Editors --- "Re Simon [2006] NSWSC 1410 - Case Summary" [2007] AUIndigLawRw 14; (2007) 11(1) Australian Indigenous Law Review 117

• Re Simon
• Facts:
• Held:

Re Simon

New South Wales Supreme Court, Equity Division (Campbell J)

12 December 2006

[2006] NSWSC 1410

Adoption – ‘Aboriginal Person’ – Adoption Act 2000 (NSW), ss4, 33, 64 – Aboriginal Land Rights Act 1983 (NSW), s4.

Facts:

Simon, aged eight, had been in foster care with his foster parents since he was eight months old. They sought to adopt him: see Re Simon (No 2) [2006] NSWSC 1412. On the morning of the adoption application hearing Simon’s biological father, Mark Q, who had consistently opposed the adoption application, made known his Aboriginal connections. Sections 33 and 35 of the Adoption Act 2000 (NSW) (‘Adoption Act’) require certain special principles and procedures to be applied in relation to the adoption of an Aboriginal child. The question before the Court was whether Mark was an Aboriginal for the purposes of the Adoption Act, and therefore whether it was necessary to apply those procedures and principles.

Held:

1. The terms ‘descended from an Aboriginal’ and ‘of Aboriginal descent’, respectively found in the definition of ‘Aboriginal child’ and in s 4(2) of the Adoption Act, refer to lineal descent. Thus, for the special provisions and principles of sections 33 and 35 of the Adoption Act to come into force one of Simon’s biological parents must prove that they are Aboriginal.

2. The Adoption Act provides that ‘Aboriginal’ is to have the same meaning as in the Aboriginal Land Rights Act 1983 (NSW) (‘Land Rights Act’). Section 4(1) of the Land Rights Act states that ‘Aboriginal person means a person who: (a) is a member of the Aboriginal race, and (b) identifies as an Aboriginal person, and (c) is accepted by the Aboriginal community as an Aboriginal person. While Campbell J accepted that Mark Q identifies (at least partly) as an Aboriginal, and that he is accepted by the Aboriginal community as an Aboriginal person, the evidence did not show that he is descended from Aboriginal people. This meant he does not fulfil all three requirements of the Land Rights Act, meaning he is not an Aboriginal person for the purposes of the Adoption Act.

3. Since neither of Simon’s biological parents are Aboriginal the placement principles contained in the Adoption Act did not apply to Simon. The merits hearing on the application made by Simon’s foster parents proceeded: see Re Simon (No 2) [2006] NSWSC 1412.