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[2026] NSWSC 921
Supreme Court of NSW
2026-08-04
Rees J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Adoption of Maynard (a pseudonym) [2026] NSWSC 921
Hearing dates: On the papers; last submissions received 24 July 2026
Date of orders: 4 August 2026
Decision date: 04 August 2026
Jurisdiction: Equity - Adoptions List
Before: Rees J
Decision: Grant leave to file further evidence in respect of the child’s consent
Catchwords: ADOPTION — application for adoption of adult child by paternal uncle and uncle’s wife — whether an “Aboriginal child” under s 4, Adoption Act 2000 (NSW) — principles at [35]-[41] — insufficient evidence to satisfy definition in Aboriginal Land Rights Act 1983 (NSW) — whether child of Aboriginal descent within meaning of s 4(2), Adoption Act 2000 (NSW) — evidence inconclusive — weight attached to findings made by magistrate of Children’s Court years earlier, who presided over multiple hearings in person, rather than a judge determining the question ‘on the papers’ — determination made under s 4(2), Adoption Act 2000 (NSW). ADOPTION — Aboriginal placement principles — principles at [52]-[66] — whether Aboriginal placement principles apply to adoption of a child by relatives — no, at [68]-[71] — child not “placed” with a relative — whether Aboriginal placement principles apply to adoption of a child over 18 years old — no, at [72]-[73] — adult child not “placed” by anybody. ADOPTION — consent of child over 18 years of age — principles at [4]-[14] — whether s 64 “Consent to adoption of Aboriginal child” applies to consent of the child being adopted — it does, at [11]-[14] — adult child voices consent in affidavit — consent not informed consent within the meaning of the Adoption Act 2000 (NSW) nor given in accordance with that Act. WORDS AND PHRASES — “placement” at [56]-[62].
Original judgment source is linked above.
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), s 4
Adoption Act 2000 (NSW), Ch 4 Pts 1, 2, 3, 3A, 5, 6, ss 4, 8, 9, 24, 27, 28, 29, 30, 31, 34, 35, 57, 58, 59, 60, 61, 62, 63, 64, 69, 80, 90, 126, 195, Dictionary
Adoption Regulation (2015), cll 60, 67, 68, 79, 80, 81, 85, 93
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 13, 78A(3)
Cases Cited: Adoption of ‘A’ [2020] NSWSC 1533
Adoption of Blake (a pseudonym) [2022] NSWSC 1766
Adoption of Edward (a pseudonym) [2022] NSWSC 1488
Adoption of F and IR (anonymised) [2022] NSWSC 262
Adoption of Jimmy (a pseudonym) [2025] NSWSC 408
Adoption of Louis (a pseudonym) [2024] NSWSC 946
Adoption of Mary (a pseudonym) and Michael (a pseudonym) [2023] NSWSC 149
Adoption of Richard (a pseudonym) [2023] NSWSC 364
Adoption of Tallis-Turner [2025] NSWSC 1514
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83
Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171
Texts Cited: New South Wales Law Reform Commission, Research Report 7: The Aboriginal Child Placement Principle, (March 1997)
Macquarie Dictionary, online ed
Category: Principal judgment
Parties: Proposed adoptive parents (Plaintiffs)
Secretary, NSW Department of Communities and Justice (Intervenor)
Representation: EdenYork Legal (Plaintiffs)
Crown Solicitor for NSW (Intervenor)
File Number(s): 2025/416215
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).
These proceedings concern the proposed adoption of an 18 year-old man by his uncle and the uncle’s wife. The couple have cared for the young man since he was seven months’ old. It is a compelling application, supported by affidavits made by the young man, the proposed adoptive parents and a senior officer from the Department of Communities and Justice, together with two glowing references. But where the proposed adoptive parents refer to the young man’s Aboriginality, the following issues emerge:
Is the young man an Aboriginal child for the purposes of the Adoption Act 2000 (NSW)?
If so, do specific provisions relating to Aboriginal children apply, notwithstanding that the young man is now over 18 and the adoption order is sought by his relatives?
Has the young man’s consent been given in accordance with the Act?
I have been assisted in resolving these issues by submissions from the Crown Solicitor for the Secretary of the Department. Where the proposed adoptive parents had no evidence of the young man’s Aboriginality, I acknowledge the Department’s efforts to find such evidence in its files. Research undertaken by Crown Solicitor’s Senior Researcher (Anthropology, Genealogy, History), Timothy Dauth, was also helpful.
