Re Susan

[2009] NSWSC 592

CITATION:	Susan, Re [2009] NSWSC 592
HEARING DATE(S):	23 February 2009 Order made: 24 February 2009
JUDGMENT DATE :	26 June 2009
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
DECISION:	Adoption order discharged.
CATCHWORDS:	ADOPTION – DISCHARGE – “EXCEPTIONAL REASON” – Applicant alleged that she had been repeatedly sexually abused by her adoptive father as a young child – applicant sought discharge of adoption order to regain identity with birth father and to alleviate psychological trauma – whether sexual abuse proved – standard of proof – whether psychological injury would be alleviated by discharge of adoption – whether “exceptional reason” existed for discharge of adoption – principles to be applied.
LEGISLATION CITED:	- Adoption Act 1976 (UK) - Adoption Act 2000 (NSW) – s 7(a), s 8, s 93(1), s 93(3), s 93(4), s 93(5), s 210 - Adoption and Children Act 2002 (UK) - Adoption of Children Act 1881 (NZ) – s.7 - Adoption of Children Act 1926 (UK) - Adoption of Children Act 1928 (Vic) – s 13(1) - Adoption of Children Act 1964 (Vic) – s 16 - Adoption of Children Act 1965 (NSW) – s 25 - An Act to Provide for the Adoption of Children 1851 (USA) (“Massachusetts Adoption of Children Act 1851”) - Child Welfare Act 1923 (NSW) – Pt XIV, s 125 - Child Welfare Act 1939-1956 (NSW) – Pt XIX, s 170 - Children and Young Persons (Care and Protection) Act 1998 (NSW) – s 23(c), s 43(3)(b), s 71(1)(c), s 79(1)(b), s 83(3), s 83(4). - Evidence Act 1995 (NSW) – s 140 - Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 - Infants Act 1908 (NZ)
CATEGORY:	Principal judgment
CASES CITED:	- A v C-S (No 1) [1955] VLR 340 - Adoption Application No AD 58/1984, Re (1986) 11 Fam LR 518 - Attorney-General v Prince and Gardner [1998] 1 NZLR 262 - B, In re (Adoption: Jurisdiction to Set Aside) [1995] 3 All ER 333 - Director General of Department of Community Services; re Sophie [2008] NSWCA 250 - Humphrys v Polak [1901] 2 KB 385 - Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 - S, Re [1969] VR 490
TEXTS CITED:	- Child Adoption Committee (UK): “The Tomlin Report” Cmd 2401 (1925) - Halsbury (4th Ed) Reissue 5(2) para 1021 - Kahan, M. “‘Put up’ on Platforms: A History of Twentieth Century Adoption Policy in the United States”, Journal of Sociology & Social Welfare, September 2006, Vol XXXIII. - New South Wales Law Reform Commission, Report 81 – Review of the Adoption of Children Act 1965 (NSW) (1997)
PARTIES:	"Susan" (Applicant) Attorney General of New South Wales (Amicus Curiae)
FILE NUMBER(S):	SC 114/1958
COUNSEL:	Ms D.A. Harris (Applicant) I.D. Bourke (Attorney General of New South Wales, Amicus Curiae)
SOLICITORS:	Women’s Legal Services NSW (Applicant) Crown Solicitor’s Office (Attorney General of New South Wales, Amicus Curiae)

PALMER J.

114/1958 Re “Susan”

JUDGMENT

26 June, 2009

Introduction

1 This is the first case in which this Court has been required to apply s 93(4)(b) of the Adoption Act 2000 (NSW), which empowers the Court to discharge an adoption order if it is satisfied that there is some “exceptional reason” for doing so.

2 I have been able to find only one unreported case in this Court in which an adoption order has been revoked. No reasons for the order are included in the file. There are very few reported decisions in other Australian States dealing with the equivalent of s 93(4)(b) and its predecessors.

3 The Plaintiff, who is now fifty-five years of age, claims that the “exceptional reason” for the discharge of her adoption order is that, between the ages of five and nine years, she was repeatedly sexually abused by her adoptive father and that the resulting trauma which she says she has suffered throughout her life can be alleviated by a formal, legal severance of the parental bond between herself and her abuser.

