The background to this matter is set out in my judgment of 1 November 2022. [1]
I shall use the same abbreviations and adopt the same anonymised references as I did in those reasons.
The Secretary of the Department of Communities and Justice seeks an order that the child, Edward (not his real name), be adopted by Mr and Mrs Smith (not their real names), with whom Edward has been living since he was three months of age.
On 26 October 2022, at a preliminary hearing under s 80 of the Adoption Act 2000 (NSW) ("the Act"), I made the following orders and findings:
"(1) Pursuant to s 4(2) of the Act, determine that the child [Edward] is of Aboriginal descent, is an Aboriginal for the purposes of s 4(2) of the Act and is an Aboriginal child under the meaning of s 4(1) of the Act;
(2) Declare that, for the purposes of s 35(3) of the Act, I am satisfied the prospective adoptive parents [Mr and Mrs Smith]:
(a) have the capacity to assist the child [Edward] to develop a healthy and positive cultural identity, and
(b) have knowledge of or are willing to learn about, and teach the child [Edward] about his Aboriginal heritage and to foster links with that heritage in his upbringing, and
(c) have the capacity to help the child [Edward] if he encounters racism or discrimination in the wider community;
(3) Declare that, for the purposes of s 35(4) of the Act, the best interests of the child [Edward] will be served, having regard to the objects of the Act, were he to be placed for adoption with [Mr and Mrs Smith]; and
(4) Find, for the purposes of s 34 of the Act, that the Secretary has made reasonable inquiries as to whether the child [Edward] is an Aboriginal child."
Since giving my judgment on 1 November 2022, Edward has now been formally "placed for adoption" with Mr and Mrs Smith and by Notice of Motion filed in court this morning, the Secretary now seeks the adoption orders as foreshadowed earlier.
The Secretary has served notice on Edward's birth parents, Rachael and Matthew (not their real names) and has also given to Rachael and Matthew notice of the Secretary's intention to seek from me an order dispensing with their consent to the adoption. It is clear from the evidence overall that Rachael and Matthew do not oppose the adoption and, indeed, support it. Rachael and Matthew have respectively signed the maternal and paternal adoption plans.
In my judgment of 1 November 2022, I made some observations and expressed some concerns about whether the Secretary had yet complied with the requirements of s 33 of the Act concerning, to adopt the heading of that section, "Aboriginal participation in decision making". This section is relevant because, as I determined on 26 October 2022, Edward is of Aboriginal descent and is an Aboriginal child for the purposes of s 4(1) of the Act.
As Edward is an Aboriginal child, s 33(1)(a) of the Act obliges the Secretary to ensure that a person approved under s 195 of the Act (amongst other people) is "consulted" about the placement of an Aboriginal child.
On 1 November 2022 I was not satisfied that what had occurred to date was such a "consultation". [2]
Since then, the following steps have been taken:
"On 2 November 2022, Manager Client Services Elizabeth Byrne … sent an email to Ms Jackson [3] which communicated a proposal for Ms Jackson to review [Edward's] 'cultural plan … placement and circumstances (assessment) in light of his proposed adoption and provide views as a person approved under section 195 of the Adoption Act'.
On 22 November 2022, Ms Jackson completed an Aboriginal Adoption Consultation in respect of [Edward's] cultural plan, placement and proposed adoption with the proposed parents, in which she expressed her views about those matters." (Footnotes omitted.)
Relevantly Ms Jackson said in the concluding comments of her report of 22 November 2022:
"Overall, the strengths in this placement are that [Edward] and the [Smith] family will promote [Edward's] cultural identity positively and in an ongoing manner.
Their demonstration of how valued he is in their family is evident in the OOHC Adoption Assessment and via the LWB Cultural Support Plans and this will ensure that [Edward] continues to grow in his cultural identity as they are committed to ensuring that this occurs."
In those circumstances, I am satisfied that the Secretary has now complied with the requirements of s 33(1)(a) to ensure consultation with a person approved under s 195 of the Act.
As Edward is an Aboriginal child, s 33(2) of the Act also requires that the Secretary "must ensure that the placement of the child is made in consultation with a local community based and relevant Aboriginal organisation".
As at 1 November 2022 I was not satisfied that what the Secretary had then done complied with the requirements of that section. [4]
Since then, the Secretary has contacted the Sydney Aboriginal Family Support Service ("the Service"). The Service is Sydney-based and run by professional Aboriginal support workers and consultants, including employees of the Wiradjuri nation. The organisation uses its multidisciplinary expertise to achieve better outcomes for Aboriginal families in care and protection proceedings involving Aboriginal families.
I am satisfied that the Service is a "local, community-based and relevant Aboriginal organisation" for the purposes of s 33(2) of the Act.