It is convenient to deal with the issue of consent first. In what follows, I will refer to the young man as “the child”, as that term is defined in the Act to include “a person who is 18 or more years of age and in relation to whom an adoption is sought …”: Dictionary, Adoption Act.
24 Who can be adopted?
(1) An adoption order may be made in relation to a child who—
(a) was less than 18 years of age on the date on which the application for the order was made, or
(b) was 18 or more years of age on that date and was cared for by the applicant or applicants for the order.
In this case, the child was 18 or more years of age when the application for the adoption order was made, and was cared for by the applicants for the order.
While the Court can dispense with a child’s consent in some circumstances, for example, where the child lacks capacity, s 69(3) of the Act provides:
69 When can the Court dispense with the child’s consent?
…
(3) Child 18 or more years of age The Court must not make a consent dispense order dispensing with the requirement for consent of a child who is 18 or more year of age in any circumstances.
(Emphasis added.)
So the child in this case must give his consent. Consent to a child’s adoption is not effective unless it is informed consent and given in accordance with the Act: s 58(1), Adoption Act*.* “Informed consent” means consent given after a person has been given the mandatory written information: s 57, Adoption Act. “Mandatory written information” is defined in s 57, supplemented by cl 79 of the Adoption Regulation 2015 (NSW). And in the case of adoption by a relative, it is the applicant**s who must ensure that the child is provided with the mandatory written information before he consents to the adoption: s 59(2)(a), Adoption Act. This requirement is satisfied if the information is given in a form approved by the Secretary for the purposes of compliance with the sub-section: s 59(2)(b), Adoption Act.
Consent is to be given by “an instrument of consent”, that is, in a form that contains the information prescribed by the regulations, to which I will shortly return: s 61(1), Adoption Act. The child must wait for at least 14 days after being given the instrument of consent and the mandatory written information before giving his consent: s 60(b), Adoption Act. Presumably, this period gives the child enough time to think about this important decision before making up their mind. The child must sign a different instrument of consent to the proposed adoptive parents: s 61(2), Adoption Act. Presumably, this gives the child the opportunity to think about this without being influenced by what other people want.
As to the information that is prescribed to be included in the “instrument of consent”, cl 80 of the Adoption Regulation prescribes a range of information including:
a statement of the right of the child to revoke their consent at any time before the adoption order is made;
a statement as to when they were given the mandatory written information; and
a statement as to when they received counselling in respect of the proposed adoption.
As to the last-mentioned requirement, before the instrument of consent is signed, a counsellor must sign a statement on it certifying that the child has been counselled by the counsellor and that the counsellor is of the opinion that the child understands the effect of signing the instrument: s 61(3), Adoption Act. Section 63(1) and (2) of the Act (and cl 85(a) of the Adoption Regulation) further provides:
63 Child or other person consenting must be counselled
(1) A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations [not more than 30 days or less than 72 hours] before he or she signs the instrument of consent to an adoption.
(2) A person is counselled in accordance with this section if a counsellor—
(a) accurately explains to the person, in a way that the counsellor thinks will be understood by the person—
(i) the legal effect of signing the instrument of consent and the procedure for revoking consent, and
(ii) the effect of the mandatory written information, and
(b) counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child). …
64 Consent to adoption of Aboriginal child
(1) Before a person gives consent to the adoption of an Aboriginal child—
(a) he or she is to be given adoption counselling by a person approved in accordance with section 195, or
(b) if he or she is offered, but refuses, adoption counselling by such a person he or she must—
(i) be provided by the Secretary or appropriate principal officer with written information on Aboriginal customs and culture and any other matters the Secretary or principal officer considers would have been raised by the person, and
(ii) sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information.
(2) A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b).
(3) In this section—
adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Aboriginal customs and culture
Section 195 provides that the Secretary may approve an Aboriginal person, with relevant experience in working with Aboriginal children, as a person 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 Act.
It is not entirely clear whether s 64 encompasses a child giving consent to their own adoption, or is directed only to other persons whose consent to the adoption is required. The preceding sections variously refer to “the child or other person” – distinguishing between the two – but also use the word “person” to refer to both the child and other persons. The language of s 64 is sufficiently broad to include the child in the phrase “before a person gives consent to the adoption of an Aboriginal child”. Where the apparent purpose of the section is to ensure that those involved in the adoption of an Aboriginal child receive counselling specifically focussed on the possibility of the child being cared for in accordance with Aboriginal customs and culture, such information is relevant to the child as well. I conclude that s 64 applies to the consent given by an Aboriginal child to their adoption.