4 In order to preserve anonymity, as is required by s 180(1) of the Adoption Act, I will refer to the Plaintiff by the pseudonym “Susan”. Other members of the family have also been given pseudonyms.

5 This application was made ex parte. There are no defendants because Susan’s adoptive parents and her natural parents are dead. The Director General of Community Services, who administers the Adoption Act, did not wish to oppose the application. However, because of the importance of the questions of principle involved in this case, I invited the Attorney General to appear as amicus curiae. The submissions made by Mr Bourke of Counsel for the Attorney General have been of great assistance, as have been those of Susan’s Counsel, Ms D Harris.

6 At the conclusion of submissions, I was amply satisfied that the adoption order in respect of Susan should be discharged and I made orders accordingly. In view of the importance of the questions raised in this application, I said that I would publish my reasons later. These are my reasons.

The facts

7 The facts of the case are not in dispute.

8 Susan was born in 1953. Her father (“Carl”) and her mother (“Jennifer”) were never married. Carl had three children from an earlier marriage. Jennifer had one child of an earlier marriage and another child illegitimately.

9 Carl and Jennifer had four children of their relationship: “Jack”, “Bill”, Susan and “Mary”. Carl died in an accident in 1954, when Susan was one year old and Jennifer was pregnant with Mary. Mary was born in February 1955.

10 In February 1956, Jennifer married “Ralph” and Susan and her siblings formed part of their household. A child was born of the marriage of Jennifer and Ralph in 1956.

11 In February 1958, Myers J made an order under Pt XIX of the Child Welfare Act 1939-1956 (NSW) for the adoption of Jack, Bill, Susan and Mary in favour of Ralph and Jennifer. There is no complaint of irregularity about the adoption process or the adoption order.

12 A new birth certificate for Susan was issued, showing Ralph as her father.

13 In 1959, Susan was living with Jennifer, Ralph and five of her siblings, including Mary, in a country town in New South Wales. Susan was then five years old and was just starting school. She remembers vividly that one day Ralph took her alone into a bedroom and began fondling her vagina. She was frightened and wanted to run away.

14 Thereafter, Ralph abused her sexually whenever there was an opportunity for them to be alone together, as when he was giving her a bath. The sexual abuse usually consisted of digital penetration. Susan says that she felt it was wrong and she was scared.

15 Susan began attending a convent school in 1960. She said that the nuns taught her about mortal sin, heaven and hell and the devil. Sexual abuse continued throughout this time. Ralph often said to her:

“Don’t tell anyone about this, it’s our secret and no one will believe you anyway” or “If you tell anyone about this the devil will get you and everyone will know what a naughty girl you’ve been” or “You’ll burn in hell for this because it’s a mortal sin.”

Susan gave this evidence:

“I remember feeling very scared and confused by the abuse and about the things that [Ralph] said to me. I never told anyone about the abuse at the time it was happening because I felt dirty and ashamed and because I believed that I would get in trouble for committing a mortal sin. I also did not tell anyone because I was worried about [Ralph] getting into trouble.

I recall having nightmares as a child about the devil coming out of the fireplace and chasing me with a red-hot poker. I would wake screaming and had usually wet myself. Members of my family have also told me that I used to sleep walk.”

16 Ralph was in the habit of abusing Susan even outside the home. Susan recalls one episode of digital penetration when she and Ralph were travelling alone by train to visit an aunt in Sydney. She gave evidence about another episode in June 1963, when she was nine years old.

17 She and Ralph were travelling overnight by train to visit an aunt in Orange. Susan remembers waking suddenly with an intense burning pain in her vagina. Ralph was lying on top of her and trying to engage in intercourse. Susan was very scared and cried out aloud. Ralph stopped but Susan could not go back to sleep and was continually in pain. She passed blood when she went to the toilet.

