Solicitors:
Crown Solicitor's Office (plaintiff)
File Number(s): A128 of 2017
[2]
Judgment (ex tempore)
Because the application presently before the Court raises, so far as I am aware for the first time, issues concerning the application of provisions of (NSW) Adoption Act 2000 as to the placement of Aboriginal children for adoption, it is appropriate - for the development of practice in this area - that I make some additional observations before making the relevant orders. In doing so, I will use pseudonyms to refer to the child, the birth parents and the prospective adoptive parents, which will be sufficiently apparent to those familiar with the case while providing anonymity otherwise.
The child the subject of the proceedings, Benjamin, was born on 18 February 2017 and is accordingly just one year of age. His birth mother Chloe and his father Jarrod signed instruments of consent to his adoption in August 2017, and the revocation period in respect of those consents has since expired.
Benjamin has congenital heart issues, for which he has had a number of surgical operations since his birth. Both birth parents indicated, prior to his birth, that they wished for him to be adopted. An initial temporary care agreement was signed on 21 February 2017, and a second on 18 May 2017. Prior to expiration of the second, the Court on 17 August 2017 made an order pursuant to Adoption Act, s 84, allocating parental responsibility for Benjamin to the Secretary until further order.
Angus v Salier [2018] NSWSC 1009 | Case summary | Zoe
Jarrod has said that he is an Aboriginal man of the Darkinjung nation. Some doubt has arisen as to this, but the Secretary has proceeded on the basis that Benjamin has Aboriginal heritage through his birth father Jarrod, and is therefore an Aboriginal child for the purposes of the Act: see Adoption Act, s 4.
The Act contains a number of provisions intended to ensure that adoption procedures in respect of Aboriginal children are culturally appropriate. Section 33 provides that the Secretary must ensure that a person approved in accordance with s 195, or a person nominated by the child's parents family or kinship group, is consulted about the placement of an Aboriginal child. It also provides that the Secretary must ensure that the placement of the child is made in consultation with a local community based and relevant Aboriginal organisation:
Aboriginal participation in decision making
(1) The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child:
(a) a person approved in accordance with section 195, or
(b) 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.
(2) In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation.
So far as the requirement for consultation with an approved or nominated person is concerned, s 33 standing alone appears ambiguous as to who it is that is to have the requisite consultation. However, s 195 which is referred to in s 33(1)(a), indicates that the function of an approved person is to provide advice and assistance to Aboriginal families or kinship groups in relation to care options for Aboriginal children for the purposes of the Act:
Consultation with Aboriginal persons
(1) The Secretary may approve an Aboriginal person 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 this Act.
(2) The Secretary must not approve a person under this section unless the Secretary is satisfied that the person has relevant experience in working with Aboriginal children, whether or not in connection with their families or kinship groups.
On that basis, the Secretary has I think correctly, taken the view that the requirement imposed by s 33(1) is a requirement to ensure that the birth parents obtain advice from an approved or nominated person.
The evidence is that Jarrod consulted Ms Lana Johnson, a s 195 approved Aboriginal consultant, on 9 June 2017. Chloe was offered but declined such counselling, and has signed a statement to that effect. Thus the requirements of s 33(1) are satisfied through subparagraph (a), (a) and (b) being alternatives.
The requirements under s 33(2) have presented complications, and if this case is any indication may well do so again in the future.
The Secretary first identified three potential relevant Aboriginal groups: the Bungaree Aboriginal Corporation, the Muloobinba Aboriginal Corporation, and Yiren Aboriginal Health Services. Each of them was informed that Benjamin's birth parents wished for him to be adopted, that his father was believed to be of the Darkinjung people, and that consultation with a relevant Aboriginal organisation was required for his placement.
Bungaree responded that it was unable to offer assistance. Muloobinba responded that it did not support the adoption of any Aboriginal child or young person and, in addition, that given that the father belonged to the Darkinjung tribe, any consultation should occur with a local Aboriginal community controlled organisation within that area, which Muloobinba was not, "as we are not local to the Darkinjung tribe". The response continued: "I would think it inappropriate for Muloobinba to enter into consultation for an Aboriginal child where the permanency outcome is adoption". No response was received from Yiren.
When the application came before the Court on an earlier occasion, I indicated that it seemed to me that there were further inquiries that might be made. Since then, the Secretary has also approached, with the same information, the Darkinjung Local Aboriginal Council and the Gudjagong Ngara Li-dhi Aboriginal Council, and has also made further inquiries of various repositories of information within the Department and within the State Library to endeavour to clarify Jarrod's - and, thus, Benjamin's - Aboriginality. This has not been helped by the circumstance that Jarrod is reluctant to involve his paternal family - from whom his Aboriginality is said to be derived - so that it has not been possible for those concerned to obtain information in that way. The Darkinjung Land Council has indicated that it cannot assist unless and until satisfied of Ben's Aboriginality.
