The Secretary, New South Wales Department of Communities and Justice, seeks an order that the children, who I will call "Mary" and "Michael" (not their real names) be adopted by a couple to whom I will refer as the "Prospective Adoptive Parents".
The mother of both Mary and Michael is a person to whom I will refer as "Audrey" (not her real name). The father of Mary has died. The father of Michael is a person to whom I will refer as "Steven" (not his real name).
Orders allocating parental responsibility of Mary and Michael to the relevant Minister were made when the children were very young. They were placed with the Prospective Adoptive Parents in September 2015.
Many years later, in 2020, the Secretary discovered that the children's maternal grandmother (that is, Audrey's mother) identified as Aboriginal.
The Proposed Adoptive Parents are not Aboriginal. Steven is not Aboriginal.
[2]
Mary and Michael are Aboriginal children
As the Secretary has submitted in this case, he finds himself in "the increasingly common and procedurally challenging position" of having become aware of the children's Aboriginal heritage many years after they were physically placed with the Prospective Adoptive Parents.
As Sackar J recently observed, the relevant provisions of the Adoption Act 2000 (NSW) ("the Act") appear to have been drafted on the assumption that a child's Aboriginality will be detected at an early stage, and before the child is placed with persons who ultimately seek to adopt the child. [1] As this case demonstrates, that does not always occur.
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2023] NSWSC 149 | Case summary | Zoe
What happened in this case was that in January 2020, a caseworker employed by the Secretary discovered Departmental records which revealed the current whereabouts of Audrey's mother and her extended family members. Those records revealed that members of Audrey's mother's family identified as Aboriginal. The Departmental caseworker has spoken with Audrey's mother, who confirmed that she identifies as an Aboriginal woman.
The Secretary engaged an historian from the Crown Solicitor's Office, Mr Michael Flynn, to complete a Family History Report which outlined research undertaken into Audrey's mother's extended family, who are from the Dunghutti and Kamilaroi nations.
Mr Flynn has concluded that Mary and Michael "are descendants of ancestors who are identified as or identifiable by inference in the historical record as Aboriginal persons".
Mr Flynn's research traces the children's maternal Aboriginal heritage back to their great, great, great, great, great grandmother, who Mr Flynn named, and who was "an Aboriginal woman born around the 1850s who was probably living in [an identified area of New South Wales]".
In those circumstances, I am satisfied that Mary and Michael are of Aboriginal descent and are therefore "Aboriginal children" within the meaning of s 4(1) of the Act.
[3]
The Aboriginal child placement principles
Division 2 of Pt 3 of Ch 4 of the Act deals with the placement for adoption of Aboriginal children.
Division 2 contains ss 33 to 36 which refer, variously, to the "placement" and "placement for adoption" of Aboriginal children. It appears clear to me that the legislature intended the expressions "placement" and "placement for adoption" to have the same meaning. That is particularly clear in s 35(2) which sets out the "general order for placement" to be effected by the Aboriginal child placement principles, and refers both to children being "placed for adoption" and simply being "placed", in circumstances where it is clear that the same activity is being referred to. [2]
Mary and Michael have been in the care of the Prospective Adoptive Parents since 2015 but, I am satisfied, have not yet been "placed for adoption" with the Prospective Adoptive Parents.
Part 3A of the Act provides a mechanism by which the Secretary can invite authorised carers, such as the Prospective Adoptive Parents, to submit an application to adopt children such as Mary and Michael. [3] This is different to the process outlined in Pt 3 of the Act, which addresses the selection of prospective adoptive parents other than authorised carers. Under Pt 3A, the selection process is focused on children already in out-of-home care and on the authorised carers, here the Prospective Adoptive Parents, already caring for the child.
In Pt 3A, placement for adoption does not involve a physical change in the children's living arrangements. Instead, placement for adoption involves a change in the long-term goal of the placement: moving to adoption instead of a continuation of statutory out-of-home care.
Under Pts 3 and 3A, persons who apply to be assessed as suitable to adopt are referred to as "prospective adoptive parents". [4] If the prospective adoptive parents are successful in the selection process, and any other preliminary issues are dealt with (relevantly in this case, as to whether Mary and Michael are Aboriginal children), the Act refers to them as "proposed adoptive parents".
I think the Secretary is correct to submit that, in this case, he has not yet placed Mary and Michael with the Prospective Adoptive Parents "for adoption", as the Prospective Adoptive Parents are not yet approved as "suitable to adopt" pursuant to the requirements of Pt 4 of the Adoption Regulation 2015 (NSW).
The current position is that Mary and Michael are in out-of-home care, living with authorised carers, the Prospective Adoptive Parents, who are proposing to adopt them.
