Adoption Discharge Due to Irretrievable Breakdown Between Parties

The Court discharged an adoption order due to an irretrievable breakdown in the relationship between the parties, finding an exceptional reason existed under the Adoption Act 2000 (NSW).

Supreme Court New South Wales

Medium Neutral Citation: Discharge of Adoption of [NAME] (a pseudonym) [2024] NSWSC 565 Hearing dates: 9 May 2024 Date of orders: 14 May 2024 Decision date: 14 May 2024 Jurisdiction: Equity - Adoptions List Before: Stevenson J Decision: Discharge of adoption order to be made; name change order to be made; order to be made identifying the applicant's birth parents on the [NAME]: CHILD WELFARE – adoption – application by adult adopted person to discharge adoption order – whether an exceptional reason shown – where irretrievable breakdown of relationship between applicant and [NAME]: Adoption Act 2000 (NSW) Adoption of Children Act 1965 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Cases Cited: Adoption of LVH [2014] NSWSC 1902 [NAME] (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam) BB v [NAME]; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 Discharge of Adoption of [NAME] (a pseudonym) [2023] NSWSC 1508 Discharge of Adoption of K [2022] NSWSC 1197 Discharge of Adoption of [NAME] (a pseudonym) [2023] NSWSC 1317 R v Kelly (Edward) [2000] QB 198 Re David [2022] NSWSC 1738 [NAME] (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673 Re L; Application for Parentage Order [2022] NSWSC 1155 Re [NAME] [2009] NSWSC 592 S v B; O v D [2014] NSWSC 1533 Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Category: Principal judgment Parties: "[NAME]" (a pseudonym) (Applicant) Secretary, New South Wales Department of Communities and Justice (Intervenor) Representation: Counsel: [redacted]

Solicitors: [redacted] [NAME] (Intervenor) File Number(s): 2024/83137 Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT 1. The plaintiff, who I will call "[NAME]" (not her real name), seeks an order discharging an order made by this Court on 26 March 1981 for her adoption by a married couple, [1] to whom I will refer as "[NAME]". [NAME] both died last year.

2. At my request, the Secretary of the Department of Communities and Justice was joined to the proceedings as an intervenor.

3. The Secretary has, through [NAME] of counsel, and [NAME] from the [NAME], made careful and helpful submissions on the application. I am very grateful for the Secretary's intervention. 4. [NAME] was 13 years of age when she was adopted. She is now 56 years of age, is married, and has 3 children. 5. [NAME]'s father was not married to [NAME]'s mother. They were in a de facto relationship and separated shortly after [NAME] was born. He died in 2009. 6. [NAME]'s mother worked as a secretary for the [NAME] and died, suddenly, in 1977 when [NAME] was only 9 years of age. 7. [NAME] assumed care for [NAME] and, in 1981, adopted her. 8. [NAME] has described, in detail, the manner in which she was treated by [NAME].

9. It is not necessary that I set out the details of those matters.

10. Leaving aside the details that [NAME] has recounted, [NAME] has summarised her position thus: "It is extremely painful to recall and discuss my childhood with [[NAME]]. All I can say is that I was abused emotionally and physically, and sorely neglected, so much so that I basically raised myself. [The [NAME] mother] looked at me with hate daily, and cut short my education. … I want to put this whole horrible episode behind me, and I want to focus on healing. In order to begin the healing process, I need to be returned to my correct identity. I need to live in my family, as most people have the privilege of doing. … It is not acceptable to me that I am legally severed from my bloodline. I am not the child of [the [NAME]] and [the [NAME] mother]. I never was. Yet through this adoption construct I legally am. They are legally my owners, and this is a yoke that is extremely painful to live with. This adoption scenario is something I cannot live with and shouldn't have to live it. Until the adoption is discharged, I cannot be me, and I cannot live my authentic life. I ask the Court to grant me my wish, and return me to myself, and my parents."

1. What is clear is that [NAME] had, to say the very least, a difficult childhood and adolescence in the care of [NAME], that there was no substantial contact between [NAME] and [NAME] between about 1997 and when they died in 2023, and that the relationship between [NAME] and [NAME] had, by 1997, irretrievably broken down. 2. [NAME] are no longer able to contradict these matters, and although the material before me thus describes matters from [NAME]'s perspective, I see no reason to doubt that [NAME] has accurately described the substance of her experiences. I do not see this as giving [NAME] the "benefit of the evidentiary doubt". [2] It must have been very difficult for [NAME] to bring herself to make this application. Having seen her in Court on a number of occasions now, and having carefully considered the material she has placed before the Court, I see no reason to doubt her account that the breakdown in her relationship with [NAME] is the product of the nature of their care for her.

Discharge of adoption order 1. The Adoption Act 2000 (NSW) makes provision for adoption orders to be discharged in very limited circumstances. [3] The circumstance that is relevant here is whether there is "exceptional reason" to discharge the adoption order. [4]

2. As I have explained to [NAME], the reason that exceptional circumstances are needed to set aside an adoption order is that the Adoption Act bespeaks Parliament's intention that adoption should be, so far as possible, able to provide a child who is adopted with lifelong security and stability within their [NAME] family. Thus, it has been said in earlier cases that "an adoption order is a transformative order that changes the child's status in a way that is intended to be legally permanent". [5]

3. Nonetheless, s 93(5) of the Adoption Act provides that an adoption order may be discharged if there is an exceptional reason to do so, provided that the order would not be prejudicial to the best interests of the child, and is not motivated by consideration that did not affect the child's welfare.

