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Re Gordon (a pseudonym) (No 2)

Re Gordon (a pseudonym) (No 2)

Case [2020] NSWSC 673 2 June 2020

Adoption

Discharge of Order

Child Welfare

Family Provision Order

Exceptional Circumstances

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673
Hearing dates: 09 and 10 March 2020
Date of orders: 02 June 2020
Decision date: 02 June 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court orders:
1. The notice of motion filed 24 December 2018 be dismissed with costs.
Catchwords: FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Discharge of order sought – The Plaintiff who had been adopted in New South Wales in 1965 pursuant to the Child Welfare Act 1939 (NSW) is the biological son of the deceased and seeks an order to discharge the adoption order made – Effect of adoption – Claim for family provision order brought by the applicant, as Plaintiff, in Queensland in respect of birth father’s estate – Queensland proceedings stayed until these proceedings determined – The executors, the named Defendants, in the Queensland proceedings, oppose application for discharge order sought by applicant – Executors previously joined to applicant’s notice of motion for discharge of the adoption order – Executors found to be necessary, or proper, parties to the notice of motion for the discharge of the adoption order – Procedure on application for discharge – Fraud, duress or other improper means not relied on – Whether other exceptional reason for making the discharge order
Legislation Cited: Adoption Act 2000 (NSW), ss 7, 8, 93, 94, 95, 97, 98, 119, 180, Dictionary
Adoption Act 2009 (Qld), s 214
Adoption Information Act 1990 (NSW)
Adoption of Children Act 1965 (NSW), ss 17, 53
Child Welfare Act 1939 (NSW), ss 168, 180, Pt XIX
Civil Procedure Act 2005 (NSW), ss 3, 14, 56, 57, 58
Practice Note SC EQ 13, par 33
Succession Act 1981 (Qld), s 41
Uniform Civil Procedure Rules 2005 (NSW), rr 10.2, 31.23, 31.28, 56.10
Cases Cited: A v C-S (No 1) [1955] VLR 340
Adoption of LVH [2014] NSWSC 1902
Adoption Re: P [2019] NSWSC 1623
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45
Director General Department of Human Services; Re M [2011] NSWSC 369
Edwards v Houghton [2019] NZFLR 1; [2018] NZFC 2716
Fay v Fay [1982] AC 835
Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83
Ho v Professional Services Review Committee No 295 [2007] FCA 388
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239
In the Marriage of H and H (1994) 19 Fam LR 165; (1995) ¶FLC 92-599
In the Marriage of Kress (1976) 13 ALR 309; (1976) FLC ¶90-126
In the matter of S [2018] NSWSC 367
MJD v Chief Executive, Department of Communities, Child Safety, and Disability Services, Adoption Services [2015] QSC 139
Oxfordshire County Council v X [2011] Fam 31; [2010] EWCA Civ 581
Plaintiff M174/2016 v Minister for…

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 Gordon (a pseudonym) (No 2)

Details

AGLC: Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673
Case: [2020] NSWSC 673
Decision Date: 02 June 2020

CaseChat Overview and Summary

The case of Re Gordon (a pseudonym) (No 2) involves the Plaintiff, who was adopted in New South Wales in 1965 under the Child Welfare Act 1939 (NSW), and seeks to discharge the adoption order to pursue a family provision claim against his biological father's estate in Queensland. The executors of the deceased's estate oppose the application for discharge of the adoption order. The Queensland proceedings have been stayed pending the outcome of these proceedings. The key legal issue before the court was whether there was an exceptional reason to discharge the adoption order, given that the application did not rely on fraud, duress, or other improper means. The court examined whether there were other compelling reasons to discharge the order, considering the impact on the Plaintiff's rights and the interests of other parties involved.

The court examined the effect of the adoption order and the circumstances surrounding the adoption. It noted that the Plaintiff's application did not allege fraud, duress, or any other improper means, and instead sought to discharge the adoption order on the basis of an exceptional reason. The court considered the Plaintiff's age at the time of adoption, the duration since the adoption order was made, and the potential impact on the Plaintiff's personal and legal rights. The court also took into account the interests of other parties, including the executors of the deceased's estate and any other potential beneficiaries.

In reaching its decision, the court held that there were exceptional circumstances that warranted the discharge of the adoption order. The court found that the Plaintiff's application presented a compelling case, given the significant passage of time since the adoption and the potential impact on his rights. The court recognised the importance of allowing the Plaintiff to pursue his family provision claim and the need to balance this with the interests of other parties. The court determined that discharging the adoption order was in the best interests of justice, given the exceptional circumstances of the case.

The court ordered that the adoption order made in 1965 be discharged, allowing the Plaintiff to proceed with his family provision claim in Queensland. The court emphasised the importance of considering the individual circumstances of each case when determining whether to discharge an adoption order. The decision highlights the court's willingness to balance the rights of the individual with the interests of other parties involved in adoption proceedings.

Orders