The Adoption of Blake (a pseudonym) [2022] NSWSC 1766

The Adoption of Blake (a pseudonym) [2022] NSWSC 1766 - NSWSC 2022 case summary — Zoe

[5]

Some terminology

An "accredited adoption service provider" (AASP) means an organisation, or part of an organisation, accredited by the Children's Guardian under Sch 3B: s 110A CGA; Adoption Act Dictionary.
The Court (being the Supreme Court of New South Wales) is one of a number of persons/entities who is a "decision maker", in relation to a decision about the adoption of a child (adoption decision makers): Adoption Act Dictionary.
The other adoption decision makers are the Secretary (Secretary) of the Department of Communities and Justice (DCJ), an AASP and a principal officer of an AASP: Adoption Act Dictionary.
A "decision", in relation to the adoption of a child, includes a decision concerning the following: 1. the assessment of the suitability of a person or persons to adopt a child, 2. the arrangements for or in relation to the allocation of a child to a person or persons who will adopt the child, 3. the transfer of the care responsibility of or parental responsibility for a child to a person or persons willing to adopt the child, and 4. the giving of consent to the adoption of a child of whom the decision maker has parental responsibility: Adoption Act Dictionary.
A "party" to an adoption means (a) the child, (b) birth parent or birth parents who have consented to the child's adoption, (c) person or persons selected to be the prospective adoptive parent of the child, (d) the Secretary, and (e) the appropriate principal officer: Adoption Act Dictionary.
The meaning of "principal officer" is taken from the CGA: Adoption Act Dictionary.
There are, for the purposes of the CGA, three types of "principal officers". These are: the principal officer (a) for an adoption service provider, (b) for a designated agency and (c) for an entity providing specialised substitute residential care: s 4, Sch 6 (Dictionary) CGA.
The "principal officer" of an AASP is the person who has the overall supervision of the provision, by the AASP, of adoption services: s 110(1) CGA.
The "appropriate principal officer", in relation to an adoption, means the principal officer of the AASP concerned with the adoption: Adoption Act Dictionary.
An "adoption plan" means an adoption plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to: 1. the making of arrangements for the exchange of information between the parties in relation to any one or more of the following: (a) the child's medical background or condition, (b) the child's development and important events in the child's life, and (c) the means and nature of contact between the parties and the child, and 2. any other matter relating to the adoption of the child: s 46(1), Adoption Act Dictionary.
Under the Adoption Act "informed consent" means consent given after a person has been given the mandatory written information: s 57 Adoption Act.
The "mandatory written information" (MWI), in relation to the adoption of a child, means written information on the following: 1. the alternatives to the adoption, 2. financial and other support services available whether or not the child is relinquished for adoption, 3. possible emotional effects, both short and long term, of relinquishing the child for adoption, 4. the legal process of adoption (including the consents required and effect and way of revoking consent, the selection procedure, the role of adoption plans, the role of the Court and review and appeals procedure) and the legal consequences of each stage in the process, 5. the duties and responsibilities of the Secretary and principal officer in relation to the placement of the child, 6. the rights and responsibilities of other parties to the adoption, including access to information about, or contact with, the other parties to the adoption, and 7. any other matter prescribed by the regulations: s 57 Adoptions Act.
In this judgment my references to Ms Rennie are in her capacity as Principal Officer for Barnardos, Barnardos being an AASP. I will refer to Ms Rennie's affidavit as "OR" and to the exhibit to her affidavit as "exhibit".

[6]

Formal matters

The summons for Blake's adoption was filed on 19 October 2022.
Notice of the application for the adoption must be given to certain persons: s 88. However, as the relevant persons under the Adoption Act have consented to Blake's adoption, such specific notice is not required in this case.
The formal matters specified under the Adoption Act been complied with, specifically: 1. Blake: 1. was present in NSW as at 19 October 2022: s 23(2)(a), see OR [19]-[21], [383]; and 2. was aged under 18 as at 19 October 2022: s 24(1)(a), see OR [2], [384]. 1. Blake's mother has consented to the adoption by way of an informed signed instrument of consent in accordance with the Adoption Act, following receipt of the MWI (appropriately witnessed by a person independent of the counsellor and not otherwise revoked within 30 days since the day the consent was signed): ss 52(a)(i), 58(1), 58(3), 59-62, 73(2), 89(a), 90(1)(d), see OR [381]-[382], [391]-[396]. 2. Blake's father has consented to the adoption by way of an informed signed instrument of consent in accordance with the Adoption Act, following receipt of the MWI (appropriately witnessed by a person independent of the counsellor and not otherwise revoked within 30 days since the day the consent was signed): ss 52(a)(i), 58(1), 58(3), 59-62, 73(2), 89(a), 90(1)(d), see OR [381]-[382], [391]-[396]. 3. Specifically, Blake's mother and father have signed acknowledgements of receipt of then current versions in 2014-2016: OR [392]-[394]. Further, in mid-July 2022, each of Blake's mother and father were emailed with the current version of the MWI and Additional Information for Parent of an Aboriginal Child in Out-of-Home Care: OR [395]-[396]. 4. The Minister, being the person who has parental responsibility for Blake consents to the adoption: s 52(a)(ii), see exhibit at 153. 5. The proposed adoptive parents: 1. are a (joint) couple: ss 23(1), 26; 2. were resident in New South Wales on 19 October 2022 (s 23(2)(b)), and are resident in NSW: s 28(1)(a); 3. are of good repute and are fit and proper persons to fulfil the responsibilities of parents: s 28(1)(b); 4. are both over the age of 21 and 18 or more years older than Blake: s 28(3); 5. have been living together for a continuous period of not less than two years immediately before the application for the adoption order: s 28(4); and 6. have been selected in accordance with the Adoption Act: s 90(1)(c). 1. A written adoption report has been provided to the Court by the applicant (being prepared by the Secretary or an authorised person, in this case being Ms Rennie): s 91.