Finally, the child’s signing of the instrument of consent must be witnessed by a person other than the counsellor, who is independent of the counsellor and meets the description of persons prescribed in the regulations: s 62, Adoption Act. For example, the regulations prescribe an independent lawyer (that is, not the proposed adoptive parents’ lawyer) or another independent counsellor: cl 81, Adoption Regulation. Before witnessing the signing of the instrument of consent by the child, the witness must sign a statement on it certifying that they are not aware of any mental, emotional or physical unfitness of the child to give consent: s 62(2), Adoption Act. All of these requirements are directed to ensuring that the child’s consent to adoption is informed and reflects their own choice.
The Court cannot dispense with the requirement for the consent of the “child” even if the “child” is, in fact, over 18 years of age: s 69(3), Adoption Act. Here, the child has made an affidavit which demonstrates that he consents to the adoption and, indeed, has been actively pushing for this application to be made. But consent voiced in an affidavit is not effective as it is not informed consent within the meaning of the Act, nor given in accordance with the Act. The procedural requirements have not been complied with.
The applicants initially accepted that the formal requirements prescribed by Ch 4, Pt 5, Div 2 of the Act must be satisfied, but then invited the Court to take a practical and purposive approach to these requirements given that the child was over 18 years old; it was submitted that procedural technicalities should not defeat the application. The applicants submitted that the Court has previously demonstrated a willingness to adopt a practical approach to the consent requirements in the context of adult adoptees: Adoption of Louis (a pseudonym) [2024] NSWSC 946. In reply, the Crown Solicitor explained that, in Adoption of Louis, the child, who was over 18 years, was required to provide valid consent, although this was not discussed by Stevenson J in the judgment.
An adoption order is very important. It needs to be done properly. There is no particular reason proffered as to why the child cannot do this properly. I will give the applicants another opportunity to remedy the deficiencies in the child’s consent. Before doing so, however, it is necessary to clarify the extent of those procedural requirements, specifically, depending on whether or not the child is an Aboriginal child.
This brings me to the facts, which are largely drawn from the Department’s files. The proposed adoptive father is the child’s paternal uncle. The proposed adoptive mother is the uncle’s wife. The couple married in the 1990s and had three children.
The child was born in April 2007. Department staff note that there is a pre-natal report from the Aboriginal Medical Service on the child’s file. In October 2007, the Department has a contact record of a call received from a family member. The caller had been told by the birth father “that the mother is being put up in temporary accommodation by an Aboriginal Service”.
In November 2007, the Department filed an application in the Children’s Court of New South Wales, seeking an emergency care and protection order for the child. The application form asked whether Aboriginal principles applied to this child, and the answer given was “Yes”. The child came to live with the proposed adoptive parents and their three children.
In December 2007, the Department filed an application for an interim order allocating parental responsibility to the Minister. Again, the application form asked whether Aboriginal principles applied to this child, and the answer given was “Yes”. The birth mother filed an affidavit in the proceedings, stating:
“I am an Aboriginal woman and am proud of my cultural heritage. My people are Wiradjurri, and my Aboriginality comes from my mother’s side of the family. I intend on raising my son to be proud of his Aboriginality.”
“As [the child] is placed with a family member this placement fits with the principles of the Acts for the placement of a child of Aboriginal descent. [The adoptive parents] are also able and willing to inform [the child of] his Aboriginal heritage and ensure [he] has exposure to Aboriginal culture.”
“a. Consultation with an Aboriginal caseworker in the completion of the Aboriginal Cultural Support Plan;
b. Consultation with [the child’s] extended maternal (Aboriginal) family including the natural mother and maternal grandmother;
c. Consultation with elders of the Wiradjurri tribe;
d. Identifying activities that [the child] can participate in finding out about his culture, taking into account his age and circumstances.”
On 24 September 2008, finals orders were made, allocating parental responsibility to the proposed adoptive parents. The judgment of the Children’s Court noted that the birth mother “is of Aboriginal background on her mother’s side”. The birth mother “voiced some concerns about the ongoing recognition of [the child’s] cultural and social needs relative to his Aboriginality. The court was told that [the birth mother’s] mothers, mother was Aboriginal of the Wiradjurri tribe and that this is an important part of her identity, and of [the child’s] identity”.
