An Aboriginal child, moved 1,700 kilometres from his remote Northern Territory community, must be returned so he can experience culture, a family appeals court has ruled.

Known as X in the court documents, the child, who was born in 2016 to a mother who was incarcerated at the time, has been living in Western Australia with a non-Aboriginal woman unrelated to him, known as Ms Hronn, since September 2022.

Both the town in WA and X's remote community were redacted in the court documents.

Last week, the appeal division of the Federal Circuit and Family Court ruled Ms Hronn had failed to overturn the orders handed down last November by Justice Richard Schonell.

The appeals court ordered X be returned to his community, known as Town N in the documents, and cared for by Ms Tracey — X's mother under his people's kinship system and a cousin of his biological mother — who is to have "sole decision-making responsibility for him".

Whilst Ms Hronn argued she does not have the financial capacity to fly herself and X to Town E, 500 kilometres from Town N, and would prefer to deliver X to Town N herself — a journey involving several days of driving — in their judgement, the appeals judges said, "We do not think it would be in anyone's interest for the changeover to occur in Town N."

"The changeover will take place in Town E, 14 days after the first respondent or the Independent Children's Lawyer informs the appellant [Ms Hronn] in writing that the bus service has recommenced."

Court finds cultural needs can only be met on Country

Last November, Justice Schonell ruled X should be returned to Country and that Ms Tracey should have sole decision-making responsibility for him.

He accepted the evidence that X "will find a separation from Ms Hronn traumatic and he will be very distressed if he does not see her and have contact with her".

Nonetheless, Justice Schonell ruled that while he was satisfied both Ms Hronn and Ms Tracey have the capacity to support X's "developmental, psychological, and emotional needs", he was not persuaded Ms Hronn — other than on a "very superficial level" — "has the capacity to provide for his cultural needs".

"I am satisfied for the reasons given above that his cultural needs can only be provided by him being on country in Town N," he ruled. "I am satisfied that Ms Tracey is able to provide for his cultural needs."

The court previously noted Ms Tracey had no financial capacity to go to Town C, while Ms Hronn had no financial capacity to go to Town N and said she was fearful of visiting.

While Mr G (X's grandfather and a community Elder) later discontinued his involvement in seeking orders in the case, having first sought parenting orders in May 2024, he gave evidence supporting those sought by Ms Tracey.

In her appeal, Ms Hronn argued Justice Schonell failed to provide adequate reasons for finding there was only a low risk that X would be sexually abused if returned to his community, and that he erred in assessing what constituted an unacceptable risk.

However, the three appeal judges disagreed, describing the judge's decision as "detailed and nuanced" despite facing a "number of difficult considerations which included not only where and with whom X should live, but questions as to the importance of connections to X's Aboriginal heritage, now and in the future..."

The judgement contained "a valuable discussion on the approach to Aboriginal witnesses, cultural considerations and a cogent summary of the evidence as to the local customary law," they ruled in dismissing the appeal.

Move from remote community at centre of dispute

Since April 2018, X had been placed in the care of his grandmother, known as Ms V, under orders from the Northern Territory Department of Children and Families. Despite the placement order expiring in September 2021, X remained in her care.

Ms Hronn, who had lived in Town N since 2015, said Ms V had asked her to look after X. She had been given the skin name of "O skin", court documents said, while X's skin name is "K skin".

Under local cultural law, X was considered to be Ms Hronn's son, and she had a cultural obligation to care for him, as long as she continued to live in Town N.

By September 2022, X was living with Ms Hronn permanently, and she had purchased a home in Town C — 1,700 kilometres away from Town N — and X was enrolled in school there.

When Ms Hronn returned to Town N with X for a funeral, Ms V and her husband, Mr G, would not let him leave with her. While Ms Hronn returned home without X in late 2022, after discussions between her, Ms V and Mr G, X eventually went back to Town C.

When Ms V died in August 2023, Mr G asked Ms Hronn to allow X to return to Town N for the funeral, which she did not, arguing X did not want to.

"Had Ms Hronn had the cultural competence she asserts, she would have known that it would have been bad for X's spirit to have missed out on Sorry Business," Justice Schonell said.

Safety concerns rejected by court

In her affidavit, Ms Hronn argued it was "utterly unsafe for [X] to return to [Town D (also known as Town N)] where it is alleged he was sexually and physically abused, and subject to neglect and family violence".

"I completely acknowledge the impact on First Nations children being removed from family, kin and country," she said. "However. I have not removed [X] from family, kin or country. [X] was removed from family and country by the NT Government and placed in a kinship arrangement in [Town D]. The kinship arrangement he was placed in allowed for him to suffer abuse and neglect."

She argued she was not stopping or preventing X from connecting with his culture, family or community, and claimed the child fully understood that "when he is ready to return to [Town D]... I will fully support his return".

"The decision for [X] to not return to [Town D] is his own and not mine," she said.

"[X] still enjoys his own culture and language. [X] does not have a connection with some members of the [Town D] community because he chooses not to due to past events and due to threats have been made towards him. I will always support [X's] decisions."

In response, Justice Schonell said her comments reflected "poorly on her parenting capacity and understanding of his culture that she leaves these important decisions to X".

"It is also disingenuous as she says she is not financially able to return him."

He ruled by failing to return X to his community — even for short visits — Ms Hronn had "denied him the opportunity to have a relationship with all of the mothers who carry the skin name O skin".

"Despite saying she recognises the importance of country and kin, she puts forward no viable proposals as to how X could connect with his community or country in Town N," Justice Schonell said. "Her only proposal to connect with kin is through telephone/video contact."