4. The "exceptional" reason for discharge does not have to relate to the circumstances in which the adoption order was obtained and can, as is the case here, relate to "other matters", including matters arising after the adoption order was made. [6]

5. There may be an exceptional reason to discharge an adoption order if there has been, as is the case here, a "significant and irretrievable breakdown" in relationship between the parties to the adoption. [7]

6. It has been held in another context that for a circumstance or reason to be "exceptional", it does not need to be unique or unprecedented or especially rare. The term "exceptional" is sometimes used as a synonym for "special". [8]

7. Whether an "exceptional reason" to justify an order discharging an adoption order exists might necessarily be a fact-specific exercise in each case. [9]

8. In his written submissions, [NAME] suggested: "… it may be preferable for the Court to defer making a decision with respect to [[NAME]'s] application until such time as [[NAME]] has been able to obtain further evidence, or to otherwise participate in a process leading to the creation of further evidence, that may assist the Court in its consideration of the issues arising for determination in this matter." 1. [NAME] suggested that such further evidence could include evidence from "an appropriately qualified person" dealing with the "nature and cause(s) of the distress felt by [[NAME]]" and that I would be assisted by hearing evidence from a counsellor who has been giving assistance to [NAME].

2. I raised these matters with [NAME] who informed me that such matters would likely cause her further distress and trauma, and that her preference was that I deal with the matter on the basis of the material now to hand.

3. I have considered that material and have come to the conclusion that, for the reasons I have set out, [NAME] has shown an exceptional reason such as to justify setting aside the adoption order; and has also shown that a discharge of the order would be in her best interests.

4.

Accordingly, I propose to make an order discharging the adoption order.

Further orders 1. The Adoption Act enables me to make an order, ancillary to the discharge order, changing [NAME]'s name. [10] [NAME] seeks an order that her name be changed reinstating her birth surname. I propose to make such an order. That will not include a middle name, proposed by [NAME], that has particular significance for her. As that middle name was not recorded on [NAME]'s original birth certificate, I do not think it appropriate to add that name as a part of the discharge process.

2. If [NAME] wishes to change her name to add that middle name, it will be open to her to apply to the Registrar of Births, Deaths and Marriages under s 27 of the Births, Deaths and Marriages Registration Act 1995 (NSW) for registration of her changed name so as to include that middle name, so that the Registrar might then issue a birth certificate under s 31 of that Act showing [NAME]'s name as changed.

3. I will, in any event, make an order, pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act, that the Registrar of Births, Deaths and Marriages is to record in the [NAME]'s birth name as comprising her given name and her birth surname. [11] 4. [NAME] also seeks orders that, in effect, I direct that the Registrar of Births, Deaths and Marriages alter [NAME]'s birth certificate to remove reference to the names of [NAME]. I doubt I have power to make that direction, [12] and, in any event, do not think it appropriate that I do so. What I will do is to make a note for the attention of the Registrar of Births, Deaths and Marriages that the Court requests that the names of [NAME] be removed from [NAME]'s birth certificate and that any further documentation issued by the Registry of Births, Deaths and Marriages refer to [NAME] by the name that will be the subject of my order. [13] 5. [NAME] also seeks an order that a new birth certificate be issued recording the names of her birth parents.

6. As [NAME] submitted, there is no doubt as to the identity of [NAME]'s birth mother. Her name is recorded on [NAME]'s original birth certificate. [NAME]'s birth father is not, however, noted on [NAME]'s original birth certificate. In that regard, the Secretary engaged a Family History Researcher from the [NAME] to produce a report which enables me to be satisfied that [NAME]'s birth father is the person that she has nominated. In those circumstances, I am prepared to make an order under s 19(2) of the Births, Deaths and Marriages Registration Act that [NAME]'s birth parents be identified as her parents on the [NAME].

7. The Secretary has provided me with proposed orders and notations that give effect to these reasons.

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Endnotes 1. The order was made under the Adoption of Children Act 1965 (NSW).

2. Cf Re [NAME] [2009] NSWSC 592 at [24] (Palmer J).

3. Including an order made under a "former Act" such as the Adoption of Children Act; see the definition of "adoption order" in the Dictionary of the Adoption Act.

4. Adoption Act, s 93(4)(b). 5. [NAME] (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam) at [80] (Theis J).

6. Adoption of LVH [2014] NSWSC 1902 at [6] (Brereton J). 7. [NAME] (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673 at [228] (Hallen J), and see my decision in Discharge of Adoption of [NAME] (a pseudonym) [2023] NSWSC 1317 at [13].

8. See R v Kelly (Edward) [2000] QB 198 at 249 (Lord Bingham of Cornhill CJ); Re L; Application for Parentage Order [2022] NSWSC 1155 at [22] (Parker J); Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 at [15] (Slattery J); S v B; O v D [2014] NSWSC 1533 at [30] (White J, as his Honour then was); BB v [NAME]; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 at [36]-[37] (Robb J); Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66] (Campbell JA; Tobias JA and Handley AJA agreeing).

9. See my decision in Discharge of Adoption of K [2022] NSWSC 1197 at [13].

10. Adoption Act, s 93(7)(a).

11. The Register currently records [NAME]'s surname as being that of [NAME].

12. A view shared by Slattery J; see Re David [2022] NSWSC 1738 at [73].

13. I adopted the same course in Discharge of Adoption of [NAME] (a pseudonym) [2023] NSWSC 1508 at [15]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2024