Where the magistrate was being asked to permanently place the child with the proposed adoptive parents, s 78A(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) required a permanency plan for an Aboriginal child to address how the plan had complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles. The magistrate noted that the child was a child of an Aboriginal parent.
The magistrate noted that there was a real issue, raised by the birth father, that the care plan did not adequately address these placement principles. It appears from the judgment that the birth father had cross-examined his brother, being the proposed adoptive father, and the judgment records:
“64 [The proposed adoptive father] gave sworn oral evidence to the court. In my view he was an impressive witness. He appeared calm and considered and, in response to agitated and hostile cross-examination from his brother, [the birth father], appeared empathetic to the father’s concerns and prepared to accommodate his wishes for [the child]. … He told the court he had made connections with [the birth mother’s] grandfather… in regional NSW, and had arranged for him to attend [the child’s] christening. He is aware of the need to maintain [the child’s] links to his indigenous heritage and will co-operate with steps taken, in consultation with DOCS, to do so.
65 The [birth] father put to [the proposed adoptive father] that the grandparents were ‘against’ [the birth mother] because of her Aboriginality, a matter that [the proposed adoptive father] stated he had no knowledge of. The [birth] father was suggesting to [the proposed adoptive father] that the grandparents held racist views and were hostile to [the birth mother] because of this. The [birth] father also put to [the proposed adoptive father] that he would not take [the child] to Redfern to visit his maternal relatives. I do not accept these propositions. They were denied by [the proposed adoptive father] and he gave credible and persuasive evidence to the court that he would positively and actively ensure that [the child] maintained his cultural, social and family connections to both his … Aboriginal heritage. I accept that he will do so.”
The magistrate noted that a further affidavit had been filed by the Department, providing details of an Aboriginal Cultural Support Plan; the Court was advised that the Department would develop the plan within two months. The Director General offered to report to the Court in relation to the plan within three months, and again within 12 months. The proposed short minutes of order were amended accordingly. The birth mother’s “legal representative told the Court that this evidence met her initial concerns as to whether the matters in [the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles] had been addressed”. The magistrate was satisfied that the commitment to the formulation of the Aboriginal Cultural Support Plan, together with the commitment of the proposed adoptive father to ensure that the child had ongoing links to his indigenous heritage, met the requirements of the Children and Young Persons (Care and Protection) Act.
In December 2008, the Department has a file note record of a call to a member of the Aboriginal community in the small town from where the birth mother hailed, to clarify whether the family belonged to that community. The note records, “Unfortunately, the community member was unable to clearly provide information pertaining to the family identifying as being Aboriginal”. The Department considered further steps to develop the Aboriginal Cultural Support Plan, including obtaining further information from the birth mother.
In January 2009, the Aboriginal Cultural Support Plan was signed. The child’s cultural identity was noted as Aboriginal. The mother’s traditional group was noted as Wiradjuri. The contact plan listed a number of Aboriginal services to be availed of and proposed that the carers would maintain links with the child’s Aboriginal community by actively engaging with these services, to ensure the child’s Aboriginal identity within the community. The plan concluded with the following comments:
“This cultural support plan is to ensure [the child’s] Aboriginal identity is established within the local Aboriginal community – this is the one his mother and maternal grandmother are engaging with services.
The family ties are within [a regional] community and is a significant distance from his placement. … [His] carers will need to actively engage in services proposed to ensure he is accepted by the community in which he lives. [Through this active] participation, [the child’s] knowledge and understanding will continue to develop, as will the carers.”
In February 2009, the Department’s Aboriginal caseworker, who had prepared the Aboriginal Cultural Support Plan, made an affidavit setting out the results of her efforts to find out more about the child’s Aboriginal heritage. More details had been obtained about the birth mother’s mother, who identified as Aboriginal and engaged with Aboriginal Services within the Redfern area, actively using the Aboriginal Medical Service.
As at November 2010, the child was noted on the Department’s database as Aboriginal. A case plan for the child in February 2013 noted that the child’s Aboriginal cultural needs were embraced by the proposed adoptive parents.
More recently, Timothy Dauth, Senior Researcher (Anthropology, Genealogy, History) at the Crown Solicitor’s Office, has undertaken online searches to see whether more can be found about the child’s Aboriginal heritage. Mr Dauth has some 30 years’ experience in the native title field and six years’ experience conducting family finding and genealogical research in the child protection area.
