Helen Fischer & Anor v Ashley Thompson and Others - [2019] NSWSC 773 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Helen Fischer & Anor v Ashley Thompson and Others

[2019] NSWSC 773

Supreme Court of NSW|2019-06-07|Before: Sackar J

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Source facts

Court

Supreme Court of NSW

Decision date

2019-06-07

Before

Sackar J

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Background Facts

Ben was born August 2006. Ben is the third child of Ashley and Mark. Ben has six biological siblings. Trevor born November 2003 (maternal half-sibling), Kyle born February 2005, Alice born July 2009, Chris born April 2013, Lincoln born May 2014 and Betty born September 2016.
At the date of hearing, Ashley and Mark reside in rural NSW, in the same area as the proposed adoptive parents, with the eldest child Trevor, although the parental responsibility for Trevor remains with the Minister. The youngest child, Betty, was restored to the birth parents in May 2019. The other four siblings reside with the maternal grandfather in Victoria.
Helen and Carly have been in a relationship since 1995. Carly was born in Australia and Helen was born in the United States. They commenced living together in 1997 and married in Israel in 1999. They moved to Australia in 2000. Helen became an Australian citizen in 2005.
Ben was born 9 weeks premature in August 2006. He was in hospital for the first 6 weeks of his life before returning to his parents' care in about September 2006. In about early November 2006 Ben was admitted into hospital with a subdural haemorrhage as the result of a skull fracture, five fractured ribs, fractured wrists and a fractured clavicle.
On the 9 November, following Ben's admittance into hospital, an Emergency Care and Protection Order was made for Ben.
Trevor and Kyle were also taken from their birth parents' care. Initially they were placed with foster carers before being placed with the maternal grandparents.
On 22 November 2006 an Interim Order was made allocating parental responsibility for Ben to the Minister.
Ben was discharged from hospital on 14 December 2006 and immediately placed into the care of Helen and Carly. Ben has been living with them continuously since this time. Ben initially came into Helen and Carly's care as a short term placement but in July 2007 they were approved to care for him long term.

[3]

History of the Legislation

Prior to coming to particular statutory provisions it may be thought salutary if I briefly sketch some legislative history.
For present purposes it is convenient to commence with the Child Welfare Act 1923 (NSW). "Child" was defined in s 5 of the Act to mean a boy or a girl under 16 years of age or in certain instances a boy or a girl under 18 years of age.
"Parent" was defined again in s 5 to mean a step parent, guardian or any person co-habiting with a parent of the child and any person who is by law liable to maintain the child.
Sections 123 and following of the Act dealt with the process of adoption. Interestingly s 126(c) enabled a child over the age of 12 to consent to the adoption (a notion which remains in the current Act). Section 128 however provided that when an order of adoption is made the adopted child "shall take the surname" of the adopting parent in addition to his proper name. There was no mention in the 1923 Act of Aboriginal children.
That Act was followed by the Child Welfare Act 1939 (NSW), which had similar definitions. It did however create a new definition of "adopting parent" in s 4. Again no specific provisions were to be found in that Act dealing with Aboriginal children.
Further it might be accepted that both of those Acts really combined the various matters now dealt with separately in the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the 'Care Act') and the Adoption Act.
The next piece of legislation is the Adoption of Children Act 1965 (NSW). There were some additional definitions in that Act none of which are relevant for present purposes. The Adoption of Children (Amendment) Act 1987 (NSW), amended s 19 as to extend the 1965 Act to Aboriginal children. Section 19(1A)(c) was added which permitted adoptions in favour of a man and woman who were Aboriginal, and who were married or recognised as married according to the traditions of an Aboriginal community or Aboriginal group to which they belonged. It also provided that a child was to be regarded as Aboriginal if he or she came within the meaning of Aboriginal in the Aboriginal Land Rights Act 1983 (NSW). No particular provisions were contained in the legislation dealing with the placement of Aboriginal children.
In 1990 the Adoption Information Act 1990 (NSW) was passed to facilitate a greater flow of information to relevant persons.
In 1997 the NSW Law Reform Commission conducted a review of the Adoption Act 1965. The report (Report 81) is a voluminous document. Amongst other things and by reason of the Commission's Terms of Reference specific consideration was given to the relevance of ethnic and racial heritage and in particular Aboriginal customary law in adoption legislation. The Report recommended involvement of Aboriginal persons in the adoption process and a cultural heritage placement principle for both Aboriginal and Torres Strait Islanders.
Section 9 of the Report specifically dealt with Aboriginal and Torres Strait Islander children. The Report considered in particular the definition of an Aboriginal child. It was recognised that there were particular problems in using the definition of Aboriginal from the Aboriginal Land Rights Act for children for numerous reasons: Identification as an Aborigine 9.19 First of all, a baby or very young child is not yet able to identify as an Aborigine. The Working Party of the Standing Committee of Social Welfare Administrators recommended that in such a case identification by either parent is to be substituted for self-identity This does not overcome the situations where a birth parent, either Aboriginal or non-Aboriginal, does not declare his or her child's Aboriginality either intentionally or because he or she does not know the child is Aboriginal. 9.20 An older child who may be capable of identifying as an Aborigine may yet not do so. Older children who are wards of the State and who are subsequently adopted may be unaware of their Aboriginality. If the child has been in non-Aboriginal foster care, and removed from the Aboriginal culture for a long period, the child is unlikely to assert an Aboriginal identity. In some instances, received negative messages may discourage the child from identifying as an Aborigine. As well, children are still forming their identities and may be influenced by the question itself as to their identification as an Aborigine. Acceptance by community 9.21 Where a birth parent is considering relinquishing his or her child for adoption, it would not be uncommon, in those circumstances, for the birth parent's community to be unaware, and not made aware by the birth parent, of the child's birth. This may be because the birth parent has lost contact with his or her community or has deliberately concealed the fact of the birth from the community. Privacy issues may arise which prevent others, such as DOCS or a private adoption agency, making the Aboriginal community so aware. Obviously, if the relevant Aboriginal community is unaware of the child's birth there can be no acceptance of the child as an Aborigine by that community. 9.22 In that case, a definition of Aboriginality which relies in part on acceptance by the relevant Aboriginal community can operate against the best interests of a child. The child may be of Aboriginal descent and may be identified as Aboriginal by the consenting parent. But if the consenting parent does not, for personal reasons, want to seek the community's acceptance of the child, one of the essential components of the three-pronged definition is not satisfied. The child is not then defined as an Aborigine.
The Report then considered whether a definition based on 'race' may be appropriate for Aboriginal children. The Commission referred to the case of Gibbs v Capewell (1995) 54 FCR 503; (1995) 128 ALR 577 where Drummond J found (at 584): Although an opportunistic claim by a person to identification as an Aboriginal would not, I think, be regarded by ordinary Australians as sufficient to attract to that person the status of "Aboriginal" even if he could prove he possessed a small quantum of Aboriginal genes, in my opinion a person of limited Aboriginal heritage who nevertheless genuinely identified himself or herself a Aboriginal would be likely to be described by ordinary Australians as an Aboriginal, even without Aboriginal communal recognition as such... In my opinion, in order for someone to be described as an "Aboriginal person" within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of descent of such descent is not sufficient. A substantial degree of Aboriginal descent may, by itself, be enough to require a person to be regarded as an "Aboriginal person".
The Report then followed: 9.25 Definitions resting on "race" comprise descent as the essential factor but further involve an examination of the degree of descent. If the degree of descent is whole or substantial nothing more is required. If the degree of descent is small, cultural considerations determine whether or not the person is Aboriginal. In contrast, definitions resting on "descent" do not depend on degrees of descent and determine Aboriginality wholly in relation to physical factors. Cultural considerations are not relevant. 9.26 Would a definition which rests on "descent" be too far out of step with the legislative direction taken in three significant pieces of legislation, each of which defines Aboriginality in terms of "race"? It would not for the following reasons: By relying on factors of "race" in defining Aboriginality, Parliament has already demonstrated that they are prepared to diverge from a three-pronged definition, that is, a definition requiring descent, self-identification and community acceptance. A definition which depends on the single criteria of descent is by no means extreme. Gibbs v Capewell considered the meaning of "Aboriginal person" in the context of legislation affecting adults. Had the subject matter been legislation affecting the welfare of children, the outcome may have been different. The points made above in relation to the difficulties of requiring self-identification and community acceptance in the context of the adoption of children continue to be relevant here. Given the constraints on babies and children identifying themselves as Aboriginal, it could be argued that the meaning which the expression "Aboriginal child" has "in ordinary speech" is a "child of Aboriginal descent". 9.27 The undesirability, from an Aboriginal viewpoint, of analysing degrees of descent for the purposes of defining who is an Aboriginal person is discussed below. Support for a "descent" definition 9.28 It may be considered by some (non-Aborigines) a difficult question as to whether the offspring of one Aboriginal parent and one non-Aboriginal parent is an Aborigine or non-Aborigine. People who have difficulty with this question may consider that the solution is to have a definition which includes criteria of self-identification and community acceptance. However, a widely held Aboriginal opinion on this issue is clear and is explained by Sommerlad as follows: The nature of Aboriginal identity is misunderstood by most whites. They fail to understand why a child of mixed parentage should identify as an Aboriginal rather than a white. Social workers are reluctant to place an Aboriginal child who is indistinguishable by his physical appearance with an Aboriginal family since they consider this situation will create identity problems for the child. The major point that whites fail to grasp is that in a racist society an individual is either white or black. One cannot be part black, part white. An Aboriginal child will soon learn from white classmates that he is not one of them, that he is different, and that he belongs to the black community. Even if he looks white. The position taken by Aborigines on this issue is therefore that any child of Aboriginal parentage, no matter what his physical appearance or his degree of Aboriginality is an Aborigine. 9.29 The Aboriginal Children's Service is one significant Aboriginal body which has expressed the firm view to the Commission in consultation that an Aborigine is, quite simply, a person of Aboriginal descent.
The Report concluded: 9.34 Defining an Aboriginal child as one of Aboriginal descent eliminates the problems discussed above. Furthermore, it accords with the views of many Aboriginal people, as outlined by Sommerlad, and with the views expressed by a number of Aboriginal organisations. In light of the past treatment of Aboriginal families, and in the interests of reconciliation, it is justified to respect those views. It is appropriate in the context of adoption to define an Aboriginal child as one of Aboriginal descent. Recommendation 70 The legislation should define an Aboriginal child as one of Aboriginal descent.
The Report then considered the need to identify Aboriginal children: Identifying Aboriginal children 9.35 Difficulties in identifying (as distinct from defining) an Aboriginal child whose aboriginality is either unknown or undeclared by the birth parent will exist regardless of whether the definition of aboriginality is a broad one of descent or a restricted one of descent coupled with identification and acceptance. 9.36 When faced with the task of identifying a child as Aboriginal DOCs is restricted in the enquiries it can made because of the privacy issues involved in an adoption. DOCS takes a pragmatic approach obtaining a social history of the family, interviewing birth parent or parents in relation to their cultural backgrounds. Whilst it is not practical to do more than this, the Commission recommends that this practice be expressed in legislation so that a clear obligation is placed upon DOCS or a private adoption agency to establish to the best of its ability whether or not the child is an Aboriginal child. Recommendation 71 The legislation should require DOCS or a private agency to make reasonable enquiry as to whether the child to be adopted is an Aboriginal child.
The Commission in the balance of this section of the Report went on to make quite specific recommendations in relation to the placement principles so called.
The Adoption Act 2000, was a direct result of the Report No 81 (NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 June 200 at 7329)

