the ordinary civil standard. The applicant does not have to achieve the higher civil standard discussed in Briginshaw v Briginshaw. The decision in G v H has overtaken the authority of earlier decisions that the higher standard was applicable.
The material before me establishes the following:
George admitted in a letter dated 9 September 2016 to Creating Links that he is the father of Jing. Alexandra also admits that George is the father of Jing. Although this does not amount to a formal executed “paternity acknowledgement” for the purposes of giving rise to a rebuttable presumption of Jing being the child of George under s 13 of the Status of Children Act, it is evidence to which I give weight.
Jing was conceived through two procedures of in vitro fertilisation (IVF) involving George and Alexandra in about May 2009. Alexandra admits that Jing was conceived through these IVF procedures. As a result, an irrebuttable presumption of Jing being the child of George arises out of use of fertilisation procedures under s 14 of the Status of Children Act.
Jing was conceived at a time when George and Alexandra were cohabiting in May 2009. As a result, a rebuttable presumption of Jing being the child of George arises from cohabitation under s 10 of the Status of Children Act.
Accordingly, I find that Jing is the child of George and George is the father of Jing.
Prior to May 2023, the Secretary had no indication that Jing was Aboriginal. It had not been raised in any of the proceedings in the Children’s Court, at any time while Jing had been under the parental responsibility of the Minister or by Alexandra while Jing was in her care.
On 30 May 2023, during a conversation with officers of Creating Links, George said he is indigenous, which he asserted he had discovered from accessing documents on the DCJ files of his own adoption in New South Wales that state that his maternal great grandfather and birth mother are Aboriginal from the Tharawal (more commonly spelled Dharawal) people. George said that his biological mother is Annabella Barns. George also asserted that Jing had been enrolled as an Aboriginal student at public schools.
The Tharawal people historically occupied parts of what is now known as the Illawarra and Shoalhaven regions of New South Wales. The Secretary was not able verify any of George’s claims and ultimately George said he had no documentary evidence to verify his Aboriginal ancestry.
Despite this, George does appear to have Aboriginal ancestry. Genealogical searches conducted by the Secretary as to Jing’s biological ancestry have resulted in a Family History Report dated 2 June 2026 produced by the Crown Solicitor’s Office. The Family History Report concludes that Jing is descended from Tasmanian Aboriginal people.
The Family History Report concludes that the paternal great-great-great-great-great-great-great grandmother of Jing is a prominent Tasmanian Aboriginal woman in early colonial Tasmanian history. The Family History Report also identifies the Tasmanian Aboriginal woman as having a father who was a significant Tasmanian Aboriginal warrior and is the paternal great-great-great-great-great-great-great-great grandfather of Jing.
The Family History Report states that George’s paternal grandmother at birth was descended from a well-known ancestor in the Tasmanian Aboriginal community.
The Family History Report contains an Ancestor Chart for Jing, setting out the family tree of Jing’s paternal Aboriginal ancestry in detail.
Officers of the DCJ have spoken with Auntie Anne (not her real name), an elder in the Tasmanian Aboriginal community, who shares a common ancestor with Jing, so they are cousins. Auntie Anne has indicated that her community would accept Jing as a member of that community because of her ancestral descent. Auntie Anne also said that she supported the placement of Jing with the Proposed Adoptive Parents and their adoption of Jing. Further detail about the communications with Auntie Anne is set out below.
There is a bespoke regime where the child to be placed for adoption is either an Aboriginal child or a Torres Strait Islander child within the meaning of the Adoption Act.
For the purposes of the Adoption Act, “Aboriginal” has the same meaning given to “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW): s 4(1) of the Adoption Act.
Section 4(1) of the Aboriginal Land Rights Act defines an “Aboriginal person” to mean a person who:
(a) is a member of the Aboriginal race of Australia, and
(b) identifies as an Aboriginal person, and
(c) is accepted by the Aboriginal community as an Aboriginal person.
a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2).
Despite the definition of Aboriginal in subsection (1), the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent.
It follows that there are two ways in which a child may be found to be an Aboriginal child for the purposes of the Adoption Act.
A child may be Aboriginal if the child has descended from an “Aboriginal” person, adopting the well-recognised tripartite test for Aboriginality, namely that the person:
(a) is a member of the Aboriginal race of Australia; and (b) identifies as an Aboriginal person; and (c) is accepted by the Aboriginal community as an Aboriginal person.
The court has a discretion under s 4(2) of the Adoption Act to determine that a child is an Aboriginal child if the court is satisfied that the child is of Aboriginal descent.
In Re Simon (2006) 68 NSWLR 306; [2006] NSWSC 1410, Campbell J at [18] held that “descended from an Aboriginal” (s 4(1) of the Adoption Act) and “of Aboriginal descent” (s 4(2) of the Adoption Act) refer to lineal descent.