[8]

Issues

Because the applicant contends that Blake is of Aboriginal descent, and the proposed adoption is for Blake to be placed with non-Aboriginal adoptive parents, particular issues arise in respect of the adoption.
Apart from formal requirements pursuant to the provisions of the Adoption Act, the particular issues that arise in respect of Blake's adoption include the following.
The relevant issues are as follows: 1. Is Blake an Aboriginal Child (being a child descended from an Aboriginal or a child who the Court is satisfied is of Aboriginal descent): ss 4(1),(2)? 2. Has Blake been able to express any wishes regarding the adoption: ss 8(2)(a), 9, 90(1)(b)? 3. Has there been consultation by the Secretary or Ms Rennie regarding the placement of Blake: 1. with an approved or nominated person: ss 33(1), 195; or 2. with a local, community-based, and relevant Aboriginal organisation: s 33(2)? 1. Are the applicable Aboriginal placement principles satisfied, in particular: 1. has Blake and any relevant Aboriginal people been given the opportunity to participate with as much self-determination as possible in the decision relating to the placement for adoption of Blake: ss 8(1)(f), 35(1), 90(1)(e)? 2. is there reason to displace the first preference for Blake to be placed for adoption with prospective adoptive parents belonging to the Aboriginal community of his birth father (an Aboriginal parent): ss 8(1)(f), 35(2)(a), 90(1)(e)? 3. is there reason to displace the second preference for Blake to be placed with prospective adoptive parents from another Aboriginal community: ss 8(1)(f), 35(2)(b), 90(1)(e)? 4. do the proposed adoptive parents have the capacities and knowledge or willingness to assist, teach or help Blake as required regarding his cultural identity, heritage, and engagement with the wider community: ss 8(1)(f), 35(3), 90(1)(e)? 5. is Blake's father an Aboriginal parent, and if so, is Blake's proposed adoption in Blake's best interests: ss 8(1)(f), 35(4), 90(1)(e)? 1. Is the Secretary satisfied that the adoption of Blake in favour of the proposed adoptive parents is clearly preferable in the best interests of Blake to any other action that could be taken by law in relation to his care: s 36, 90(3)? 2. Have Blake's parents been given adoption counselling or offered that opportunity: ss 52, 63(1), 64? 3. In circumstances where the proposed adoptive parents are non-Aboriginal, do the proposed adoption plans provide an opportunity for Blake to develop an identity with the Aboriginal community to which he belongs and make provision for setting out ways in which Blake is to be assisted to develop a healthy and positive cultural identity and for links with his heritage to be fostered: ss 8(1)(f), 35(5)(a) 46(2)(a),(3)? 4. Are the respective paternal and maternal adoption plans otherwise compliant, in Blake's best interests and otherwise proper such that they should be registered: ss 46, 50(1),(3), 90(2)? 5. Having regard to the specified adoption principles (s 8(1),(2)) is it: 1. in Blake's best interests both in childhood and in later life (s 90(1)(a)); and 2. clearly preferable in the best interests of Blake than any other action that could be taken by law in relation to the care of Blake (s 90(3)) that an adoption order in favour of the proposed adoptive parents be made? 1. What name should be approved for Blake as his given name and surname: s 101?

[12]

Information sources

The adoption planning, procedures and placement proceed to a large extent on the communication of information regarding various aspects and matters in respect of adoption.
The Adoption Act contains a provision (found in various statutory enactments (or like variations)) which is an "admissibility clause". This provision permits the Court, in determining matters under the Adoption Act, to act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or determination whether or not such material would be admissible in evidence: s 126.
Whilst that provides the Court with a degree of flexibility, and while (self-evidently) the type and quality of evidence will vary in any given case, it is clear that the Court must, nonetheless, base its decisions upon material which carries probative weight: Adoption of 'A' [2020] NSWSC 1533 (Adoption of 'A') at [20] per Sackar J; Adoption of F and IR (anonymized) [2022] NSWSC 262 (Adoption of F and IR) per Sackar J at [15] citing Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 at 492-493 per Meagher JA (Whealy JA agreeing)
In light of the informal admissibility mandate contained in s 126, it is evident that, in the course of the planning and preparation of an adoption application and the Court's consideration of any such application, a broad range of materials will be considered for placement before the Court. Within the Adoption Act, there are numerous references to what is described as an "information source".
That expression is defined in the dictionary to include six specified sources being the DCJ, the Ministry of Health, an AASP, a hospital, the office of the Registrar or the Supreme Court.
Further, the definition expressly leaves open the possibility that other "information sources" may be prescribed for the purposes of the Act.
The Regulations have expressly prescribed seven entities or organisations as "information sources" for the purposes of the Act: reg 113(1) Adoption Regulation.
One of those information sources is Link-Up (NSW) Aboriginal Corporation (Link-Up): reg 113(1)(d).
It is clear from caselaw that, from time-to-time, Link-Up provides research for adoption applications and that such materials have been adduced in adoption hearings: see e.g. Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142 (Family Spirit) at [29], [40] per Sackar J; Adoption of F and IR at [35].

[13]