[4]

The definition of "Aboriginal"

Section 4 of the Act provides a definition of "Aboriginal" and "Aboriginal child" for the purposes of the Act: 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.
'Child' is separately defined in the Dictionary to mean a person who is less than 18 years of age, or a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made.
The definition of "Aboriginal" in the Act adopts the definition in the Aboriginal Land Rights Act which is as follows at s 4: 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.
This is a cumulative test which needs all three requirements to be met. The first requirement is member of the Aboriginal race, the second requirement is identification as an Aboriginal person, and the third is acceptance by the Aboriginal community. As I noted previously in The Secretary, NSW Department of Family & Community Services by his delegate, Principal Officer, Barnardos Australia and MLA [2019] NSWSC 290 (at [42]), these are necessarily factual questions in my view which may give rise to issues of credit. In my view the most sensible construction of the third requirement is that it is likewise a factual consideration that does not involve merely theoretical acceptance, as in the person "is capable of being accepted" but that there is an actual fact of acceptance by the community on the evidence. This accords, in my view, with the genesis of the definition in land rights legislation.
As noted above the concept of "Aboriginal race of Australia" has been considered in Gibbs v Capewell, by Drummond J in 1994. More recently Bromberg J outlined past judicial consideration of the definition of "Aboriginal" in Eatock v Bolt (2011) 197 FCR 261; (2011) 283 ALR 505, and noted that the concept of 'race', although clearly at a minimum requiring a level of lineal descent, had itself to some extent now encompassed an understanding of all three limbs. His Honour stated (at [188]): The authorities to which I have referred, make it clear that a person of mixed heritage, but with some Aboriginal descent, who identified as an aboriginal person and has communal recognition as such, unquestionably satisfies what is conventionally understood to be an "Aboriginal Australian". For some legislative purposes and in the understanding of some people, compliance with one or two of the attributes of the three-part test may be regarded as sufficient.

[5]

Cases on the meaning of "Aboriginal child"

Although the cases as discussed above provide important contextual background to the definition of Aboriginal and in particular the definition according to the Aboriginal Land Rights Act as imported by the Adoption Act, it is important to recognise the particular context of 'adoption' and the definition as provided by s 4.
In Re Simon (2006) 68 NSWLR 306 Campbell J analysed the tripartite requirement of "Aboriginal person" stating that all three requirements needed to be satisfied (at [26]-[27]): Mr Q in at least one sense of the term identifies as an Aboriginal person and he is accepted by the Aboriginal community as an Aboriginal person. However, he is not a member of the Aboriginal race of Australia, because the definition of Aboriginal person requires all three elements to be satisfied before a person counts as an Aboriginal person for the purpose of the Act. His evidence shows that he is not descended from Aboriginal people. For that reason it follows that Mr Q is not an Aboriginal person falling within the meaning of the Adoption Act. It is then unnecessary to decide whether the sense in which he identifies as an Aboriginal person is the relevant one for the Act. It also follows that the child in question in this application is not an "Aboriginal child" within the meaning of the Adoption Act. Thus, no question can arise of whether the Aboriginal placement principles ought be applied or the special provisions concerning obtaining of consent in relation to Aboriginal children ought be applied.
In the case In the matter of S [2017] NSWSC 1198 Black J said (at [26]-[27]): The Crown Solicitor draws attention to the definition of "Aboriginal child" in s 4(1) of the Adoption Act as "a child descended from an Aboriginal", including a child who is determined to be Aboriginal under s 4(2) of the Adoption Act, and to the definition of "Aboriginal" in the Adoption Act as having the same meaning as "Aboriginal person" has in s 4(1) of the Aboriginal Land Rights Act 1983 (NSW). That term is there defined as requiring, not only descent from an Aboriginal person, but also identification as an Aboriginal person and acceptance as such within the Aboriginal community. Even if K's submission could be treated as evidence, rather than only as a submission, it goes no further than to raise the possibility that S is descended from an Aboriginal person and the possibility of self-identification by K as an Aboriginal person and does not establish any acceptance of K as such by the Aboriginal community, or even any contact between K and the Aboriginal community seeking such acceptance. The Crown Solicitor also refers to the observations of Drummond J in Gibbs v Capewell (1995) 54 FCR 503, approved in Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113 at [118], that descent is necessary but not sufficient for a person to be an "Aboriginal person"; that a small degree of Aboriginal descent coupled with genuine self-identification or community recognition may be sufficient for eligibility to be an Aboriginal person; a substantial degree of descent, and general community recognition of Aboriginality that usually accompanies it, may also be sufficient of itself for eligibility as an Aboriginal person; and that communal recognition as an Aboriginal person may be the best evidence of Aboriginal descent. Those observations emphasise the significance of the absence, in this matter, of any evidence of recognition of K as an Aboriginal person by any Aboriginal community. The Crown Solicitor also referred to Re Simon [2006] NSWSC 1410; (2006) 68 NSWLR 306 where Campbell J observed, as is apparent from the language of s 4(1) of the Aboriginal Land Rights Act, that each of the three elements of the definition of "Aboriginal person" in that section must be satisfied before a person is eligible as an Aboriginal person under that Act.
Section 4(1) of the Act contains, relevantly the definition of Aboriginal and Aboriginal child.
"Aboriginal" as discussed has three components and all three components must exist as matters of fact.
On the other hand an "Aboriginal child" means a child descended from an Aboriginal and includes a child the subject of a determination under s 4(2).
Section 4(2) states that "despite" the definition of Aboriginal in s 4(1) the Court may determine that a child is Aboriginal for the purpose of this Act, if satisfied the child is of Aboriginal descent.
Several observations may be made. First, a Court may determine a child is an Aboriginal child by reason of descent alone. In other words the child, if a Court is so satisfied can qualify as Aboriginal in the absence of any relevant acceptance and/or identification.
The effect of ss 4(1) and (2) in my view is to in effect expand the definition of Aboriginal child. By removing the need of acceptance and identification the child can qualify if a child proven to be a descendent of an Aboriginal, however, an Aboriginal as defined.
It may be observed as a matter of practical reality a Court could obviously be involved in factual disputes involving any one or more of the three factors contained in the definition of Aboriginal, but it is only the Court which can make a relevant determination if satisfied by appropriate means and pursuant to s 4(2).
The significance of such a determination cannot be overestimated. Upon such determination the Aboriginal placement principles require 'proper' application otherwise adoption is arguably not an option (s 90(3)(e)). Subject to practicalities and the best interests of the child there may also be some adjustment of the placement because of the different circumstances referred to in ss 35 and 36 of the Act. Of course depending on those circumstances there will be particular provisions such as ss 64 and 195 (dealing with consent and consultation) that will also be engaged.
Recently, in Adoption of BR [2018] NSWSC 1009, Brereton J, considered the application of the Aboriginal child placement principles. His Honour made it clear that the provisions within the Act that are intended to ensure that the adoption of Aboriginal children is culturally appropriate, are mandatory (at [4]-[7]). His Honour went on to state the following (at [16]-[17]); 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:… 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…
His Honour then noted the following about the purpose of a s 80 hearing (at [19]): 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 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 of the child encounters racism or discrimination in the wider community; and that the Aboriginal child placement principles have been properly applied.

[6]

Relationship between the Care Act and the Adoption Act

While some of the matters I address below in this section were not the subject of submissions before me, I have taken the view it would be helpful to make the following comments, however they do not materially affect the ultimate outcome.
The Care Act and the Adoption Act effectively operate in tandem one with the other.
They have very similar but not identical objectives.
The Care Act is usually the first piece of legislation with which the Secretary engages when children are taken into care and orders are sought.
The Care Act has as its primary focus the care, protection, safety, welfare and wellbeing of children. When children are taken into care it is usually the case that their parents or other persons responsible for them for a variety of reasons are incapable in ensuring their ongoing care and protection.
The Care Act clearly requires that the child's safety etc is to be regarded as paramount. In that context attention must be given to whether the care is to be temporary or permanent. Apart from the identification of possible carers, appropriate assistance is also to be rendered to parents and other persons responsible for children to assist them with their child-rearing responsibilities. If appropriate the child's wishes must also be taken into account.
If 'permanent placement', that is long term placement, is regarded as an option it has to be considered alongside, and balanced against the first preferences as articulated by the legislation. Generally, s 10A(3) provides that restoration of the child to his or her parent or parents, so as to preserve the family relationship is given priority. Thereafter, the preference is for placement with a relative or kin, following that for adoption (unless the child is an Aboriginal or Torres Strait Islander child). The last preference is for the child to be placed under parental responsibility of the Minister (s 10A(3)(d)). The last preference for Aboriginal and Torres Strait Islander children is that they be placed for adoption (s 10A(3)(e)).
Like the Adoption Act, the Care Act makes special provision for Aboriginal and Torres Strait Islander children. The definition of Aboriginal in the Care Act is identical to that in the Adoption Act. Likewise in the Care Act there is a mechanism for the Court if (in this instance the Children's Court) to determine any question of disputed fact in relation to whether or not a child is to be regarded as Aboriginal.
Similar to the Adoption Act, s 32 of the Care Act requires that the Secretary, if there is reason to believe that a child or young person is Aboriginal, make such enquiries as are reasonable in the circumstances to determine whether the child is in fact an Aboriginal child. This is in slightly but not unimportantly different terms to s 34 of the Adoption Act.
Why the determination of Aboriginality under the Care Act is important, is because s 13 of the Care Act determines how the Act is to apply to Aboriginal children.
The reason to labour these matters is to make an obvious point. Proceedings under the Care Act are often a prelude to proceedings under the Adoption Act. The obligation on the part of the Secretary (and only the Secretary) to make reasonable enquiries as to whether or not a child is Aboriginal often starts by reason of the Care Act. It does not start for the first time when a child is considered for adoption. The issue is and must be on the table from the moment it is considered a child should be taken into care, if there is a basis for requisite belief which compels reasonable inquiries. The issue of Aboriginality should ideally be addressed at the first available opportunity because of the important consequences that follow such a finding. As a matter of practical reality it will be addressed at the Care Act stage if the requisite belief is engendered in the Secretary.
In that regard the provisions in s 13 and s 32 of the Care Act in my view are mandatory. If the Secretary has reason to believe that a child "may" be Aboriginal, the Secretary is required to make such enquiries as are reasonable to determine the fact, one way or the other.
If a dispute arises about the Aboriginality of a child, the Children's Court is expressly empowered to determine that question (s 5(2)). This of course is a similar regime to that provided for in s 4(2) of the Adoption Act.
Placement under the Care Act may be for short or long term care. One would not expect adoption would be the immediate objective (given the principles outlined in s 10A(3)) unless the circumstances were so serious that restoration from the very outset is regarded as not a realistic possibility.
However, once the focus moves to adoption, if it does, then s 34 of the Adoption Act will come into play.
While the issue of Aboriginality may well have been put to rest initially as it were to the satisfaction of the Secretary in the context of Care Act proceedings, it is of course more than theoretically possible that additional factual material or information may come to light from one or more of the birth parents or a credible third party.
There are some obvious differences between s 32 of the Care Act and s 34 of the Adoption Act. First, s 32 is on its face only directed to the Secretary whereas s 34 is directed to either the Secretary or an appropriate Principal Officer. The latter is understandable because the day to day care as it were of a child after proceedings in the Children's Court have concluded may well have passed to a Principal Officer of an accredited adoption service provider.
Section 32 of the Care Act envisages a two stage process. First if circumstances lead to the Secretary having reason to believe a child is Aboriginal then reasonable inquiries need to be undertaken for the Secretary to be satisfied as a matter of fact that the child is indeed so to be characterised or not.
Section 34 of the Adoption Act also envisages a two stage process. First it requires the Secretary or Principal Officer to make reasonable inquiries in the event a child is "to be placed for adoption". Thereafter the Secretary or Principal Officer is to be satisfied or not as the case may be. If satisfied the child is Aboriginal the placement principles apply, if not the principles have no application.

