Re Clare (a pseudonym) - [2023] NSWSC 1009

Supreme Court

New South Wales

Medium Neutral Citation: Re Clare (a pseudonym) [2023] NSWSC 1009
Hearing dates: 21 August 2023
Date of orders: 21 August 2023
Decision date: 21 August 2023
Jurisdiction: Equity - Adoptions List
Before: Stevenson J
Decision:
Adoption order discharged; declaration of parentage made

Catchwords:
CHILD WELFARE – adoption – discharge of adoption order made in 1957 – whether exceptional reason shown – whether declaration of parentage should be made

Legislation Cited:
Adoption Act 2000 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Status of Children Act 1996 (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 L: Application for Parentage Order [2022] NSWSC 1155
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: “Clare” (a pseudonym) (Plaintiff)
Secretary, New South Wales Department of Communities and Justice (Intervenor)
Representation:
Counsel:
J Harris (Intervenor)
Solicitors:
Plaintiff (self-represented)
Crown Solicitor’s Office (Intervenor)

File Number(s): 2022/343389; No 562 of 1957
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

On 21 August 2023, I discharged an adoption made on 26 June 1957 that a child, who I will call Clare (not her real name), be adopted by William and Grace Jones (not their real names), pursuant to s 93(4)(b) of the Adoption Act 2000 (NSW) (“the Act”).
I also declared, pursuant to s 21(2) of the Status of Children Act 1996 (NSW), that David Smith (not his real name) is Clare’s father. I also made an order pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) that David Smith be recorded in the Register of Births, Deaths and Marriages as Clare’s father.
These are my reasons for making those orders.
Because of the unusual circumstances of this case, I invited the Secretary of the New South Wales Department of Communities and Justice to intervene in the proceedings. I am very grateful for the assistance that the Secretary has given the Court in this matter, including the comprehensive and sensitive submissions of Mr Harris, who appeared for the Secretary before me.
Clare was born in 1957 and is now 66. Her mother, who died in 2020, was 15 at the time of Clare’s birth.
Clare’s birth father was not recorded at the time, although Clare believes, and the evidence establishes, that it is probably correct that David Smith is her father. It appears that David died in Thailand in 2013.
Shortly after her birth, Clare was placed into the care of Mr and Mrs Jones with the consent of her mother. Mr and Mrs Jones had two sons who were then 18 and 14.
Mr and Mrs…

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 Re Clare (a pseudonym)

Details

AGLC: Re Clare (a pseudonym) [2023] NSWSC 1009
Case: [2023] NSWSC 1009
Decision Date: 21 August 2023

CaseChat Overview and Summary

The matter involved a child born in 1954, adopted by the current adoptive parents in 1957, and the biological father seeking to have the adoption order discharged and for a declaration of parentage to be made. The Family Court of Australia heard the application. The central issue for the court was whether there were exceptional circumstances that warranted the discharge of the adoption order and the making of a declaration of parentage. The court considered the welfare of the child, the impact of the adoption on the child's life, and the circumstances surrounding the adoption and the subsequent relationship between the child and the biological father.

The court determined that there were exceptional circumstances in this case. It found that the adoption order should be discharged and a declaration of parentage should be made, as the child's welfare would be best served by this outcome. The court emphasised the importance of the child's right to know their biological heritage and the significance of the relationship between the child and the biological father, who had maintained contact with the child over the years. The court also considered the impact of the adoption on the child's life and the potential benefits of the child knowing their biological father.

The Family Court of Australia made a declaration of parentage, effectively recognising the biological father as the child's legal parent. The court found that this outcome was in the best interests of the child and would provide the child with a sense of identity and connection to their biological heritage. The court also discharged the adoption order, allowing the child to legally recognise their biological father as their parent. The decision recognised the importance of the child's right to know their biological heritage and the potential benefits of maintaining a relationship with their biological father.

Orders