Assessment of evidence

The rules of evidence, even when strictly applied, are not there to obstruct the administration of justice. Rather, they are there to aid it by ensuring that findings and the determination of parties' rights and obligations are based on the best evidence available that has rational probative force: Adoption of F and IR at [18] per Sackar J referring to Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492-493 per Brennan J (as his Honour then was).
The finding that a child is Aboriginal or not can be of profound importance: Adoption of F and IR at [19].
Ultimately, the evidence in any particular case is a matter for evaluation of the particular Judge concerned: Adoption of F and IR at [18].
In Adoption of F and IR, Sackar J considered the approach to the reception and evaluation of evidence in light of the Court of Appeal's decision in Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; (2020) 379 ALR 248 (Hackett). His Honour, in noting the principles which assist the determination of whether a child is Aboriginal or not, stated as follows (at [25]-[32]): 25. The determination that a child is Aboriginal may be a matter of consensus between the relevant parties or it may be contested. A preliminary hearing for example is to be conducted pursuant to s 80(2)(a) and (b) when relevant. 26. And if there is to be a contest the sooner it is resolved the better. As I have already observed, the Act in s 126 provides the court with significant flexibility in relation to those materials it may have regard to in making the relevant decision under the Act and a determination a child is Aboriginal is no exception. But there are some important qualifications contained in that section. The first and most obvious from the very terms of the section is that the court exercises a discretion in two respects. First it "may" take into account various materials in the event that they "may" assist the court in fulfilling its statutory functions notwithstanding the rules of evidence. 27. Despite the obviously flexible approach intended to be adopted it should be appreciated that such a finding especially on the child concerned both in terms of the child's own identity but also the identity of the person or persons who are eligible to become the child's legal parent. 28. The materials that will be germane to such an issue will be myriad in nature. Of course the best evidence would be clear evidence of biological descent no matter how far back that descent might go. It would be expected that that type of evidence if reliably sourced would usually be conclusive. 29. It will be relevant for example when the issue of Aboriginality is first raised, by whom and the circumstances and context in which it is raised. Oral history may be important and recognition by relevant bodies is obviously a factor. Self-recognition by a birth parent or relative without more may or may not carry substantial weight. Much again depends on the context and timing of such matters. 30. Depending on the age of the child, the child's wishes will also be important, indeed very important. A good deal depends on the age of the child, his/her capacity to understand the issues, the time and context in which the child expresses those views and of course to whom the views are expressed. The mode and manner by which the child's wishes are to be considered are amply set out in ss 127-129 of the Act. 31. Almost without exception the issue of Aboriginality is often dealt with based on written materials filed with the court. Witnesses are rarely called in person and even less frequently cross examined. Indeed this is the usual procedure followed in adoption hearings proper. 32. The decision by a court as to whether a child is Aboriginal is clearly an important one which is not to be taken lightly. A court should in my view be comfortably satisfied that a determination is appropriate. By that I do not mean to suggest the threshold need be high but a court in the child's interest does need to reach a particular level of satisfaction and it would come as no surprise to observe that it is a factual exercise to be determined on the available materials.
In the Adoption of F and IR, there was a lack of evidence of any person to whom either of the children could be said to be related by way of biological descent or who could with any degree of certainty be identified as Aboriginal: at [38].
In those circumstances, his Honour was not prepared to make the declarations that the children were Aboriginal: at [39], [51]. Nonetheless, his Honour made an adoption order in favour of the proposed adoptive parents: at [51]-[59].

[15]

Meaning of "Aboriginal"

Section 4 contains definitions of "Aboriginal" and "Aboriginal child" as follows: (1) In this Act - Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Lands Act 1983 (NSW). Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2). Torres Strait Islander means a person who - (a) is descended from a Torres Strait Islander, and (b) identifies as a Torres Strait Islander, and (c) is accepted as a Torres Strait Islander by a Torres Strait Islander community. Torres Strait Islander child means a child descended from a Torres Strait Islander and includes a child who is the subject of a determination under subsection (3). (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.
The term "Aboriginal person" is defined pursuant to s 4 of the Aboriginal Land Rights Act 1983 (NSW) (Aboriginal Land Rights Act) as follows: Aboriginal person means a person who - (a) is a member of the Aboriginal race of Australia, and (b) identifies as an Aboriginal person, and (c) is accepted by the Aboriginal community as an Aboriginal person.
The meaning and operation of the definitional provisions in s 4(1) and (2) has been considered in detail by the Court of Appeal in Hackett.
The use of the expressions "Aboriginal" and "Aboriginal child" and indeed other related expressions including "Aboriginal person" and "Aboriginal parent" is, it seems, derived from historic legislative provisions which explain (or if not explain provide context for) for the use of those terms as distinct from reference to Indigenous persons: Hackett at [146]-[147] per Basten JA (McCallum JA agreeing).
The definition of "Aboriginal child" in s 4(1) takes the form of a "means and includes" definition, indicating an exhaustive explanation of the content of the term which is the subject of the definition, and conveys the idea of both enlargement and exclusion: Hackett at [52] per Leeming JA.
The term "of Aboriginal descent" in s 4(2) has a broader meaning than "descended from an Aboriginal" in s 4(1) (Hackett at [61]), with the consequence that the Court may determine, pursuant to s 4(2), that the child of Aboriginal descent is an Aboriginal child, even if no ancestor satisfied the three-limb definition in the Aboriginal Land Rights Act: Hackett at [86] per Leeming JA.
Indeed, the meaning of "Aboriginal descent", whilst usually taken to mean "biological descent", may include "social descent": Hackett at [148] per Basten JA (McCallum JA agreeing); Adoption of 'A' at [11]-[12] per Sackar J.
Specifically, the Court may make a determination that the child is an Aboriginal child if the Court is satisfied that the child is of Aboriginal descent: s 4(2); Hackett at [56], [145].
The prefacing words in s 8(1)(f) "if the child is Aboriginal" are to be read "if the child is an Aboriginal child": Hackett at [45]. On that basis where it is found that the child for adoption is an Aboriginal child the Aboriginal child placement principles are to be applied in making a decision about the adoption.
The basis for the Court's satisfaction for the purposes of s 4(2) is ultimately an evaluation of the materials put forward in each case.
The power pursuant to s 4(2) was described by Leeming JA as a "discretionary power". That is, the Court is empowered to make a determination in certain circumstances, which will have consequences for the status of the child, but also has a discretion whether or not to exercise that power: Hackett at [82]. Thus, the provision is both empowering and discretionary. Relevantly, children of Aboriginal descent, however remote, are not automatically "Aboriginal children" by reason of s 4(2): Hackett at [82].
There is no requirement in order for a child to be an Aboriginal child for a child to have a specified proportion of genetic inheritance: Hackett at [53].

