Hackett (a pseudonym) v Secretary, Department of Communities and Justice

Evidence

1. On 8 May 2019, the organisation Link-Up provided Anglicare with confirmation that A's sixth maternal great-grandmother was an Aboriginal woman from the Wiradjuri nation. The Link-Up report comprises background information from the Institute of Aboriginal and Torres Strait Islander Studies regarding historical references to this ancestor of A's Aboriginality and a family tree showing the link between this ancestor and A.
2. The plaintiff previously submitted that the Link-Up material fell short of establishing A's aboriginality on the then state of authority.
3. However, in light of Hackett, and in particular the position that a "degree of flexibility" should be taken as to the available evidence, especially in keeping with s 126 of the Adoption Act which stipulates that a "broad range of material" may be considered by the Courts including evidence which would ordinarily be inadmissible under the Evidence Act 1995 (NSW) (at [161], [175] (Basten JA, McCallum JA agreeing), the plaintiff now submits that the Link-Up report is sufficient to show A is of Aboriginal descent.
4. It should also be noted that the birth mother in the course of counselling sessions stated that her father had informed her he was Aboriginal but had no papers.
5. The plaintiff submits that notwithstanding the fact the mother does not identify as Aboriginal and although A's Aboriginality is established by reason of an Aboriginal woman who lived nine generations previously A should be regarded as being of Aboriginal descent and accordingly the Court should make a determination under s 4(2) of the Adoption Act.
6. I am bound by the Court of Appeal's construction of s 4(2) of the Adoption Act. However the evaluation of the particular evidence in each case is a matter for the trial judge. The type and quality of evidence will vary case by case and although the Court is not bound by the rules of evidence (s 126) the Court must base its decisions upon material which carries probative value (see, e.g., Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 at 492-493; see also Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 249-250, 256 (as cited by Meagher JA in Sudath)).
7. I agree that on the basis of Hackett and the reasoning therein and the uncontroversial position taken by the plaintiff in this case, which was not contradicted by the first and second defendants, I should make the finding that A should be regarded as an Aboriginal child for the purposes of s 4(2) of the Adoption Act. Accordingly I made a declaration to that effect.

What then?

1. Having determined A is an Aboriginal child ss 34 and 35 of the Adoption Act will have effect.
2. Those sections set out in detail what are called the "Aboriginal Child Placement Principles" which thereafter apply in particular as here to the situation where an Aboriginal child is to be placed with a person who is not Aboriginal and also the situation where again as here one of the birth parents is not an Aboriginal (see s 35(1) to (5)).
3. The plaintiff submits that A should be regarded as having one Aboriginal parent and one non-Aboriginal parent and that s 35(4) applies. This provides that in the event the 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 the Act.
4. Section 35(5)(a) of the Adoption Act provides that in the event 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.
5. The birth mother, having been informed of the proposed application and the Aboriginal Child Placement Principles, expressly requested that A be placed with non-Aboriginal proposed adoptive parents (Affidavit of Ms Wienburg, affirmed 31 July 2019 at [29]ff). Indeed she specifically requested Lebanese proposed adoptive parents, given the birth father's own Lebanese cultural heritage (see Affidavit of Susan Veronica Madden, sworn 26 March 2020 at [48]). These matters are significant given ss 8(2)(c) and 8(2)(e) of the Act.
6. Given the consultation process ahead it is anticipated that further evidence will be forthcoming and further orders will no doubt be sought.
7. Evidence was put before the Court as to the suitability of the proposed adoptive parents and I am satisfied accordingly as to their suitability (s 35(3)). I am also satisfied that the Adoption Plan created (see affidavit of Susan Veronica Madden, 26 March 2020 and Exhibit "SVM-1") will be suitable and appropriate in the circumstances (s 35(5)(a)). Their suitability is also supported by Ms Carol Robin O'Brien who prepared a report for the Court (sworn 26 March 2020). The terms of the Maternal Adoption Plan are the subject of an agreement between the proposed adoptive parents and the mother.
8. The proposed adoptive parents are in my mind mindful of A's needs and the responsibilities of parenthood (s 8(2)(g) and (i)).
9. I should also note that the mother has given her informed consent to the adoption of A by the proposed adoptive parents. She did not feel that she was ready or able to be a single parent. The birth father's consent has been dispensed with on 19 August pursuant to s 67(1)(c) of the Adoption Act. However he was consulted with about the Paternal Adoption Plan (s 46(2A)).

