Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Leave was granted only on the statutory construction ground because s 4(2) of the Adoption Act 2000 (NSW) gives the Court a discretionary power to determine that a child is an Aboriginal child where the child is of Aboriginal descent, without requiring proof that an identified ancestor satisfies the three-limb test....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 May 2020
Procedural Posture
Application for Leave to Appeal and Appeal From Supreme Court of New South Wales Equity Division Adoption Orders / Court of Appeal Decision on Leave and Appeal
Outcome
Leave to appeal granted confined to proposed ground 1A; appeal otherwise dismissed; Secretary directed to apply to review adoption plan orders.
Legal Topics
['aboriginal Child Placement Principles' 'meaning of Aboriginal Child Under Adoption Act 2000 (nsw) S 4' 'procedural Fairness' 'leave to Appeal' 'adoption Plans']
['adoption Law' 'child Welfare' 'administrative Law' 'statutory Interpretation' 'appellate Procedure'] ['aboriginal Child Placement Principles' 'meaning of Aboriginal Child Under Adoption Act 2000 (nsw) S 4' 'procedural Fairness' 'leave to Appeal' 'adoption Plans']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal and Appeal From Supreme Court of New South Wales Equity Division Adoption Orders / Court of Appeal Decision on Leave and Appeal

Legal Issues

  1. 1 ['Whether Belinda was an "Aboriginal child" for the purposes of the Adoption Act 2000 (NSW).' 'Whether s 4(2) of the Adoption Act 2000 (NSW) required identification of an ancestor who satisfied the three-limb test of Aboriginality.' 'Whether the primary judge denied procedural fairness by not considering late written submissions and a proposed reopening application.' 'Whether the adoption order, name order and adoption plan orders should be disturbed.']

Ratio Decidendi

Leave was granted only on the statutory construction ground because s 4(2) of the Adoption Act 2000 (NSW) gives the Court a discretionary power to determine that a child is an Aboriginal child where the child is of Aboriginal descent, without requiring proof that an identified ancestor satisfies the three-limb test. Belinda was of Aboriginal descent and therefore an Aboriginal child. However, the adoption order and name order should stand because the evidence established that the Aboriginal child placement principles were satisfied, it was not practicable or in Belinda's best interests for her to be adopted by parents from an Aboriginal community, the adoptive mother had supported...

Court Disposition

Leave to appeal granted confined to proposed ground 1A; appeal otherwise dismissed; Secretary directed to apply to review adoption plan orders.

Orders

  • ['Grant leave to appeal confined to proposed ground 1A.' 'Direct the appellant to file a notice of appeal which conforms with proposed ground 2 of the draft notice of appeal, and otherwise dispense with the requirements as to service.' 'Direct the Secretary to apply to the Equity Division within 28 days of today to...