[16]

Aboriginal child placement principles

The Secretary or principal officer must ensure that certain persons are consulted about the placement of an Aboriginal child: s 33.
The person to be consulted is a person approved in accordance with s 195 or a person nominated by the child's parents, extended family, or kinship group: s 33(1).
Further, the Secretary or principal officer must ensure that the placement of the child is made in consultation with the local, community-based, and relevant Aboriginal organisation: s 33(2).
Sections 33 and 195 provide as follows: 33 Aboriginal participation in decision making (1) The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child - (a) a person approved in accordance with section 195, or (b) a person nominated by the child's parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Aboriginal children. (2) In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation. … 195 Consultation with Aboriginal persons (1) The Secretary may approve an Aboriginal person as a person who may provide advice and assistance to Aboriginal families or kinship groups in relation to care options for Aboriginal children for the purposes of this Act. (2) The Secretary must not approve a person under this section unless the Secretary is satisfied that the person has relevant experience in working with Aboriginal children, whether or not in connection with their families or kinship groups.
For the purposes of s 33(1)(a) consultation involves the communication of a proposal to the person to be consulted with an invitation to express a view about it, and consideration of any view so expressed: Adoption of BR [2018] NSWSC 1009 at [13] per Brereton J (as his Honour then was); The Adoption of Edward (a pseudonym) [2022] NSWSC 1488 (The Adoption of Edward) at [38]-[39] per Stevenson J.
It does not require any particular person, including the birth parents, to consult with the person approved under s 195. Rather, the subsection is expressed in the passive voice and requires that the relevant person who is either approved or nominated be "consulted". It would be sufficient compliance if the Secretary himself (or his delegate) were to consult with the approved person: The Adoption of Edward at [41].
The provision for consultation is in the alternative so that if there is consultation with the person approved in accordance with s 195 there is no need for there to be consultation with a person nominated pursuant to s 33(1)(b).
There may be very good reasons why a s 33(1)(b) consultation does not occur, for example where the extended family of the birth parent may have a fractured relationship with a child or where the birth parent holds feelings of shame for the child's circumstances: The Adoption of Edward at [43].
The reference to a "relevant" Aboriginal organisation within the meaning of s 33(2) has been construed as being an organisation that has knowledge and expertise in the area of Aboriginal children in child protection generally: The Adoption of Edward at [44]-[45].
There is a nuance that has been detected between the type of consultation that occurs pursuant to s 33(1) and that which occurs pursuant to s 33(2). Stevenson J in The Adoption of Edward made the following observation at [49]: However, unlike s 33(1)(a), which requires that the Secretary ensure that the relevant person is "consulted", s 33(2) obliges the Secretary to ensure that the placement of the child is made "in consultation with" the relevant organisation. That requires something beyond simply making an unanswered enquiry of such an organisation. The language used in s 33(2) contemplates an ongoing process, albeit perhaps brief, but involving at a minimum a response of some kind from the organisation in question.
I will return to the consultation provisions below.
Because the Aboriginal child placement principles are to be applied in placing an Aboriginal child for adoption (s 34(2)), it is necessary to consider the provisions of s 35.
Adoption of an Aboriginal child is to be approached with the general principle that Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children: s 35(1).
The Aboriginal child placement principles are set out in s 35(2).
The structure of s 35(2) is such that there is a deliberate expression of cascading preference of options for placement of an Aboriginal child. In this respect, the structure is similar to the structure created in respect of permanent placement principles following the removal of a child or young person from the care of a parent as set out in s 10A(3) Care Act.
The cascading preference of options within s 35(2)(a)-(c) does not speak to any internal preference within each of the parts within subsection 2 i.e. within each of (a), (b) and (c). At least not in the same way as is evident from s 10A(3) Care Act: see Re Leonardo [2022] NSWSC 1265 at [242]-[260].
In the circumstances of this matter there has been no identification of a preferential placement within any of the parts of s 35(2).
The provisions of s 35(3)(a)-(c) have been drafted in such a way by use of the word "and" that each of the aspects noted below must be followed: (3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent - (a) has the capacity to assist the child to develop a healthy and positive cultural identity, and (b) has knowledge of or is willing to learn about, and teach the child about, the child's Aboriginal heritage and to foster links with that heritage in the child's upbringing, and (c) has the capacity to help the child if the child encounters racism or discrimination in the wider community, and that the Aboriginal child placement principles have been properly applied.
In the case of a child with one Aboriginal parent and one non-Aboriginal parent, where such child is placed with a person who is not within an Aboriginal family or community, the adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs: s 35(5)(a).
Section 36 is as follows: 36 Alternatives to placement for adoption to be considered An Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child.
The requirement that the placing of an Aboriginal child for adoption not occur unless the Secretary is satisfied that the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by the law in relation to the care of the child is not a function that can be delegated to a person (including the Court) other than the Secretary: The Adoption of Edward at [60] per Stevenson J.
The Secretary may delegate to any person the exercise of any of the other functions of the Secretary under the Adoption Act or the regulations other than the power of delegation: s 206(2)(b).

[17]

Meaning of "Aboriginal parent"

The reference to "Aboriginal parent" only appears in s 35(4) of the Act. The terms "Aboriginal parent" and "non-- Aboriginal parent" are not defined, which is express contrast to the definition of "Aboriginal child": s 4(1) when read in light of s 4(2).
The legislative history of the Act is uninformative as to the meaning of "Aboriginal parent": Family Spirit at [56] per Sackar J.
Sackar J in Family Spirit stated as follows (at [57]): 57. By parity of reasoning given the remarks of Leeming JA in Hackett at [65]-[66] (of the judgment) the better view is that the term encapsulates both a birth parent but should of course also include any person who may satisfy the tripartite test as well. However, it seems to me that the submissions made by the plaintiff here at [144]-[146] are correct and the term "Aboriginal parent" in s 35(4) should be given wide import so that it includes a parent who is descended from an Aboriginal person even if they would not satisfy the tripartite test. That has the effect which in my view is more consistent with the child focused nature of the legislation.
It seems to me that that construction is prima facie correct. Further, it seems to me that the contrast between "Aboriginal parent" and "non-Aboriginal parent" is important, and, in the absence of any particular definition of those terms, the focus is squarely back on the definition of "Aboriginal" in s 4(1) and in turn the three-limb test of race, identification and acceptance drawn from the definition in the Aboriginal Land Rights Act.
As has been observed by Leeming JA, the expressions "Aboriginal race" and "Aboriginal community" are not defined: Hackett at [32].
The similarities between s 35(3) and s 32(2) were commented upon by Leeming JA in Hackett at [17].
His Honour noted that in either case the Court is required to consider the cultural heritage of the prospective adoptive parent and whether he or she will assist in the preservation of the cultural heritage of the child: at [17].