Based on preliminary research on publicly available online family trees, specifically, the family tree of a person “possibly related by marriage” to the birth mother’s mother’s sister on Ancestry.com, Mr Dauth identified the birth mother’s maternal great-grandparents, whose parents Mr Dauth was aware belonged to well-known Wiradjuri families connected to western New South Wales. Mr Dauth said that he was aware of these families through his research on Wiradjuri region native title claims over the last 25 years. Based on a review of publicly available family trees, Mr Dauth was “reasonably confident of [the child’s] maternal genealogical connections to the Wiradjuri Aboriginal families of western NSW”.
Mr Dauth noted, on a review of the birth mother’s social media connections, that she was linked to members of reasonably well-known Aboriginal families of the Wiradjuri region including related families. While there was no clear evidence to confirm that the birth mother was accepted by the Aboriginal community as an Aboriginal person, Mr Dauth was of the view that it would be reasonable to infer this from her family connections. Mr Dauth was also of the view that it would be reasonable to infer that the child’s maternal grandmother would have been accepted by the Aboriginal community as an Aboriginal person having regard to her connections to well-known Wiradjuri families and information that she identified as an Aboriginal person and utilised Aboriginal services including the Aboriginal Medical Service in the Redfern area.
In determining whether the child is an Aboriginal child, the Court “may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter … whether or not the statement, document, information or matter would be admissible in evidence”: s 126, Adoption Act.
Notwithstanding that the Court is not bound by the rules of evidence, its decision should be based on material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined and which, as a matter of reason, has some probative value: Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 at [79] (Meagher JA, Whealy JA agreeing), as applied in Adoption of ‘A’ [2020] NSWSC 1533 at [20] (Sackar J).
In Adoption of F and IR (anonymised) [2022] NSWSC 262, Sackar J expanded on the evidentiary approach at [19], [28]-[32]:
“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 …
…
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.
…
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. …
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 … that it is a factual exercise to be determined on the available materials.”
4 Meaning of “Aboriginal” and “Torres Strait Islander”
(1) In this Act—
Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.
Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2). …
(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. …
Aboriginal person means 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.
The definition in the Aboriginal Land Rights Act requires that each of the three requirements set out in s 4 be satisfied. The test in s 4(2) of the Act is broader and permits a Court to determine that the child is Aboriginal, even if neither they nor any ancestor satisfied that definition: Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [61], [86] (Leeming JA, Basten and McCallum JA agreeing).
In Adoption of Tallis-Turner [2025] NSWSC 1514, McGrath J noted that it is important to be very clear that the fact that there is insufficient evidence before the Court to find that a child is an Aboriginal child within the meaning of the Act does not mean that the Judge is concluding that the child is not an Aboriginal child; it is for the child to determine in due course whether they wish to embark on their own journey in exploring their ancestry and heritage: at [117]-[118]. Likewise, Stevenson J made plain in Adoption of Jimmy (a pseudonym) [2025] NSWSC 408 that whatever conclusion is reached on an adoption application is based on the evidence before the Court and is a finding only for the purposes of these proceedings; that conclusion should not be read as an affirmative finding that the child is not an Aboriginal child and it is possible that other records may come to light in the future or that family members may be able to assist in providing further information as to the child’s family history: at [61]-[62].
The Secretary did not seek to dispute that the birth mother was Aboriginal, but noted that none of the records identified on the Department’s files clearly supported two of the three limbs of the Aboriginal Land Rights Act test, that is, community acceptance and being a member of the Aboriginal race. While the Children's Court accepted that the child was a child of an Aboriginal person, and the matter was finalised on that basis, it was unclear which limb the Court relied upon, or the evidence considered in coming to that determination. The Aboriginal Medical Service and the Aboriginal Legal Service had provided services to the birth mother. This could be considered community acceptance, albeit not from the mother's specific community, which is recorded as being Wiradjuri, in an area in regional New South Wales. But with Mr Dauth’s work, there was sufficient evidence to sustain a finding that the birth mother was a member of the Aboriginal race, and would be accepted by the Aboriginal community as an Aboriginal person.
