Adoption Re: P - [2019] NSWSC 1623

Supreme Court

New South Wales

Medium Neutral Citation: Adoption Re: P [2019] NSWSC 1623
Hearing dates: 13 November 2019
Date of orders: 13 November 2019
Decision date: 13 November 2019
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Discharge of Adoption Order – Orders made

Legislation Cited: Adoption Act 2000 (NSW)
Child Welfare Act 1939 (NSW)
Cases Cited: Adoption of LVH [2014] NSWSC 1902
Re S [1969] VR 490
Re Susan [2009] NSWSC 592
Category: Principal judgment
Parties: P (Plaintiff)
Attorney General of New South Wales (Intervener)
Representation:
Counsel:
Ms M T England (Intervener)
Solicitors:
Self represented (Plaintiff)
NSW Crown Solicitor (Intervener)

File Number(s): 2019/193559

Judgment

By Notice of Motion filed 7 June 2019, P made an application to the Court for an Order discharging her own adoption.
The adoption order was made in Chambers by Justice Roper in June 1951 pursuant to the Child Welfare Act 1939 (NSW).
On 25 July 2019, a notice of appearance was filed on behalf of the Attorney General of New South Wales on the basis that he may wish to appear in the proceedings in order to assist the Court as amicus curiae or intervener.
The matter then came before me for the first time on 14 August 2019. On that date I made orders allowing the Attorney-General of New South Wales access to the original adoption file and the filed affidavit of P.
The matter came before me again on 11 September. On that date I was informed by lawyers for the Attorney-General that they wished to appear on an amicus basis. Also on that date I indicated to P and the Attorney-General that I believed that some additional expert evidence from either a psychologist or social worker, as to the ongoing effect of the adoption order on P would be helpful.
Subsequently, Ms Dianne Starkey was engaged to review the materials, interview P and prepare a Report on the matter.
The matter was listed and heard over one day on 13 November 2019. I was greatly assisted by lawyers for the Attorney-General who provided detailed submissions to the Court, in particular Ms England and Ms Hailstone.
On the 13 November after brief submissions from Counsel for the Attorney-General, P made a short statement to the Court, expressing her distress at her adoption, and in particular the fact that her birth certificate did not reflect, what she felt, was her true parents and her real identity.
After carefully considering the materials and hearing from both Counsel and P, I made Orders discharging the adoption.
I indicated that I would publish my reasons in full, these are those.

Background facts

P was born in March 1940 to X M (birth mother) and Y N (birth father). She was born P N. It is unclear exactly when her surname changes from “N” to “M” after her mother remarries.
Y N died in October 1940 in an accident on a railway line. P initially lived with her birth mother and…

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.

Continue reading Adoption Re: P

Details

AGLC: Adoption Re: P [2019] NSWSC 1623
Case: [2019] NSWSC 1623
Decision Date: 13 November 2019

CaseChat Overview and Summary

The case of Adoption Re: P was heard in the Supreme Court of New South Wales by Sackar J. P applied for an order discharging her adoption under the Adoption Act 2000 (NSW). The adoption order was made in Chambers by Justice Roper in June 1951 pursuant to the Child Welfare Act 1939 (NSW). The Attorney General of New South Wales appeared as an intervener. P gave evidence that she had been adopted as a child and that the adoption had caused her significant distress over her life. P expressed extreme distress and pain over the fact that her birth certificate did not reflect who she truly felt she was and that she did not feel like she belonged to anyone. P gave evidence of the lack of bonding between her and either her birth mother or adoptive father, and the lack of education and training available to adoptive parents in the time of her adoption. P stated that her adoptive father had made several disparaging comments about her physical appearance and the way that she walked. P stated that he made sexual advances towards her and that she felt betrayed by him. P stated that these actions totally disrupted her sense of family and belonging and caused her a great deal of distress over the years. The court found that the adoption had caused P a significant amount of distress over her life and that there were exceptional circumstances that justified the discharge of an adoption in this case. The court further found that there was no evidence that the adoption of P was obtained by fraud, duress or other improper means. The court made orders discharging P’s adoption and further amending her birth certificate and marriage certificate by removing her adoptive father and substituting her birth father.

Orders