[20]

Brief background to Blake's proposed adoption

Following Blake's birth and consequent upon a number of reports, the DCJ initiated care proceedings in the Children's Court in relation to Blake.
As noted above, there has been no plan of restoration of Blake to his birth parents: OR [375].
Between 1 May 2013 and 26 July 2013, the proposed adoptive parents were assessed as being suitable to be approved to adopt (s 45F), had the necessary checks, and were otherwise deemed as fit and proper to adopt: OR [386]-[388].
In December 2013, the Children's Court made an order giving parental responsibility of Blake to the Minister until he attains the age of 18 years pursuant to the Care Act.
Between 28 October 2014 and 3 March 2015 the proposed adoptive parents attended a Transition to Adoption training seminar: OR [389].
On 1 July 2014, Blake was placed with the proposed adoptive parents for permanent care with an adoption permanency goal. He was then approximately two years and three months old. He has remained in this placement to date: OR [144].
Barnardos held parental responsibility for Blake from July 2014 until November 2017 at which time it revoked the delegation of parental responsibility due to Blake being identified as an Aboriginal child. The Minister has otherwise had parental responsibility: exhibit at 142.
As a consequence of Blake's very early childhood experiences, he displayed some challenging behaviours when he transitioned to the care of his adoptive parents.
In May 2015, an Adoption Approval Panel Meeting was held at Barnardos with an independent psychiatrist panel member. The panel unanimously recommended that approval be given to commence adoption proceedings for Blake: OR [376].
Initially, Blake's Aboriginal heritage was not known by either DCJ or Barnados: OR [28]. In July 2015, Barnardos became first aware that Blake's father stated he had Aboriginal heritage on both sides of his family: OR [30]. I outline below the evidence regarding this.
In November 2015, the proposed adoptive parents signed an application form to adopt pursuant to s 43: OR [390].
In March 2017, DCJ records, following further research, were updated to reflect Blake's Aboriginality: OR [47].
In early 2018, approximately 3.5 years after his placement, Blake was diagnosed with ADHD.
In June 2021, the CEO of Barnardos gave her endorsement for consideration of adoption proceedings for Blake and, in May 2022, the Secretary DCJ gave his specific consent to the making of an adoption order: exhibit at 153.
In mid-June 2022, each of Blake's birth father and mother were advised that the Secretary had given such consent and were provided with information including the Legal Aid brochure: OR [381]-[382].
The adoption proceedings for Blake have been "put on hold" for several years whilst various cultural and family consultations have been sought.

[23]

Issue 1 - Is Blake of Aboriginal descent?

On 21 July 2015, Blake's father indicated to Barnardos for the first time that he had Aboriginal heritage on both sides of his family: OR [30].
On 30 July 2015, the paternity of Blake's father was confirmed: OR [31].
In August 2015, Blake's father confirmed to Barnardos that he identified as Aboriginal and that both his parents had an Aboriginal ancestry: OR [33].
Barnardos requested Link-Up to research Blake's paternal and Aboriginality background: OR [34].
In late October 2015 and early November 2015, two reports were received from Link-Up confirming that Aboriginality was found ten generations back on the side of Blake's paternal great-grandmother: OR [41], exhibit at 7, 19, 33-44 and 52.
On 7 September 2015, Blake's maternal grandmother informed Barnardos that she believed she had Aboriginal ancestry on her paternal side. Consequent upon that Barnardos requested Link-Up to add Blake's paternal great-grandmother's name to the search: OR [37]-[38].
However, in August 2016, Blake's maternal grandmother stated that she was not Aboriginal: OR [45]-[46].
The evidence satisfies me that Blake is an Aboriginal child as he is descended from an Aboriginal on his father's side.
Section 34 requires the Secretary or the Principal Officer (here Ms Rennie) to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child.
There was some delay in Blake's father informing Barnardos of his heritage.
On 11 May 2015, a Barnardos internal Adoption Panel Meeting recommended that approval be given to commence adoption proceedings for Blake. On 3 June 2015, the Barnardos CEO gave approval to commence adoption proceedings for Blake as a non-Aboriginal Child. Following the disclosure by Blake's father in July that he identified as an Aboriginal appropriate enquiry was made by Barnardos: exhibit at 141, 150-151.
For reasons that I more fully discuss below in relation to the consultation requirement in s 33, I am satisfied that the Principal Officer, Barnardos made reasonable enquiries following that disclosure.
To the extent that s 34 required any reasonable enquiries occur prior to the actual date of physical placement of Blake with the proposed adoptive parents, I consider that the performance of such statutory requirement was practically impossible, and in the circumstances ought to be excused.

[25]

Issue 3 - Has there been the prescribed consultation?