Turning first to the definition in the Aboriginal Land Rights Act, the birth mother identifies as an Aboriginal person. The birth mother’s mother identifies as an Aboriginal person and is accepted by the Aboriginal community as an Aboriginal person (being the Redfern community). But notwithstanding Mr Dauth’s efforts, there is insufficient evidence on this application to establish the first criterion in respect of the child, the birth mother, the birth mother’s mother or another ancestor. In particular, the starting point of the views expressed by Mr Dauth is a search of Ancestry.com. But that search is not performed in respect of the birth mother or the birth mother’s mother, but for a person “possibly related by marriage” to the birth mother’s mother’s sister. I attach little weight to the birth mother’s social media connections, as there are no details as to how Mr Dauth undertook that search or what it revealed. Perhaps with more time and resources, the first criteria in this definition could be satisfied as well.
The next question is whether the Court is satisfied that the child is of Aboriginal descent such that a determination may be made under s 4(2) of the Act. The Court has a discretion whether or not to exercise this power: Hackett at [82]. There is utility in exercising this discretion here, as it will assist in determining whether the Aboriginal child placement principles are to be applied (ss 8(1)(f) and 90(1)(e) of the Act), whether the adoption is in the best interests of the child under s 8(2)(c) (which requires the Court to have regard to the child’s sense of cultural identity) and whether counselling should occur under s 64. So I will do so.
The material on this application is, unsurprisingly, largely from between 16 and 19 years ago. This material indicates that the birth mother and the birth mother’s mother engaged with the Aboriginal Medical Service. The birth mother was the subject of a pre-natal report, while the birth mother’s mother saw the service in Redfern more generally. I do not know whether, at that time, the Aboriginal Medical Service saw only indigenous patients or non-indigenous patients as well.
I know that the birth mother was represented by the Aboriginal Legal Service in the proceedings before the Children’s Court. I infer that Aboriginal Legal Services formed a view at the time that the birth mother met its criteria to be entitled to its services. I do know what those criteria were either, but I infer that the service had formed the view that the birth mother was probably indigenous.
In proceedings before the Children’s Court, the Department proceeded on the basis that the child was Aboriginal. Section 13 of the Children and Young Persons (Care and Protection) Act provides (and provided at the time) that the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles were to be applied in placing a child that the Secretary was satisfied was an Aboriginal child in out-of-home care. The Secretary proceeded in this manner and, thus, thought that the child may be an Aboriginal child at the time. The Department noted on the application forms filed with the Court that the Aboriginal principles applied. The Department appointed an Aboriginal caseworker and prepared an Aboriginal Cultural Support Plan.
More importantly from my perspective, the magistrate proceeded on the same basis. The magistrate was not dealing with a matter ‘on the papers’, as I am, but was in a courtroom dealing with the participants face-to-face. The judgment records that the proceedings were contested and the matter was before the court on a number of occasions. The birth mother appeared and was legally represented, most likely by the Aboriginal Legal Service given the Department’s communication with the Aboriginal Legal Service at the time, although the judgment does not say.
The magistrate likely had more material than I do, both as a consequence of conducting multiple hearings and in order to prepare a substantive judgment. I infer that the findings made by the Children’s Court had a proper basis. Those findings include that the child was “a child of an Aboriginal parent”.
After the hearing before the Children’s Court, the Department proceeded on the basis that the child was Aboriginal. Although the Department’s enquiries of the Aboriginal community in the small regional town from where the birth mother hailed were inconclusive, the Department continued to develop an Aboriginal Cultural Support Plan, including obtaining more information about the birth mother’s mother’s connection with the Aboriginal community in Redfern. The Department has since proceeded on the basis that the child is an Aboriginal child.
I am now looking at the matter years later and having regard to documents only. The evidence before me is not definitive. I defer to the collective views and actions of those from the Aboriginal Medical Service, the Aboriginal Legal Service, the Department and the Children’s Court when engaging with the birth mother back then and in person. I place particular weight on the findings made by the magistrate of the Children’s Court at the time. I do not attach much weight to Mr Dauth’s work for the reasons earlier stated. For these reasons, I am satisfied that the child is of Aboriginal descent under s 4(2) of the Act.
8 What principles are to be applied by persons making decisions about the adoption of a child?
(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles—
(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,
…
(f) if the child is Aboriginal – the Aboriginal child placement principles are to be applied, …
The Dictionary of the Act defines a “decision maker, in relation to a decision about the adoption of a child”, to mean “the Court, the Secretary, an accredited adoption service provider or a principal officer of an accredited adoption service provider”. Further, “Aboriginal child placement principles mean the principles set out in s 35”: Dictionary, Adoption Act.