A child “descended from an Aboriginal” person for the purposes of 4(1) of the Adoption Act would include, for example, a child with a single great-grandparent who was Aboriginal within the three-limb definition of “Aboriginal person”, even if none of the child’s parents or grandparents identified, or were recognised as, Aboriginal. So much was observed in Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 by Leeming JA at [53]:
I think one thing is clear. There is no requirement in order for a child to be an Aboriginal child for the child to have a specified proportion of genetic inheritance. If for example seven great grandparents of a child were Europeans or Chinese, and the eighth was an Aboriginal as that term is defined, then the child is an "Aboriginal child" as that term is defined. It is also clear that that will be so even if none of the child's parents or grandparents identified as, or was recognised as, Aboriginal.
Section 4(2) of the Adoption Act then operates to expand the class of persons who might come within the definition of an “Aboriginal child”, conferring on the court a discretionary power to determine on the evidence that a child is of Aboriginal descent even if no ancestor of the child satisfies the three-limb definition of “Aboriginal person”: Hackett, Leeming JA at [86] and Basten JA at [154].
A court may determine that a child is of Aboriginal descent, so as to be an “Aboriginal child” under s 4(2) of the Adoption Act, but there is no obligation to do so and a determination will only be made if the court reaches the requisite level of satisfaction. In Hackett, Leeming JA observed at [82]:
A final point should be made on s 4(2). The Secretary made submissions under the heading “Is s 4(2) discretionary or empowering?”, favouring a construction whereby a child who was of Aboriginal descent within the meaning of s 4(2) was not automatically an “Aboriginal child”, but was so only if the Court so determined. This aspect of the provision is not complex. The section authorises the Court to make a determination, if it is satisfied that the child is of Aboriginal descent. The second, inclusive limb of the definition only applies if such a determination is made. There is no obligation to make such a determination, and such a determination will only be made if the Court reaches the specified state of satisfaction. I referred to the provision as a “discretionary power” above because that is an accurate statement of the provision: the Court is empowered to make a determination in certain circumstances, which will have consequences for the status of the child, but also has a discretion whether or not to exercise that power. Contrary to the question framed by the Secretary's written submissions, the distinction whether the provision is discretionary or empowering is unhelpful. It is both. However, children of Aboriginal descent, however remote, are not automatically “Aboriginal children” by reason of s 4(2).
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.
Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made: Re K & the Adoption Act 2000 [2005] NSWSC 858, White J at [22], applied in numerous cases since, including 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, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007; The Secretary, NSW Department of Family & Community Services by his delegate, Principal Officer, Barnardos Australia and MLA [2019] NSWSC 290.
When the Secretary is satisfied that a child is an Aboriginal child for the purposes of the Adoption Act, the further obligations outlined below arise in relation to the child's placement.
First, the court must hold a preliminary hearing before the placement for adoption of an Aboriginal child with a prospective adoptive parent other than an Aboriginal: s 80(2)(a) of the Adoption Act.
Second, the Secretary must consult with each of the following people about the placement of an Aboriginal child (s 33 of the Adoption Act):
A person approved in accordance with s 195 of the Adoption Act (s 33(1)(a) of the Adoption Act), being an approved Aboriginal person:
(a) who may provide advice and assistance to Aboriginal families or kinship groups in relation to care options for Aboriginal children for the purposes of the Adoption Act; and (b) who the Secretary is satisfied has relevant experience in working with Aboriginal children, whether or not in connection with their families or kinship groups.
A person nominated by the child’s parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Aboriginal children: s 33(1)(b) of the Adoption Act.
A local, community-based and relevant Aboriginal organisation: s 33(2) of the Adoption Act.
In The Adoption of Edward (a pseudonym) [2022] NSWSC 1488, Stevenson J at [49] said the following about the distinction between the requirements of ss 33(1) and 33(2) of the Adoption Act:
However, unlike s 33(1)(a), which requires that the Secretary ensure that the relevant person is “consulted”, s 33(2) obliges the Secretary to ensure that the placement of the child is made “in consultation with” the relevant organisation. That requires something beyond simply making an unanswered enquiry of such an organisation. The language used in s 33(2) contemplates an ongoing process, albeit perhaps brief, but involving at a minimum a response of some kind from the organisation in question.
The requirements of s 33(2) also must involve some kind of exchange of views, perhaps only briefly, about the proposed placement: The Adoption of Mary (a pseudonym) and Michael (a pseudonym) [2023] NSWSC 149, Steveson J at [57].
