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 Transitional provisions operate in relation to that Act pursuant to section 212, and Schedule 3. Clause 8 of Schedule 3 says:

“If immediately before the commencement of this clause a child was placed with a view to adoption by a prospective adoptive parent or parents, an application to adopt the child by that parent or those parents is to continue to be dealt with under the repealed Adoption Act , despite its repeal.”

5 Deciding whether that clause of the transitional provisions applies would raise a question of when it was that the child was “placed with a view to adoption”, or indeed whether he had ever been “placed with a view to adoption”. They are questions that the evidence had not focused on before this problem arose. It appears that at the time he was initially placed with the applicants, he was placed pursuant to an order of the Children's Court after having been made a ward of the State.

6 As well, a legal question of construction of clause 8, would arise. In deciding whether clause 8 applies, there would be a question of construction about whether “placed with a view to adoption” means that adoption must be a dominant purpose of the placement, or whether it is sufficient if adoption is seen as being one of the possible outcomes of the placement. If the latter view were correct, then sometimes the placing of a child with foster parents could count as being a placement “with a view to adoption”. If it were necessary to solve that problem, it may have been necessary for there to have been an adjournment to enable evidence to consider that problem to be put on, and for attention to be given to the available arguments about which of these constructions of “placed with a view to adoption” is correct – or indeed whether some other construction is appropriate.

7 The particular principles and procedures that the 2000 Act applies in relation to Aboriginal children are of two types. There are “Aboriginal Child Placement Principles”, that section 8(1)(f) requires to be applied. Those principles appear in a section of the Act, Part 2, that is headed: “Placement of Children for Adoption”. The sections in that Part deal with children who come from various different cultural backgrounds and in broad terms aim to ensure that the particular cultural background that a child comes from is taken into account in deciding whether the child is placed for adoption and, if so, with whom.

8 There are special provisions which relate to placement for Aboriginal children contained in section 33:

“The Director-General or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child:
(a) a person approved in accordance with section 195, or
(b) a person nominated by the child’s parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Aboriginal children.”

9 There is an obligation under section 34(1) for the Director-General or other appropriate officer to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child.

10 Section 35 sets out what the Aboriginal placement principles are. In broad terms, they aim at ensuring that Aboriginal people participate in decisions about placement of Aboriginal children, and that Aboriginal children are, to the extent that is possible, placed with people who are from an appropriate Aboriginal community.

11 Section 195, that is referred to in section 33, provides:

“(1) The Director-General may approve an Aboriginal person as a person who may provide advice and assistance to Aboriginal families or kinship groups in relation to care options for Aboriginal children for the purposes of this Act.
(2) The Director-General must not approve a person under this section unless the Director-General is satisfied that the person has relevant experience in working with Aboriginal children, whether or not in connection with their families or kinship groups.”

12 It will be seen that these principles are ones that come to be applied at the time of placement of the child for adoption. Deciding on their applicability in the present case could give rise to the same factual enquiry as is involved in deciding whether the transitional provision in clause 8 of Schedule 3 applies, and a similar question of construction to that involved in clause 8 of Schedule 3.

13 In the circumstances of this case, that I will mention later, it is not necessary to express a view about whether, if the placement of the child with the people who now want to adopt him was not initially a placement “with a view to adoption” or a “placement for adoption”, there has ever been a placement with a view to, or for, an adoption. If there had never been such a placement then the Aboriginal placement principles would have no application. It may be, however, that another view of the legislation is possible, whereby a placement that was initially not for adoption, comes to count as a placement for adoption, if, without any change in physical location of the child, the intention with which a child is left in the care of particular people alters, so that it is intended that that child is, or may, become available for adoption. The law recognises a concept somewhat like that in circumstances as diverse as constructive delivery in the law of bailment, or separation under one roof in the pre-1975 law of divorce. If that is the correct construction of the legislation, it may be necessary to apply the Aboriginal placement principles at the time that that latter decision is made.