18 The pain and bleeding persisted. When Susan returned to Sydney a few days later, Jennifer took her to the doctor, who referred her to the Children’s Hospital at Camperdown, where she was physically examined. The doctor asked her whether “anyone had touched me but I said no as I was scared of getting into trouble and felt too ashamed and guilty”. The medical records from the Hospital confirm that Susan presented on 24 June 1963 with “abdominal pain and bladder inflammation for the past month”.

19 Not long after Susan’s medical examination, Ralph left the family home. Susan was not told the reason.

20 However, Susan has since discovered that Ralph had also been sexually abusing her younger sister, Mary, who had told Jennifer. Mary has given evidence confirming that in 1963, when she was alone with Ralph on a train trip to Orange, she was abused by Ralph. On her return she told Jennifer what had happened. Jennifer took her to the Police to report the matter.

21 Police records show that in July 1963 Ralph was arrested and charged with indecent assault on a female under the age of sixteen years. In October 1963 he was convicted and sentenced to imprisonment for twelve months with hard labour. The Police record does not identify the victim of the assault but it is a safe assumption that it was Mary.

22 Susan knew nothing about Ralph’s conviction for the abuse of Mary until recently. She had not told anyone at the time that Ralph left home that Ralph had abused her. She says that in 1963 she suspected that Ralph was abusing Mary also, but she did not feel able to talk about it to Mary. Susan and Mary have been able to talk to each other about their experiences only in the last nine years.

Standard of proof

23 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. While the Court has paramount regard to the interests of the child in exercising its discretion whether an adoption order should be discharged if the facts alleged have been established, the Court must, in satisfying itself that such facts have indeed been established, bear in mind the effect that the order may have on the interests of others.

24 Accordingly, in an application for discharge of an adoption order by an adopted child, the Court cannot, on the ground of advancing the child’s best interests, give the child the benefit of the evidentiary doubt in the exercise of finding whether the facts supporting the application have been proved to its satisfaction. The Court must be satisfied to the appropriate standard that the facts calling into play the exercise of the discretion have been proved.

25 Section 140 Evidence Act 1995 (NSW) provides:

“ Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:


(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.”

26 As I have said, the nature of an application to discharge an adoption order is of the most serious and permanent kind. Because an adoption order cannot be discharged under s 93(4)(b) other than for some “exceptional reason”, the facts alleged in support of the application are likely to be, in themselves, exceptional. In this case, the allegations of sexual abuse of a child by an adoptive father are of the gravest kind.

27 Bearing in mind these considerations, I should not find that Susan has established the allegation of sexual abuse which is the foundation of her application unless I am satisfied by clear and cogent proof: Director General of Department of Community Services; re Sophie [2008] NSWCA 250, at [50], [68]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 171.

28 Susan’s allegations against Ralph cannot be directly corroborated or denied. Both Ralph and Jennifer are dead; there was no witness to the alleged episodes. Susan did not make a complaint against Ralph until many years later. There is no contradictor in this case and Susan’s evidence has not been tested by cross examination.

29 On the other hand, Susan’s account of what happened to her has been repeated consistently by her to her psychiatrists and psychologists since she first became able to talk about her experience. Her evidence is indirectly corroborated by that of Mary, who gives similar fact evidence and evidence of a tendency to sexual abuse on Ralph’s part. It is also corroborated, indirectly but cogently, by Ralph’s conviction for indecent assault on Mary. It is corroborated by Susan’s medical records showing some likelihood of sexual interference in June 1963. It is corroborated also by Susan’s subsequent life history which is, according to the expert psychiatrist, entirely consistent with, and typical of, trauma caused by sexual abuse as a child.

30 For these reasons, I am fully satisfied that Susan’s allegations of sexual abuse by Ralph have been proved.

The effects of Ralph’s sexual abuse

31 After Ralph was arrested in July 1963, he never lived with Susan and her family again. Ralph was never reconciled with Jennifer and undertook no further parental responsibility for the family.

32 Susan had contact with Ralph only on two further occasions: in 1965 when she was made to spend a very short time with him against her will and, briefly, in 1971 when he attended her marriage at a Registry Office because Susan was then under eighteen years of age and required his consent to marry. Ralph died in 1975.