[7]

'To be placed for adoption'

There was debate as to the meaning of s 34.
Section 34 states: (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.
In particular, some debate took place as to the meaning of the words "to be placed for adoption" in s 34 of the Act. I have already expressed some views in MLA.
In short I addressed the point there by suggesting that it is a reference to some point in the future.
To be placed for adoption clearly indicates in its natural and ordinary meaning that the person is not yet placed with that in mind. Children may well be placed physically in the care of some person or persons pursuant to proceedings under the Care Act. But that placement is one pursuant to the objects of that Act and would not necessarily be a placement "for adoption".
The purpose of the reasonable inquiry required to be undertaken of the Secretary or appropriate principal officer pursuant to s 34 of the Act, is for the very purpose of either one of those persons being satisfied or unsatisfied that the child relevantly concerned is or is not Aboriginal. If unsatisfied then the Aboriginal child placement principles have no part to play in the placement of that child. However if satisfied the child is Aboriginal s 33 and other relevant provisions of the Act have application.
In my view some insight into what the phrase, "to be placed for adoption" means can be gained by reference to s 8 of the Act. Section 8(1) commences with the words "in making a decision about the adoption of a child". The word "decision" is defined broadly and includes a number of potential actions to be taken when considering a child. The words "decision maker" is defined to include the Court and others including the Secretary or principal officer. Section 8 thereafter proceeds to indicate the matters that should as far as practicable or appropriate be taken into account. Clearly one of the matters to be taken into account are the Aboriginal child placement principles, should that child be Aboriginal (s 8(1)(f)).
However other matters of a more general nature are to be taken into account as is clear from s 8(2). Section 9 may be relevant in terms of the participation of the child in the decision making process. Importantly s 8(1)(e1) indicates that in making a decision about the adoption of a child, regard has to be paid as to whether undue delay in making that decision is likely to prejudice the child's welfare.
It goes without saying that if pursuant to Care Act proceedings the child has already been determined by the Secretary to be Aboriginal, then the requirements of s 34 should be viewed in that context.
It further goes without saying that placement principles as they relate to Aboriginal children, is something which necessarily must be applied in a timely and expeditious fashion. For the principles to have any meaning there should be an early determination of the status of the child. That is the whole point of directing attention to prejudice which, inevitably in many cases, would flow from delay in making a decision in relation to adoption (s 8(1)(e1)).
Returning then to the words "to be placed" as Campbell J considered in Re Simon one possible interpretation of the words. His Honour there looked at clause 8 of the transitional provisions, which is in slightly different words to s 34. The words in clause 8 of the transitional provision are in the past tense, namely "was placed with a view to adoption". His Honour, although not deciding the issue, considered whether, in the context of the placement, that the phrase could mean adoption was either one of a number of possibilities, or whether adoption had to be the dominant purpose of the placement.
Here as I have observed, the words are different in that the notion of "to be placed for adoption" clearly refers to the future.
Importantly, having regard to s 8 and the matters to be taken into account in 'making a decision about the adoption of a child', the better view, in my opinion, is that s 34 is to be engaged at a point where adoption is an aim or a purpose or an intention, perhaps one of a number of aims or purposes, but by no means need it be the dominant or sole purpose. Indeed given the importance of a timely application of the Aboriginal child placement principles it is hard to imagine that the legislation intended that the relevant satisfaction of the Secretary or officer be left, as it were, until no other placement option could be contemplated. The danger with that view is that it may be some considerable time, indeed months or years during which strong psychological bonds have been formed with either inappropriate parents or in circumstances where by dent of practical circumstances the Aboriginal child placement principles have been rendered meaningless. The aim or purpose of adoption should be a real possibility in the sense that it is no longer a theoretical exercise. At the very least it would be at a time when the Secretary or principal officer at least regard restoration as not likely to be a realistic possibility, and that a person or persons have been identified as potential suitable proposed adoptive parents, and that adoption therefore is an aim or a purpose. The process is clearly an evaluative one in which to, in a timely fashion, identify a child at the earliest time practicable as Aboriginal or not. This then enables appropriate placing.

[8]

Reasonable Inquiries

Section 34 necessitates that the Secretary or appropriate principal officer make 'reasonable inquiries' as to whether a particular child is an Aboriginal child, and satisfy themselves accordingly.
The phrase 'reasonable inquiries' appears also in s 38, with respect to the application of Torres Strait Islander child placement principles.
Further the phrase 'reasonable inquiry' appears in s 56, which states that 'the Secretary or appropriate principal officer knows, or after reasonable inquiry ascertains, the name and address of the person whom the Secretary or principal officer reasonably believes to be the birth father of the child'. The phrase further appears in ss 67, 72 and 180A, which refer to a person, who 'cannot, after reasonable inquiry, be found or identified'.
There are a series of cases involving dispensing with consent, after a birth parent in an overseas adoption could not be found as under s 67. White J in Re K & the Adoption Act 2000 [2005] NSWSC 858 considered a 'reasonable inquiry' under s 67(1)(a) in this context, he states (at [22]): Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made.
This decision has subsequently been endorsed in the following: Re WJP and the Adoption Act 2000 [2014] NSWSC 783; Re KSE & The Adoption Act 2000 [2006] NSWSC 92; Re KN and The Adoption Act 2000 [2005] NSWSC 896; Secretary, Dept of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007.
In Re DYK and the Adoption Act 2000 [2005] NSWSC 1045, Brereton J considered the overseas adoption of a child from Korea. He noted that the proposed adoptive parents had a limited ability to themselves make further inquiries in Korea as to the child's natural parents. He further stated (at [19]) The evidence shows that the birth mother, thinking that she could not provide a proper environment for the baby, and that it was most desirable for him to grow up well in an appropriate adoptive home, relinquished him to ESWS for adoption. While that is not a 'consent' for the purposes of the Adoption Act, it is highly relevant in considering whether any further inquiries would be 'reasonable'. The view that they would not is reinforced by the circumstance that, from the perspective of the child's parents, the anonymity which has been conferred on them by the measures taken in Korea in respect of the birth documentation would be infringed.
In Application C and C; re Y [2014] NSWSC 634, Pembroke J considered whether the birth mother could not 'after reasonable enquiry, be found or identified'. He stated that in the context of an international adoption from Taiwan, the birth mother, having given her consent in Taiwan could not be compelled to provide another form of consent to satisfy NSW law, and the Taiwanese agency should also not be compelled to obtain such consent from her. He noted that the proposed adoptive parents themselves cannot 'reasonably be expected by themselves to search for and locate the birth mother and attempt to obtain another form of consent from her' (at [8]). In particular he noted (at [10]), 'the phrase 'after reasonable enquiry' imposes an important qualification on the statutory requirement'.
In Application MKL & MJL; re YSL (No 2) [2013] NSWSC, in a similar factual context, Brereton J stated (at [5]): The content of reasonable enquiry for the purposes of Adoption Act, s 67(1), varies according to the circumstances of the case. In this case, the birth mother has given consent in accordance with the law of Taiwan…There is an established protocol between the Department and CSS for forwarding letters and photographs about the progress of an adopted child, from the adoptive parents to the birth parents…
In Application D & D; re Y [2013] NSWSC 1477, Robb J stated (at [37]): In my view in the circumstances it would not be reasonable for the court to expect parties in the position of the present applicants to attempt to find the birth mother by their own efforts.
Black J in The matter of N and the Adoption Act 2000 [2012] NSWSC 1263 (at [8]): In this case, it is theoretically possible that the adopting parents could, be making further private inquiries, locate the birth mother. I do not think that it is reasonable that they be required to do so in circumstances that the Department does not consider appropriate for it to take steps to do so.
These cases helpfully outline what may be 'reasonable' in a particular circumstance, and it is clear that the obligation to make inquiries is not to be overly onerous.
In Hogarth (No 2), Brereton J recently considered whether reasonable inquiries had been made under s 34. He stated (at [12]): Mr Cotter has in the past claimed to have some element of Aboriginal heritage, from his paternal family, but is uncertain as to which member of his paternal family…Mr Cotter's father is unaware of his father (that is, Mr Cotter's grandfather), identifying as Aboriginal or having belonged to an Aboriginal community. The Principal Officer has sought, but Mr Cotter has been unable to provide, further evidence of Aboriginality…He is therefore not, for relevant purposes, as "Aboriginal person". I am satisfied that the Principal Officer has in those circumstances made reasonable inquiries to ascertain whether Jane-Helen is an Aboriginal child, and being unsatisfied that she is, the Aboriginal child placement principles do not apply.
Recently, in MLA, I stated (at [119]): The first step is for the Secretary or Principal Officer (a person referred to in s 14) "to make reasonable enquiries". That is a directive in my view for the relevant person to be proactive, and that such inquiries are to be made prior to placement. It is not for another person (whether birth parent or otherwise) to raise the issue, although that would place the Secretary for example on clear notice. Of course even if the birth parent claims a child is Aboriginal, reasonable enquiries need still in my view to be made as the claim may be based on a mistaken belief or worse be bogus. However, if having made reasonable enquiries the relevant person is not "satisfied" the child is Aboriginal, the placement principles do not apply. Indeed this is explicitly contemplated by s 34(2).
What constitutes reasonable inquires under s 34, will turn upon the context and circumstances of the individual case, including necessarily what questions are asked and the context in which the questions are posed. The responses given will clearly be highly relevant, and may necessitate further inquiries as well as obtaining credible information from third parties. It may be, or perhaps usually and arguably will be, affected by what information or inquiries the Secretary already has undertaken or obtained as a result of any Care Act proceedings.
It is worth noting that s 34(1) clearly refers to 'a child'. That is, the Secretary must make reasonable inquiries as to whether a child to be placed is an Aboriginal child. It is clear then, that reasonable inquiries must theoretically be undertaken with regards to every child being placed for an adoption.
As observed by Brereton in Hogarth (No 2), it may be that upon reasonable inquiries being made, the Secretary is 'unsatisfied' that a child is Aboriginal, in which case the Aboriginal child placement principles simply do not apply.
However the obligation to make reasonable inquiries is not to be taken lightly. The satisfaction reached that a child is Aboriginal is of significance, not just because of the statutory emphasis on Aboriginality, but because ensuring a child's placement and adoption is culturally appropriate is vital to the best interests of that child. A child's placement is ideally done to support and protect his/her cultural identity, and if no reasonable effort is made prior to placement to ascertain a child's cultural background they may be placed in a home that is inappropriate. Those enquiries must focus on the definition of Aboriginal and its necessary components.
Such case law on 'reasonable inquiries' within the adoption context centres mainly on whether upon reasonable inquiry a birth parent cannot be identified, and therefore whether consent may be dispensed with. It seems to me that the difference between 'inquiry' and 'inquiries' within the Act is of little consequence. They both mean an 'investigation', 'to request information' or a 'question'. Dispensing with the consent of a birth parent is equally as significant as making a finding that a child is Aboriginal. It is clear, as is apparent from the case law on both s 67 and s 34 generally, that the obligation to make reasonable inquiries is one of upmost significance and cannot be tokenistic.
The exact content of what will constitute 'reasonable inquiries' is less clear. I have already found, in MLA that at the very least, the obligation is on the Secretary or proper officer generally to be proactive and raise the issue of Aboriginality. This can occur by asking questions, or very simply requesting a relevant person to complete some very direct written questions.
In some circumstances there may be a need, upon a birth parent asserting a particular cultural identity, to undertake further enquiries in order to qualify as a 'reasonable inquiry' under s 34. For example, where an assertion seems in the context, incongruous with other known facts about the child or birth parents such as inconsistent information between an assertion and a birth certificate or credible evidence from a third party, the issue may need to be pursued further. Likewise, in cases where a birth parent, either voluntarily or upon being asked by the Secretary, states that they are Aboriginal, further inquiries may still be reasonable. Brereton J in Hogarth (No 2), as discussed above, stated that upon the birth father asserting his Aboriginality, it was reasonable on the part of the Secretary to ask for further information about his heritage such as the names of parents and grandparents who were allegedly Aboriginal.
In other cases however, upon the Secretary asking the question about whether or not a birth parent is Aboriginal, of Aboriginal descent, or indeed has any Aboriginal family members, and receiving a positive response that they are of another cultural background, depending on the circumstances, may be enough to fulfil the requirements under s 34. An emphatic assertion of a particular cultural heritage, may not, in many circumstances absence credible evidence to the contrary, warrant further questioning and interrogation. Further, it seems to me that as a matter of practicality there may be circumstances, during the placement process, where a particular cultural heritage will be asserted, whether it is Aboriginal or other, before the Secretary can properly ask any question. This of course, depending on the circumstances, may well be sufficient in establishing 'reasonable inquiries' under s 34.
Moreover, reasonable inquiries I consider do not go as far as to require the Secretary to aggressively interrogate birth family members. Nor is it reasonable to expect extensive genealogical history to be undertaken without some basis founded in reality as opposed to some theoretical consideration or plain curiosity.
It will always be relevant to consider the likely outcome of such enquiries. Brereton J in Re DYK clearly considered that the likely outcome of further inquiries was a relevant factor in considering whether such inquiries as had been made were in any case reasonable.
However unless some vigilance is exercised there is a risk that the placement principles are rendered devoid of content. There is no place in this context for indifference, expedience or complacency. But if reasonable enquiries have been made and the Secretary is unsatisfied as to Aboriginality, then the placement principles do not apply.