14 If that were the correct construction of the legislation, again an adjournment would have been necessary to enable the factual questions that would be necessary to answer that question to be put before the court, and to consider the legal questions involved.

15 The second topic concerning which the Adoption Act 2000 requires special procedures to be followed concerning the adoption of an Aboriginal child, concerns the manner in which consent to adoption must be obtained. Section 64 sets out a special procedure for obtaining consent to the adoption of an Aboriginal child. If the child involved in this application was an Aboriginal child, it would be necessary to at least consider whether the existence of those special procedures for obtaining consent affected the way the Court went about deciding whether it would dispense with consent of an Aboriginal birth parent.

16 The definition of “Aboriginal child” in the Adoption Act 2000 is:

“ Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2).”

17 Section 4 (2) provides:

“(2) Despite the definition of Aboriginal in subsection (1), the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent.”

18 The terms “descended from an Aboriginal” and “of Aboriginal descent” refer, in my view, to lineal descent. The boy involved in this case will thus be an Aboriginal child if either of his birth parents is Aboriginal. His mother is clearly not Aboriginal. Thus whether the boy is an Aboriginal child will depend on whether Mr Q is Aboriginal.

19 “Aboriginal” is defined in the Adoption Act2000 as:

“Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.”

20 The Aboriginal Land Rights Act1983 provides in section 4(1) that:

“Aboriginal person means a person who:
(a) is a member of the Aboriginal race of Australia, and
(b) identifies as an Aboriginal person, and
(c) is accepted by the Aboriginal community as an Aboriginal person.”

21 So that evidence that might enable the question of whether Mr Q is an Aboriginal within the meaning of the Adoption Act 2000 could be obtained this morning, I appointed myself, under Rule 24.3 Uniform Civil Procedure Rules 2005, to be an examiner to take evidence concerning matters relating to his assertion that he has a connection with Aboriginal persons that may be relevant for the purposes of the Adoption Act 2000. In circumstances where the examination would take place immediately, in the same courtroom where the court was then sitting, and no additional expense or interference with court administrative arrangements would arise, I dispensed with the requirement for consent of the senior judicial officer under Rule 24.4(1). I appointed myself on the basis that if, following the taking of that evidence, an adjournment continued to look as though it might be necessary, then that evidence could be available for the trial without my becoming part-heard in the trial. As well, the evidence could assist the Department in deciding what its approach to the application would be, if there was a basis for believing that the boy involved in the case was an Aboriginal child. That procedure was followed with Mr Q’s consent.

22 In the course of that examination Mr Q gave evidence, about his family relations. He said at one stage that he is not an Aboriginal. However, he also said that his (half) sisters are Aboriginal, and they are of his blood, so he is Aboriginal too. Mr Q said that his father had no Aboriginal blood, but was what he described as “black Irish”. He had been a drover. Mr Q’s mother was not an Aboriginal. However, Mr Q has, in his extended family, significant Aboriginal connections. His father had a wife (not Mr Q’s mother) who was a full-blooded Aboriginal. Mr Q said that, because of having that wife, his father was an Aboriginal. Mr Q has half-siblings who are Aboriginal by blood. He has a brother in Queensland who is married to a full-blooded Aboriginal. He, himself, has an Aboriginal tribal wife in Queensland. He has been accepted as being a member of the Wiradjuri tribe in Cape York. I accept all his evidence on these matters.

23 The meaning of being “a person of the Aboriginal race of Australia” has been considered by Merkel J in Shaw v Wolf (1998) 83 FCR 113. That decision concerned a definition of “Aboriginal person” under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). The definition was not the same as the definition under the Aboriginal Land Rights Act1983 (NSW). It was simply that an Aboriginal person is “a person of the Aboriginal race of Australia”. That expression was explained by his Honour at 117, adopting the words of Drummond J in Gibbs v Capewell (1995) 54 FCR 503, as:

“ ... Parliament has used the expression ‘Aboriginal race of Australia’ to refer to the group of persons in the modern Australian population who are descended from the inhabitants of Australia immediately prior to European settlement. It follows that an ‘Aboriginal person’ is, for the purposes of this Act, one of those descendants.
In so using the expression `Aboriginal race of Australia' Parliament has in my opinion here done nothing more than give this expression the same meaning it has in ordinary speech. Dictionary definitions of ‘race’ all refer to the notion of common descent: both the Macquarie Dictionary, (2nd ed, 1991) and the Oxford English Dictionary, (2nd ed, 1989), give as the primary meaning of the word ‘race’ the following: ‘a group of persons connected by common descent ... ‘. While the Macquarie Dictionary gives as the meaning of `Aborigine’: ‘one of a race of tribal peoples, the earliest inhabitants of Australia, the Oxford English Dictionary gives as a meaning of the word ‘Aboriginal’:
‘An original inhabitant of any land, now usually as distinguished from subsequent European colonists. Also spec one of the aboriginal inhabitants of Australia.’
It is this meaning that the Australian National Dictionary takes as the primary meaning of the word in Australian English usage. That Parliament intended the expression `Aboriginal persons' as defined in the Act to bear the meaning it has in ordinary speech is I think clearly shown by the second paragraph of the preamble which records Parliament's recognition of the expression `Aboriginal persons' as one in current community usage to identify descendants of the inhabitants of Australia before European settlement.”

24 Merkel J at 118 adopted the following summary of the meaning of the expression in the Commonwealth statute:

“• the words “Aboriginal race of Australia” bear the meaning they have in ordinary usage subject to any qualification that the statutory context in which they appear may require (at 505);

• the Aboriginal race of Australia refers to the group of persons in the modern Australian population who are descended from the inhabitants of Australia at the time immediately prior to European settlement (at 506);

• some degree of descent is a necessary, but not of itself a sufficient, condition of eligibility to be an Aboriginal person (at 508);

• a small degree of Aboriginal descent coupled with genuine self-identification or with communal recognition may, in a given case, be sufficient for eligibility (at 510-512);

• a substantial degree of descent, given the general communal recognition of aboriginality that usually accompanies it, may by itself be enough to require that the person be regarded as an “Aboriginal person” (at 511);

• communal recognition as an Aboriginal person may, given the difficulties of proof of Aboriginal descent flowing from, among other things, the lack of written family records, often be the best evidence available of proof of Aboriginal descent (at 512).”

25 The New South Wales legislation has expressly included the elements of self-identification as an Aboriginal person, and acceptance by the Aboriginal community as an Aboriginal person, as elements of the definition of Aboriginal person. Thus, the New South Wales legislation has expressly stated that those attributes are part of what is involved in being an “Aboriginal person”, and hence it is not necessary to construe the expression “a member of the Aboriginal race of Australia” to conclude that those attributes are, in the New South Wales legislation, a necessary part of being an “Aboriginal person”. Under the New South Wales legislation, being “a member of the Aboriginal race of Australia” still requires the person in question to be a person in the modern Australian population who has descended from the inhabitants of Australia immediately prior to European settlement. “Descended”, in that explanation of the term, refers to linear descent.

26 Mr Q in at least one sense of the term identifies as an Aboriginal person and he is accepted by the Aboriginal community as an Aboriginal person. However, he is not a member of the Aboriginal race of Australia, because the definition of Aboriginal person requires all three elements to be satisfied before a person counts as an Aboriginal person for the purpose of the Act. His evidence shows that he is not descended from Aboriginal people. For that reason it follows that Mr Q is not an Aboriginal person falling within the meaning of the Adoption Act2000. It is then unnecessary to decide whether the sense in which he identifies as an Aboriginal person is the relevant one for the Act.

27 It also follows that the child in question in this application is not an “Aboriginal child” within the meaning of the Adoption Act2000. Thus, no question can arise of whether the Aboriginal placement principles ought be applied or the special provisions concerning obtaining of consent in relation to Aboriginal children ought be applied. Under those circumstances it is unnecessary to have an adjournment and the hearing of the case on its merits can commence.

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