33 Susan has had a very traumatic life. She has a long history of psychiatric disorder and behavioural problems which began to manifest at the age of ten years. Her psychiatrists attribute these problems to the sexual abuse which she suffered between the ages of five and nine years, as I shall shortly show. Susan attempted suicide on several occasions as a child. She was unable to make friends easily and had very low self esteem. She left school at the age of fourteen years.

34 Susan fell pregnant at the age of seventeen years. She married the father shortly afterwards. After she had had her third child, her marriage broke down and she was divorced in 1981. There were bitter proceedings in the Family Court over custody of the children.

35 Jennifer died in 1983.

36 Susan re-married in 1982. In 1985 she had another child. During this second marriage Susan had a very troubled relationship with her daughter from the first marriage. The daughter told Susan, falsely, that she had been sexually abused by Susan’s second husband. The accusation led to the second husband having a mental breakdown. The second marriage ended in divorce in 1988.

37 Susan married a third time in 1990. The marriage lasted only about three months and she was divorced in 1991. She commenced a relationship with another man and, after living with him for about four years, she married him in 1996. This marriage ended in divorce in 1998. Susan was hospitalised for depression and demonstrated suicidal tendencies.

38 Susan married a fifth time in 2004, after living with her partner for about four years. The relationship was very troubled. Susan suffered severe depression and attempted suicide in 2005. In 2006 she was admitted to hospital for anxiety, depression and panic attacks. The fifth marriage ended in divorce in 2007.

39 Since 2007, Susan has been unable to work and she receives a disability benefit. She takes daily medication for depression. She has frequently been counselled by psychiatrists and psychologists. At present, she is receiving counselling from a psychologist about once a fortnight.

The reason for the application

40 Susan says that for many years she has felt intensely that the Adoption Order whereby she became Ralph’s daughter has cheated her of her identity. She thinks of Carl, her natural father, as her real father and she believes that he was a good and kind man. She has traced his family history and identifies with it.

41 Susan feels betrayed and distressed that her birth certificate shows as her father a man who was present in her life for only four years during her early childhood and who, during that time, repeatedly sexually abused her.

42 In 1997, Susan changed her surname by Deed Poll to Carl’s surname but the fact that she must continue to use a Birth Certificate showing Ralph as her father causes her anguish.

43 On 3 August 1998, Susan wrote to the Court Registry enquiring how she could get her Adoption Order revoked. She gave as her reason:

“I choose not to use my adopted father’s name, as I was sexually abused by this man as a child. However, I have reverted back to my birth name, it is extremely important to me that I have my identity back legally.”

44 At that time, s 25 of the Adoption of Children Act 1965 (NSW) provided that an application for discharge of an adoption order could only be made by the Director General or the Attorney General. The Registry informed Susan accordingly but she felt too unsure of herself and too overwhelmed to approach the Director General or the Attorney General to proceed with the application.

45 As a result of further counselling, Susan decided to apply again to have her Adoption Order discharged. She commenced proceedings in December 2007 and thereafter she has received assistance from the Women’s Legal Services NSW.

Psychiatric evidence

46 A senior psychiatrist has recently examined Susan and has provided an expert report to the Court. After detailed recitation of Susan’s history, including a narration of events which accords with the evidence given by Susan on affidavit, the psychiatrist expresses the following opinion:

“ Summary and Discussion

[Susan] is a fifty four year old mother of four children with a history of marked loss and abuse throughout her life, with the former occurring from the age of one to currently. She has moderately-severe vulnerability and compromised functioning multiple domains of her life, viz –

biologically, through the chronic disorder hypertension

psychologically:
intraphysically – [Susan] has a disturbed sense of self identity and has affective dysregulation; she can reach clinical degrees of depression and anxiety and is rejection sensitive and has low self esteem.
interpersonally – significantly disturbed patterns of relationships with three of her children and four ex-spouses

socially – difficulties in social relationship; currently unable to work.