In Dr Barnett's helpful submissions, the notion of "consultation" in analogous circumstances has been considered. As it seems to me, consultation involves the communication of a proposal to the person to be consulted with an invitation to express a view about it, and consideration of any view so expressed: see The Crown v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 WLR 1 at 4; Angus v Salier [2017] NSWSC 198 at [40]; Gondarra v Minister for Family, Housing, Community Services and Indigenous Affairs [2014] FCA 25 (especially at [89] which is perhaps of particular relevance because of its Indigenous context, although there were more elaborate statutory guidelines as to what consultation was required).
In Gondarra, Kenny J expressed the view that the obligation to consult was one to afford a meaningful opportunity for those to be consulted to present their views. In the present case, the Secretary has conveyed to at least four - possibly five - potentially relevant Aboriginal organisations details of Benjamin, including that his birth parents wished for him to be adopted, that his father is thought to belong to the Darkinjung tribe, and that consultation with the relevant Aboriginal organisation is required. Those organisations have had an opportunity to consider and comment on the proposed adoption, if they wish. Muloobinba - even if disputing that it is a relevant Aboriginal organisation - has expressed a view that at least in generic terms on the proposal. In my view, the Secretary has done all that can reasonably be expected in the circumstances at this stage, so far as consultation is concerned.
However, inquiries in respect of Benjamin's aboriginality continue, and it may be that those inquiries produce greater clarity as to tribal affiliations and records. In those circumstances, it might prove possible for further consultation to take place, and my provisional view on the current information that enough has been done as things presently stand should not be seen either as an obstacle to, or as an excuse for not making or undertaking, further consultation if further information comes to hand.
Adoption Act s 34 requires, first, that the Secretary make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child and, secondly, that the Aboriginal child placement principles are to be applied in placing a child that the Secretary is satisfied is an Aboriginal child:
Application of Aboriginal child placement principles
(1) The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child.
(2) The Aboriginal child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is an Aboriginal child for adoption.
Although until relatively recently the Secretary has proceeded on the basis that Benjamin was an Aboriginal child, more recent developments have the consequence that the Secretary continues to make inquiries in that respect. Assuming that the Secretary is or remains satisfied that Benjamin is an Aboriginal child, then the Aboriginal child placement principles to be applied are set out in s 35, as follows:
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.
Note. Placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing - see section 80.
(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 will be observed that subsection (3) provides that an Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied of the matters therein mentioned. This imports a role for the Court, anterior to its role in considering and making an adoption order. That so much was intended is reflected in the note to subsection (3), which provides that placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing. In that respect s 80 (which relates to preliminary hearings) provides that 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, and that the Court "may give such directions and make any order it thinks fit at a preliminary hearing":
Preliminary hearings
(1) The Court may hold a preliminary hearing in relation to any matter concerning or arising out of an application to adopt a child that is prescribed by the regulations.
(2) The Court must hold a preliminary hearing before the placement for adoption of:
(a) an Aboriginal child with a prospective adoptive parent other than an Aboriginal, or
(b) a Torres Strait Islander child with a prospective adoptive parent other than a Torres Strait Islander.
(3) The Court may hold a preliminary hearing on its own motion or on application of a person of a class prescribed by the regulations.
(4) The Court may give such directions and make any order it thinks fit at a preliminary hearing.
(5) Without limiting subsection (4), the Court may make an order as to parental responsibility for the child (including an interim order) and any order that it may make at an adoption hearing.
As it seems to me, the function of the Court on a preliminary hearing under s 80(2)(a) at least includes to consider the questions posed by s 35(3), namely, whether it is satisfied that the prospective adoptive parent has the capacity to assist the child to develop a healthy and positive cultural identity, and 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 and the child's upbringing, and 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.
It is nonetheless relevant to observe that notwithstanding the "general order for placement" provided by s 35(2), s 35(4) provides that if a child, as Benjamin does, 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 the Act, provided that if the 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.
That requirement presents its own difficulties, because the Court cannot approve an adoption plan until there are adoptive parents to agree to it. However, a draft adoption plan has been produced, which appropriately provides for Benjamin to travel regularly to the Central Coast and be exposed to his country and culture while attending community events there; to receive mentoring sessions with a local Darkinjung mentor; to be taught about the history of the Darkinjung people, their traditions, practices and dreamtime and language; and for ongoing visits and contact with his birth father, to ensure that Benjamin grows up with an understanding of his extended birth family history and culture as well as participation in cultural events organised within the Darkinjung community where possible, and the fostering of links with that community to the extent that that is possible.
