A recent decision of the NSW Court of Appeal of Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 was an interesting navigation of a legal minefield to arrive at a sensible decision.

The facts:

• Belinda was a teenage girl who was assumed into care when she was very young and had been cared for continuously by her adoptive mother since she was seven months old.
• There had been no contact between Belinda and her biological parents for at least seven years before the adoption application was made.
• Belinda’s biological mother claimed that she identified as Aboriginal because her paternal grandfather (Belinda’s great grandfather) was Aboriginal.
• Belinda’s biological father was not Aboriginal. He opposed the adoption application because he claimed, amongst other reasons, that Belinda was an Aboriginal child and the Aboriginal child placement principals should apply, that being, that first preference should be given to the placement of an Aboriginal child with parents from an Aboriginal community to which one or both of the child’s birth parents belong, or if that is not practicable or not in the child’s best interests, for the child to be placed with adoptive parents from another Aboriginal community.
• The Court found:
  • Belinda was an Aboriginal child for the purposes of the Adoption Act.
  • Whilst the Aboriginal child principal requires that preference be given to an adoption by parents who are members of an Aboriginal community, that preference is subject to what is practicable and in the child’s best interest.
  • The Court found that Belinda’s best interests would not be served by removing her from the loving care of the woman who had cared for her continuously and in a stable environment, since she was an infant.
  • The primary Judge, in making the Adoption Order, stated the following:
    • Belinda will be raised in a legally recognised family, rather than remaining a State ward for the duration of her childhood. She will no longer be in ‘out of home care’, but ‘in home care’. The need for departmental intervention in her care and departmental approval for significant decisions will be removed as will the stigma potentially associated with being a State ward;
    • Belinda’s legal status will be brought into conformity with reality. Psychologically and residentially, she is a member of her adoptive mother’s family. An adoption order would bring the legal position into line with this. Her membership of the family that she regards as her own would be perfected, providing her with a sense of security and permanent belonging in that family. Belinda will be a member of that family, not only during her childhood but for life; and
    • Belinda’s legal name will correspond with that of the family which she lives and identifies with. She will be enabled to choose for herself whom she tells of this status, without it being self-evident from her name.”

A good result in this time of over the top political correctness.

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