When it comes to the making of an adoption order, s 90 provides:
90 Court to be satisfied as to certain matters
(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied—
(a) that the best interests of the child will be promoted by the adoption, and
…
(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and
…
(e) if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, …
(Emphasis added.)
Sections 8 and 90 have obvious textural and structural similarities: Hackett at [48]. Essentially, these provide ‘book ends’ to oblige the people making decisions about the adoption of the child, that is, “decision makers”, to apply the Aboriginal child placement principles in making those decisions (s 8(1)(f)), while the Court is obliged to be satisfied that they have done so when making an adoption order: s 90(1)(e), Adoption Act.
Section 35 is to be found in Pt 2 of Ch 4 of the Act, entitled “Placement of children for adoption”. What is meant by “placement”? As Meek J noted in Adoption of Blake (a pseudonym) [2022] NSWSC 1766, “placement” is not defined in the Act but is used approximately 57 times (and, I add, approximately another 40 times in the Adoption Regulation): at [178].
The Secretary submitted that a child is placed for adoption when the Secretary (or principal officer) makes a decision in relation to the placement of a child. This can arise in two ways. First, the child begins to physically live with a person who wishes to adopt that child and who has applied to adopt under Pt 3 of Ch 4 of the Act. Second, in the case of a child already living with an authorised carer in “out-of-home care”, this occurs when a decision is made under Pt 3A of Ch 4 of the Act and cl 60 of the Adoption Regulation, approving the authorised carer as a person who is suitable to adopt the child.
In Hackett, Leeming JA noted that the Aboriginal child placement principles were first developed and formulated in connection with placing children in care rather than adoption: at [18]. I have reviewed the historical reports and predecessor legislation referred to by his Honour, but found no discussion on what is meant by “placement”: in particular, New South Wales Law Reform Commission, Research Report 7: The Aboriginal Child Placement Principle, (March 1997); Children and Young Persons (Care and Protection) Act. In Adoption of Blake, Meek J was assisted by the Macquarie Dictionary*,* online ed definition at [179]:
“The Macquarie Dictionary, online ed defines “placement” as:
noun
1. the act of placing.
2. the act of an employment exchange or employer in filling a position.
3. the state of being placed.
4. location; arrangement.
5. a position with an employer.
- a home for a child in need of adoption or foster care.”
Meek J considered that “placement”, as used in the Act, may refer to a particular point in time or a period of time: at [180], [183]-[187].
Looking at the Act and the Adoption Regulation as a whole, “placement for adoption of the child” is used when putting a child in the care of a person for the purposes of the child being adopted by that person. One can glean this from various provisions. Section 9(1) obliges a decision maker to provide the child with information to ensure that the child is able to participate in decisions made under the Act that have a significant impact on their life. Such decisions are listed in s 9(3), in what appears to be a rough sequence of steps in the adoption process, being:
9 Participation of child in decisions
….
(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 …,
(c) an application for an order for the adoption of the child,
(d) contact with birth parents or others connected with the child.
That is, the child is placed with the proposed adoptive parents and, depending on how that goes, an application for an adoption order may be made. Similarly:
clause 67 refers to a decision maker placing “a child for the purposes of adoption with an applicant whose name is on the adoption register”;
clause 68 refers to a decision maker transferring “care responsibility for a child to another person with a view to the adoption of that child by that other person”;
clause 93 prescribes information to be kept in respect of adoptions, including when an adopted person “was placed with the adoptive parents”, followed by the date of the adoption order; and
Part 6 of Ch 4 of the Act concerns “parental responsibility for children awaiting adoption” and contains the following note:
This Part provides for the parental responsibility for children between the period when consent to adoption is given and an adoption order made. Parental responsibility is given to the Secretary who has power to decide, for example, whether the child should be placed with authorised carers or the proposed adoptive parents, in this period.
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).
With that in mind, one turns to the Aboriginal child placement principles. As Leeming JA observed in Hackett, the Aboriginal child placement principles give a measure of primacy to the preservation of Aboriginal cultural heritage by requiring the adoptive parent to be from an Aboriginal community if possible, thereby responding to the loss of cultural heritage which occurred when many children were taken into households which did not share that heritage: at [18]. Section 35 provides:
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.
In addition, s 80 of the Act provides that the Court must hold a preliminary hearing before the placement for adoption of an Aboriginal child with a non-Aboriginal prospective adoptive parent.
