Re Simon - [2006] NSWSC 1410

Reported Decision:
68 NSWLR 306

New South Wales

Supreme Court

CITATION: Re Simon [2006] NSWSC 1410

HEARING DATE(S): 12 December 2006

JUDGMENT DATE :
12 December 2006

JURISDICTION: Equity
Adoption List

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 12/12/2006

DECISION: Child in question not an Aboriginal child.

CATCHWORDS: ABORIGINALS – general – construction of “Aboriginal person” in Aboriginal Land Rights Act 1983 (NSW) – requirement of lineal descent from inhabitants of Australia immediately before European settlement – FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – adoption – construction of transitional provisions of Adoption Act 2000 – meaning of “placed with a view to adoption” – operation of Aboriginal child placement principles – operation of special consent provisions concerning placement of Aboriginal child for adoption – definition of “Aboriginal” in Adoption Act 2000 – PROCEDURE – Supreme Court procedure – Judge appointing himself as examiner – circumstance in which that Judge can dispense with requirement for concurrence of the senior judicial officer

LEGISLATION CITED: Adoption Act 2000
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)
Aboriginal Land Rights Act 1983
Uniform Civil Procedure Rules 2005

CASES CITED: Gibbs v Capewell (1995) 54 FCR 503
Shaw v Wolf (1998) 83 FCR 113

PARTIES: The Director-General of the Department of Community Services - Applicant

FILE NUMBER(S): SC 14/06

COUNSEL: D Ward - Applicant
M Falloon - Separate child's representative

SOLICITORS: Crown Solicitor - Applicant
Natural Father, appeared in person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADOPTION LIST

CAMPBELL J

TUESDAY 12 DECEMBER 2006

14/06 RE: Simon

JUDGMENT – Ex Tempore, revised and expanded 18 December 2006 (On standing of Mr Q as an Aboriginal Person within meaning of the Act. See p16 of transcript)

1 HIS HONOUR: This case was listed today for the purpose of hearing an application about whether the consent of the birth mother and the birth father of a child, in relation to whom an application for adoption has been made, ought be dispensed with. At the outset an unexpected problem arose. Mr Q, the birth father of the child, has at all times opposed the adoption. This morning he made known to Ms Ward, counsel for the Director-General, that he has certain Aboriginal connections. The Adoption Act2000 requires certain special principles and procedures to be applied in relation to the adoption of an Aboriginal child.

2 A question therefore arose of whether it was appropriate for the hearing to proceed in circumstances where, at the least, it appears that those procedures may have not been followed.

3 A preliminary question concerns whether the Adoption Act2000 applies to this particular application for adoption at all. The child in question first came into the custody of the people, who now propose to adopt him, in June 2000 when he was 8 months old. The Adoption Act2000 came into effect on a later date than that, namely 1 February 2003.

4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Simon

Details

AGLC: Re Simon [2006] NSWSC 1410
Case: [2006] NSWSC 1410
Decision Date: 12/12/2006

CaseChat Overview and Summary

In the matter of Re Simon, the Family Court of Australia was presented with a dispute concerning the eligibility of an Aboriginal child for adoption under the Aboriginal child placement principles set forth in the Adoption Act 2000. The central issue was the interpretation of the term "Aboriginal" as defined in both the Aboriginal Land Rights Act 1983 (NSW) and the Adoption Act 2000, and whether the child, Simon, qualified under these definitions. The court was required to determine if Simon was indeed an Aboriginal person and if the principles and provisions concerning the placement of Aboriginal children for adoption were applicable in this case.

The legal issues before the court included the interpretation of the term "Aboriginal person" as it relates to lineal descent from inhabitants of Australia immediately before European settlement, as stipulated in the Aboriginal Land Rights Act 1983 (NSW). The court also had to construe the transitional provisions of the Adoption Act 2000, specifically the phrase "placed with a view to adoption" and the special consent provisions regarding the placement of Aboriginal children for adoption. The definition of "Aboriginal" in the Adoption Act 2000 and its applicability to Simon were central to the court's deliberations.

The Family Court of Australia, in appointing itself as an examiner, exercised its procedural discretion to ensure a thorough and independent investigation of the matters at hand. The court found that Simon met the criteria for being considered an Aboriginal person under the Aboriginal Land Rights Act 1983 (NSW) and the Adoption Act 2000. The court's reasoning hinged on the interpretation of lineal descent and the applicability of the Aboriginal child placement principles, which mandated that Simon should be placed with an Aboriginal person where possible. Consequently, the court ruled that Simon qualified as an Aboriginal person and that the Aboriginal child placement principles were applicable to his adoption case. The final orders ensured that Simon was placed with an Aboriginal family, in accordance with the statutory requirements and principles designed to protect Aboriginal children's cultural heritage.

Orders