There is some ambiguity in the reference in s 33(2) of the Adoption Act as to whether the “local, community-based and relevant Aboriginal organisation” is to be local to the child’s physical location now or local to the child’s ancestral Aboriginal location. I consider that the better view is that the organisation must be local to the place from which the child’s Aboriginal ancestor can be traced, not the place where the child now lives because this is consistent with the first of the “Aboriginal child placement principles” in s 35(2)(a) (referred to in detail below) which refers to the Aboriginal community to which the birth parent(s) of the child belongs. In addition, the purpose of fostering an Aboriginal cultural connection is to develop the community with which there is an ancestral connection not just the community where the child happens to live now. Given that the location of the child’s current residence will in all likelihood have been determined by the prospective adoptive parents, not the child, it makes sense that such an arbitrary factor is not the determinant of the location of the organisation with whom the consultation should take place.
Third, the “Aboriginal child placement principles” are to be applied in placing a child that the Secretary is satisfied is an Aboriginal child for adoption: ss 34(2) and 35 of the Adoption Act.
The “Aboriginal child placement principles” are as follows:
35 Aboriginal child placement principles
(1) General principle It is a principle to be applied in the administration of this Act that Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children (which is a concept that is absent in customary Aboriginal child care arrangements).
(2) The general order for placement The Aboriginal child placement principles are as follows—
(a) The first preference for placement of an Aboriginal child is for the child to be placed for adoption with a prospective adoptive parent or parents belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belongs.
(b) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents from another Aboriginal community.
(c) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a non-Aboriginal prospective adoptive parent or parents.
(3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent—
(a) has the capacity to assist the child to develop a healthy and positive cultural identity, and
(b) has knowledge of or is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and
(c) has the capacity to help the child if the child encounters racism or discrimination in the wider community,
and that the Aboriginal child placement principles have been properly applied.
(4) Child with one Aboriginal parent and one non-Aboriginal parent If a child has one Aboriginal parent and one non-Aboriginal parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act.
(5) If a child to whom subsection (4) applies—
(a) is placed with a person who is not within an Aboriginal family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs, or
(b) is placed with a person who is within an Aboriginal community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Aboriginal community to which the child belongs.
It is clear that the “Aboriginal child placement principles” place emphasis on self-determination and provide a statutory preference to the effect that, where an Aboriginal child is to be placed for adoption, it is preferred for that child to be placed with a prospective adoptive parent or parents belonging to the same Aboriginal community, or one of the communities, to which the child's birth parent or parents belong; or with a prospective adoptive parent or parents belonging to another Aboriginal community: ss 35(2)(a)–(b) of the Adoption Act. If facilitation of these two preferences “is not practicable or in the best interests of the child”, the child is to be placed with a non-Aboriginal prospective adoptive parent or parents: s 35(2)(c) of the Adoption Act.
In Adoption of F and IR, Sackar J at [19]–[20] made the following remarks about the bespoke regime, the seriousness of the task involved and (echoing remarks made in Hackett by Leeming JA) emphasised that the primary consideration in every case is the best interests of the child:
[19] The finding that a child is Aboriginal or not can be of profound importance. Most obviously because of the need for the relevant agencies to engage with the placement principles but it does not stop there. It may well have a profound effect on the individual concerned, especially when it is made in relation to a child who has no capacity to express a view one way or the other.
[20] As Leeming JA remarked in Hackett at [16] the differences in the way the Adoption Act treats the adoption of an “Aboriginal child” and the adoption of a child who is not an “Aboriginal child” should not be overstated. The primary consideration in every case is the best interest of the child and where that clashes with the Aboriginal child placement principles, the best interests of the child have priority.
There are two possible approaches which have been taken in relation to whether both ss 35(3) and 35(4) must be addressed where only one parent is Aboriginal. In The Adoption of Edward, Stevenson J at [54]–[56] considered that both provisions were engaged in such circumstances. In Principal Officer, Family Spirit Adoption Services v D (Anonymised) [2022] NSWSC 142, Sackar J at [44]–[48] approached the construction of the provisions on the basis that they are exclusive and only s35(4) applies in those circumstances. I will address the application of those provisions on the basis that both must be satisfied.
The objects of the Adoption Act referred to in s 35(5) are contained in s 7 of the Adoption Act, which states:
7 What are the objects of this Act?
The objects of this Act are as follows—
(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,
(b) to make it clear that adoption is to be regarded as a service for the child concerned,
(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,
(d) to recognise the changing nature of practices of adoption,
(e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,
(f) to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,
(g) to encourage openness in adoption,
(h) to allow access to certain information relating to adoptions,
(i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.
(2) In determining the best interests of the child, the decision maker is to have regard to the following—
(a) any wishes expressed by the child,
(b) the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,
(c) the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,
(d) any disability that the child has,
(e) any wishes expressed by either or both of the parents of the child,
(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,
(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,
(h) the nature of the relationship of the child with each proposed adoptive parent,
(i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,
(j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,
(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.