[Susan] has experienced many of the well recognised sequelae of childhood abuse, as discussed below –

i) Avoidance through
tension reducing behaviours – compulsive shopping, expression of anger
use of psychoactive substances – excess alcohol

ii) Disturbed relatedness
intimacy disturbances

iii) Dissociation
detachment/numbing of feeling
poor memory

iv) Altered emotionality
depression
anxiety


v) Post traumatic effects, such as experiencing flashbacks to the abusive incidents and the perpetrators; distressing dreams; physiological reactions when remembering and exposure to childhood sounds and smells; avoiding sexual activities.

The multiple childhood and adult traumas experienced by [Susan] have contributed to her current situation. It is highly probable that the abuse perpetrated by [Ralph], combined with hypothesised maternal neglect, was instrumental in predisposing [Susan] to her chronic and ongoing difficulties and then contributed to their chronicity and severity.

While one of the multiple perpetrators of abuse on [Susan], [Ralph] has particular aversive significance to her: he is on her birth certificate as ‘father’ when, from her perception, he never fulfilled this role; the continued documentation of his name adds to her sense of loss of her idealised biological father; his name and image are traumatic triggers to her; he was her first abuser when she was very young and vulnerable; he terrorised her with his threats about Satan.

[Susan] has invested considerable time and emotional energy in finding her paternal extended family, as well as changing her name by deed poll to [Carl’s surname]. In her father she sees a good person whom she keenly wants to identify with and find some ‘goodness’ in herself. She has acquired photographs and information about him but her official connection to him (i.e. via the birth certificate) remains unrecognised, leaving her linked to a perpetrator whom she cannot abide.

The discharge of the Adoption Order and restoration of [Susan’s] biological father’s name to her birth certificate will –

i) provide [Susan] with a concrete and symbolic connection to her beloved father, thereby aiding her struggle to find her own identity

ii) improve her sense of self efficacy – the Court has listened to her need and wishes and provided for her; she will be helping others in her situation; she has been strong enough to endure the legal process.

Prognosis

A positive (for [Susan]) legal outcome will assist [Susan] but ongoing appropriate therapeutic intervention is warranted. She is likely to need long term psychological support and medication. Counselling with a Dialectual Behavioural Therapy basis is likely to helpful to her.”

Policy considerations

47 In an application for discharge or revocation of an adoption order, there are two competing policy considerations. The first, which is enshrined in the present New South Wales Act and its predecessors, is that in all decisions affecting adoption regard is to be had first and foremost to the interests of the child. Section 8 of the present Act relevantly provides:

“ What principles are to be applied by persons making decisions about the adoption of a child?

(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:


(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b) adoption is to be regarded as a service for the child,

(c) no adult has a right to adopt the child,

(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,


…

(2) In determining the best interests of the child, the decision maker is to have regard to the following:


(a) any wishes expressed by the child,

(b) the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c) the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d) any disability that the child has,

(e) any wishes expressed by either or both of the parents of the
child,

(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h) the nature of the relationship of the child with each proposed adoptive parent,

(i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.”

48 It is clear that, in so far as the Court must have regard to the interests and wishes of persons other than the child when making a decision “about the adoption of a child”, the Court is doing so only in the process of, and for the purpose of, “making a decision … in the best interests of the child”. By reason of the provisions of s 8(1)(a) and the definition in the Dictionary of “child” as including an adopted person of more than eighteen years, it is clear that a decision whether to discharge an adoption order in respect of a person who has since become an adult is just as much a decision in which the best interests of the child are paramount as any other decision required under the Act.

49 The second policy consideration which comes into play in a case such as this is focussed on the adopting parents. It has long been recognised that if adoption orders can easily be set aside, then the proposition that the relationship between adoptive parent and adoptive child is in all respects the same as between natural parent and child is an illusion. A great deal has been written concerning the importance of giving security and permanence to an adoption order. It is recognised that prospective adopting parents may be discouraged from undertaking the emotional and financial commitment of an adoption if the relationship which is the result can be severed.

50 For example, in the United Kingdom, the Court has no power under the Adoption and Children Act 2002, nor did it have power under the previous Adoption Act 1976, to set aside an adoption order upon any ground except procedural irregularity, such as, for instance, when the consent of a natural parent had not been obtained.

