Important cases — Aboriginal and Torres Strait Islander placement principles

[3-1000] Re Lucinda Porter (No 2) [2023] NSWChC 2

Last reviewed: June 2024

Placement/kinship assessment — Aboriginal child with special needs — placed with non-Aboriginal foster carers — child is stable, secure and thriving in current placement — Family Group Conference indicated family’s wish for child to remain in current placement — Care Plan proposed maternal great-uncle and aunt as long-term kinship carers — request for DCJ's permanency planning refused — long-term placement with maternal great-uncle and aunt cannot be recommended unless they are aware of child's special needs and assessment considers whether they have skills and commitment to provide a long-term home for child with special needs — safety, welfare and well-being of child are paramount, and kinship placement is not the only consideration in deciding placement — no evidence Secretary considered and weighed all relevant factors — maternal great-uncle and aunt withdrew application — no Aboriginal carers available and only available long-term placement was foster parents — Amended Care Plan and Cultural Plan permanency planning appropriately and adequately addressed — placement/kinship assessment must contain probing, challenges, appropriate corroboration, consideration of objective evidence, analysis and reasoning based on assessor’s expertise: see [74] for assessment requirements — DCJ must balance Aboriginal and Torres Strait Islander placement principles with child’s current circumstances and future needs and placement options and decide which placement will be in the child’s best interest — parental responsibility to the Minister.

Re Malakhai [2022] NSWChC 6

Application by mother for restoration — Aboriginal mother and child — s 13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles apply — vulnerable child with ongoing medical and health needs — mother and child living in an FSP residential home with no support — referral to residential intensive parenting education program did not eventuate — Family is Culture Report recommendation 45: prenatal caseworkers should be allocated to ensure that expectant Aboriginal parents have access to early, targeted and coordinated intervention services and support — mother needs targeted and therapist-lead counselling to assist her learn parenting skills — no realistic possibility of restoration to mother — mother demonstrated no insight into impact of her cannabis use on her ability to parent safely — domestic violence — permanency planning has not been appropriately and adequately addressed — direction that a new Care Plan be prepared.

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

Adoption — biological father opposed adoption — biological mother identified as Aboriginal — child assumed into care at 7 months of age and placed with her proposed adoptive mother who is not Aboriginal — prior decision, Fischer v Thompson (Anonymised) [2019] NSWSC 773, stated that in order for a child to be an “Aboriginal child”, it was necessary to identify an ancestor of the child who was “a member of the Aboriginal race of Australia, and identified as an Aboriginal person, and was accepted by the Aboriginal community as an Aboriginal person” — at first instance it was held that the child was not Aboriginal and Aboriginal child placement principles did not apply — s 4(1) Adoption Act 2000 provides that the definition of “Aboriginal child” refers to “descended from an Aboriginal” and s 4(2) refers to the child being “of Aboriginal descent”; “descended” and “descent” have nothing to do with identification or acceptance — unnecessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community — sufficient to show child was descended from people who lived in Australia before British colonisation — Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved — leave to appeal granted in part.

Department of Communities and Justice and Masters [2020] NSWChC 7

Application to rescind Care Orders giving Minister parental responsibility — applicant formerly held parental responsibility for child — Secretary opposed leave being granted due to an inability to approve applicant as an authorised carer because of a current bar to a Working With Children Check and also concerns as to capacity to provide adequate care — applicant and child are Aboriginal people — applicant shared parental responsibility with Minister for cultural up-bringing — sufficient interest in welfare of a child to enable applicant to have standing — significant change in relevant circumstances — applicable factors for s 90 leave following amendment of Care Act — child’s attachment to applicant and risk of psychological harm — leave granted.

Adoption of B [2019] NSWSC 908

Adoption — child assumed into care at 6 months of age and placed with her proposed adoptive mother whom she has lived with for 12 years — birth father opposed adoption order — child consented to adoption — birth mother identified as Aboriginal person — evidence not conclusive whether child is of Aboriginal descent — adoption in child’s best interests — order for adoption and order for change of surname approved.

Fischer v Thompson (Anonymised) [2019] NSWSC 773

Adoption — ss 4, 34 Adoption Act 2000 definition of Aboriginal person — s 32 Care Act Aboriginal child placement principles — summons for orders for adoption and change of surname — 12 year old boy lives with proposed adoptive parents who have been caring for him since birth — birth parents oppose adoption — child consents to adoption — birth father discovered he was Aboriginal in 2017 — Aboriginality of child investigated by Secretary — Secretary opposed adoption as child benefiting from contact with birth family and connection with Aboriginal heritage — descent is sufficient for a child to be an Aboriginal child for purposes of s 4(1), (2) Adoption Act but child must still be descended from an Aborigine as defined in s 4 test — birth father is not an Aborigine for the purposes of the Act due to lack of evidence to meet components of s 4 test — order for adoption and order for change of surname approved.

Re Timothy [2010] NSWSC 524

Children — care and protection — administrative law — judicial review — grounds of review — jurisdictional error and procedural fairness — decisions of Children’s Court Magistrates — who may make application for interim order regarding placement — Aboriginal Care Circle.

Re Victoria and Marcus [2010] CLN 2

Children — care and protection — leave to bring an application to rescind a care order — application of Aboriginal and Torres Strait Islander Placement Principles — importance of encouraging and preserving the children’s Aboriginal cultural identity — children with special needs — autism.