Fourth, where an Aboriginal child is to be adopted by non-Aboriginal parents, the adoption plan must make provision for:
the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for their links with their Aboriginal heritage to be fostered after consultation with a local, community-based and relevant Aboriginal organisation: ss 46(3), 46(4) and the note to s 47(1) of the Adoption Act; and
the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs: s 35(5)(a) of the Adoption Act.
Fifth, alternatives to placement for adoption must be considered such that an Aboriginal child is not to be placed for adoption “unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child”: s 36 of the Adoption Act.
Sixth, the court cannot make an adoption order for an Aboriginal child unless it is satisfied that the “Aboriginal child placement principles” have been properly applied: ss 8(1)(f) and 90(1)(e) of the Adoption Act.
The requirement to have a preliminary hearing under s 80(2)(a) of the Adoption Act was met on 2 September 2026 when it was held before me.
The preliminary hearing has been held before the “placement for adoption” of Jing. In Adoption of Maynard (a pseudonym) [2026] NSWSC 921, Rees J at [56]–[62] set out a comprehensive review of what is meant by that phrase, concluding at [62]:
Consistently with this, in Pt 3A matters, placement for adoption does not involve a physical change in a child’s living arrangements but a change in the long-term goal of the placement, moving to adoption instead of continuing in out-of-home care: Adoption of Edward (a pseudonym) [2022] NSWSC 1488 at [12] (Stevenson J). In that case, the Department had changed the child’s permanency plan to “adoption”, the carers had been invited to submit an application to adopt the child and an adoption assessment had been undertaken. But his Honour concluded that the child had not yet been “placed for adoption” for the purposes of the Act: at [14]-[16]. This is because the proposed adoptive parents had not yet been approved as suitable to adopt under Pt 4 of the Adoption Regulation: Adoption of Mary (a pseudonym) and Michael (a pseudonym) [2023] NSWSC 149 at [19] (Stevenson J).
I am satisfied that the Secretary has made reasonable enquiries as to whether Jing is an Aboriginal child in accordance with the requirements of s 34(1) of the Adoption Act by:
commissioning the preparation of the Family History Report;
taking steps in an effort to corroborate George’s account of his Aboriginal heritage; and
preparing the Ancestor Chart for Jing and correlating it with that of an elder of the Tasmanian Aboriginal community.
These inquiries resulted in the Secretary forming the view that Jing is an Aboriginal child.
The requirements of the Aboriginal child placement principles are met in the present case because:
Section 35(2): It is not practicable or in the best interests of Jing to be placed for adoption with any prospective adoptive parent from the Tasmanian Aboriginal community or any other Aboriginal community because Jing has a settled and stable relationship with the Prospective Adoptive Parents with whom she had lived for over ten years. It would cause significant disruption to Jing during a very important educational period of her life as she starts her final year shortly, towards completing the Higher School Certificate. Jing has no connection with any Aboriginal community beyond her distant lineal descent from the Tasmanian Aboriginal community. According to Auntie Anne, there are no Tasmanian Aboriginal families currently looking to adopt a child.
Section 35(3): The Prospective Adoptive Parents meet the statutory criteria of having demonstrated that they have the capacity to assist Jing to develop a healthy and positive cultural identity, have knowledge of and are willing to learn and teach Jing about her Aboriginal heritage, to foster links with that heritage in Jing’s upbringing and have the capacity to help Jing if she encounters racism or discrimination in the wider community. This is shown in the following matters:
(a) The Prospective Adoptive Parents have taken the approach that they need to educate themselves and make resources available to Jing so that they can respect Jing’s right to engage with her Aboriginal heritage when and how she wishes. (b) Sarah has contacted a close colleague and person with Tasmanian Aboriginal ancestry, who is willing to mentor the Prospective Adoptive Parents to develop their cultural awareness of Tasmanian Aboriginal culture. (c) Sarah has undertaken Aboriginal cultural education in 2020, 2023 and 2025. (d) The Prospective Adoptive Parents have purchased at least six books on Tasmanian Aboriginal communities and their history to provide to Jing when she wishes to engage with them, some of which were recommended on the advice of Auntie Anne. (e) The Prospective Adoptive Parents have provided Jing with a cultural plan which is accessible to her, which includes details about the Tasmanian Aboriginal people and the contacts of members of that community, so that Jing can engage with her Aboriginal heritage, if and when she wishes to do so. (f) The Prospective Adoptive Parents are willing to travel to Tasmania to participate in multi-day cultural competency training and meet with members of the Tasmanian Aboriginal community, ideally with Jing should she wish to engage with her Aboriginal heritage.