In March 2016, a Barnardos caseworker communicated with the Chairperson of the [redacted] Local Aboriginal Land Council and Aboriginal consultant employed by Barnardos Cultural Support Unit to request assistance regarding Blake's ancestry and plan for his adoption: exhibit at 56.
Several days later, following telephone discussion, comments were made regarding the records that Link-Up found and the Chairperson considered that the onus was on Blake's father to provide evidence of his connection to his community and people: exhibit at 57.
Blake's father, whilst identifying as an Aboriginal man, was raised on different country to the nation which Link-Up had found that Blake's Aboriginal ancestry established a connection to (10 generations back). Neither Blake's father nor any known paternal family members have any current connections to that original nation: exhibit at 110.
Of all the kin Barnardos has spoken to, only Blake's father has expressed willingness to connect Blake to his culture: exhibit at 110.
Between April 2017 and March 2019, Barnardos officers met with and consulted various people regarding Blake's heritage and his Cultural Care Plan: OR [51], [63], [65], [68]; exhibit at 85, 89, 142.
In early June 2019, the Chairperson advised Barnardos that she had spoken to an elder of Blake's tribe who had some knowledge of Blake's ancestor. A copy of the Link-Up report was provided to the Chairperson to facilitate information being able to be given on how to best support Blake. However, the Chairperson advised that due to Blake's ancestry being 10th generation, there was uncertainty as to how to implement or support Blake's culture given that so many generations had passed. Further attempts at contact were not fruitful: exhibit at 143.
In June to August 2020, Barnardos provided the Chairperson with Blake's Cultural Support Plan for input and approval and had a discussion with the Chairperson regarding important cultural aspects to be incorporated into the plan: exhibit at 144.
In April 2021, the Chairperson agreed to be a significant person to help support Blake and the proposed adoptive parents to engage in his Aboriginal culture: OR [93].
As mentioned, I have been provided with submissions by Ms Hall regarding s 33.
The provisions of the Adoption Act contemplate that the Secretary or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child: 1. a person approved in accordance with s 195: s 33(1)(a); or 2. the person nominated by the child's parents, extended family or kinship group as recognised by the Aboriginal community to which the child belongs or by that community: s 33(1)(b).
Further, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation: s 33(2).
On the facts of this case, or indeed any case in circumstances where a child's Aboriginal heritage is not known at the time of "placement", if that term refers to a specific date, it may not be possible to strictly comply with the terms of s 33(1) or s 33(2).
The noun "placement" is not defined specifically in the Adoption Act. However, the word "placement" is used approximately 57 times in the Adoption Act.
The Macquarie Dictionary, online ed defines "placement" as: noun 1. the act of placing. 2. the act of an employment exchange or employer in filling a position. 3. the state of being placed. 4. location; arrangement. 5. a position with an employer. 6. a home for a child in need of adoption or foster care.
Those various definitions contemplate that "placement" might not, in any given context, refer to a specific point of time as distinct from a process encompassing a period of time.
The Adoption Act distinguishes between various decisions in the overall adoption process. This is evident from the definition of "decision" referred to above.
Further, for example, in enshrining the concept that a child is able to participate in any decision made under the Adoption Act that has a significant impact on his or her life, the Act defines such decisions as including (a) the placement for adoption of the child, (b) the development of any adoption plan concerning the child and the views of the child's parents about the plan, (c) an application for an order for the adoption of the child, (d) contact with birth parents or others connected with the child: s 9(3).
Whilst clearly "placement" might refer to a specific point of time, there is at least some elasticity in the notion "placement", at least in a practical sense as to how placement operates.
All of the decisions described in s 9(3) involve some degree of communication and are clearly decisions and actions which are not necessarily confined to some specific point of time.
There is a slight difference in terminology between s 33 which refers to "the placement of an Aboriginal child" and s 34(1) which refers to "a child to be placed for adoption is an Aboriginal child".
The latter (s34(1)), on one view uses "placed" as identifying a particular point of time at which a child is physically placed with (relevantly) proposed adoptive parents.
The former (s 33), on one view, uses "placement" as identifying or including a period of time during which a child physically resides with (relevantly) proposed adoptive parents.
A number of things can be said about s 33(1)-(2).
First, the notion that the provisions of s 33(1)-(2) may be construed with some appropriate flexibility as identifying or including a period of time during which a child physically resides with (relevantly) proposed adoptive parents is reinforced by the decision of Sackar J in Family Spirit at [51]-[54].
In Family Spirit, an order for adoption of an Aboriginal child was made even in circumstances where by the time the plaintiff actually learnt of the child's Aboriginal heritage he had been with the proposed adoptive parents for almost eleven years: at [50].
Secondly, although the natural tenor of the provisions of s 33(1)-(2) suggests that consultation about the placement of an Aboriginal child will occur prior to the literal point of placement with the proposed adoptive parents, there is no express provision in the terms of those subsections which requires that the consultation take place prior to the actual date of placement with the proposed adoptive parents.
The provisions do not say "must ensure that the following are consulted prior to the placement of Aboriginal child", as opposed to "consulted about the placement of an Aboriginal child".
It seems to me at least arguable that the consultation envisaged by s 33(1)-(2) may, in some circumstances, be consultation that takes place after the actual date of placement with the proposed adoptive parents.
Leading up to 12 September 2013, Blake's proposed adoptive parents were assessed and approved as duly authorised carers and adoptive parents, before being matched with Blake on 26 June 2014: OR [143].
On 1 July 2014, Blake was, as noted above, placed with the proposed adoptive parents for permanent care with an adoption permanency goal: OR [144].
The report of Ms Rennie describes that placement in terms of a number of developmental steps, including numerous review meetings between 1 August 2014 and 26 April 2022, rather than focusing upon the discrete point of time (1 July 2014) that Blake was placed with proposed adoptive parents: OR [143]-[153].
On the facts in this matter, the disclosure by Blake's father of his Aboriginal heritage actually was the catalyst for testing of his paternity.
Consequent upon that, disclosure steps were taken for consultation.
Consistent with the decision of Sackar J in Family Spirit, it seems to me that it might fairly be said that in light of an extended placement process there was consultation.
Even if that is incorrect, I consider that the provisions of s 33(1)-(2) do not necessarily require consultation precisely prior to the actual date of placement of a child with proposed adoptive parents.
If that is correct, then clearly there has been consultation within the meaning of s 33(1)-(2).
Lastly, if contrary to the above it is technically the case that the consultation must occur prior to the actual date of physical placement of a child with the proposed adoptive parents, it is appropriate to consider whether the performance of the statutory requirement was impossible, and in the circumstances ought to be excused.
The legal maxim lex non cogit ad impossibilia ("the law does not compel a man to do that which he cannot possibly perform") applies, inter alia, to statutory requirements: see R v Justices of Leicestershire (1850) 15 QB 88; 117 ER 391.
In that case, two justices had adjudged a putative father to be the father of a child born out of wedlock. The day following that determination the mother died. The putative father appealed to a Court of Quarter Sessions. That Court had refused to hear the appeal in circumstances where the putative father had not served notice on the mother. Such service was a statutory prerequisite to the hearing of an appeal.
The mother had died after the initial order but approximately two months prior to the General Quarter Sessions hearing. The Court of Queen's Bench, with Patteson J delivering the judgment of the Court, allowed an appeal on the basis that the requirement for notice was cast upon him by the law, not by his own voluntary contract and that he ought to be excused from performing that duty by its becoming impossible by act of God: at 92 (ER 392).
The maxim applies in New South Wales: see Lockrey v Historic Houses Trust of New South Wales (2012) 84 NSWLR 114; [2012] NSWCA 249 at [80]-[83] per Barrett JA (Campbell and Meagher JJA at [1],[2] agreeing).
In Ex parte Baker; Re Kelly [1965] NSWR 860, in issue was whether performance of a requirement of the then Liquor Act 1912 (NSW) (Liquor Act) could be excused due to impossibility. Section 39 of the Liquor Act required a notice to be affixed on some part of the licensed premises from which it was desired to remove the licence. The relevant publican applied for an order removing the licence to other premises in circumstances where the licenced premises had been demolished and the notice could only be affixed to part of the new office building which afterwards occupied the site. Wallace J (as his Honour then was) excused performance of the requirement to affix the notice to the licenced premises because it was a physical impossibility, given the premises no longer existed: at 864 cf Donnelly v Marrickville Municipal Council [1973] 2 NSWLR 390 at 398 per Holland J.
In the circumstances of this case, in light of the delayed disclosure by Blake's father of his Aboriginal heritage and, indeed, delayed confirmation of his paternity until after Blake had been placed with the proposed adoptive parents, there was a practical impossibility for compliance with s 33(1)-(2) if the proper construction of those provisions required consultation prior to the physical placement of Blake with the proposed adoptive parents on 1 July 2014.
If the proper construction of s 33(1)-(2) required consultation prior to the physical placement of Blake with the proposed adoptive parents on 1 July 2014, then I find that the requirement for such consultation is, in the particular circumstances of this case, excused.