The Secretary has caused the following steps to be taken, as summarised in the Secretary's submissions:
"On 16 November 2022, Adoptions Manager Kari Anderson … telephoned [the Service] and spoke to 'Jeff' … [who] indicated that it would be difficult for an Aboriginal person to make a comment as to the suitability of [Edward's] placement given 'the past injustices'.
On 16 November 2022, Ms Anderson sent an email to [the Service] to follow up on the conversation she had with Jeff that day.
On 22 November 2022, Adoptions Caseworker Kim Daly … telephoned [the Service] and spoke with 'Kim'. Kim indicated she was aware of Ms Anderson's prior conversation with Jeff, and would raise the request for consultation at a meeting Kim was about to attend.
Ms Daly also telephoned Kim on 6,8 and 12 December 2022 to follow up on her request.
To date, no response has been received in respect of the emails sent by representatives of the Department of Communities and Justice to [the Service] on 16 and 22 November 2022 respectively.
Since Ms Daly's telephone conversation with Kim on 22 November 2022, [the Service] has not contacted Ms Anderson, Ms Daly or Ms Breaden regarding the consultation." (Footnotes omitted.)
Further, Ms Dehn, Manager Client Services at the Department of Communities and Justice, has deposed that:
"I am informed that on 25 November 2022 Daniel Khoo … from the Crown Solicitor's Office spoke with the CEO of Wellington Valley Wiradjuri Aboriginal Corporation, Bradley Bliss … I understand from Mr Khoo's file note that Mr Bliss advised that in Wiradjuri country and more generally west of Penrith, there are not any organisations with [I]ndigenous specified workers in child welfare …
On 6 December 2022, Ms Kim Daly…, Adoptions Caseworker, made a phone call to [the Service] and spoke to Kim. Kim recalled the previous conversations outlined at paragraphs [184]-[190] of my previous affidavit affirmed on 6 December 2022, and agreed for Ms Daly to resend an email to their service. Kim advised that she would let Ms Daly know by the end of day as to whether a consultation could be provided.
On 7 December 2022, Ms Daly sent an additional email to [the Service] following up. …
On 8 December 2022, Ms Daly made a further phone call to [the Service] and spoke to Kim. Kim advised that she had been busy and had not had a chance to follow up. Ms Daly acknowledged that it was a difficult request and that she did not want to cause difficulty or distress by continuing to contact the service. Kim stated, 'It's ok, it really is. I'm happy to speak to you'. …
On 12 December 2022, Ms Daly made a further phone call to [the Service] and spoke to Kim. Kim confirmed that the Director was aware of [Edward's] matter but indicated that he had not yet decided whether the Service was willing to consult or not."
I said in my earlier judgment [5] that the language of s 33(2) contemplates an ongoing process, albeit perhaps brief, but one that requires a minimum response of some kind from the organisation in question.
The evidence before me shows that there has been a response from the Service, albeit not a substantive response. However, the note of Ms Kari Anderson, Adoption Manager, made on 16 November 2022 records that "Jeff" from the Service said:
"Jeff was reading my email as we were speaking and made general comments about [Edward's] story and made a statement that we (DCJ) were doing a good job and it wasn't anything against the department, just that it was difficult to get an Aboriginal person to make a comment as to the suitability of this placement given the past injustices. He asked where else I had consulted and I explained that I had also sent an independent non identifying email to GMAR to request a similar consultation [to] occur however I was yet to receive a response - hence my call today."
There has been a total of some 12 communications on behalf of the Secretary to the Service.
The requirements of s 33(2), that the Secretary is to ensure consultation with an organisation such as the Service, must be considered in the context that, for reasons such as those set out by "Jeff" in the passage to which I have referred, some such organisations may not feel compelled to actively cooperate in the consultation process contemplated by s 33(2). I think the Court must take a sensitive and realistic view of the sensitivities of Indigenous people to adoption applications of the kind I am now considering.
My conclusion is that, in the circumstances of this case, what has happened constitutes sufficient compliance with s 33(2).
Turning now to the other matters in respect of which I must be satisfied in order to make the adoption orders sought, I am satisfied that the formal requirements of the Act have been complied with.
The Secretary seeks orders dispensing with the consent of Edward's parents, Rachael and Matthew.
In substance, Rachael and Matthew support the adoption order proposed but for reasons including those I mentioned in my earlier judgment, [6] do not feel able to formally give their consent.
Under s 67 of the Act, in circumstances where Mr and Mrs Smith are authorised carers of Edward, I may dispense with the birth parents' consent if satisfied that Edward has established a stable relationship with Mr and Mrs Smith and the adoption order will promote his welfare. I have no doubt about any of those matters.