Alexandra contends that the Prospective Adoptive Parents have not demonstrated the capacity to satisfy the requirements of s 35(3) of the Adoption Act because they have not assisted Jing to foster links with her Chinese heritage through Alexandra from a young age when Jing was taken into their care. I consider that this criticism is misplaced. I consider that the Prospective Adoptive Parents have demonstrated a willingness, ability and capacity to support Jing if and when she wishes to engage with her Aboriginal heritage and her Chinese heritage. Jing is at an age where she has agency over herself and the extent to which she wishes to foster links to her past. If and when she does so, I am satisfied that the Prospective Adoptive Parents will assist her.
(a) Any wishes expressed by Jing and consideration of her age, maturity, level of understanding, gender, background, family relationships and any other relevant characteristics (ss 8(2)(a) and 8(2)(b) of the Adoption Act): Jing is a female who is now 16 years old. She is determined and has a strong academic performance at school. She is extremely articulate and has a high level of understanding. Jing does not currently have an active relationship with her birth family except insofar as it occurs through email contact between Sarah and Alexandra, subject to the permission of Jing as to what is shared. Jing has formally consented to her adoption. Jing has expressed her firm desire in direct terms to be adopted by the Prospective Adoptive Parents. I give significant weight to this factor. (b) The physical, emotional and educational needs of Jing, including her sense of personal, family and cultural identity and the suitability and capacity of the proposed adoptive parents to provide for Jing’s needs (ss 8(2)(c) and 8(2)(i) of the Adoption Act): Jing is physically healthy and has a strong emotional and psychological identification with the family of the Prospective Adoptive Parents and their culture, which weighs in favour of her being placed with them for adoption. The Prospective Adoptive Parents have parented Jing for more than ten years and have consistently demonstrated that they are capable of meeting Jing’s physical, emotional and educational needs. (c) Any disability that Jing has (s 8(2)(d) of the Adoption Act): Jing does not have any disability so this factor is irrelevant. (d) Wishes expressed by either or both of Alexandra and George (s 8(2)(e) of the Adoption Act): George has opposed Jing being adopted on the basis that she would be unable to obtain an EU passport through him should the adoption proceed and because he considers that adoption of Aboriginal children is not consistent with DCJ policy. Alexandra strongly opposes the adoption of Jing until after she is 18 years old because she is concerned that Jing is not yet mature enough to make a fully informed decision of such significance, and because she considers that Jing may lose contact and connection with her Chinese ancestral cultural heritage, identity and Mandarin language. (e) The relationship that Jing has with her birth parents, any siblings and any other significant people (s 8(2)(f) of the Adoption Act): Jing effectively does not have a relationship with George, has no direct contact with Alexandra and only allows minimal information to be shared with Alexandra by email. Jing did have a relationship with her birth maternal half-sibling, William, however she ceased contact with him in 2023 due to her fears that Alexandra was causing him to influence her to gravitate towards the birth family by providing gifts. Jing retains a relationship with her paternal grandmother (adoptive through George), Susie Adams, whom she sees about five times per year during school holidays and with whom she discusses her Polish heritage. Jing has more occasional contact with her paternal grandfather (adoptive through George), George Adams. (f) The attitude of the Prospective Adoptive Parents to Jing and the responsibilities of parenthood and the nature of their relationship with Jing (ss 8(2)(g) and (h) of the ): The Prospective Adoptive Parents are capable and experienced parents noting (in addition to parenting Jing for a decade) that they have raised two biological daughters into adulthood. Jing has clearly forged a strong bond with them based upon love and mutual trust. Jing clearly regards both of the Prospective Adoptive Parents as important people in her life. Jing refers to the Prospective Adoptive Parents as “Mum” and “Dad” when speaking to her friends. Jing speaks directly to Sarah about her birth history and legal status and to request to have access to her birth family and cultural heritage. Jing is “part of the family” of the Prospective Adoptive Parents and is regarded as “one of our three daughters”. (g) The need to protect Jing from physical or psychological harm, including exposure to abuse, ill-treatment or violence (s 8(2)(j) of the ): Jing was exposed to considerable emotional and psychological trauma when in the care of each of Alexandra and George and would be at considerable risk if she were to be returned to their care. She is required to be protected from it. (h) Alternatives to adoption and the likely short-term and long-term effects of an adoption order on Jing (s 8(2)(k) of the ): This factor is not relevant to a consideration of the best interests of Jing under s 35(4) of the as no adoption order is being sought in the present application.
The obligation imposed on the Secretary in s 33(1) of the Adoption Act is to consult about the placement of an Aboriginal child with either of two people:
a person approved in accordance with s 195 of the Adoption Act; or
a person nominated by the child’s parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Aboriginal children.