51 In In re B (Adoption: Jurisdiction to Set Aside) [1995] 3 All ER 333, Swinton Thomas LJ said, at 334(b):

“… to invalidate an otherwise properly made adoption order would, in my view, undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child. In my judgment Mr. Holman, who appeared as amicus curiae, is right when he submits that it would gravely damage the lifelong commitment of adopters to their adoptive children if there is a possibility of the child, or indeed the parents, subsequently challenging the validity of the order.”

52 In Attorney-General v Prince and Gardner [1998] 1 NZLR 262, at 291, Tipping J said:

“… adoptions are intended to be final, for better or for worse.”

53 And the New South Wales Law Reform Commission has said that adoption law “… should continue to reinforce the underlying premise that adoption represents a permanent and irrevocable commitment to the child”: New South Wales Law Reform Commission, Report 81 – Review of the Adoption of Children Act 1965 (NSW) (1997) at para 3.81.

Revocation of adoption in other jurisdictions

54 Adoption was a familiar and well regulated concept in Roman law but was unknown to the common law of England: Humphrys v Polak [1901] 2 KB 385; Halsbury (4^th Ed) Reissue 5(2) para 1021. In common law jurisdictions, adoption is entirely the creature of statute and it was not recognised in England until the passing of the Adoption of Children Act in 1926.

55 The first Adoption Act was that of the State of Massachusetts, enacted in 1851. The Act was passed to control what had become the virtual pirating of neglected children from city slums and their placement with rural farming families, often as a means of cheap labour but always for the stated purpose of giving them a better life: see generally M. Kahan “‘Put up’ on Platforms: A History of Twentieth Century Adoption Policy in the United States”, Journal of Sociology & Social Welfare, September 2006, Vol XXXIII.

56 The Massachusetts Act contained only eight sections but its provisions are seminal to current adoption law. The natural parents were required to give written consent to the adoption; if the child was fourteen years old or more, his or her consent was required; the application was to be made to a Judge who had to be satisfied that the applicants were fit and proper to act as parents and were able to provide sufficiently for the child; an adoption order had the effect of placing the child in the same position as if he or she had been born in wedlock to the adopting parents. The Act enabled an appeal from an adoption order, but there was no provision made for revocation of such an order other than upon such an appeal.

57 The State of Massachusetts has remained averse to the notion that an adoption order can be revoked for any reason other than that it was procured by fraud or improper procedure; its current legislation provides that every decree of adoption entered by the Court must include the words “This adoption is final and irrevocable”.

58 A White Paper on child adoption presented to the United Kingdom Parliament in 1925 by a committee headed by Mr Justice Tomlin found only one reason to support the introduction of a statutory law of adoption. At paragraph 9 the Report stated:

“… we think that there is a measure of genuine apprehension on the part of those who have in fact adopted and are bringing up other people’s children, based on the possibility of interference at some future time by the natural parent. It may be that this apprehension has but a slight basis in fact notwithstanding the incapacity of the legal parent to divest himself of his parental rights and duties. The Courts have long recognised that any application by the natural parent to recover the custody of his child will be determined by reference to the child’s welfare and by that consideration alone. The apprehension, therefore, in most cases has a theoretical rather than a practical basis. There is also a sentiment which deserves sympathy and respect that the relation between adopter and adopted should be given some recognition by the community. We think, therefore, that a case is made for an alteration in the law whereby it should be possible under proper safeguards for a parent to transfer to another his parental rights and duties, or some of them.”

59 It was this rationale, i.e. that the adoption relationship should be permanent and free from interference, which led the Committee to say, at paragraph 26 of the Report:

“Another matter of importance is the question whether an adoption once sanctioned is to be capable of revocation. In our opinion the notion of revocation is inconsistent with the notion of adoption.”

60 Accordingly, the United Kingdom legislation has never contained the equivalent of s 93(4) of the present New South Wales Act.

61 The first adoption legislation outside the United States of America was the Adoption of Children Act of New Zealand, passed in 1881. It repeats in substance the provisions of the Massachusetts Act, with an important difference. Section 7 provides:

“It shall be lawful for the District Judge before whom any order of adoption was made, or his successor in office, in his discretion to reverse and discharge the said order: Provided such reversal and discharge shall take place within three months after the making of such order, but shall not be deemed to prohibit any further application under section three.”

