Discharge of Adoption of K

[2022] NSWSC 1197

Supreme Court

New South Wales

Medium Neutral Citation:

Discharge of Adoption of K [2022] NSWSC 1197

Hearing dates:

30 August 2022

Date of orders:

30 August 2022

Decision date:

30 August 2022

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Order for adoption discharged; order discharging adoption suspended until 5pm on 2 December 2022; liberty to apply granted to adopted child; orders made changing name of adopted child to pre-adoption names

Catchwords:

ADOPTION – application by adoptive parent to discharge adoption order – breakdown of relationship between adoptive parent and adopted child – where adopted child now an adult – whether an exceptional reason shown – whether order should be suspended to allow adopted child to participate in decision – whether adopted child’s names should be changed

Legislation Cited:

Adoption Act 2000 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

Adoption of LVH [2014] NSWSC 1902

AX and Anor v SX and Ors [2021] EWHC 1121 (Fam)

BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095

R v Kelly (Edward) [2000] QB 198

Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673

Re Lee: Application for Parentage Order [2022] NSWSC 1155

Re Susan [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:

CG (Applicant)
K (Respondent)
Secretary, New South Wales Department of Communities and Justice (Intervenor)

Representation:

Counsel:
B J Dean (Intervenor)

Solicitors:
Crown Solicitor’s Office (Intervenor)

File Number(s):

2022/127325

Publication restriction:

Pursuant to s 180 of the Adoption Act 2000 (NSW) a person must not publish material that identifies, or is reasonably likely to identify, a person as a person affected by an adoption application.

JUDGMENT

1. On 30 August 2022 I made orders that:

1. pursuant to s 93(4)(b) of the Adoption Act2000 (NSW) (“the Act”) the adoption order made on 8 March 2018 for the child, who I will refer to as K, in favour of the applicant, who I will refer to as CG, be discharged;

2. pursuant to s 93(7)(a) of the Act, K’s name be changed to her birth name;

3. pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (“the BDMR Act”) that the Registry is to record K’s name as her birth name on her birth certificate; and

4. pursuant to s 19(2) of the BDMR Act, a new birth certificate be issued recording the names of K’s father as TS.

2. I also ordered that the discharge under s 93(4)(b) of the Act be suspended until 5pm on 2 December 2022 and that K have liberty to apply in respect of that order. I noted that the intended effect of those orders was that, unless K exercised that liberty to apply, the discharge order would take effect at 5pm on 2 December 2022.

3. These are my reasons for making those orders.

4. On 8 March 2018 this Court made an order pursuant to s 23 of the Act for the adoption of K in favour of CG. The Court also ordered that K’s name be changed from her birth name to her adoptive name.

5. By a Notice of Motion filed on 5 May 2022 CG applied for an order under s 93 of the Act that the adoption order be discharged.

6. Subsections 93(4) and (5) of the Act provide:

“(4) The Court may make a discharge order if it is satisfied that—

(a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or

(b)  there is some other exceptional reason why the adoption order should be discharged.

(5)  The Court must not make a discharge order if it appears to the Court that—

(a) the making of the order would be prejudicial to the best interests of the child, or

(b) if the application for the order is made by the child—the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child’s access to information or contact with a person under Chapter 8 (Adoption information).”

7. There was no suggestion here that the adoption order was obtained by fraud, duress or other improper means. The question was whether there was “some other exceptional reason” why the adoption order should be discharged, and whether the making of the order would be prejudicial to K’s best interests.

8. On 14 July 2022 I made an order that the Secretary for the Department of Communities and Justice be joined as an intervenor to the proceedings.

9. CG appeared for herself before me.

10. Mr Dean of counsel appeared for the Secretary. I have been greatly assisted by Mr Dean’s careful written and oral submissions. Much of what follows is drawn, with gratitude, from those submissions.

Exceptional Reason

11. The phrase “exceptional reason” is not defined in the Act.

12. It has been held in other contexts that for a circumstance or reason to be “exceptional” they do not need to be unique or unprecedented or especially rare. The term “exceptional” is sometimes used as a synonym for “special”. [1]

    1. See R v Kelly (Edward) [2000] QB 198 at 249 (Lord Bingham of Cornhill CJ); Re Lee: 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); BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 at [36]-[37] (Robb J) and Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66] (Campbell JA; Tobias JA and Handley AJA agreeing).

13. Whether an “exceptional reason” to justify an order discharging an adoption order exists must necessarily be a fact-specific exercise in each case.

14. No doubt the terms of s 93(4) bespeak the Parliament’s intention that adoption orders should, so far as possible, provide an adopted child with lifelong security and stability within their adoptive family. As has been said, “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 and Anor v SX and Ors [2021] EWHC 1121 (Fam) at [80] (Theis J).

15. Nonetheless, s 93(4) 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 considerations that do not affect the child’s welfare.