Because Mary and Michael are Aboriginal children, the Aboriginal child placement principles must be applied in the administration of the Act.
In that regard, ss 35(1) and (2) of the Act provide:
"(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." (Emphasis in original.)
As I have mentioned earlier, it can be seen that reference is made in s 35(2) to both a child being "placed for adoption" and being "placed", in circumstances where it is clear that the same process is being referred to.
Section 35(4) provides:
"(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." (Emphasis in original.)
That section is engaged here because the children have one Aboriginal parent and one non-Aboriginal parent.
Plainly, Steven is not an Aboriginal person.
On the other hand, Audrey, as a person who is descended from an Aboriginal person, should herself be seen as an Aboriginal parent.
In that regard, I agree with the observations of Sackar J in Principal Solicitor, Family Spirit Adoption Services v D, [5] where his Honour said:
"The legislative history … is uninformative as to the meaning of Aboriginal parent.
By parity of reasoning given the remarks of Leeming JA in [Hackett (a pseudonym) v Secretary, Department of Communities and Justice] [6] … the better view is that the term encapsulates both a birth parent but should of course also include any person who may satisfy the tripartite test [in the Aboriginal Land Rights Act 1983 (NSW)] as well. However, it seems to me that … the term 'Aboriginal parent' in s 35(4) should be given wide import so that it includes a parent who is descended from an Aboriginal person even if they would not satisfy the tripartite test. That has the effect which in my view is more consistent with the child focused nature of the legislation.
The application in this case of such an interpretation is that s 35(4) would have application because C is descended from an Aboriginal person and hence is an 'Aboriginal parent' the mother being non-Aboriginal." [7]
For the purposes of s 35(4), I am satisfied that it is in the interests of Mary and Michael that they be "placed", that is to say, placed for adoption, with the Prospective Adoptive Parents. The children have lived with the Prospective Adoptive Parents for all their remembered lives. Further, the Prospective Adoptive Parents have shown the capacity and knowledge referred to in s 35(3), which I discuss below. In those circumstances, I am satisfied that the children's best interests will be served if they are "placed" for adoption, with the Prospective Adoptive Parents. Whether a final order for adoption is made is a matter to be determined at the hearing of these proceedings.
Section 35(5) provides that if children with one Aboriginal and one non-Aboriginal parent are placed with persons who are not within an Aboriginal family or community, the Adoption Plan must make provision for the children to have the opportunity to develop an identity with the Aboriginal community to which the child belongs. It appears that the current Proposed Adoption Plan will satisfy this requirement. That, however, is a matter that can be considered further at the hearing.
The Secretary submitted that the effect of s 35(4), when engaged, is to displace the requirements of s 35(2) and of s 35(3), to which I will turn shortly, and pointed to observations by Sackar J in Family Spirit Adoption Services which, it was said, supported that view. [8]
I do not agree that, when engaged, s 35(4) displaces ss 35(2) or 35(3).
That is made clear by the terms of section 35(3), that provides:
"(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." (Emphasis in original.)
Section 35(3) is expressed in mandatory terms. A child "is not to be placed", that is placed for adoption, with a non-Aboriginal prospective adoptive parent unless it is shown that:
1. the prospective adoptive parents have the capacity and knowledge specified in ss 35(3)(a), (b) and (c); and
2. as is stated in the soulier to the subsection, the Aboriginal child placement principles "have been properly applied" with a non-Aboriginal person.
Section 35(3) refers to the placement with a non-Aboriginal prospective adoptive parent of any Aboriginal child. That will include a child with one Aboriginal and one non-Aboriginal parent. Section 35(4) refers, generally, to the placement of a child having one Aboriginal and one non-Aboriginal parent. The circumstances contemplated by the subsections are not mutually exclusive. Both subsections may be engaged. One does not overrule or displace the other.
In this case, both subsections are in fact engaged. That is because it is proposed that Mary and Michael, who each have one Aboriginal and one non-Aboriginal parent, and who are therefore both of Aboriginal descent and thus Aboriginal children, be placed for adoption with non-Aboriginal prospective parents.
Accordingly, as is in terms required by s 35(2), it is necessary to apply the Aboriginal child placement principles.
As I have set out, the "first preference" referred to in the Aboriginal child placement principles is that an Aboriginal shall be placed for adoption with prospective adoptive parents belonging to the Aboriginal community to which the birth parent of both parents belong. The second preference, if the first is not practicable or in the best interests of the child, is that the child be placed with prospective adoptive parents from another Aboriginal Community. If neither of those options is practicable or in the best interests of the child, the child "is to be placed" with non-Aboriginal prospective adoptive parents.