Originally two couples were identified as potential adoptive parents. On the earlier occasion, I indicated that I was not satisfied that sufficiently detailed inquiry about them had been made to found the requisite degree of satisfaction referred to in s 35(3). That is because while both sets of prospective adoptive parents had, in a generic way in response to routine questions, expressed commitment to cultural inclusiveness and the like, they had not specifically been asked about adoption of a Aboriginal child, let alone any special cultural issues and difficulties that might arise and their preparedness to cope with them.
The necessity for specific inquiries on those matters is demonstrated by the outcome when they were made: one of the couples who had been approached decided that they did not feel that they were in a position to meet the particular cultural needs with an Aboriginal child. Accordingly, they are no longer under consideration.
As to the other, Thomas and Taylor, they indicated that they were familiar with the local Aboriginal community and were aware that they were the Darkinjung people; that Taylor was aware of a local play group for Darkinjung children, in which she would participate if placed with an Aboriginal child, and in which they would still participate even if the child was not from the Darkinjung people, as it was local and still facilitate the development of a healthy and positive cultural identity, but in that event would also seek to make connections with people from the child's nation.
Thomas had taught Aboriginal and Torres Strait Islander studies in 2017, and fostered relationships with young people and elders from the Darkinjung community through his teaching, which relationships he believed could be a source of support and assistance in the parenting of an Aboriginal child, as well as the source of information about contacts with other Aboriginal communities. Both were sensitive to the potential difficulties of being non-indigenous adoptive parents of an Aboriginal child, and the need for openness and sensitivity to the concerns of the Aboriginal community in relation to the adoption of Aboriginal children, and indicated that they would develop relationships with the child's school, and be an advocate for them if any issues with racism were perceived.
I am, on that evidence, amply satisfied that Thomas and Taylor meet the requirements of s 35(3)(a), (b) and (c); indeed it is difficult to imagine better qualified non-Aboriginal prospective adoptive parents.
As to the application of the Aboriginal placement principles - as to which I am also required to be satisfied - the evidence establishes that there are no Aboriginal approved adoption applicants in Anglicare, in Catholic Care or in Barnardos Adoption Services. Jarrod has himself expressed the view that he wants Benjamin to go to the best people, regardless of whether or not they are Aboriginal, and that he does not have a preference for placement with Aboriginal carers.
I am satisfied that it is not practicable for Benjamin to be placed with adoptive parents belonging to the Aboriginal community to which Jarrod belongs, nor with a prospective adoptive parent or parents from another Aboriginal community. That is because, so far as the evidence reveals, there are none available. Accordingly, under the general order for placement, s 35(2)(c) provides that the next outcome is for the child to be placed with non Aboriginal prospective adoptive parents. In any event, those principles are modified by subsection (4) in the case of a child such as Benjamin, with one Aboriginal parent and one non-Aboriginal parent.
The proposed adoption plan to which I have referred provides for Benjamin to have the opportunity to develop an identity with the Aboriginal community to which he belongs, and the attitudes expressed by Thomas and Taylor indicate that they will facilitate that course. In those circumstances, I am satisfied that the Aboriginal child placement principles have been properly applied, and in particular that s 35(4) would be complied with if Benjamin were placed with Thomas and Taylor.
There remains a technical question as to exactly what order the Court should make in these circumstances. Section 35(3) is expressed in terms of the Court being satisfied of certain matter, whereas s 80 authorises the Court to give such directions and make any order it thinks fit at a preliminary hearing. Declaratory relief is usually not appropriate in the absence of any contradictor and where there is not a contentious question to be resolved.
Given the peculiar and frequently non-adversarial nature of the adoption jurisdiction, the particular functions and responsibilities of the Minister and the Secretary, and the Court's role as parens patriae it seems to me that such directions would appropriately be given in the nature of judicial advice, such as the Court might give to the trustee of a trust.
Accordingly, the formal order of the Court is as follows:
The Court, being satisfied that Thomas and Taylor have the capacity to assist Benjamin to develop a healthy and positive cultural identity, and have knowledge and are willing to learn and teach Benjamin about his Aboriginal heritage and to foster links with that heritage in his upbringing, and have the capacity to help Benjamin if he encounters racism or discrimination in the wider community, and being also satisfied that the Aboriginal child placement principles have been properly applied, orders that the Secretary would be justified in placing Benjamin with Thomas and Taylor as prospective adoptive parents.
[3]
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Decision last updated: 29 June 2018