[9]

The best interests of the child

Sections 7 and 8 of the Act provide: 7 What are the objects of this Act? The objects of this Act are as follows: (a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, (d) to recognise the changing nature of practices of adoption, (e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas, (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and other international agreements, (g) to encourage openness in adoption, (h) to allow access to certain information relating to adoptions, (i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents. 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, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, (f) if the child is Aboriginal - the Aboriginal child placement principles are to be applied, (g) if the child is a Torres Strait Islander - the Torres Strait Islander child placement principles are to be applied. (2) In determining the best interests of the child, the decision maker is to have regard to the following: (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

[11]

Clearly Preferable

Section 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 (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, 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 (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and (e) if the child is an Aboriginal child - that the Aboriginal child placement principles have been properly applied, and (f) if the child is a Torres Strait Islander child - that the Torres Strait Islander child placement principles have been properly applied, and (g) if the child is a non-citizen child from a Convention country or other country outside Australia - that the applicable requirements of this Act and any other relevant law have been satisfied, and (h) in the case of a child (other than an Aboriginal or Torres Strait Islander child) - that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. (2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. (3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.
Particularly, in accordance with s 90(3), the Court cannot make an adoption order unless it is clearly preferable to any other action that could be taken (for example, a long-term parenting order, restoration, etc). Brereton J said of the section, in Adoption of KH [2015] NSWSC 274 (at [46]): This requires identification of the likely effects of adoption, and of the various available alternatives, and their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is or is not clearly preferable to all others
In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to s 8 (at [14]-[17]): In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met. Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]]. The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows: • Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships; • Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and • Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them. In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption.
What is meant by 'clearly preferable' has been considered in a number of authorities. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J stated that the phrase required 'something more than a slight preponderance of considerations in favour of adoption over the alternatives (at [14]). Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926, stated (at [99]): The words 'clearly preferable' in s 90(3) do not require the court to be satisfied 'beyond reasonable doubt'. Rather "the word 'clearly' serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [52] (Palmer J) and that the order for adoption be "obviously, plainly or manifestly preferable" to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J).
In Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142, Palmer J states that (at [67]): The test required by the Act is not whether the child can manage without an adoption order; rather it is whether the child's best interests throughout life are best served without an adoption order. Put another way, if the child clearly can manage better with an adoption order than without one, then an adoption order satisfies the requirement of s 90(3) that is clearly preferable to any other form of care order. An adoption order is often compared to a guardianship order or assigning a parental responsibility to the children's current carers. Recently in the Adoption of Taylor-Clay [2019] NSWSC 27 Brereton J considered the effects of adoption and the various alternatives. His Honour made a number of important points as follows: Adoption contributes to providing for children who cannot be raised by their birth family the stability security and certainty that they need. It provides certainty and permanence directly for the child but indirectly through the certainty it affords the adoptive parties. Future disruption and separation is minimised partly by reason of practically foreclosing any possibility of restoration by birth parents. Again this provides certainty for the child and the adoptive parents. Adoption serves the identity needs of children. In most cases there is already an emotional, psychological and residential bond with the proposed adoptive family. The order for adoption brings the legal status into conforming with the reality. Adoption places children on an equivalent basis with equivalent rights as any biological children of the adoptive parents. Adoption in the current environment does not prevent the child from knowing and having some relationship with their birth family. In becoming part of a legally recognised family for the remainder of their childhood Departmental intervention and approval for significant decisions is removed. A parental responsibility order on the other hand does not render the child a permanent member of the carer's family. It is amenable to variation and perpetuates a level of uncertainty and instability which may not be in a child's best interests. Further in his judgment at paras [64]-[69] Brereton J considered the accepted social science on the comparison between adoption and long-term placements. It is clear from the discussion by the learned Judge that in most situations an adoption order by bringing the child's legal relationship and status quo in conformity with the practical realities of the situation provides enhanced stability and certainty for all concerned, and that by and large such orders are to be regarded being in the best interests of the child or children concerned. The facts of any particular case must however be carefully evaluated.

[12]

Contact and adoption plans

Adoption plans are frequently used to provide certainty around contact regimes between the child and the birth family in the context of open adoption.
The importance of an adopted child's contact with their birth family has been noted in several cases (see e.g Adoption of AT [2016] NSWSC 1971; Adoption of NG (No 2); In the matter of O; In the matter of S [2019] NSWSC 20; Adoption of KH [2015] NSWSC 274).
In Re the Adoption of AJH [2017] NSWSC 751, Hallen J emphasised that contact was to be for the benefit of the child. His Honour stated (at [356]): Furthermore, the terms regarding contact should be "realistic and achievable. Unduly generous promises of, or indications as to, future contact should not be made in order to achieve a resolution of a case, however tempting that may be. Agreements as to contact should not include provision for excessive contact which is not in the interests of the children": Kate and William, Re- Reduction of Post Adoption Contact [2017] NIFam 13 at [16].
Recently in Hogarth (No 2), Brereton J noted the following (at [121]): As the parties to the adoption (being in the circumstances the Principal Officer and Ms Herriot) have agreed to an adoption plan, the Court may not make an adoption order unless satisfied that the arrangements proposed in the plan are in the child's best interests and proper in the circumstances. Whether the arrangements are proper in the circumstances requires consideration of all the circumstances relevant to the arrangements, and in particular the purpose of "open adoption" - being one in which the child will know and have contact with her birth family. And although it may be observed that if there is no adoption plan providing for contact there is no such statutory hurdle, nonetheless the arrangements for birth parent contact are relevant to whether an adoption order should be made, regardless of whether or not there is an adoption plan, because they bear on whether the child's identity needs will be adequately addressed, and thus whether adoption is in her best interests. The Secretary proposed that the adoption plan be registered. Registration provides an additional measure of assurance to birth parents in respect of contact, as a registered plan is enforceable as if it were an order of the Court, and even if they are not parties to the plan, they have standing to enforce the deemed order in their favour. For that reason, and not least because of my sense that while Ms Herriot will comply with her legal obligations in respect of contact she may not proactively promote birth parent contact, I would register the plan were I satisfied, for the purposes of s 50(3)(c), that its provisions were in the child's best interests and proper in the circumstances.
With respect to adoption plans s 46 of the Act provides: 46 What is an adoption plan? (1) An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to: (a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following: (i) the child's medical background or condition, (ii) the child's development and important events in the child's life, (iii) the means and nature of contact between the parties and the child, and (b) any other matter relating to the adoption of the child. (2) Without limiting the matters for which an adoption plan may make provision: (a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and (b) it may provide for the giving of certain financial and other assistance as referred to in section 201. (2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child. (2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child. (3) An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a). (4) If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.
Where there is an adoption plan, the Court may register that plan if it is satisfied that the plan does not contravene the principles of the Act and is in the best interests of the child and proper in the circumstances (s 50(3)).
The power of this Court to make an Adoption Order and register an adoption plan is clear. However, this Court also has the jurisdiction, under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to make orders under the Family Law Act if appropriate. Brereton J in Adoption Director-General of Family & Community Services; Re TVK [2012] NSWSC 1629, held that the Supreme Court could make a Family Court Order contemporaneously with an Adoption Order (at [30]-[46]).
In JLR, Bergin CJ in Eq, although acknowledging the jurisdiction of this Court to make a family court order did not deem it necessary to do so in the particular circumstances of the case. In her opinion, registering an adoption plan was sufficient to provide a degree of certainty and enforceability to the parties (at [123]).
For reasons which follow the parties have requested orders pursuant to the Family Law Act. I see no reason not to make orders pursuant to that legislation in the appropriate case.