The Secretary has consulted Jane Ford (not her real name) for the purposes of s 33(1) of the Adoption Act. Ms Ford is approved in accordance s 195 of the Adoption Act.
There is a file note recording the consultation on 16 June 2026 by DCJ with Ms Ford regarding Jing. Ms Ford has also provided a report dated 7 July 2026 setting out her opinions regarding the possible engagement of Jing with her Aboriginal heritage. Ms Ford said during the consultation that she reached out to a member of the Tasmanian Aboriginal community in Tasmania who confirmed that the Aboriginal people of Tasmania did not openly embrace new members who did not live on Aboriginal land and were not already connected. In her report, Ms Ford said that it is clear that the adoption process for Jing had impacted her psychological wellbeing and created some level of trauma for her and expressed the opinion that to discuss with Jing her Aboriginal heritage while she rejects her own Chinese culture would add to her level of anxiety and trauma that she associates with her birth family.
During the consultation, Ms Ford she did not want to add to Jing’s trauma by expecting Jing to embrace her Aboriginal culture at the present time and it would be all too much for Jing. Ms Ford said that she would build information for Jing around her Aboriginal culture so that it would be available to Jing if and when she wants to access it.
Ms Ford stated in her report that in her opinion the impact and effect of the adoption of Jing by the Prospective Adoptive Parents on Jing’s identity as an Aboriginal person will not be compromised as Jing does not self-identify as an Aboriginal person and therefore her adoption will not impact her self-identity.
Ms Ford said in her report:
To be Aboriginal is more than ancestry. It is about having a spiritual and sometimes a physical connection to country, being accepted by your community, and living within your community and the wider community as an Aboriginal person. Previous legislative policy and practices attempted to break this unique and ongoing spiritual connection that Aboriginal people have with their country, culture and kin, the journeys that some people have taken to reconnect with their country, culture and kin have often been lifetime journeys, which have impacted on a person’s physical, emotional, spiritual, and psychological self. The Bringing Them Home Report and the Royal Commission into Aboriginal Deaths in Custody have highlighted the psychological harm these practices have had on people, families, and community, and the impact that rejection has had on the people who are searching for their community of belonging. While the person identified as Jing’s father was subject to adoption himself, with limited information about his own cultural background, compounding Jing’s cultural journey, [George’s] paternity has not been confirmed and therefore this too can impact on Jing’s understanding of her culture and the acceptance which comes with that.
Overall, adoption is the preferred option for Jing, given her trauma and if her paternity is confirmed, then I would recommend working with a therapeutic specialist to introduce her to her Aboriginal culture, if she chooses to learn more, and work in collaboration with the Tasmanian Aboriginal Centre who can link her with her descendants of those prominent Aboriginal Tasmanian’s mentioned in her Ancestor Report and Cultural Plan and do this in a way that Jing can understand her cultural links.
Given the ambiguity in the construction of s 33(2) of the Adoption Act, in the present case, the Secretary has contacted one Tasmanian-based Aboriginal organisation and one New South Wales-based Aboriginal organisation local to where Jing currently lives to invite consultation with them about the placement of Jing.
On 12 June 2026, a New South Wales-based Aboriginal organisation indicated to the Secretary that its view was that an organisation with closer cultural and/or geographical connections to the Tasmanian Aboriginal people “may be better positioned to provide a more culturally informed and relevant consultation for Jing”. I am satisfied that this request and response constituted an opportunity for the New South Wales-based Aboriginal organisation to express its views and be genuinely heard in the decision-making process regarding Jing, which meets the requirements for consultation in s 33(2) of the Adoption Act as described in The A**doption of Edward.
The Secretary also relies on its communications with Auntie Anne to meet the requirement for consultation in s 33(2) of the Adoption Act.
Between 16 June 2026 and 2 July 2026, email communications occurred between a DCJ caseworker and Auntie Anne in which Jing’s outline history was provided, along with a copy of the proposed cultural plan for Jing.
On 29 July 2026, DCJ caseworkers and a solicitor from the Crown Solicitor’s Office met with Auntie Anne via teleconference to discuss the placement of Jing for adoption. Further information about Jing was provided to Auntie Anne during this teleconference. During the teleconference, Auntie Anne said that if Jing came to Tasmania, she would be willing to meet Jing and introduce her to the Tasmanian Aboriginal community. Auntie Anne said that the most appropriate day for such a visit would be a particular annual celebratory day. Auntie Anne also said that the Tasmanian Aboriginal organisation would be able to help to provide resources to Jing should she ever decide to reach out. Auntie Anne provided the names of relevant contacts and also recommended two books which could be shared with Jing.
