Judge allows adoption despite Aboriginal heritage discovery

Court rules brother and sister can be adopted by their foster parents against the wishes of their Indigenous mother, who argued the family wouldn’t understand Aboriginal culture.

The NSW Supreme Court has ruled that two siblings can be adopted by their long-term foster parents against the wishes of their Indigenous mother.

The NSW Supreme Court has ruled that two siblings can be adopted by their long-term foster parents against the wishes of their Indigenous mother, who voiced concerns the family wouldn’t understand Aboriginal culture.

Judge James Stevenson said it was a grave step to over-ride the wishes of birth parents but he was satisfied it was in the children’s best interests to be adopted by the foster couple, known by the pseudonyms Julie and Matthew, who had raised them since they were ­babies.

The eldest sibling Mary*, 9, who was removed from her parents when she was 22 months old, told an independent assessor that she wanted to stay with the foster couple “as they keep us safe and feed us healthy food. They love us most in the whole world.”

When asked if she had a message for the judge, she said: “Could you make sure he knows that we really want to be adopted, please.’’

Her brother Michael*, 7, was nine months old when he went into care with his sister in 2015. The children share a mother, Audrey*, but different fathers, and have a number of siblings.

The children’s Indigenous heritage was discovered in 2020 when a Department of Communities and Justice case worker found records revealing the whereabouts of Audrey’s mother, who confirmed she identified as an Aboriginal woman.

The court heard a historian from the Crown Solicitor’s Office traced the children’s maternal heritage back to their great, great, great, great, great-grandmother, who was “an Aboriginal woman born around the 1850s who was probably living in [an identified area of NSW]”.

The departmental secretary said he then found himself in “the increasingly common and procedurally challenging position” of having become aware of the children’s Aboriginal heritage many years after they were placed with the foster couple, who are not ­Indigenous.

This meant Mary and Michael fell under the Aboriginal child placement principle, which requires they be adopted by a member of the Aboriginal community to which their birth parents belong or, if that is not practicable, be placed in another Aboriginal community. Placement with non-Aboriginal carers is the least preferred option.

Where a child has one Aboriginal and one non-Aboriginal parent, the law provides they can be placed with a person who will serve their best interests and if that person is non-Indigenous, the child must have the opportunity for contact with family, community and culture.

Aboriginal child protection experts say adoption should never be an option for Indigenous children, arguing it is not part of Aboriginal culture and because of the ongoing impact of previous policies that gave rise to the Stolen Generations.

The Australian has reported on other cases of Indigenous children fighting to live with or be adopted by white ­carers, leading to calls by Country Liberal senator Jacinta Nam­pijinpa Price for the laws hindering such arrangements to be changed.

In this latest case, the siblings’ mother Audrey and Michael’s father Steven, who is not Indigenous, opposed the adoption (Mary’s non-Indigenous father is deceased). The court heard ­Audrey had relatively recently learned of her heritage and initially did not want to identify as being ­Aboriginal.

She submitted to the court that there was no proof that the foster parents understood Aboriginal beliefs and cultures that could be passed on to her children and that a “non-Aboriginal family wouldn’t understand the Aboriginal culture”.

As part of the adoption process, the department was required to consult with a local Aboriginal organisation that determined that the children were thriving and the foster parents were doing their best to engage the children with their heritage.

Justice James Stevenson.

Justice Stevenson found the foster parents had undertaken cultural competence training, had met with Aboriginal family members and had consistently encouraged the children to learn about and express their culture.

The couple told an assessor that “we raise these children with pride in their culture and with empathy to the disadvantage that led to their removal from [Steven] and [Audrey]’.

The court heard the children also had southern European and, in Mary’s case, Middle Eastern heritage, and the foster parents were embracing awareness of this aspect of their history as well.

“We have both lived and worked in many countries and encourage the kids to be inclusive and curious about cultures,’’ the father said.

The assessor found the adoptive parents to be nurturing, loving and committed.

Justice Stevenson said it would be hard for Steven and Audrey to read his judgment that there was no realistic prospect of the children being returned to them.

Under the adoption plans, the children will have six face-to-face family visits with each parent each year.

Justice Stevenson said the adoption order would give the children certainty and permanency in a family that was recognised at law as their own.

* All names have been changed.