Background
An 18-year-old man sought to be adopted by his paternal uncle and the uncle’s wife, who had cared for him since he was seven months old. The application was supported by the young man, the proposed adoptive parents and a senior officer of the Department of Communities and Justice.
Earlier child-protection records treated the young man as Aboriginal through his mother’s asserted Wiradjuri heritage. Those records included an Aboriginal Cultural Support Plan and findings by a Children’s Court magistrate that he was the child of an Aboriginal parent. The adoption proceeding therefore raised questions about his status under the Adoption Act 2000 (NSW), the Aboriginal child placement principles and the statutory requirements for his consent.
The Court’s Holding
Rees J was satisfied, for the purposes of s 4(2) of the Adoption Act, that the young man was of Aboriginal descent. The available evidence was insufficient to establish that he or an ancestor met every element of the definition of “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW). Nevertheless, the Court placed substantial weight on the earlier Children’s Court findings and the contemporaneous conduct of the Aboriginal Medical Service, Aboriginal Legal Service and Department.
The Court held that the Aboriginal child placement principles did not apply. A child adopted by relatives is not “placed” with them for adoption within the relevant statutory scheme; independently, an adult is not being placed in anyone’s care and may choose where to live. The Court also held that s 64’s Aboriginal-specific counselling requirements apply when an Aboriginal child consents to their own adoption.
Although the young man’s affidavit clearly expressed his wish to be adopted, it was not effective statutory consent because the Act’s requirements for mandatory information, counselling, waiting periods, a prescribed consent instrument and independent witnessing had not been satisfied. The Court did not make the adoption order. It granted the applicants leave to serve further evidence establishing compliant consent within 28 days, with liberty to seek more time.
Key Takeaways
- An adult adoptee’s consent cannot be dispensed with and must comply with the Adoption Act’s formal informed-consent requirements; an affidavit expressing consent is insufficient.
- A court may determine under s 4(2) that a child is of Aboriginal descent even when the evidence does not establish every element of the Aboriginal Land Rights Act definition.
- The Aboriginal child placement principles do not apply to a relative adoption or to the adoption of a person over 18 because neither involves “placement for adoption” in the statutory sense.
Why It Matters
The decision clarifies how New South Wales adoption law applies when a person treated as an Aboriginal child in earlier care proceedings seeks adoption after turning 18. It distinguishes the broader power to determine Aboriginal descent under the Adoption Act from the three-part Aboriginal Land Rights Act definition.
It also underscores that a compelling and consensual adult-adoption application cannot bypass statutory safeguards. Applicants must obtain formally valid consent, including any Aboriginal-specific counselling required by s 64, before an adoption order can be made.