[14]

Evidence

There were numerous affidavits relied upon in these proceedings.
The Plaintiffs, Helen and Carly, the two proposed adoptive parents, filed several affidavits each. They describe their commitment to each other and to Ben and their wish for him to become a legal part of their family. They state that they believe it is in Ben's best interests to be adopted so that he can have a stable and permanent home.
Both Helen and Carly state that they have always been committed to facilitating Ben's contact with his birth family over the many years he has been in their care, and that they recognise the importance of contact in assisting Ben understand his own identity.
In particular, Helen and Carly describe how they are helping Ben engage with his Aboriginal heritage, by introducing him to the wider Aboriginal community, participating in various cultural events and slowly helping Ben understand his identity.
The Plaintiffs also filed the affidavit and s 91 report of Ms Wyles dated May 2018. The report records the strong bond between Ben and the proposed adoptive parents. It notes that the proposed adoptive parents have been able to support all of Ben's needs, and that they have helped him develop as a happy and healthy child.
The Plaintiffs also filed the affidavit of solicitor Mark Whelan dated 17 October 2018. Mr Whelan exhibits, Ben's consent to his adoption as well as evidence that he has undergone the required counselling prior to giving his consent.
The Plaintiffs also filed the affidavits of two referees.
The birth mother filed two affidavits in the proceedings. The birth mother states that she opposes the adoption as she believes that an adoption would sever Ben's connection with his siblings and deny him the ability to experience and participate in his own heritage and culture. She raises doubts about the ability of the proposed adoptive parents to adequately facilitate contact visits between Ben and his birth family. She states that she has made significant improvements since the time that Ben was taken from her care and is seeking to get all her children restored to her. She notes that she currently has one child restored to her care and another child who is living with her.
She states the following about Mark's cultural identity (Affidavit of Ashley Thompson dated November 2018 [10]): Ben is Aboriginal. His father is Aboriginal. His father had been made aware of his Aboriginal identity in the last 18 months following investigations by FACS and LINK UP. His father has been raised thinking he was Maori and his mother (Paternal Grandmother) has denied her own identity and has been racist in her attitude toward Aboriginal people. His father also spent part of his life in care and his Aboriginality was not recognised. His grandfather (Paternal Grandfather) was also Aboriginal. Much of his father's family are Aboriginal and do identify as Aboriginal however this was actively silenced by the Paternal Grandmother.
The birth father filed two affidavits in the proceedings. He states that he opposed the adoption because he believes that it will deny Ben the opportunity to participate in his Aboriginal culture. He states he is seeking to have his children restored to his care. He also raises doubts about the proposed adoptive parents' commitment to contact visits. He states the following about his Aboriginal heritage (Affidavit of Mark Gordon dated 19 October 2018 [9]-[11]): Up until relatively recently I was not fully aware of my aboriginal heritage. In about late 2016 when I was assisting FACS with a genogram they discovered aboriginal heritage on my father's side. I do recall growing up there were sometimes mentions that there was aboriginal ancestry in our family but my mum was racist and was always speaking down about aboriginal people and other races. Mum would dismiss the talk of any aboriginal links and claimed we were New Zealand Maori. So while I was a little surprised when FaCS told me about the aboriginal ancestry on my father's side it did not come as a complete shock. I had always had a suspicion that that was the case but never really had any solid proof or information to go on given my dad committed suicide when I was 10 and I never really got to know the paternal side of the family.
In his second affidavit, filed 7 March 2019, Mark states that he is inquiring through the local Aboriginal Land Council as well as Link Up about confirmation of his Aboriginality. At this stage he has not been accepted as part of an Aboriginal community.
Milton Thompson, the maternal birth grandfather, filed three affidavits in the proceedings. He confirms that he currently cares for four of Ben's siblings in Victoria and that he opposes the adoption. He opposes the adoption because of concerns about the proposed adoptive parents' ability to facilitate contact visits. He states he believes that Ben enjoys and benefits from contact with his siblings.
The Secretary filed various affidavits in these proceedings as well as relied upon various reports by caseworkers, file notes and in particular a genogram prepared by Judy Norris (from CB4:1342). In the affidavit of Ms Jillian Herberte, delegate of FACS, filed 10 December 2018, she states that FACS although not withdrawing their consent to the adoption considers that it would not be in Ben's best interests and clearly preferable to order an adoption. This position is based on the improvements that Ben's birth parents have made with respect to their parenting capacity, the fact of Ben's Aboriginality, and the increasing difficulties surrounding contact between Ben and his birth family.
In the affidavit of Ms Amanda Whitbread, Senior Project Officer for the Office of the Senior Practitioner, filed 6 February 2019, she states that she undertook a review into Ben's adoption and completed a report based on her findings. Her report concluded that FACS should not support the application for adoption, primarily due to reasons of Ben's Aboriginality and concerns about the proposed adoptive parents' ability to support contact with Ben's birth family.
In the affidavit of Ms Herberte filed 8 February 2019, she outlines the extensive adoption process that has been undertaken with respect to Ben and highlights the various adoption assessments and care plan reviews that have occurred. Ms Herberte, as delegate, based on the report of Ms Whitbread recommends an order for parental responsibility allocated in the following way: 1. Residence, education, medical and health to be allocated to the proposed adoptive parents; and 2. Culture, religion and contact to be allocated to the Secretary.
In the affidavit of Ms Witherdin filed 27 March 2019, she outlines the ongoing issues with regards to birth family contact.
In the affidavit of Ms Herberte, filed 20 May 2019, she outlines the ongoing case management of Ben's placement. In particular she records concerns from a caseworker about violence within the birth parents' home, and records the restoration of Trevor to the birth parents' home and the increased contact between Ben and his birth family.
In the affidavit of Ms Herberte filed 31 May 2019, she states that in 2006 it was not general practice at FACS to proactively undertake family finding where there was no suggestion by the birth family that a child was Aboriginal. She then noted the steps undertaken by FACS upon learning of Mark's Aboriginality. This included preparing a case plan in consultation with the Aboriginal Consultation Advisory Panel and speaking to other members of Mark's extended family about their Aboriginal heritage.

[15]

Expert Evidence

Two expert reports were prepared for these proceedings.
Mr Stephen Ralph filed one expert report dated 10 May 2019. Mr Ralph was asked to advise on (amongst other things) the respective proposed adoptive parents' and the birth parents' capacity to provide for, and insight into Ben's cultural needs, as well as the effect of an adoption order in respect of Ben's access to and understanding of his culture. Mr Ralph concluded that the proposed adoptive parents demonstrated a clear and informed view of Ben's cultural needs and the significance of his Aboriginality, and was of the opinion that they demonstrated a willingness to learn about Ben's Aboriginality and encourage him to value and appreciate his cultural heritage. In contrast, Mr Ralph noted that the birth parents had little knowledge or understanding of Ben's Aboriginality and were not able to clearly articulate Ben's needs regarding his cultural heritage. Mr Ralph was of the opinion that the making of an adoption order over a long-term parental responsibility order would have little impact on Ben's access to and understanding of his culture. He stated that he believed the proposed adoptive parents will 'support and assist him in exploring and discovering his Aboriginality in accordance with Ben's views and wishes' (pg 13). No cross examination was conducted of Mr Ralph.
Ms Starkey filed one expert report dated 22 May 2019. Ms Starkey was asked more generally to advise on (amongst other things) whether or not an adoption or some other order would be in Ben's best interests and clearly preferable, as well as the best way to facilitate contact going forward.
Ms Starkey strongly supports an order for adoption and believes that this would be in Ben's best interests. She notes that (pg 82): It would appear that many of the decisions made in relation to Ben in the past, largely regarding contact arrangements and the process of adoption, have been made to meet the needs of the adults in his life more than his needs.
She notes that given the changing views, as well as comments from the birth family that soon Ben will be "coming home", an adoption order is necessary to give Ben a sense of permanency and stability. She notes that the proposed adoptive parents have more than adequately met all of Ben's emotional, physical, mental and intellectual needs over the 12 years he has been in their care.
She states (pg 84): There appears to be no doubt, based on Ben's psychological attachment to the proposed adoptive parents, his need for security and stability, and his own desires to be adopted, that the Court should make a determination for Ben that allows him to have the permanency that has eluded him for many years now, owing to the lack of consistency shown by Community Services in their commitment to the adoption process, even though for the most part adoption was the long term case plan for Ben.
With regards to contact, Ms Starkey made several recommendations. She stated that there are some concerns regarding the birth parents' drug use, concerns of domestic violence in the home as well as the ongoing emotional abuse of Ben by the birth family where they constantly pressure him to withdraw his consent to the adoption. However she emphasised the importance of birth family contact and noted that Ben enjoyed seeing and interacting with his siblings. She recommends generally that contact should occur at a minimum once a month, including 4 contact visits per year with Ben's siblings in Victoria.
Ms Starkey was cross-examined on the second day of hearing. Questions were primarily concerned with recommendations surrounding the contact regime.
Ms Starkey reiterated the importance of birth family contact and in particular, Ben's developing relationship with his siblings (T43/42-44/6). She stated that monthly contact including 4 overnight visits was appropriate (T44/8-39) but stressed that if there was evidence of the birth family using drugs, violence in the home, or causing emotional distress to Ben(for example asking when he was 'coming home' to the birth parents' house) then contact should be supervised (T44/41-49).
The issue of a planned trip from July-October this year, around central Australia for Ben, Helen and Carly was discussed. Ms Starkey stated that although the trip was a wonderful opportunity for Ben, adoption counselling should take priority (T48/2-37).
Upon the conclusion of the cross-examination, I invited Ms Starkey to make any additional comments, she stated the following (at T70/20): I am a little concerned about the proposals for contact having to be nutted out quite so specifically. I've been told that those orders will only be a default order and that hopefully contact would be better organised amongst the adults involved. And I think that when they attend their post‑adoption counselling or any counselling that they do, that that's what they really should look towards. It'll be much more beneficial for Ben if the contact can be organised in a positive way and in a cooperative way, rather than saying, I'm supposed to have that weekend; you can't take him to that party; and I won't agree to take next weekend. You know, that sort of thing is not going to be helpful for anybody involved. And if they can come to some conclusion about working together, it would certainly be much better for Ben.

