Discharge of Adoption of Emma (a pseudonym)

[2023] NSWSC 1508

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Discharge of Adoption of Emma (a pseudonym) [2023] NSWSC 1508
Hearing dates:	30 November 2023
Date of orders:	30 November 2023
Decision date:	30 November 2023
Jurisdiction:	Equity - Adoptions List
Before:	Stevenson J
Decision:	Discharge of adoption order made; name change order made
Catchwords:	CHILD WELFARE – adoption – application by adoptive child to discharge adoption order – whether an exceptional reason shown – where adoptive child suffered abuse by adoptive father
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam)
Category:	Principal judgment
Parties:	“Emma” (a pseudonym) (Applicant)
Representation:	Solicitors: Legal Aid (Applicant)
File Number(s):	2023/262278
Publication restriction:	This judgment must be anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

EX TEMPORE JUDGMENT (REVISED)

1. By Notice of Motion filed on 16 August 2023, the plaintiff who is, at the moment, known as “Emma” (not her real name), with her previous surname, seeks an order discharging an order made for her adoption in 1982. She also seeks an order that her surname be changed to that of her birth father.

2. Emma’s mother and her adoptive father, “John Smith” (not his real name), have notice of this application.

3. Emma is now 50. Her parents divorced when she was less than two.

4. Her mother later married Mr Smith. Emma was adopted by Mr Smith on 12 October 1982. She was then nine.

5. On many occasions in the following years, Mr Smith physically assaulted and sexually abused Emma. It is not necessary for me to set out the details of those matters. They involved a gross abuse by Mr Smith of the trust that Emma, and no doubt her mother, reposed on Mr Smith. Mr Smith was convicted and imprisoned for these appalling acts.

6. Emma’s mother and Mr Smith subsequently divorced.

7. Emma’s mother remarried and changed her surname. In 2005, Emma applied to the Registry of Births, Deaths & Marriages also to change her surname.

8. Since her abuse at the hands of Mr Smith, Emma has suffered ongoing trauma. She has, in her affidavit, deposed as to the various steps that she took to cope with her distress. Again, it is not necessary for me to set out those matters here. Emma has also been a victim of domestic violence in other relationships and has been diagnosed with a number of comorbidities.

9. Emma has been seeking professional assistance about these matters and I have before me a report by a psychologist, which sets out the details of the burdens that Emma now suffers. Again, it is not necessary to set out those details, save to say that one of the difficulties that Emma struggles with is chronic post-traumatic stress disorder.

10. The Adoption Act2000 (NSW) makes provision for adoption orders to be discharged in very limited circumstances. The circumstance that is relevant to this case is whether there is “exceptional reason” to discharge an adoption order. ^[1]

    1. Section 93(4)(b) of the Act.

11. As I have explained to Emma on earlier occasions, 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 adoptive family. Thus, it has been said in earlier cases, “an adoption order is a transformative order that changes the child’s status in a way that is intended to be legally permanent.”^[2]

    2. AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam) at [80] (Theis J).

12. However, s 93(4) of the Adoption Act, which is the section under which an order can be made for discharge an adoption order, recognises that despite those matters, and in exceptional cases such as this one, it is appropriate to make a discharge order, provided that to do so would not be prejudicial to the best interests of the child.

13. Emma is no longer a child of course, but she was when the adoption order was made. There is no doubt that to discharge the order would be in her best interests. It will, I hope, enable a shadow that has cast a long pall over her life for so many years to be lifted to some extent.

14. I am satisfied that I should make the orders sought and I make these orders:

1. pursuant to the Adoption Act s 93(4)(b), the adoption order made on 12 October 1982 for the child [Emma] by [Mr Smith] be discharged.

2. pursuant to s 93(7)(a) of the Adoption Act, that the name of the adopted adult consequent of the discharge now be [Emma (current surname)].

15. I make this note for the attention of the Registry of Births, Deaths & Marriages:

1. The Court requests that the name [Mr Smith] be removed from the birth certificate of [Emma] and that any further documentation issued by the Registry of Births, Deaths & Marriages refer to her as [Emma (current surname)].

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Endnotes

Amendments

06 December 2023 - 6 December 2023: psychologist's name in par [9] redacted

Decision last updated: 06 December 2023