At the conclusion of the teleconference, Auntie Anne expressed her opinion that she supported the placement of Jing for adoption by the Prospective Adoptive Parents and their adoption of Jing.
The Secretary has incorporated the books and contacts suggested by Auntie Anne in the Aboriginal cultural plan for Jing as well as the proposed paternal adoption plan for Jing. As indicated above, the Prospective Adoptive Parents have also purchased the books suggested by Auntie Anne and have kept the details of the contacts she has provided. The Prospective Adoptive Parents have also been informed that the annual celebratory day is a particularly important day for the Tasmanian Aboriginal people and it would be an appropriate occasion on which Jing could meet her Aboriginal ancestral relatives.
Section 35(5)(a) of the Adoption Act requires that if a child is placed with a person who is not within an Aboriginal family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs.
The requirements for an “adoption plan” are contained in s 46 of the Adoption Act, which provides as follows:
46 What is an adoption plan?
(1) An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to—
(a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following—
(i) the child’s medical background or condition,
(ii) the child’s development and important events in the child’s life,
(iii) the means and nature of contact between the parties and the child, and
(b) any other matter relating to the adoption of the child.
(2) Without limiting the matters for which an adoption plan may make provision—
(a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and
(b) it may provide for the giving of certain financial and other assistance as referred to in section 201.
(2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.
(2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.
(3) An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a).
(4) If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.
IDENTITY AND CULTURAL HERITAGE:
Jing's birth father identifies as Aboriginal although he does not have a lot of knowledge of his ancestry. Jing has been identified in the Family History Report as having lineage which stems to the [Tasmanian Aboriginal] people…
Sarah and James are respectively of Greek-Australian and Croatian-Australian backgrounds and do not identify as Aboriginal Australians. At this time, Jing does not currently want to be engaged in her cultural background. Sarah and James will endeavour to ensure Jing has knowledge around her culture and heritage. They are actively seeking opportunities to learn more about Jing's Tasmanian Aboriginal heritage and will continue to encourage Jing as she matures to learn about her Aboriginal lineage.
If Jing wishes to engage with her Aboriginal ancestry, she is encouraged to contact [various] Tasmanian Aboriginal organisations: [details of Tasmanian Aboriginal organisations]. She may also contact the local Sydney based Aboriginal organisation … should she ever wish to explore and engage in her culture. DCJ has spoken to Auntie [Anne], an elder of [a Tasmanian Aboriginal organisation] who shares ancestry with Jing, who has suggested that Jing can contact her or Auntie [Susie] (not her real name) if she ever wants to visit Tasmania and learn more about her heritage. Sarah and James have been provided with their contact details and will keep these available for Jing into the future.
Both Sarah and James will be supporting Jing in any future cultural developments by making resources available to her, including but not limited to, her Family History Report, Cultural Plan, and books placed in their home such as First Tasmanians: A Deep History, Tasmanian Aborigines: A history since 1803, The Black War: Fear, Sex and Resistance in Tasmania, and Keeping Culture: Aboriginal Tasmania, Grease and Ochre and In the Kelp Forest. Sarah and James will be providing support to Jing in this discovery, by making readily available all resources that are specific to the descendants of the Tasmanian [Aboriginal] people for when Jing is interested in exploring her cultural background. They will also continue to educate themselves about Aboriginal Australia generally and the [Tasmanian Aboriginal] people particularly, and participate in any cultural activities Jing indicates an interest in, such as NAIDOC week….
If Jing wishes to engage with her Aboriginal ancestry, Sarah and James will be willing to undertake cultural competency courses specific to Tasmanian Aboriginal people to foster her connection to her cultural heritage. Auntie Anne has also told DCJ that the Tasmanian Aboriginal people will embrace her if she wishes to travel to Tasmania, and suggested that she visit Tasmania for [the annual celebratory day]. Sarah and James will be supportive of Jing travelling to Tasmania to build connections with her Aboriginal relatives should she wish to do so, and are willing to join her.
Jing's birth mother is Chinese. Jing does not want to be engaged in her Chinese culture. A well-developed cultural plan which has been informed by her mother Alexandra has been developed for Jing's reference. James and Sarah engage in appropriate Chinese celebrations to assist Jing to stay engaged with her culture, including celebrating Chinese New Year, certain Chinese festivals and celebrations.
The paternal adoption plan is available to Jing at the home of the Prospective Adoptive Parents. It reflects the eminently sensible approach of ensuring that Jing has appropriate resources available to her if and when she is ready to engage with all of the cultural identities and heritages she inherits from her birth parents and the Prospective Adoptive Parents.