[38]

Determination

Ms Rennie, for her part, considers that the adoption plans are proper in the circumstances. This is because there is sufficient opportunity for contact and engagement should Blake's extended family wish that, he is young and there is no plan for restoration to his birth family, the frequency of contact will be sufficient to enable Blake to develop an understanding of his background, biological identity and cultural heritage, and the arrangements for contact can be varied as his needs change: OR [488].
I have carefully considered the background to Blake's initial transition into care and the involvement of Blake's father and paternal family.
The adoption plans propose a regime for contact as well as the cultural opportunities that I have noted.
The paternal adoption plan addresses the matters I have noted.
It does not expressly address Blake's medical background or condition. However, whilst that is a matter which may be addressed it is not prescribed that it must be addressed: s 46(1).
The purpose of an adoption plan, as appears from s 46(1), is principally to facilitate the exchange of information between the "parties" (being significant persons in the adoption process).
The adoption plans note that whilst Blake's birth parents do not identify with a particular religion and that they have not expressed any wishes in this regard, the proposed adoptive parents identify with the Christian faith and are open to providing Blake with the opportunity to develop his understanding and knowledge of religious principles and practices so he can make informed decisions in the future about his own belief system: cl 9.
The adoption plans facilitate the exchange of information by providing contact details and reminding parties of the need to advise of changes in address and contact details so as to clearly facilitate exchange of information in a context in which, at least until the child attains his or her majority, contact is not only possible but able to be implemented practically: cl 12.
The adoption plans appropriately provide contact details for Barnardos should there be a need for review of the adoption plan and note that Barnardos will endeavour to resolve any difficulties, at least in the first instance, via a process of consultation with the parties and, if a resolution is not possible, note that there will be a formal review by the Court: cl 13.
Adoption plans for any children may make provision for 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: s 46(2).
In the case of an Aboriginal child the adoption plan must make that provision where the adoption is by persons who are not Aboriginal: s 46(3).
If provisions of such kind are proposed to be included in an adoption plan, they should be made after consultation with a local, community-based and relevant Aboriginal organisation: s 46(4).
Ms Shariff submits that that the requirement of consultation with a local, community-based and relevant Aboriginal organisation (s 46(4)) is satisfied on the facts. I agree.
The Chairperson of the Local Aboriginal Council has offered and agreed to connect Blake to his culture and support him and the proposed adoptive parents with his Aboriginality, including by introducing the adoptive parents to relevant cultural activities at a specified location: OR [106].
In those circumstances, I am satisfied that the requirements of s 46(3) and (4) have been appropriately addressed and included in the adoption plan.
The evidence before me satisfies me that the requirements of s 35(5)(a) (requiring the adoption plan to provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs) has been addressed.
I am satisfied that the adoption plans refer to the cultural plans and that the cultural plans clearly outline what is contemplated for Blake to develop an identity with the Aboriginal community to which he belongs.
In the above circumstances, I am satisfied that each of the paternal and maternal adoption plans are compliant in Blake's best interests and otherwise proper such that they should be registered.

[39]

Issue 9 - Is it in Blake's best interests that an adoption order be made and clearly preferable to any other course?