Here, the children have been placed, albeit not yet for adoption, with the Prospective Adoptive Parents for over seven years. Their Aboriginality was only discovered in 2020. The evidence shows that the children are happy and settled with the Prospective Adoptive Parents. I cannot see how it would be practicable or in the best interests of the children that they now be placed with different prospective adoptive parents.
[4]
The requirements of s 35(3) of the Act
I have set out above the requirements contained in s 35(3) as to the capacity and knowledge required of non-Aboriginal prospective adoptive parents, such as the Prospective Adoptive Parents.
Audrey has submitted that "there is no proof that [the Prospective Adoptive Parents] understand Aboriginal beliefs and culture so that they have the ability to pass on to my children" and that a "non-Aboriginal family wouldn't understand the Aboriginal culture".
I fear that these comments overlook the evidence that has been adduced in support of the Secretary's application.
The evidence establishes that the Prospective Adoptive Parents have engaged in cultural competence training, have travelled on two occasions to meet with Aboriginal family members and to attend NAIDOC Week, have agreed to the terms of Cultural and Adoption Plans, and have consistently encouraged the children to learn about and express their culture, especially at school.
The author of the report commissioned under s 91 of the Act has stated:
"When the assessor asked how culture is learnt for children, [the Prospective Adoptive Parents] stated that 'culture will come from family first'. They stated that secondly, they will do research and teach things to [Mary and Michael]. They will help them to look to change and empower themselves and Aboriginal people in general. [The Prospective Adoptive Parents] will also encourage identification through [Mary and Michael's] school. [The Prospective Adoptive Parents] said that they are open to culture which is allowing [Mary and Michael] to be too."
The Prospective Adoptive Mother has stated:
"I am keen to return to [a regional town] regularly to help the children to learn more about Dunghutti culture. [The Prospective Adoptive Father] and I are willing to drive to [a regional town] annually to facilitate the children's contact with their maternal extended family."
The Prospective Adoptive Father has stated:
"We both strongly encourage [Mary and Michael] to embrace their heritage and culture. Both the Aboriginal and Maltese [9] perspective, as well as an awareness of Egyptian [10] for [Mary]. We have both lived and worked in many countries and encourage the kids to be inclusive and curious about cultures.
…
Both kids are aware of and speak about their cultural heritage at school and home. They attend a weekly Aboriginal culture class at school and we have also attended some events that have helped them to understand some of the rituals - smoking ceremony, welcome to country and various craft making activities."
The evidence also establishes that the Prospective Adoptive Parents are assisting the children to know their life story and develop meaningful relationships with their parents and extended family members.
The author of the s 91 report has stated:
"It is assessed that [the Prospective Adoptive Parents] have the capacity and willingness to support [Michael and Mary's] cultural connections into the future with the support of their various cultural plans and with the support and involvement of [Michael and Mary's] parents and extended family. … [I]mportantly for the assessor [the Prospective Adoptive Parents] are very clear that culture comes from being with family and they recognise the importance of family time to facilitate this. They also recognise that culture and connection to family is a lifelong journey and not a 'tick a box' scenario and are committed to pursuing learning and connections even when it may be tougher at times to engage the maternal birth family."
Finally, the Prospective Adoptive Parents have undertaken a number of steps which assist to equip them with skills to help the children with racism and develop a strong sense of pride in their cultural identity.
The requirements of s 35(3) are satisfied in this case.
[5]
Aboriginal participation
Section 33(1) of the Act requires that the Secretary "must ensure" that a person approved in accordance with s 195 of the Act is "consulted about the placement of an Aboriginal child". [11]
The Department of Communities and Justice has attempted to offer consultation with Audrey. Audrey initially refused to discuss the matter and did not want to identify as being Aboriginal. More recently, when offered an opportunity to consult with Ms Smith (not her real name), a person approved in accordance with s 195 of the Act, Audrey declined to participate.
The Secretary accepts that the requirements of s 33(1)(a) are not yet satisfied. The Secretary has engaged Ms Smith to undertake a consultation. Ms Smith's report is expected at the end of this month. Until then, the Secretary accepts that I cannot make a determination that he has complied with s 33(1).
Section 33(2) provides:
"(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."
In Adoption of BR, [12] Brereton J (as his Honour then was) said that a "consultation" for the purposes of s 33(2) "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 views so expressed". [13]
In The Adoption of Edward (a pseudonym), [14] I expressed a slightly different view:
"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." [15]
I would go a little further. In order for it to be said that the placement of the child in question has been made "in consultation" with a relevant organisation, it is necessary that the response received from the organisation involve some kind of exchange of views, perhaps only briefly, [16] about the proposed placement.