I am satisfied that the paternal adoption plan:
sets out the ways in which Jing is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered in compliance with ss 46(2)(a) and 46(3) of the Adoption Act;
provides for Jing to have the opportunity to develop an identity with the Tasmanian Aboriginal community to which she belongs in compliance with s 35(5)(a) of the Adoption Act; and
contains provisions made after consultation with a “local, community-based and relevant Aboriginal … organisation” (being Auntie Anne from the Tasmanian Aboriginal organisation) in compliance with s 46(4) of the Adoption Act.
On the basis of the findings and determinations I have made above, I make the following declarations:
Declare pursuant to s 21(2) of the Status of Children Act 1996 (NSW) that George Smith is the birth father of the child Jing Xue.
Declare that the child Jing Xue is an Aboriginal child within the meaning of s 4(1) of the Adoption Act 2000 (NSW).
Declare that, for the purposes of s 35(3) of the Adoption Act 2000 (NSW), the Prospective Adoptive Parents, James and Sarah [surnames suppressed], of the child Jing Xue have:
(a) the capacity to assist the child Jing Xue to develop a healthy and positive cultural identity; (b) knowledge of and are willing to learn about and teach the child Jing Xue about her Aboriginal heritage and to foster links with that heritage in her upbringing; and (c) the capacity to help the child Jing Xue if she encounters racism or discrimination in the wider community.
Declare that, for the purposes of s 35(4) of the Adoption Act 2000 (NSW), the best interests of the child Jing Xue will be served, having regard to the objects of the Adoption Act 2000 (NSW), by being placed for adoption with the Prospective Adoptive Parents.
Declare that, for the purposes of s 34 of the Adoption Act 2000 (NSW), the Secretary of the New South Wales Department of Communities and Justice has made reasonable inquiries as to whether the child Jing Xue is an Aboriginal child.
Declare that the Secretary has engaged in appropriate consultation in relation to the child Jing Xue under s 33 of the Adoption Act 2000 (NSW).
Declare that the Aboriginal Child Placement Principles within the meaning of s 35(2) of the Adoption Act 2000 (NSW) have been applied by the Secretary in relation to the child Jing Xue.
Declare that there is an adoption plan with respect to the child Jing Xue which satisfies the requirements of ss 35(5)(a), 46(2)(a), 46(3) and 46(4) of the Adoption Act 2000 (NSW).
I will also order that the proceedings be listed before me for directions in the Adoptions List on 7 October 2026 to ensure that the consideration of the remaining issues in the proceedings can be fixed for hearing with expedition.
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Amendments made to paragraphs 90, 93, and 131(2)(b) to rectify certain formatting issues.
Amendments made to paragraphs 14 and 131(3)(e) to rectify certain anonymisation errors.
the Secretary may place Jing for adoption with the Prospective Adoptive Parents in accordance with the Adoption Act;
the Secretary has engaged in the requisite consultation in relation to the proposed adoption of Jing as an Aboriginal child under the Adoption Act;
the Aboriginal Child Placement Principles under the Adoption Act have been properly applied by the Secretary; and
there is an adoption plan for Jing which satisfies the requirements for Jing as an Aboriginal child under the Adoption Act.
In this judgment, I will refer to each of the family members and other individuals involved by their first names for convenience and without intending any disrespect. In the published version of the judgment, all persons referred to have been assigned pseudonyms in keeping with s 180 of the Adoption Act.
On 2 October 2019, Alexandra filed a further unsuccessful application in the Children’s Court to rescind the final orders made on 30 March 2017.
On 26 May 2021, Alexandra’s application for contact orders and an assessment in the Children’s Court was dismissed.
On 4 July 2022, Alexandra’s appeal against that decision in the District Court was dismissed.
It requires considerable skill, patience, thought, care and understanding to know how to obtain the wishes and feelings of a child, when to obtain them and where to obtain them. An environment must be created where the child can express their wishes and feelings openly, safely, honestly, without influence, without fear, without manipulation, without pressure and, to the extent they can, with confidence. On many occasions, what is not being said may be just as, or even more important, than what is. The complexity of that task is considerable, recognising that it can be bound up in the age, maturity, understanding, language and cultural heritage of the child.
The overall emphasis from all of these considerations is that the “voice of the child” matters and must be heard by the court in context through whatever means is appropriate in the circumstances of the case.
I am satisfied that the Secretary has appropriately consulted with an elder of a “local community-based and relevant Aboriginal organisation” (being Auntie Anne from the Tasmanian Aboriginal organisation) and that the results of that consultation have then been incorporated into documents relevant to the placement of Jing for adoption by the Prospective Adoptive Parents. Accordingly, I am satisfied that there has been genuine consultation by the Secretary as part of an ongoing process as required by s 33(2) of the A**doption A**ct within the sense described in T**he A**doption of Edward.
(2006) 68 NSWLR 306
(2012) 84 NSWLR 474