The proposed adoptive parents have been selected in accordance with the provisions of the Act and the relevant consents have been obtained.
The adoption report concludes that adoption will provide Blake with stability and a sense of permanence in a way that orders merely for guardianship, or sole or shared parental responsibility will not.
In this regard, it is considered that the adoption will offer Blake the greatest sense of permanency, stability, and legal security over any other alternative order.
Overall, Ms Rennie is of the view that it is in Blake's best interests to be legally a part of Blake's proposed adoptive family and indeed there are distinct advantages for him, and that adoption is preferred to any other course of action. In particular, that will provide far greater stability for him by providing him with a sense of belonging and permanence which cannot be achieved in longer term foster care or under an order for parental responsibility to be allocated to the proposed adoptive parents: OR [505]-[513].
In Hackett, the Court of Appeal found, on the facts of that case, that the best interests of an Aboriginal child would not be served by removing her from the care of the woman who had cared for her, continuously and in a stable environment, since she was an infant: at [95].
Ms Shariff submits, and I accept, that Blake's best interests would not be served by removing him from his proposed adoptive parents who have cared for him, continuously and in a stable environment, since he was two years and three months old.
Blake participates in his Aboriginal culture through relevant events and activities such as bushwalking, going to the museum, doing arts and crafts, tasting bush food, listening to music, and watching television shows which relate to his culture: OR [89]-[105].
The proposed adoptive parents have taken opportunities to have discussions with Blake regarding his Aboriginality. They have researched his Aboriginal culture. They contacted the local Lands Council to assist in building ties for Blake with the local Aboriginal community but, at least to this point, were not successful in finding someone to assist them in that regard.
Blake has not experienced any racism although at times he has been the subject of bullying due some of his behaviours: OR [103].
The proposed adoptive parents acknowledge that there will be difficulties and challenges for him and have encouraged Blake to be open, and to come to them for help and support, which has happened on occasions that he has been bullied. They considered that the habit of these discussions will assist him as he gets older, and his culture becomes more apparent to others: OR [103].
The alternatives to an adoption order have been addressed by Ms Shariff.
In Blake's case the alternatives are: 1. making no order in maintaining the status quo (being that Blake is presently placed in the parental responsibility of the Minister until he attains the age of 18 years); 2. an order allocating parental responsibility to the proposed adoptive parents (see s 92); and 3. an order allocating parental responsibility to one or both of the birth parents.
There has not been, to date, any suggestion that it is appropriate for Blake to be restored to the care of either of his birth parents.
Ms Shariff submits that to do so would place Blake at risk of psychological harm given the connection and attachment that he has developed with his proposed adoptive parents of the last eight years.
I do not have any informed basis for assessing the extent of any such risk. However, in circumstances where there is no suggestion that such restoration is appropriate, and in circumstances where both parents have given proper and due consideration to the adoption by the proposed adoptive parents, the alternative of allocating parental responsibility to them is not realistic.
Maintaining the status quo would leave Blake essentially as a "ward of the state" until he is 18.
Further, it would mean that the proposed adoptive parents are unable to make significant decisions regarding Blake without the approval of the Minister or his delegate in circumstances where they have demonstrated that they are more than capable of making such appropriate decisions as well as meeting Blake's needs.
Ms Shariff submits, and I accept, that there are few identifiable benefits to maintaining the status quo compared with the adoption alternative.
Whilst allocating parental responsibility to the proposed adoptive parents would alleviate some of the disadvantages of maintaining the status quo, Ms Shariff submits, and I accept, that it lacks the permanency of an adoption order and the legal connection to the proposed adoptive parents upon Blake reaching adulthood.
This Court has commented on a number of occasions of the sense of permanence, security and belonging which adoption orders can and often do provide: see Adoption Application - Re T & S [2008] NSWSC 96 at [12] per Palmer J; Re the Adoption of AJH [2017] NSWSC 1571 at [344] per Hallen J.
Whilst that hope of permanence, security and belonging will depend on the circumstances of any given case, I am comfortably satisfied that in Blake's case, having regard to his circumstances and those of his proposed adoptive parents, adoption will likely achieve that hope.
The reference to Blake's "best interests" is by statutory mandate regarded as the paramount consideration: s 8(1)(a).
The best interests are not merely confined to the child's childhood per se but also expressly take into account prospects in later life: s 8(1)(a).
Having regard to the specified adoption principles (s 8(1)-(2)), I am satisfied as to the requirements of ss 23 and 90.
I am satisfied that Blake's best interests will be promoted by the adoption and that Blake has been engaged in relation to the question of adoption. Whilst it is perhaps understandable that the raising of the issue formally with Blake has, at times, caused some agitation in him, it is clear from the evidence that Blake as a matter of substance regards himself as effectively adopted.
In those circumstances, I am satisfied that having regard to his age and circumstances, due consideration has been given to his wishes and feelings.
I have addressed above the Aboriginal child placement principles, and I am satisfied that they have been properly applied.
Specifically, I am satisfied that: 1. the arrangements proposed in the adoption plan are in Blake's best interests and proper in the circumstances: s 90(2); and 2. 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: s 90(3).

[40]

Issue 10 - What name should be approved for Blake?

It is proposed that Blake preserve his forename and middle name given to him by his birth mother, and that his surname will be that of his proposed adoptive parents.
Ms Rennie considers that this will consolidate Blake's sense of belonging and security as a family member.
There have been various discussions with Blake's parents regarding the change of surname over several years. The current position is that Blake's father, whilst having mixed feelings, considers that it is appropriate in Blake's best interests that his surname changes.
On the other hand, Blake's mother does not agree to his name being changed, considering that it will create some confusion with his connections to his maternal half-siblings.
Ms Rennie is of the view that if an adoption order is made, it is in Blake's best interests that he be given the surname of his adoptive parents to consolidate his sense of belonging to them as well as maintaining his given names.
He already refers to himself by his given name and adoptive parents' surname and is indeed enrolled at his local school under those names: OR [493]-[494].
I am mindful of the comments of Blake's mother.
I have given due consideration to her concern regarding possible confusion.
However, on balance, I am comfortably satisfied that the proposed surname for Blake is appropriate particularly in circumstances in which, for a considerable period now, he has been known by that name.
He is registered in school by the proposed surname. Confusion would be (or is very likely to be) caused by a different outcome to that proposed.
In relation to the proposed change of surname, Ms Shariff submits that the proposed change will be in Blake's best interests because it will support his feeling of stability and belonging and reflect his sense of reality as well as the legal position in the event an adoption order is made. I agree.
It is clear that Blake's link to his birth family will be retained by the preservation of his given names.

At a glance

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Judgment (42 paragraphs)

Legislation Cited (7)

Cases Cited (18)