Re David - [2022] NSWSC 1738

Supreme Court

New South Wales

Medium Neutral Citation: Re David [2022] NSWSC 1738
Hearing dates: 29 June 2022
Date of orders: 29 June 2022
Decision date: 29 June 2022
Jurisdiction: Equity - Adoptions List
Before: Slattery J
Decision:
Adoption orders discharged pursuant to Adoption Act 2000, s 93(4)(b). The applicant’s name changed back to his first name.

Catchwords:
ADOPTION – discharge of adoption orders pursuant to Adoption Act 2000, s 93(4)(b) – applicant of First Nations heritage – the applicant was adopted in 1980 away from his First Nations community – the
applicant suffered sexual abuse by his adoptive father and other persons over many years – applicant seeks the discharge of adoption orders – whether sufficient evidence of sexual abuse – whether adoption orders should be discharged – whether the applicant’s name should be changed back to his birth name.

Legislation Cited:
Adoption Act 1965
Adoption Act 2000, ss 93(4), 93(4)(b), 93(7)(a)
Births, Deaths and Marriages Act 1995, s 19(2)
Children and Young Persons (Care and Protection) Act1998

Cases Cited:
Adoption of LVH [2014] NSWSC 1902
Re P [2019] NSWSC 1623
Re S [1969] VR 490
ReSusan [2009] NSWSC 592

Category: Consequential orders
Parties: Applicant: [not to be published]
First Respondent: [not to be published]
Second Respondent: The Honourable Mark Speakman
Representation:
Counsel:
For Secretary, Department of Communities and Justice, Crown Solicitor: Dr M Barnett
The applicant: self-represented
Solicitors:
For Secretary, Department of Communities and Justice, Crown Solicitor: Ms N. Hailstone

File Number(s): 2022/53405
Publication restriction: Yes

EX TEMPORE Judgment

The applicant is a First Nations man. Pursuant to Adoption Act 2000, s 93(4)(b) he seeks the discharge of orders by which he was adopted in 1980. The Court today granted those orders on the proven ground that the applicant’s adoptive father sexually abused him and allowed him to be sexually abused by others.
The Court was satisfied at the hearing of this matter on 29 June 2022 that it should make the orders sought. On an ex tempore basis Court gave its reasons for decision but said it would publish more detailed reasons later. These are those more detailed reasons.
Throughout these published reasons, the Court calls the applicant “David”. The Adoption Act prevents the applicant’s real name being published. The applicant wished to use the name David in memory of a young person who had been like a brother to him in various institutions where the applicant had suffered, but who had since died.

The Motion in the Proceedings

By his notice of motion filed on 23 February 2022, David applies for the discharge of the orders by which a married couple resident in New South Wales adopted him. The couple cannot be named but will be referred to in these reasons as the “adoptive father” and the “adoptive mother” and collectively as the “adoptive parents”.
David’s application is brought by motion in the original adoption proceedings. The motion joins as the first respondent the Attorney General of New South Wales and the…

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 David

Details

AGLC: Re David [2022] NSWSC 1738
Case: [2022] NSWSC 1738
Decision Date: 29 June 2022

CaseChat Overview and Summary

The case involved an application by an individual, of First Nations heritage, seeking the discharge of adoption orders under the Adoption Act 2000. The applicant, adopted in 1980 and removed from his First Nations community, alleged enduring sexual abuse by his adoptive father and others. The court was tasked with determining whether the applicant had provided sufficient evidence of the alleged abuse, if the adoption orders should be discharged, and whether the applicant’s name should revert to his birth name.

The primary legal issues before the court were whether the applicant had demonstrated sufficient evidence of sexual abuse to warrant the discharge of the adoption orders and if the applicant's name should be restored to its pre-adoption state. The court had to consider statutory provisions and relevant case law to assess the applicant's evidence and determine the appropriate course of action.

In its decision, the court found that the applicant had sufficiently demonstrated the occurrence of sexual abuse, which justified the discharge of the adoption orders. The court also considered the importance of the applicant's cultural identity and concluded that reverting to his birth name would be beneficial for his cultural and personal well-being. The court therefore discharged the adoption orders and ordered the applicant’s name to be changed back to his birth name, recognising the profound impact of the adoption and abuse on his life and cultural heritage.

The final orders of the court mandated the discharge of the adoption orders and the restoration of the applicant's birth name. The decision underscored the importance of addressing the historical and cultural contexts of the applicant’s life, reflecting a commitment to recognising and respecting the individual’s First Nations heritage and the profound impact of the alleged abuse.

Orders