[16]

Submissions

There were limited submissions from the parties as to some of the discrete issues raised in this matter.
The Secretary submits that Mark does not satisfy the definition of Aboriginal for the purposes of the Act, but that Ben may be an Aboriginal child under s 4(2) (Submissions, 31 May [21]-[22]). The Secretary states that it is at the Courts discretion to find that Ben is an Aboriginal child under s 4(2) (Submissions, 31 May [23]). They further state that should the s 4(2) require a determination of an ancestor fulfilling the requirements of s 4(1), then s 4(2) is of no material difference to the definition of an Aboriginal child in s 4(1). They submit this interpretation is consistent with the purposive interpretation of the statute (Submissions, 31 May [38]). They contended that when descent is so remote as to not be significant, then the Court can exercise its discretion to find that a child is not Aboriginal (T86/45-87-2). Nonetheless, the Secretary submits that the Court would find that Ben is an Aboriginal child under s 4(2) (Submissions, 31 May [75]).
The Secretary submits that the Court should find that placement occurs when a child is in out of home care with the case plan of adoption, here this first occurred in October 2008 when the long term placement goal was amended to the goal of adoption (T97/25).
The Secretary submits that reasonable inquires have to be made prior to placement (T97/35), and that in this case, upon inquiries being made the Secretary was not satisfied that Ben was Aboriginal (T98/13). The Secretary submits that seeking and receiving information provided by a birth parent is reasonable inquiry (Submissions 31 May [71]). Therefore, no jurisdictional issue under s 90(1)(e) arises.
The Secretary notes that under s 90(1)(e), the Court does not have the jurisdiction to make an adoption order unless the Aboriginal placement principles have been properly applied. The Secretary submits that 'properly' is a qualitative description that must relate to the facts of the case, in this matter it is significant that neither birth parents knew of their Aboriginality until 2017 (Submissions 31 May, [47]). Further, the Secretary submits that in any case Ben can be considered 'placed' according to the principles s 35 (Submissions, 31 May, [51]). Although the Secretary notes that technically s 80 has not been complied with, they submit that to find that an adoption order could not be made because of non-compliance with s 80 would make a nonsense of the Objects and Principles of the Act (Submissions 31 May, [55]-[56]). The Secretary submits that ss 33 and 34 do not form part of the Aboriginal child placement principles, and noncompliance does not prevent making an adoption order under s 90(1)(e) (Submissions 31 May [57]).
The Plaintiffs made several submissions on the Court's jurisdiction to make an adoption order. The Plaintiffs contend that s 4(2) operates to oust the requirement of the three limb test in s 4(1), and a construction that would require ss (2) to meet the three limb test would result in ss (2) having no practical role to play (Submissions, 5 June, [21]). They later submit that the purpose of s 4(2) is to enable the Court to resolve disputes as to whether a child is an Aboriginal child for the purposes of the Act (T104/26).
The Plaintiffs submit that Ben may be recognised as an Aboriginal child under s 4(2) despite the fact that Mark Gordon does not fit the definition of Aboriginal for the purposes of the Act, (Submissions, 5 June, [23]). They note that the Court would be satisfied and could make a determination under s 4(2) that Ben is an Aboriginal child (Submissions, 5 June, [47]). However the Plaintiff's note that the evidence is both hearsay and information based on historical records and that there are several inconsistencies in the genogram which are not explained (Submissions, 5 June [26]-[31]).
The Plaintiffs submit that ss 34(1) and 34(2) are standalone provisions, and that ss (2) operates at any time where the Secretary forms a view that a child is an Aboriginal child, and can come into play at a later point in time (Submissions, 5 June [35]). The Plaintiffs submit that the obligation to make reasonable inquires under s 34(1) commences upon the time that the Adoption Act has application, that is when the Secretary consents to the application to adopt, in this case February 2016 (T105/10-23). In this case reasonable inquiries were made (T106/31-39).
The Plaintiffs agree with the Secretary that only s 35 forms part of the Aboriginal child placement principles (Submissions, 5 June, [35]).
Mr Anderson, counsel for the birth father made brief submissions as to the Court's jurisdiction. He submitted as I understand it that the Secretary had failed to make reasonable inquiries under s 34 and thus the Court lacked jurisdiction to make an adoption order under s 90 (T23/50). The birth father further submitted that he had in fact been 'accepted' as part of the Aboriginal community and thus satisfied the three limb definition of Aboriginal (T110/25-36). He further notes, that there is evidence from Mark's birth family, that they had some knowledge of Aboriginality prior to 2016 and this would have been realised had the Secretary considered family placement options and undertaken reasonable inquiries in 2006/2007 (T110/46-111/45).
The Secretary provided further written submissions on 6 June 2019. The Secretary submitted that the adoption order was clearly preferable and in Ben's best interests having regard to all the circumstances of the case. The Secretary further submitted that the Court should make the family court orders as proposed in order to provide the parties involved with security and stability going forward.

[17]

Aboriginal child

There was much discussion as to whether in fact Ben was an Aboriginal child for the purposes of the Act.
It was uncontroversial that Ben himself did not satisfy the three limbed test as stated in the Aboriginal Land Rights Act. I am further of the view, that Mark has not yet, on the evidence, been accepted as part of an Aboriginal community. Although I note that he is currently in Aboriginal housing, I am not satisfied that this amounts to acceptance. It is clear from the language in the Aboriginal Land Rights Act, that an individual must be 'accepted by the Aboriginal community as an Aboriginal person', and it does not seem to me that acknowledgment of Aboriginality of a government agency amounts to such relevant community acceptance. There is no evidence before me as to the selection criteria for such programs, or with which Aboriginal community the housing program is associated. However, I do acknowledge that he is currently inquiring into being accepted by a community and it is possible indeed perhaps likely that he may be accepted at some point in the future.
It is clear that by reason of s 4(1) and s 4(2), descent is sufficient, for a child to be an Aboriginal child for the purposes of the Act. Further support for this position can be taken for the New South Wales Law Reform Commission Report No 81, which was used as a basis to reform the adoptions in NSW. It is clear that there was concern that a three limbed test would be far too onerous for children to meet, for example, it is clear that very young children cannot reasonably be said to 'identify' with any particular cultural background.
I am satisfied that as I have said whilst descent is sufficient under s 4(1) and s 4(2) to making a finding that a particular child is an Aboriginal child for the purposes of the Act, the child must still be descended from an Aboriginal, meaning an Aboriginal as defined, which brings into stark relief the tripartite requirement.
Having carefully considered the evidence and the submissions I am not satisfied that Mark is currently an Aboriginal for the purposes of the Act.
There was significant discussion as to the true meaning of s 4(2). As I have noted above, it appears to me from reading the whole of s 4, that descent is sufficient under ss 4(1) and 4(2). The Secretary emphasised as I understand it the term 'may' and stated that this allowed discretion on the part of the Court to make a determination of Aboriginality, if I understood the argument correctly. There was some concern, that the Court should maintain this discretion, because of the significant obligations placed on the Secretary and the likely large number of children potentially captured by this definition. I do not agree with this proposition. What s 4(2) does, is to permit the Court to determine a child is Aboriginal on the basis of descent alone, but as I have said, the child must still be a descendant of an Aboriginal who meets the test. It is not a question of discretion, it simply gives the Court jurisdiction where relevant, to determine a child is Aboriginal, not having satisfied the definition of Aboriginal as otherwise defined.
On the basis of their researches the Secretary now identifies Ben as an Aboriginal Child and the proposed adoptive parents accept the Secretary's decision in that regard. Both the Secretary and the proposed adoptive parents proceed on that basis in particular because it appears that there are a number of Mark Gordon's extended family who have Aboriginal heritage. The proposed adoptive parents are prepared to honour and respect the identity of Ben's paternal family through Ben's life. I accept that position of course.
However it is appropriately acknowledged that the Court must be relevantly satisfied in order to make a determination of whether Ben is indeed an Aboriginal child for the purposes of the Act. That cannot simply be a matter of consent, as it goes to the very question of jurisdiction; Pantorno v R (1989) 166 CLR 466, 473; Neil v Legal Profession Complaints Committee [2011] WASCA 46, [7]; Australian Education Union v Lawler (2008) 169 FCR 327, [185]. However that consent may certainly a relevant matter in the Court exercising its discretion as to the precise terms of any order.
It is correctly submitted by the Plaintiffs, that the evidence as to Aboriginality by descent is both hearsay and information gleaned from some historical records. I also note in passing s 126 of the Act and s 73(1)(d) of the Evidence Act 1995 (NSW). Those provisions provide a Court in circumstances such as this, with an appropriately wide latitude in relation to matters of evidence, especially materials which might otherwise qualify as hearsay.
That said, the question of whether or not a child is an Aboriginal child, as with other matters for determination under the Act, should in my view be decided on the best evidence and materials which are not only credible and probative but contestable. The interests of the child in such proceedings are paramount, and defining a child as Aboriginal may have significant if not profound consequences.
Having carefully considered the materials there are in my view significant difficulties with the evidence of Ben's Aboriginality, which primarily rested on the genogram. First it was prepared by Ms Judy Norris a former case worker. Ms Norris did not swear any affidavit nor did she give evidence in the proceedings before me. She did not purport to provide expert evidence as either an anthropologist or an historian. The materials which substantially relate to historical searches and family trees are to be found in CB3/1113 and following and appear to be part of Exhibit JEH-1.
Ms Herberte in her affidavit of 30 May 2019 explained (supplementary CB: 1772 and following) that Ms Norris prepared Ben's genogram in 2017 and as a result became aware of his Aboriginal heritage but it is (according to Ms Herberte) not clear from the files exactly when and how that occurred (Affidavit of Ms Herberte, dated 30 May 2019 [12]). Importantly it seems Ms Herberte does not fully appreciate precisely what Ms Norris did.
Ms Herberte certainly indicates that Ms Norris had conversations with numerous persons in Ben's family and extended family and made what she thought were relevant enquiries (Affidavit of Ms Herberte, dated 30 May 2019 [13]-[15]).
It is also clear to me, in my view, from the description given by Ms Herberte and in the absence of evidence from Ms Norris (although there are case notes) that the questions posed by Ms Norris were of a most general nature or at least appear to be. There is no clear indication that she gave any precise regard to the statutory definition of Aboriginal at the time she conducted her enquiries. Some of the materials may well support one or other limb of the tripartite test, but it is very difficult indeed near to impossible in much of the materials to discern which. Indeed as an example in the interview conducted with Ms Rachael Moss (Ben's paternal grandmother) on 4 July 2017 although she told Ms Norris she (now) identifies as Aboriginal and that she grew up with Aboriginal families in Marrickville where she was born. She was also told in turn by her mother that she was Aboriginal and Irish, but her mother told her that she was ashamed to identify as Aboriginal (Supplementary CB: 1782). There is no suggestion or evidence of any acceptance for example of Ms Moss or indeed her mother or grandmother as she grew up by any Aboriginal community. On one view of that note Ms Moss' mother did not identify as Aboriginal, and there is certainly no evidence as I observed of acceptance, or if so by whom and when. Further this file note itself seems inconsistent with the evidence of Mark Gordon, as noted above, where he is apparently was of the belief that it is only his paternal side that identifies as Aboriginal (Affidavit of Mark Gordon dated 19 October 2018 [9]-[11]).
Ms Norris conducted many interviews with other people. In putting together the genogram it is clear that Ms Norris was convinced Ben had Aboriginal heritage. I accept that that was her genuine belief. But as she gave no evidence, a number of matters need to be observed.
First although a case worker, I am not sure precisely what her qualifications are. Second, although she conducted a significant amount of research it does not provide me with any satisfaction she focussed on the necessary statutory components of the definition. I am therefore not satisfied that she kept the definition uppermost in her mind or at all when undertaking her various researches. Indeed apart from a good deal of industry her methodology is somewhat opaque.
At CB3/1306 is the detailed cultural support plan which includes genograms prepared at least in large part it seems by Ms Norris. It is dated 16 December 2017. Again there are several points to be made. Although there is extensive information about the Wiradjuri people from whom she believes Ben is descended, as well as extensive genograms which it seems she has created, signifying Aboriginality at various points by the use of the Aboriginal flag. It is not altogether clear which if any of those persons satisfy which, if any, of the tripartite definition of an Aboriginal. Obviously in some cases she could not possibly know because they passed away so long ago. But it is not apparent relevant questions were posed to those living that she did access.
At CB3/1326 and following Ms Norris identifies somewhat cryptically who she consulted in developing the plan. Precisely how she created the genogram is not clear. There are some persons for example whose identity is shown on the genogram as 'unknown' and yet they are identified somehow as Aboriginal (CB3/1344). There is no explanation of this. Further there are of course persons also long passed identified as Aboriginal but again it is not clear how or why (CB3/1343 and 1344).
As Ms Mahony for the Plaintiffs points out (Submissions, 5 June, [28], [28]) there is a significant discrepancy in the Gordon family tree at CB1343, namely the number of persons who are identified as Aboriginal on Mark Gordon's father side, e.g. PGF/Frank Gordon (1958-1995), PGGF/Francis John Gordon (1909-?), PGGGM/ Emily Harriet Sherwood (1883-1942) and PGGF/Sidney Charles Gordon (1881-1946). However as she points out the generation before PGGGF are not identified as Aboriginal. This is not explained and gives rise to potential and significant unexplained inconsistencies in the reasoning process. But the problem goes deeper. The generation immediately following PGGM seemingly appears to have a number of people who do not it seems have Aboriginal heritage and those who do, again in my view without clear explanation. Although I note, that these issues only relate to Mark's paternal side, this does seem to me to expose issues with the research process.
Again at CB3/1343 the use of the Aboriginal flag becomes more prevalent towards the bottom of the genogram. There is no explanation for this. It may well be many people have recently either identified themselves as Aboriginal or have become to be accepted, but it is by no means clear from the genogram. There are certainly inferences which might go both ways but the evidence in this regard yet again is unsatisfactory.
Nothing I have said should be taken as a criticism of Ms Norris. However I am simply not satisfied that her conclusions have been clearly and carefully explained in a way that I find satisfactory from an evidentiary point of view, even considering every latitude permissible in the circumstances. Without being tedious it is simply not clear what criterion or criteria she used for the purposes of expressing a view one way or the other whether someone was or was not Aboriginal. Having said that I do not in any way underestimate the difficulty and complexity of the research project undertaken by her. Some of the matters may never be known or determined. But the Act is not to be ignored. The issues are too important and the provisions are there for a reason. The Court and the parties are bound by the definitions in the Act and so is Ms Norris.
What is clear is that for the Court to make a determination under s 4(2) is a very important and serious step with equally important consequences. I accept that pedantry should not triumph over common sense, but the exercise required of the Court under s 4(2) given the consequence means, in my view that a Court needs to be comfortably satisfied the child is descended from an Aboriginal as defined. On what I have seen and attempted to analyse I am not so satisfied.
That is not to say that perhaps many of Ben's descendants may or indeed may not be able to satisfy the definition under the Act. I am simply unable to say who does or does not. His father certainly currently does not, although he may well do in the very near future. On that basis I am not prepared as a matter of law to make the determination under s 4(2) that Ben is an Aboriginal child for the purposes of the Act.
There is however little doubt that the reality is that he would appear to have relatives who may well have identified and/or have been accepted and/or themselves have been descendants from people who were identified and/or accepted as Aboriginal. In the circumstances of this case I am of the view that it is entirely appropriate that he be exposed to Aboriginal culture as proposed and I do think that on balance it is in his best interests for that to occur.
In the light of the above analysis what follows may be strictly unnecessary, given that s 90(1)(e) only prevents the making of an adoption order if the Aboriginal child placement principles have not been applied to an Aboriginal child. I propose to deal, I trust constructively, with a number of issues which were the subject of debate before me although in the light of my findings above the following does not affect the outcome.