In each case, a careful examination of the nature of the relevant communications will be necessary in order to ascertain whether it can be concluded that the placement of the child in question is made "in consultation with" a local community.
In this case, on 14 January 2022, an officer of the Department wrote to a local Aboriginal organisation nominated by the maternal extended family ("the Organisation").
The Department's email read:
"As discussed, DCJ are currently supporting and working with two children in OOHC that are Aboriginal, however their carers are not. DCJ would like to support the children and their carers to establish and maintain lifelong connections to their Aboriginal culture and heritage.
We were hoping that some of the following could be supported by your organisation?
• Review of the cultural plans that have been completed for each of the children?
• [The Organisation] being a support/contact to the family and children?
• [The Organisation] (where possible) being able to assist in the development and maintenance of the children's cultural connection?
• [The Organisation] to provide calendar of events (?) in the area. The family are keen to establish connection and spend time on country.
These are just some ideas, any other advice or guidance would be greatly appreciated."
The Organisation replied:
"Can you please advise of the children's name and where they are from.
May I ask what the CYP's case plan goals are? Where are the children currently residing."
The Department replied by naming the children and stating where they were currently located.
The Organisation replied:
"[The Organisation] do not support adoption for Aboriginal children. We will not support your request."
The Department replied two months later:
"Thank you for your response below and apologies it has been some time in between for me to reply to you.
I just wanted to ask, if we were not asking [The Organisation] to consult on adoption but just to be a support/mentor/connection directly to these children and their carers, is this something that [The Organisation] may be able to assist with?"
The Organisation replied the same day:
"No, we will not as this would essentially mean that the (sic) we would be supporting the case plan goal of adoption.
… you have literally just re-worded your original email.
To be very clear, [The Organisation] will not support adoption for Aboriginal children in any way shape or form.
Please do not email me any more requests that relate to the adoption of Aboriginal children and young people nor ask us to do side supports/connections that you can add to any of your court work saying they will be connected to an Aboriginal organisation." (Emphasis in original.)
I cannot see how I could conclude that a placement of Mary and Michael with the Prospective Adoptive Parents made after this email exchange could be said to be one made "in consultation with" the Organisation.
Although the Organisation made an enquiry as to the names and location of the children, and asked about the "case plan goals", it expressed no view about the children's placement with the Prospective Adoptive Parents. Rather it stated, emphatically, that it did not wish to engage at all about the prospective placement because it "did not support adoption for Aboriginal children". This is a view the Court must respect. The Court must be respectful of the sensitivities of Aboriginal people to applications of the kind I am now considering. [17] The fact remains, in my opinion, that there has been no relevant consultation.
In March 2022, the Department also contacted another organisation:
"I am the caseworker for two children whose family are Dhanggati people.
The children would like to know more about their language and culture but their family are not in a position to facilitate this.
Can you advise if there is anyone that could help them?
Also I note under resources that there are books/videos."
There was no reply.
In these circumstances, I am not satisfied that the requirements of s 33(2) of the Act have yet been satisfied.
[6]
The satisfaction of the Secretary
Section 36 of the Act provides that an Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of an adoption order is clearly preferable, in the best interests of the child, over any other action that could be taken.
On 14 March 2022, the Secretary formally and in writing consented to the making of an adoption order in favour of the Prospective Adoptive Parents. I infer from that, that the Secretary has achieved the state of satisfaction referred to in s 36.
[7]
Conclusion
I invite the Secretary to prepare short minutes of the orders needed to give effect to these reasons.
In the meantime, as I ordered on 20 February 2023, the matter is listed for directions on 5 April 2023.
[8]
Endnotes
Principal Officer, Family Spirit Adoption Services v D [2022] NSWSC 142 at [52].
Set out at [22] below.
Section 45D.
Sections 41 and 45C.
[2022] NSWSC 142.
[2020] NSWCA 83 at [65]-[66].
Principal Solicitor, Family Spirit Adoption Services v D (supra) at [56]-[58].
(Supra) at [60]-[61].
Audrey is of Maltese ancestry.
Mary's late father was of Egyptian ancestry.
This is the requirement in s 33(1)(a); there is an alternative requirement in s 33(1)(b) which is not relevant here.
[2018] NSWSC 1009.
Ibid at [13].
[2022] NSWSC 1488.
Ibid at [49].
For instance, as I found in The Adoption of Edward (a pseudonym) (No 2) [2022] NSWSC 1754 at [19]-[23].
As I said in Re Edward (No 2) (supra) at [22].
[9]
Amendments
09 August 2023 - References in paragraphs [52], [53], [59], [60], [63], [64], [65], [66], [68] anonymised.
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Decision last updated: 09 August 2023