16. 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”. [3]

    3. Adoption of LVH [2014] NSWSC 1902 at [6] (Brereton J).

17. There may be an exceptional reason to discharge an adoption order if there has been, as here, a “significant and irretrievable breakdown”[4] of the adoptive relationship.

    4. Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673 at [228] (Hallen J).

Background

18. K was born in 2003 and was, on the date I made the orders, 18 years of age.

19. K was assumed into care and commenced living with CG in June 2011, when she was seven, almost eight.

20. On 25 August 2011, the Children’s Court made an order pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act1998 (NSW) (“the Care Act”) that parental responsibility of K be allocated to the relevant Minister until she attained 18 years of age.

21. As I have said, an adoption order was made on 8 March 2018.

22. By the end of 2018, the relationship between K and CG had culminated in incidents on 10 and 11 January 2019, when it appears K attempted to inflict physical harm against CG.

23. On 11 January 2019 an Apprehended Domestic Violence Order was issued against K for CG’s protection.

24. From 30 January 2019, the Secretary took care responsibility for K pursuant to s 151(2) of the Care Act. K left CG’s care at that time and has not lived with her since.

25. On 29 April 2019 K was admitted to hospital, due to concerns relating to her mental health. At that time K’s temporary carers relinquished care of her. On the same date, the Secretary assumed care responsibility of K pursuant to s 44 of the Care Act.

26. On 9 May 2019, the Children’s Court made an order placing K under the interim parental responsibility of the relevant Minister. On 4 September 2020, the Children’s Court made a final order placing K under the parental responsibility of the Minister.

27. In the meantime, K appears to have resumed a relationship with her biological mother, BB, and her mother’s de-facto partner, ST.

28. For a period of about eight months in 2020, K lived with BB and ST at their home in Victoria. K has since left that home. Her current whereabouts are known to the child protection services.

29. K gave birth to a baby during the week before the hearing.

The breakdown of the relationship between K and CG

30. As I have stated, the relationship between K and CG has broken down.

31. Ms Penny Haskins, a social worker and independent expert engaged by the Secretary in relation to this matter, described K’s and CG’s current relationship as “fractured”.

32. Thus, Ms Haskins opined:

“It is my view that the relationship between [CG] and [K] is fractured at this time. It is not possible to know if there is any chance that they will re-connect. I note that both have spoken since early 2019 of this fracture – [K] has been clear that while she did at one stage entertain the possibility of a friendship with [CG], that is no longer there, given [CG’s] reaction to the news of her pregnancy. [CG] is very clear in stating that ‘today’s [K]’ is not the [K] she parented, that any relationship they have is toxic and the only way forward from the pain is to discharge the adoption order. [K] too has clearly stated that she wants the order discharged and to return to being [her birth name].”

33. As I have said, K ceased living with CG in January 2019 and has not returned to CG’s care at any time since then. Between July 2021 and February 2022 K and CG were, as recorded by Ms Haskins, “in and out of contact over the phone”. However, they ceased all contact in February of this year.

34. In April 2019 K told a psychologist, Mr John Tredinnick, that she did not want CG “anywhere near [her]”, that “I would rather [the Department] be my legal guardian than [CG]” and that she would “run away or kill [herself]” if she were made to return to CG’s care.

35. Ms Haskins recorded that, very recently, K said that she wished to have no further legal ties with CG and was concerned to make sure that “[CG] can never have any power over my baby”. K told Ms Haskins that she wanted “the papers to go through and it to be all over” and that “I want this to happen … I don’t want her near my baby. We tried to be friends but it can’t work – she can’t be my friend because she sees me as a kid”.

36. In these circumstances it appears that there is little or no possibility of any reconciliation in the relationship between CG and K.

CG’s motivation for seeking discharge

37. A suggestion emerges from Ms Haskins’ report that CG is motivated to seek the discharge of adoption order to “manage the parent/child estrangement … between she and [K]” and attempt to “make [CG’s] feelings of grief, anger, disappointment and regret go away”.

38. CG has deposed, and I accept, that she feels her mental health is “significantly jeopardised by the continuing relationship with [K]”.

39. These matters, of course, cannot take precedence over the mandatory considerations that the Act imposes concerning K’s best interests.

40. I also accept, however, that CG is motivated, not only by matters concerning her own welfare and mental health, but also by her concern for the best interests of K and her belief that K’s best interests may also be better served by a discharge of the adoption order.

The objective of adoptions and related policy considerations

41. Mr Dean drew my attention to the observations of Palmer J in Re Susan. [5] His Honour said:

“The law equates, so far as is possible, the relationship between adoptive parent and adoptive child with the relationship between birth parent and child. The parental relationship is the most fundamental, enduring and significant of all human relationships. Severance of that relationship by the discharge of an adoption order can overturn the identity, family structure and legal relationships not only of the adopted person but of many others as well.”