[18]

When was Ben 'placed for adoption'

I acknowledge that as is apparent from this case, the intention behind a placement can change, perhaps on a number of occasions over months or years. That might mean a change of carer but it could also mean a different attitude on the question of adoption.
From the time that Ben entered care, it appears that there had been delays due not only to changing recommendations by various assessors but also due to changing case workers and case management issues within FACS. Briefly, Ben's placement history can be summarised as follows: 1. Ben was initially assumed into care under an emergency application. He was immediately then placed on 14 December 2006 with the proposed adoptive parents, although at this stage this was intended to be a short term placement. 2. In around July 2007, Helen and Carly are approved as Ben's long term carers. 3. In around mid-2008, the proposed adoptive parents agree to the option of adopting Ben. The Secretary completes an assessment of the proposed adoptive parents and they are approved as adoptive carers (CB1: 23 [81]). 4. In October 2008, adoption was first noted as a goal on Ben's care plan (CB3: 1135). 5. In around December 2008, the care plan goal for Ben was noted as either 'adoption' or 'sole parental responsibility' be given to Helen and Carly. 6. In February 2010, an internal assessment recommends adoption. In August 2010 a second assessment recommends adoption (CB3: 1154). It appears by this time, Helen and Carly are committed to adopting Ben. 7. In April 2011 a further adoption assessment report recommends adoption (CB3: 1168). In August, the adoption process is put on hold due to opposition from the birth parents and Ben's case plan changes to permanent care. 8. In January 2012, Ben's case plan changes back to adoption. 9. In November 2012, a further adoption assessment report by Ms Haskins, recommends adoption (CB1: 78). 10. In February 2013, an addendum to the report of Ms Haskins, changes the recommendation from adoption to sole parental responsibility in favour of Helen and Carly (CB1: 88). 11. In October 2014, the OSP review into the change of position notes that there was no logical conclusion for the change. A permanency report recommends adoption. It appears that Ben's official care plan goal does not change at this stage. 12. In February 2016, the proposed adoptive parents sign an application to adopt pursuant to s 45D of the Act. 13. In March 2016 a further permanency report recommends adoption. 14. In December 2016, a summons for adoption was filed by the proposed adoptive parents in the Supreme Court of NSW. 15. In February 2018, the s 91 reports notes it is unable to unconditionally recommend an adoption. 16. In December 2018 a further report does not support adoption. 17. In May 2019, the expert report of Ms Diane Starkey recommends adoption.
In summary, it appears that adoption first appeared as an aim or purpose in 2008 and remained so until August 2012. In the years that followed there were many changes to the case plan until 2019.
The Secretary states that 'placement' occurred, when adoption first became the case plan goal for Ben. On the other hand, the Plaintiffs contend that placement occurs at the point in time the Adoption Act has capacity to apply to a child. This date is when an Adoption Summons is filed and the Secretary has consented to the application. In this case, the earliest date is February 2016, which is the date they applied to adopt.
As I have clearly said, I am of the view that 'placement' or more accurately the words "to be placed for adoption" in this context occurs when adoption becomes an aim or a goal as a real possibility and not merely theoretical. Even though the goal did change in 2013, and then changed several times after that, it is at that point that placement with the requisite aim or goal first occurs that is vital. That is the time when the question of whether a child is Aboriginal needs to be addressed otherwise it may be the placement principles are denied any meaningful application.
In this case I consider it is either in mid 2008 or at the latest October 2008.

[19]

Were there reasonable inquiries?