When considering the Aboriginal placement principles in Adoption of Mary and Michael, Stevenson J concluded that the legislature intended that the expressions “placement” and “placement for adoption” to have the same meaning, “That is particularly clear in s 35(2) which … refers both the children being “placed for adoption” and simply being “placed”, in circumstances where it is clear that the same activity is being referred to”: at [14].
Finally, as Leeming JA also noted in Hackett, the differences in the way that the Act treats the adoption of Aboriginal children and non-Aboriginal children “should not be overstated [as t]he primary consideration in every case is the best interests of the child, and where that clashes with the Aboriginal child placement principles, the best interests of the child have priority”: at [16].
The Secretary submitted that the Aboriginal placement principles did not apply to adoption by a relative. Under Pts 3 and 3A, proposed adoptive parents must be assessed by the Secretary or principal officer, after which they become "authorised carers". Relative adoptions do not require applicants to be authorised carers or for them to be assessed under either Pts 3 or 3A: s 90(1)(c), Adoption Act. If the legislature had intended otherwise, then this would have been specified in s 29 of the Act, which concerns adoption by a relative.
When one follows the structure of the Act, I consider that the Aboriginal child placement principles do not apply where the proposed adoptive parents are relatives. Chapter 4 of the Act, “The adoption process”, begins with Pt 1, “General”, which addresses the jurisdiction of this Court, sets out who can be adopted and who can adopt, before dealing with specific types of adoption, including adoption by a relative. Specifically, s 29 provides:
29 Adoption by relative
The Court must not make an adoption order in favour of a relative of a child unless—
(a) specific consent to the adoption of the child by the relative has been given in accordance with this Act by the appropriate person or persons specified in section 53(1)(b), and
(b) the child has established a relationship of at least 2 years’ duration with the relative, and
(c) the Court 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 child.
Further specific instances of adoption are then dealt with, being adoption by a step-parent (s 30) and adoption of a non-citizen child (s 31).
Part 2 of Ch 4 of the Act is entitled “Placement of children for adoption”. As a matter of sequence, this part deals with placing children for adoption with people other than the specific instances already addressed by the Act. The decision maker is placing the child further afield for adoption, being, generally, either with a person approved under Pt 3 or an authorised carer approved under Pt 3A. In deciding where to place an Aboriginal child for adoption, under Ch 4, Pt 2, Div 2, the Aboriginal child placement principles come into play. But a child is not “placed” with a relative for adoption. Adoption by a relative is already addressed in Pt 1 of Ch 4.
How does such a construction align with the emphatic language of ss 8(1)(f) and 90(1)(e) of the Act? The chapeau to s 8(1) provides that the decision maker is to have regard “as far as is … appropriate” to the listed principles, including that, if the child is Aboriginal, the Aboriginal child placement principles are to be applied: s 8(1)(f), Adoption Act. The construction works with this language as, where the adopting parents are relatives, the Aboriginal child placement principles are not necessarily “appropriate”. Section 90(1)(e) requires the Court to ensure that the Aboriginal child placement principles “have been properly applied”. Where the child is being adopted by a relative, non-application of the Aboriginal child placement principles may be, in such a case, the proper application of those principles.
The Secretary submitted that there was some doubt as to whether the Aboriginal placement principles applied to a child over the age of 18. Given children in out-of-home care exit care at the age of 18, the Secretary or principal officer no longer have any ability to exercise parental responsibility over the child to make decisions about their residence once they turn 18. The principles were applied to a child who was in out-of-home care, aged 17, at the time the adoption application was filed, but was over 18 when the adoption order was made in Adoption of Richard (a pseudonym) [2023] NSWSC 364. The Secretary submitted that, arguably, this was an unnecessary intrusion by the State into an adult's life, without any statutory or legal basis. The date of placement of the child, is different to the physical placement of the child; the former cannot occur until the Court has made certain findings: Adoption of Blake at [163] (Meek J).
I agree. Where the child is over 18 years of age, no-one is putting the child in the care of a person for the purpose of that child being adopted by that person. The child is an adult and can live where they like. The Aboriginal child placement principles do not apply where the child in question is, in fact, over 18 years of age, and thus is not being “placed for adoption” in any real sense of those words.
For these reasons, I grant leave to the applicants to serve further evidence in support of the child’s consent to the adoption within 28 days and, in the event that the applicants require further time, grant liberty to apply.
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