5. [2009] NSWSC 592 at [23]; evidently the first case in which the Court was required to apply s 93 of the Act to discharge an adoption order if satisfied that there was “exceptional reason” to do so.

42. However, s 93 of the Act makes clear that adoption is not incapable of dissolution and that the policy objectives of the Act are met by limiting the circumstances in which an adoption order may be discharged to those situations in which there is an exceptional reason and where the child’s interests are not prejudiced.

43. The mere fact of a broken relationship may not itself constitute such an exceptional reason. However, where the relationship is, to use Ms Haskins’ word, “fractured” in the circumstances I have described, I was persuaded that exceptional circumstances existed.

Removal of parental responsibility

44. This is also a case where CG’s parental responsibility was removed pursuant to the Care Act.

45. As Mr Dean pointed out, the Children’s Court has determined that the circumstances that existed in the adoptive relationship as at September 2020 were sufficient to remove from CG any ongoing parental responsibility with respect to K.

46. That is a further factor pointing to the existence of the exceptional reasons in this case.

The best interests of K

47. I must not make a discharge order unless satisfied that to do so would not be prejudicial to K’s best interests.

48. I am here guided, to a significant extent, by the opinions expressed by Ms Haskins.

49. Ms Haskins has acknowledged in her report that the discharge of the adoption order is likely to have a psychological impact on K and potentially an impact on her “general functioning”. Ms Haskins stated:

“Losing a second central relationship will be a scar that [K] will carry forever in my view, with its ultimate impact unable to be assessed yet. The impact though on her capacity to parent her [child] will become evident sooner rather than later and will form part of any safety concerns that may be held for [K] and her [child].”

50. However, as Mr Dean pointed out, K has expressed unambiguous views about her desire to sever her legal connections with CG, leading Ms Haskins to remark that:

“It is my view that preserving a legal relationship in the face of the fracture of the emotional relationship and [K]’s stated wishes offers no benefit to [K] and potentially could reinforce to [K] that her voice is of lesser importance than, for example, legal considerations.”

51. Ms Haskins continued:

“I believe that discharging the adoption order will provide [K] with the knowledge that her voice has been heard and considered. Further, her strong desire that [CG] have no legal rights to her [child] will be an important consequence of the discharge of the adoption order.

[K] will lose any automatic right to inheritance from [CG] should an order be discharged. I discussed this point with [K] as part of our discussion as to the impact of a discharge of the order, and her response was ‘I want nothing [Ms Haskins]’.

It is my view that the discharge of the adoption order, which [K] wants to happen, will in fact be almost inconsequential to [K] personally, as it was the fracturing of the emotional relationship itself that was powerfully impactful for [K]. However, [K] will be comforted by the knowledge that should the order be discharged, her [child] is protected from any legal rights that [CG] currently may enjoy as [the child’s] grandmother. This peace of mind will be a considerable advantage for [K].”

52. Ms Haskins further identified that there may be some benefit in “disconnecting” K and CG “from what they both consider a toxic mess” to the extent that “it could provide emotional distance enough to allow a more dispassionate understanding of what happened and a possible release from real and imagined responsibilities, guilt, shame and anger”.

53. Ms Haskins expressed the opinion that this could be a “good outcome”.

54. K has informed Ms Haskins that she is in favour of a discharge order.

55. It appears from Ms Haskins’ report that K has the requisite maturity and a sufficient understanding of the implications of a discharge of the adoption order to express that view.

Conclusion

56. Overall, I was satisfied that there was an exceptional reason in this case why the adoption order should be discharged and that the making of the order would not be prejudicial to K’s best interests, indeed it is likely to promote those best interests.

57. K was served with CG’s Notice of Motion several months ago. She has not entered an appearance but has, recently, expressed to Ms Haskins some interest in being heard on the application.

58. From K’s point of view, the matter is complicated, to an extreme degree, by her advanced state of pregnancy in the weeks leading to the hearing before me, and the fact that she gave birth to her child several days before the hearing. I was concerned that although it appeared K did not oppose, and indeed welcomed, the prospect of the adoption order being discharged, I had not heard her on the application, even if only to explain why she supported it.

59. I raised with CG and Mr Dean the possibility of making the discharge order but suspending its operation for a number of months and granting K liberty to apply if she wished to make any statement or submission, thereby allowing K’s voice further to be heard on the application, if she so desired. Both supported the proposal.

60. I also raised this possibility with Ms Haskins who said, “I would have thought that that was a very appropriate middle road”.

61. I decided to follow that course.

Consequential orders

62. It was common ground that, having made an order for discharge (albeit suspended until 2 December 2022), I should make the orders that I have set out above concerning K’s name. Both CG and Ms Haskins told me that this was what K wanted and that it would be in her best interests that these orders be made.

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Endnotes

Decision last updated: 07 September 2022