Parental Responsibility

1. The next question is the order sought pursuant to s 75 of the Adoption Act.
2. The order made on 19 August 2019 provided as I have already stated that the plaintiff had parental responsibility for the child. That was pursuant to an interim order pursuant to s 84(2) of the Adoption Act. Section 85(1) provides that an interim order made under s 84 remains in force for such period, not exceeding one year, as the Court specifies in the order and for such further periods, if any, as the Court may from time to time order. But interim orders are not to be in force for periods exceeding two years s 85(2).
3. The order was due to expire on 20 August 2020, hence the urgency. The question was whether in the circumstances a further interim order was necessary.
4. In the submissions dated 3 August 2020 the plaintiff argued that no further interim order was required because s 75(1) was already in operation.
5. Section 75(1) states that the Secretary has parental responsibility for a child after general consent to the adoption of the child has been given by every person whose consent is required "under this Act" or the requirement for consent has been dispensed with. Notably s 75(4) then states that s 75(1) does not apply to a child unless and until the Secretary: (a) is satisfied that each person who is required to give general consent to the adoption of the child under this Act has given consent or that the Court has dispensed with the requirement for that person to consent, or (b) the Court makes an interim order under s 84 in favour of the Secretary.
6. Section 79 states, relevantly, that the Secretary continues to have parental responsibility for a child under s 75 until an adoption order is made or, if consent has been given, consent is lawfully revoked, or the Court makes some other parental responsibility order for the child, as occurred here on 19 August 2019.
7. The plaintiff initially submitted that the mother formally consented to the adoption on 11 June 2019, the father's consent was dispensed with on 19 August and that there was no other person who is required to consent to A's adoption. Therefore, the plaintiff submitted that the terms of s 75 had been satisfied and that would arguably obviate the need for a further interim order.
8. However the plaintiff also submitted that if the Court was of the view that the Secretary's parental responsibility came from the interim order made under s 84 on 19 August 2019 a further interim order may have been required, in relation to which a tension may have arisen regarding the ambiguous interplay between ss 75, 79, 84 and 85, specifically that orders for parental responsibility made under s 84 cannot exceed two years yet the Secretary "continue to have parental responsibility for a child" under s 75(1) for an unlimited duration until any of the criteria in s 79(1)(a)-(g) are satisfied.
9. There is limited judicial consideration regarding that interplay, however, the issue was briefly considered by Brereton J (as his Honour then was) in Application of Director-General, Department of Family and Community Services; Re AP [2013] NSWSC 562 ("Re AP"). At [9] his Honour noted: "As I have foreshadowed, there is a tension between this [s 85] and s 79. It seems to me that the preferable way of reconciling that tension is to read s 79 as limited by the later section, to the extent that where the Director General's parental responsibility under s 75 is gained by operation of an interim order made under s 84, then that parental responsibility will continue only so long as the interim order remains in force, which in the first instance cannot exceed one year, and in total cannot exceed two years.
10. However, leaving aside s 75(4), the application of s 75(1) was not capable in Re AP because at the time of the judgment the mother had not yet consented and the father's consent had not yet been dispensed with. His Honour did not specifically address a situation in his judgment whereby s 75(1) may come into operation directly by s 75(4)(a) at some later point.
11. Arguably, given s 75 is a specific provision, rather than a general provision such as s 84, the Secretary could have parental responsibility under s 75 once the requirements in s 75(1) and 75(4)(a) are met, notwithstanding the earlier order.
12. Indeed this would make sense in that the interim orders under s 84 cannot in total exceed two years, whilst there is no time limit on the Secretary's parental responsibility under s 75, given time is required to place children and for them to settle, and whilst the aim is to bring applications in a timely fashion, noting s. 8(e1) of the Act, there may be circumstances where placements do not progress, and a child needs to be placed again.
13. It was on this basis that the plaintiff sought a declaration that the Secretary holds parental responsibility for A pursuant to s 75.
14. However as a result of an exchange between myself and counsel for the plaintiff at the hearing I was supplied with supplementary submissions dated 10 August 2020.
15. In those submissions the primary position was maintained namely that but for the interim order the Secretary would hold parental responsibility pursuant to s 75(1) of the Adoption Act. As I have already mentioned s 75(1) does not operate because the interim order made other provision for the child (s 79(1)(c)).
16. However it was accepted that by reason of the interim order the plaintiff still held until 20 August 2020 parental responsibility for the child. Therefore the plaintiff was a person whose consent to the adoption was required by s 52(a)(ii) of the Adoption Act and a person whose general consent was required before the requirements in ss 75(1)(a) and 75(4) could be satisfied.
17. The plaintiff submitted that upon the expiry of the interim order she would no longer be "a person whose consent to the adoption of the child is required". The preconditions of s 75(1) would then be met and therefore a declaration was sought in the following terms: Upon the expiry of the interim order for parental responsibility, dated 19 August 2019 the Secretary will hold parental responsibility for A, pursuant to s 75(1) of the Act.
18. The declaration concerns the legal effect of an occurrence in the future. The Court does always hold a discretion to grant declaratory relief in the interests of certainty for A's care arrangements. And at the time I decided to grant that declaration, the interim order only had a short time to run (cf Rich v Lennox Palms Estates [2010] NSWCA 242 at [49], per Young J A).
19. The alternative would be to seek a further interim order in favour of the plaintiff. In that event the two year time limit would arise. Arguably it would also be necessary for the Secretary to seek an order pursuant to s 86(1) of the Adoption Act to discharge that order prior to an adoption being made or for the plaintiff to provide her consent to the adoption pursuant to s.52(a)(ii) of the Act.
20. In my view that would lead to unnecessary complications for no particular purpose. Accordingly I made the amended declaration sought by the Principal Officer.

Amendments 04 November 2020 - para [50] delete "Secretary" - should read: Principal Officer DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2020