In this case it appears that Mark's Aboriginality was first realised in late 2016 or early 2017. According to various affidavits and file notes, the Secretary was in the process of working through a family genogram with Mark when they discovered that he had Aboriginality on both sides of his family. Prior to this, it appears that Mark identified as Maori, after being raised as such by his mother and grandmother, to harbour such a belief. Mark had become estranged from his mother and has little if any contact with his father's family (Affidavit of Mark Gordon, dated 18 October 2018 [11]-[18]).
The first mention of Ben's Maori heritage appears to be in the report of Ms Jennifer Waites dated 9 March 2016. On page 29, Ms Waites states "Ben's main cultural identity is Australian, Maori and Italian/Sicilian" and goes on to note "Carly and Helen stated that they accept that Ben was "born a Christian" but is being "brought up with Jewish traditions". The various affidavit evidence of the parties further acknowledges that Mark used to identify as Maori, but it is unclear when the Secretary was notified as to the fact, or whether or not the Secretary inquired as to this. The annual case conference minutes of the meeting held on 11 May 2016 (Ex 4) appears to be the first time Mark's apparent Maori heritage is recorded on the FACS files.
In the s 91 report of Ms Joanne Wyles in May 2018, she notes that in about 2011 the Secretary was informed by Mark that he had some Maori cultural heritage. Earlier file notes and case plan reports however acknowledge that Ben is of Italian heritage and his birth mother is Catholic.
On the evidence it is clear that at no time prior to late 2016 or early 2017 would Mark have identified as Aboriginal or asserted that he was of Aboriginal descent. It is entirely likely he did not even know or turn his mind to it, until late 2016 or early 2017. The birth mother, at no stage would have asserted that Ben had Aboriginal descent, because she was not it seems aware of Mark's real heritage.
Although there was evidence, later revealed in the 31 May affidavit of Ms Herberte, that Mark's birth family may have identified as Aboriginal at some earlier time, I am not entirely convinced as to this evidence. First, there was no direct evidence given by any of the extended relatives. Further, it appears from Mark's own evidence that he has remained estranged from his birth family for much of his life and I am not therefore satisfied that this would have been revealed in any case.
With regards to the affidavit of Ms Herberte dated 31 May 2019, although her candour is very much appreciated, the diligence of the Secretary with regards to his/her legislative obligations, at least at the time that Ben was placed in care, is somewhat unsatisfactory, in the sense of a general practice. I acknowledge however the circumstances of each case will likely be different.
It should also be acknowledged that the Secretary or Principal Officer becoming relevantly satisfied in many cases will be a complex and difficult task. 'Acceptance' and 'identity' aside, cases on 'race' make it plain that a balancing of various factors may be called for. Factual variations may be myriad and by no means do I underestimate the challenges of the investigation. But complexity or difficulty in analysis cannot act as a deterrent. In modern, urban Australia in particular the task has become more complex, especially with increasing overseas migration, substantial amount of interracial marriage and many more people having a rich and diverse cultural background. The Secretary or Proper Officer cannot achieve the impossible, they are merely obliged to be reasonable.
In this case it seems to me that notwithstanding whether there was a specific enquiry as to whether or not Ben may be Aboriginal prior to late 2016 or early 2017, nothing would probably have turned on it as the birth father would not have asserted his Aboriginal heritage as he was not yet aware of it. In my view this is a relevant consideration in determining whether or not such inquiry as was made was in fact reasonable.
In cases such as these, where many years have passed and records are not available, it can be difficult to determine the exact course of action taken by the Secretary.
It can therefore be difficult in these circumstances, then to draw inferences about the particular conduct of the Secretary. However there are several key documents in the Children's Court file (Ex 3) to which I now turn.
First, the initial applications to the Children's Court for Emergency Care and Protection, dated 9 November 2006 and the application for Interim Orders dated 21 November 2006, both record the answer "No" to the question "Do Aboriginal/Torres Strait Islander principles apply to this child/young person?". That document was unsurprisingly prepared with the legislation firmly in mind. It is reasonable to infer a relevant person turned his/her mind to the specific issue being as a result of form to do exactly that. That person is not identified and it is not known what enquiries were made and what information he or she had, but importantly the issue was it seems addressed.
It then appears that during the various appearances at the Children's Court, throughout 2006 and 2007, Mark was represented by a lawyer. The Children's Court bench sheets, note that Mark was represented on 9, 15 and 22 November 2006 by a 'Lalor' and 12 December 2006 and 28 March 2007 by a 'Williams'. Mark himself was also present at the latter two dates. I also note that the three children were separately represented from 28 March 2007 up until final orders were made in July 2007. This in my view is highly significant in ascertaining as to whether any, let alone reasonable, inquiries were necessary. When a person is represented during any proceedings, it is reasonable to make certain assumptions. First, it can generally be assumed, that under the lawyers ethical and legal obligations, he/she will present all relevant information to the Court. In this case, Aboriginality would be a highly relevant factor in making care orders for Ben under the Care Act. It would therefore be reasonable to assume that Mark's lawyers would have given consideration to all relevant matters to be placed before the Court, including the issue of Aboriginality. The fact that this was not raised throughout proceedings suggests that it was not raised because it was not thought relevant.
I then turn to the evidence that was before the Children's Court. The conversation referred to in the affidavit of caseworker Ms Jeanette Reid dated 22 November 2006 filed for Children's Court proceedings, records a conversation that she had with Mark. Although there does not appear to be a direct question posed as to heritage and identity, Ms Reid does ask Mark if he wishes to say anything further about the matter and notes that he can say anything he wishes to be submitted to the Children's Court.
Further, it appears that following Ben's initial assumption into care until a time after the final orders were made in the Children's Court, Mark had only sporadic engagement with the Secretary during the early stages of Ben's placement.
The affidavit of Ms Toni Latham dated 30 April 2007, records the following: A number of attempts have been made to contact Mark Gordon in relation to the development of the Care Plans. I have spoken to his stepfather on 23/04/07, mother…on 24/04/07 and brother… 26/04/07 and asked them to tell Mark to contact the …DOCS office. I have also rung his mobile phone on 3 occasions with no response.
The Care plan made for Ben and others, prepared in April 2007 notes importantly that the children are not Aboriginal for the purposes of the Care Act. The notes attached to the care plan also relevantly states (CB3/1121): Mark Gordon: The current address of the father is unknown. A number of attempts to contact him by mobile phone were made, however he did not answer. A phone call was made to his mother … to inform Mark of the invitation to participate in the development of the care plan. [Mother] was unwilling to inform the Department of Mark's current address or any other contact details, however was happy to pass of (sic) the message.
It therefore appears, that during the period between Ben's removal in late 2006 and the time he could effectively be considered for adoption in say around October 2008, there was limited opportunity for any caseworker to communicate directly with Mark, and the issue did not emerge through the intervention of Mark's lawyers and for perhaps a good reason. Further, had Mark at the time been asked about his heritage he would likely have asserted he had Maori heritage.
In late November 2009, Mark participated in a care plan review. The report notes that "Mark disclosed that he wasn't religious and the need for a Christening was mainly Ashley's concern." (CB4/1417). It is clear then, that the issue of Ben's cultural and religious heritage had already been raised prior to this review and that Ben's Catholicism had already been identified. It also appears further, that the caseworker, inquired into the issue of being christened and any decisions to be made re Ben's upbringing, and Mark did not, it seems, make any representations as to any particular heritage.
At the time of the proceedings under the Care Act, there is no evidence in my view which would have activated any reason on the part of the Secretary to believe Ben was an Aboriginal child. Throughout the years up to 2008 in any number of contexts no suggestion was made by anyone including his lawyers but importantly Mark about or even hinting at Aboriginal heritage.
By 2008 the issue of Aboriginality had obviously been it seems addressed directly or indirectly. There is no direct evidence that there was a specific enquiry in 2008 pursuant to s 34 of the Act. But it must be said as a matter of practical reality the Secretary was clearly unsatisfied Ben was Aboriginal, and I am confident that opinion was fairly held by the relevant persons concerned. In my view given all that had occurred during the years he was taken into care and in particular the proceedings in which Mark was represented, I am not satisfied posing the precise question in 2008, upon adoption becoming a case plan goal, was necessary given the circumstances. If posed directly I am satisfied Mark at that stage would have asserted Maori heritage. On that basis I consider the Secretary's behaviour was reasonable and the issue was likely and reasonably regarded as a non issue.
That opinion continued to be quite reasonable in my view up to the time when it was first raised in 2016 or 2017. The 2013 communication of the local primarily school is proof in my mind as to that continuing unsatisfaction (CB2: 518). I cannot imagine the Secretary communicating in that manner without a firm belief to that effect, which on the facts as presented was wholly reasonable.
As at 2008 the Secretary had not in my view been alerted to any possible claim of Aboriginality on Ben's part. From the care proceedings it is clear that the Secretary had already turned its mind to the issue of Aboriginality and had no reason to believe Aboriginality was a factor at play. In particular the Secretary was entitled to rely on Mark's lawyers raising all relevant issues and proceed on that basis. I further note Mark's sporadic engagement with the development of Ben's care plans. I am of the view, that in 2008, upon Ben being considered for adoption, the Secretary, was entitled in all the circumstances to be unsatisfied that Ben was an Aboriginal child. In that event the relevant placement principles had no application. Had it been relevant I am satisfied in all the circumstances of this case s 34 has been complied with.

[20]

Clearly Preferable and in the best interests

In order to make an adoption order under s 90 I must be satisfied that in all the circumstances, and having regard to the Objects and Purposes of the Act, adoption is in Ben's best interests and clearly preferable to any other option available.
Ben has been subject to numerous assessments over his 12 years in care, and although the formal recommendation has changed from time to time, no report has ever raised doubt as to the quality of care provided by Helen and Carly, nor to the obvious psychological attachment that Ben has to them. It is clear, from the most recent expert reports that Helen and Carly are in the best position to provide Ben with the emotional, intellectual, physical and cultural support that he needs. They have demonstrated a nuanced understanding of Ben's cultural heritage, including his Aboriginality, and have indicated their willingness to help Ben understand his identity in a gentle and age-appropriate manner.
Ms Starkey in particular, noted the extreme emotional distress that has been put on Ben due to, in part, the ongoing conflict between the adults surrounding him. I am of the view, that an adoption order will provide the necessary stability and permanency that will ameliorate the ongoing disruptions to Ben's life, in respect of continuing assessments, ongoing engagement of caseworkers and FACS staff, as well as the continuing and sometimes disruptive changes to contact regimes.
It is clear to me that the proposed adoptive parents clearly love and deeply care for Ben, and he them. It is clear from the evidence before me, that Ben's primary psychological bond is with the proposed adoptive parents. It would be unthinkable to sever these bonds after 12 years together. What would be best for Ben is making his legal status match his lived reality and allow Helen, Carly and Ben to become a legal family together. In particular adoption will give Ben permanency and security long after he turns 18 and will allow him to travel with ease and inherit from the proposed adoptive parents.
I note that the primary concerns about an adoption order appear to be related to the ability of the proposed adoptive parents to maintain contact with Ben's birth family, and to retain Ben's connection with his Aboriginal heritage. It is clear, after carefully considering the evidence of both Mr Ralph and Ms Starkey, that these concerns are not substantiated.
In particular, I have had regard to Ben's consent to the adoption and his wishes as expressed most recently in the report of Ms Starkey as well as formally in the exhibit to the affidavit of Mark Whelan. I am of the view, that Ben is clearly a thoughtful and intelligent child who has considered what an adoption order would mean, and has expressed his strong desire to be adopted and become legally part of the family with which he has been living for the past 12 years.
In my view adoption is clearly preferable.

[21]

Contact and adoption plans

As I have already mentioned the issue of contact was at the outset identified as one of the more contentious issues in the proceedings. However over the course of the week, no doubt with the assistance of Counsel, the parties arrived at a consensus subject to Court approval of certain Family Court Orders. Although the issue of contact was ultimately resolved by the parties, I must still be satisfied that the regime proposed is in the best interests of Ben.
It is clear that over the length of these proceedings, positions have become fortified and relationships strained. I commend the parties on being able to reach an agreement via ongoing negotiations and to put aside their own needs and focus on the wishes of Ben.
I note that in JLR, Bergin CJ in Eq, did not find it necessary to make Orders under the Family Law Act given that an adoption plan if registered, could be legally enforced by the birth parents.
However, given all parties have consented to the making of a Family Court Order and believe it will give them more stability and certainty going forward, particularly when the maternal grandfather is based interstate, I see no reason to go against their wishes. I note that I have the jurisdiction to make a parenting order under s 65D of the Family Law Act (Re TVK [2012] NSWSC 1629). In making a parenting order, under s 60CA of the Family Law Act I must regard the best interests of the child as the paramount consideration.
I have carefully considered what is proposed. I am of the opinion, that the regime proposed in the Family Court Order provides enough stability and certainty going forward to help the proposed adoptive parents and the birth family foster a more constructive relationship for Ben's benefit. It is clear to me that such certainty is needed at this stage to allow the parties to move forward from what has clearly been a stressful period, and the regime proposed prevents Ben from being tasked with making his own decisions around contact, which was clearly a source of ongoing emotional stress for him. I also note, most importantly, that the orders are in line with Ben's wishes. He has clearly expressed to numerous assessors, and caseworkers that he enjoys contact with his birth family and wishes for this continue but has expressed numerous times that it is his desire to be adopted. I believe that I can do no better than to respect his wishes.
I regard it as entirely appropriate, and as is proposed that Ben be introduced to the Aboriginal culture, notwithstanding my findings on the facts and the law. Whilst he is not on my findings at the moment an Aboriginal child based on the evidence before me, he is likely to be a descendant of one or more people who are or were members of the Aboriginal race, a determination under s 4(2) of the Act.. He should be rightly proud of that as he should be his mixed heritage, which situation he shares with many other Australians. I regard it as entirely appropriate that he be exposed to Aboriginal culture as proposed which happily is with the concurrence of all concerned.

[22]

Conclusion

I am satisfied that all the formal requirements on the Act have been met. I am satisfied that Ben was resident in NSW when the application for adoption was filed. I am satisfied that the Plaintiffs are both persons of good repute and fit and proper persons to fulfil the responsibilities as parents for Ben and that they were selected in accordance with the provisions of Part 3A of the Act.
As I have already noted, I have had regard to the fact that Ben has consented to his adoption under s 54(2), and signed the form of consent on 20 September 2018. I am satisfied that Ben had received appropriate counselling and a copy of the relevant mandatory information prior to signing.
I am further satisfied that I have jurisdiction under s 90 to make an Order for adoption. I am satisfied that an Adoption Order is in the best interests of Ben and is clearly preferable to any other option taken at law. In particular I note that Ben himself has consented to his adoption and, that adoption is clearly in line with his wishes. I am further satisfied that the proposed adoptive parents have the ability to support Ben's engagement with and understanding of his cultural identity.
I also approve a name change under s 101. I am satisfied that Ben has clearly given much thought to the issue and wishes to share the same name as the proposed adoptive parents. I am of the view that this will help Ben feel like he is part of his adoptive family and increase his sense of permanency and stability, and is in all circumstances in his best interests.
I am further satisfied that the contact regime as proscribed by the proposed Family Court Orders are in Ben's best interests. I believe that the regime will enable Ben to maintain and develop contact with his birth family, and spend time with his siblings which he clearly enjoys. I believe that the certainty and stability provided for by the Orders will help ameliorate some of the conflict between the parties.
I propose to make orders accordingly.

Helen Fischer & Anor v Ashley Thompson and Others

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (36)

Cited By (2)