Because Edward is over 12 years old, s 55(1) provides that I must not make an adoption order without his consent. However, s 55(2) provides that I can make an order in relation to a child incapable of giving consent if satisfied that the circumstances are exceptional and that it would be in the child's best interests to make the order notwithstanding the absence of consent. I am so satisfied.
As to whether it would be in Edward's best interests that an order for adoption be made, I repeat what I said in my earlier judgment, [7] albeit in the context of consideration of s 35(4) of the Act:
"The evidence before me pointed, overwhelmingly, to the conclusion that for the purposes of s 35(4) the placing of Edward with the Smiths for adoption will promote his best interests. As I have said, it is estimated that Edward has the intellectual capacity of a two to three year old child. He has complex medical needs which have been admirably met by the Smiths over a long period. Matthew and Rachael have indicated that they would not be able to meet Edward's complex medical and emotional needs and are supportive of his adoption by the Smiths. It appears that because of Edward's complex and significant needs, he will never be able to live independently. I think that Ms Hailstone and Ms Anderson were correct to submit that adoption is the only option which is viable for Edward."
Further as the Secretary has submitted before me today:
"[Edward] has very high medical needs due to multiple diagnoses, including Acquired Brain Injury, Autism Spectrum Disorder (Social Communication Level 3, Behaviour Level 3), Severe Developmental Delay, Severe Language Delay, Sensory Processing Disorder, Epilepsy, Post Traumatic Stress Disorder due to severe abuse in childhood and External Tibial Torsion Disorder. It is submitted that [Edward] has the cognitive ability of less than a two-year old. It has been estimated that [Edward's] 30-year survival is best approximated to 59 to 78%, as compared to 99% 30 year survival without any disability. In these circumstances, [Edward] requires extensive specialist care which are of a significant cost. In such circumstances where the birth parents are unable to financially undertake this care, restoration is not a realistic possibility.
The proposed adoptive parents intend to continue caring for [Edward] after he turns 18 years old regardless of whether an adoption order is made. Maintaining the status quo would mean that … [Edward] would remain living with the proposed adoptive parents and a Financial Management and Guardianship Order in place. Whilst these orders have been made in favour of [the Smiths] and provide them with some of the decision-making powers for [Edward] (given his needs), they are only for a period of 12 months and will need to be renewed. The status quo therefore will not provide [Edward] with the same security and certainty into the future as an adoption order."
The alternative to making an adoption order is first to do nothing, which is out of the question in these circumstances.
Further, in these circumstances, and I make this observation without any criticism of Rachael and Matthew, there is no realistic possibility of Edward's restoration to their care.
It is proposed that Edward's name be changed by causing his surname to be hyphenated with his current surname and that of Mr and Mrs Smith. Rachael and Matthew have expressed their support for that change which also has the support of the author of the report prepared under s 91 of the Act.
It is proposed that Edward's existing given names be retained.
I also note that Edward's birth parents will be included on an Integrated Birth Certificate which will be issued following the making of the orders for adoption.
As I have said, both Rachael and Matthew have signed the adoption plan. I am satisfied that it is appropriate in the circumstances.
Finally, as I recorded in my earlier judgment, Edward is an Aboriginal child. For that reason an order must not be made unless the Secretary of the Department is satisfied that the making of an adoption order is the clearly preferable course. [8] The Secretary has consented, formally, to the adoption order. Although he has not, in terms, said that he is satisfied that the making of the adoption order is clearly preferable and in the best interest of Edward to any other action, I am comfortable, as he has given his formal consent, that this is his view.
I find that the Secretary has complied with his obligations under s 33 of the Act.
I make the following orders:
1. That pursuant to the Adoption Act 2000, s 67(1)(d) and s 67(2), the Court dispense with the requirement for the consent of the child's birth mother, [redacted].
2. That pursuant to the Adoption Act 2000, s 67(1)(d) and s 67(2), the Court dispense with the requirement for the consent of the child's birth father, [redacted].
3. That pursuant to the Adoption Act 2000, ss 50(1) and (3), the Adoption Plan signed by Kelly Dehn on 6 December 2022, [redacted] and [redacted] on 27 November 2022 and [redacted] and [redacted] on 29 November 2022 be registered.
4. For the adoption of the child [redacted] in favour of the adopting parents [redacted] and [redacted] and approves the name [redacted] as the surname and [redacted] as the given names of the child.
[2]
Endnotes
The Adoption of Edward (a pseudonym) [2022] NSWSC 1488.
See [40] and [41] of that judgment.
Ms Jackson is a person approved under s 195 of the Act to provide advice and assistance to Aboriginal families and kinship groups and to whom I referred in my earlier judgment at [35], [36] and [40].
See [49].
At [49].
Especially at [43].
At [56].
Section 36 of the Act.
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Decision last updated: 19 December 2022