Background
Jing Xue, aged 16, had lived with her prospective adoptive parents, Sarah and James, for more than 10 years and consistently expressed a firm wish to be adopted by them. Her birth mother opposed adoption before Jing turned 18, while her putative birth father, George Smith, opposed it but did not participate in the proceedings. The Secretary of the New South Wales Department of Communities and Justice commenced adoption proceedings in April 2026.
Before the adoption application itself could be determined, evidence emerged that George had Tasmanian Aboriginal ancestry. The Court therefore had to resolve his parentage, whether Jing was an Aboriginal child under the Adoption Act 2000 (NSW), and whether the statutory inquiry, consultation, placement and cultural-plan requirements applicable to an Aboriginal child had been met. These were preliminary issues; the Court did not make an adoption order in this judgment.
The Court’s Holding
McGrath J declared that George was Jing’s birth father and that Jing was an Aboriginal child because she was lineally descended from a Tasmanian Aboriginal man. The Court found that the Secretary had made reasonable inquiries under s 34 and had undertaken the consultation required by s 33, including consultation with an approved person and relevant Aboriginal organisations and community representatives.
The Court also held that placing Jing with her non-Aboriginal prospective adoptive parents was in her best interests and complied with the Aboriginal Child Placement Principles. Given her age, her decade-long placement, her unequivocal wishes and her lack of an existing relationship with an Aboriginal community, placement with an Aboriginal family or community was neither practicable nor in her best interests. The prospective adoptive parents were capable of supporting her cultural identity, and the adoption plan gave her meaningful opportunities to explore and develop connections with her Tasmanian Aboriginal heritage if and when she chose.
The Court made the requested declarations under the Status of Children Act 1996 (NSW) and the Adoption Act, then listed the proceedings for further directions so the remaining issues in the adoption application could be heard expeditiously.
Key Takeaways
- A child may qualify as an Aboriginal child under the Adoption Act through lineal descent even if the child does not presently self-identify as Aboriginal or participate in an Aboriginal community.
- The Aboriginal Child Placement Principles require genuine inquiry, consultation and consideration of preferred placements, but they do not compel an Aboriginal placement when that course is impracticable or contrary to the child’s best interests.
- A mature child’s clearly expressed wishes must be heard and given appropriate weight, while responsibility for the ultimate adoption decision remains with the Court.
Why It Matters
The decision explains how the Adoption Act’s Aboriginal-child safeguards operate when Aboriginal ancestry is discovered late, the child has long been settled with non-Aboriginal carers and the child currently does not wish to engage with that heritage. Cultural connection may be protected through an informed, practical adoption plan that preserves future opportunities without forcing immediate engagement.
It also underscores that hearing the “voice of the child” is a central feature of adoption proceedings. For older children in particular, their lived experience, maturity and sustained wishes can carry substantial weight in determining best interests and an appropriate placement.