Adoption of LVH - [2014] NSWSC 1902

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of LVH [2014] NSWSC 1902
Hearing dates: 19 September 2014
Date of orders: 19 September 2014
Decision date: 19 September 2014
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Pursuant to Adoption Act 2000 s 93, the adoption order made on 10 December 1964 in proceedings 1348 of 1964 be discharged;
Pursuant to s 93(7)(a), the name of the child consequent upon the discharge order be LVH.

Catchwords: FAMILY LAW – Adoption – discharge of adoptions order – procedure on application for discharge – fraud duress or other improper means – other exceptional reason
Legislation Cited: (CTH) Family Law Act s 79A(1)(a)
(CTH) Matrimonial Causes Act 1959, s 75
(NSW) Adoption Act 2000, s 93, s 94
(NSW) Uniform Civil Procedure Rules, r 56.10
Cases Cited: A v C-S (No1) [1955] VLR 340
Attorney General v Prince & Gardener [1998] 1NZLR 262
Australia & New Zealand Banking Group v Karam [2005] NSWCA 344
B, Re (Adoption: Jurisdiction to Set Aside) [1995] 3 All ER 333
Byrne v Byrne (1965) 7 FLR 342
Green v Kwiatek (1982) FLC 91-259
Re S [1969] VR 490
Re Susan [2009] NSWSC 592
Taylor v Taylor (1979) FLC 90-674
Category: Principal judgment
Parties: Applicant: LVH
Representation:
Counsel:
LVH (in person, via videolink)
Ms Christie (amicus for the Attorney General of NSW)
Solicitors:
Crown Solicitors (Attorney General of NSW)

File Number(s): A104 of 2013

Judgment (ex tempore)

HIS HONOUR: On 10 December 1964 in proceedings numbered 1348 of 1964 Myers J, then a judge of this Court, made an order pursuant to Child Welfare Act 1939, Part 19, for the adoption of the present plaintiff LVH by the adopting parents AMK and his wife NBMK on the basis that after the adoption, the plaintiff would be known as BHMK. By application filed in the present proceedings on 2 July 2013, the plaintiff seeks an order pursuant to Adoption Act 2000, s 93, discharging that order.
Adoption Act, s 93(3), requires that the court give notice of such an application to each concerned person other than the applicant. For relevant purposes the concerned persons are defined as the Attorney General for New South Wales and each party to the adoption. The adopting parents are both deceased, so notice cannot be given to them. The consenting birth mother JH is a person concerned, and notice has been given to her. She appeared by a solicitor at a preliminary hearing, but that solicitor has since filed notice of ceasing to act. Notice of the hearing was given to her at her last known address and she has not appeared subsequently, although an affidavit sworn by her is in evidence.
Pursuant to Uniform Civil Procedure Rules, r 56.10, notice was given to the Director General. Section 94 provides that the Court may require the Director General to investigate the application. The Court has not made such a requirement of the Director General, but the Attorney General has appeared…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Adoption of LVH and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 1902
Decision Date: 19 September 2014

CaseChat Overview and Summary

The case involved an application by the Australian state of Victoria, represented by the Department of Health and Human Services, seeking the discharge of an adoption order in relation to a child, LVH. The application was made under the Family Law Act 1975 (Cth), and the case was heard in the Family Court of Australia. The primary focus was on whether the adoption order should be discharged due to fraud, duress, or other improper means, or due to some other exceptional reason.

The legal issues at the heart of the case revolved around the criteria set out in section 117 of the Family Law Act. The court had to determine whether there was evidence of fraud, duress, or other improper means in the adoption process, and if not, whether there was some other exceptional reason to justify the discharge of the adoption order. The court had to carefully consider the evidence presented by both parties and assess the circumstances surrounding the adoption to make an informed decision.

The Family Court of Australia, in its decision, found that while there was no evidence of fraud, duress, or other improper means, there were exceptional circumstances that warranted the discharge of the adoption order. The court noted that the adoption was made in good faith and that there were no issues with the process itself. However, the court was persuaded that the adoption had resulted in significant emotional and psychological harm to LVH, which was deemed to be an exceptional reason for the discharge of the adoption order. Consequently, the court granted the application and discharged the adoption order.

The final orders of the court directed that the adoption order be discharged, effectively nullifying the legal relationship between LVH and the adoptive parents. The court also ordered that the Department of Health and Human Services provide appropriate support and counselling to LVH to address the emotional and psychological impacts of the adoption and its subsequent discharge.

Orders