In Hackett (a pseudonym) v. Secretary, Department of Communities and Justice (2020), why did Hackett appeal the decision made in the original trial? The court and Hackett agreed the child was Aboriginal, so why was there a need to appeal the original decision?

The appeal was necessary because the parties originally agreed that Belinda was Aboriginal, but a subsequent decision by the appellate division in a separate case allowed one party to challenge this at a later hearing, leading the judge in the original case to determine that Belinda was not Aboriginal.

Expert Answers

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In the Hackett case, the parties originally stipulated that Belinda, the child at issue, was an Aboriginal with respect to the Adoption Act. However, at the time this stipulation was made, the parties were aware that an opinion in Fischer v. Thompson was likely to be released shortly and could impact the law applicable to their own case. Thus, the parties were aware that a change in the stipulations may be required depending on the decision in Fischer. After the opinion in Fischer was released, the parties were asked to submit written briefs to determine whether the initial stipulation was adequate. Belinda's biological father failed to submit a written brief by the determined date, leading the judge to ignore his submission in determining that, under the Fischer test, Belinda could not be designated as an Aboriginal child. This determination by the judge led the biological father to appeal the ruling.

At the appellate level, the judges determined that the Fischer test was too narrowly applied in Belinda's case because there was substantial evidence of her ties to the Aboriginal peoples of the nation. Thus, the procedure here started with both parties agreeing that Belinda was an Aboriginal trial. This determination was challenged after the decision of Fischer, which delineated a new test. The judge in Belinda's trial, applying that test, determined that Belinda was not an Aboriginal child, essentially reversing the agreement of the parties. The biological father appealed to challenge this change, and the appellate court reversed the initial judge's determination.

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