62 The New Zealand Act does not state any grounds upon which an adoption order may be discharged but the limitation period of three months suggests that adoption was regarded as subject to a short ‘trial period’ within which adoptive parents might change their minds.

63 Adoption was introduced into New South Wales three years earlier than in the United Kingdom, in Pt XIV of the Child Welfare Act 1923. That Part contained only seven sections. It embodied in substance the provisions of the Massachusetts Act and the New Zealand Act. Like the Massachusetts Act but unlike the New Zealand Act, it provided no power in the Court to revoke or discharge an adoption order.

64 However, the New South Wales Child Welfare Act of 1939 copied a section of a later New Zealand Infants Act 1908 (NZ) in providing in s 170:

“The court, on the application of an adopting parent or of a reputable person on behalf of an adopted child, may vary or discharge any order of adoption subject to such terms and conditions as it thinks fit.

When an order of adoption is discharged, then, subject to the conditions, if any, named in the discharging order, the child or person in respect of whom the order of adoption was made and his natural parents shall be deemed for all purposes to be restored to the same position inter se as existed immediately before the order of adoption was made:

Provided that such restoration shall not affect anything lawfully done whilst the order of adoption was in force.”

65 The Act states no ground upon which a revocation order can be made and provides no time limit for making such an application. It seems to confer a very wide discretion on the Court and, in this regard, it is obviously contrary to the notion of adoption as permanent which underlies the United Kingdom adoption legislation.

66 I have found only one case in New South Wales in which an adoption order has been discharged. The adoption order was made on 29 November 1929 under the 1923 Child Welfare Act: proceedings number 8106 of 1929. In 1935 the natural mother filed a Notice of Motion in the proceedings seeking a declaration that the adoption order was null and void and, in the alternative, an order rescinding it.

67 It appears that the adoptive mother had represented to the adoptive father that she was free to marry him when, in fact, she had obtained only a decree nisi, not a decree absolute, for the dissolution of her previous marriage. She married the adoptive father before obtaining a decree absolute and they adopted a child. The marriage was declared null and void by the Supreme Court in its Matrimonial Causes Jurisdiction. Nicholas J consequently declared null and void the adoption order. Although no reasons for judgment were given, it seems that the adoption order was declared void because the adopting wife had falsely represented to the Court in the adoption application that she was married to the adopting husband and that the adoption application was, therefore, made by “husband and wife jointly”, in accordance with s 125(a) of the 1923 Act.

68 The case, therefore, appears to be one in which the adoption order had been obtained by fraud or “improper means”, and could therefore be set aside in exercise of the Court’s inherent jurisdiction over its process – a jurisdiction now embodied in s 93(4)(a) of the present Act.

69 The first comprehensive treatment of adoption law in New South Wales was the Adoption of Children Act 1965, which came into effect in 1967. The Act was based on a model Adoption Bill agreed amongst the Commonwealth and the States.

70 Section 25 of the 1965 Act provided:

“ Discharge of adoption orders

(1) The Director-General or the Attorney-General may apply to the Court for an order discharging an order for the adoption of a child made under this Act or under the former Acts and the Court may make such an order if it is satisfied that:


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

(b) any consent relied upon for the making of the order for adoption was a consent referred to in paragraph (a), (b), (c) or (d) of subsection (1) of section 31, or

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


(2) The Court shall not make an order under this section if it appears to the Court that the making of the order would be prejudicial to the welfare and interests of the child.

(3) Where the Court makes an order discharging an adoption order that was made in reliance on a general consent, then, unless the Court otherwise orders, the general consent remains in operation for the purposes of a further application for the adoption of the child.

(4) Where the Court makes an order under this section, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the welfare and interests of the child, including orders relating to:


(a) the name of the child,

(b) the ownership of property,

(c) the custody or guardianship of the child, or

(d) the domicile of the child.

(5) Upon the making of an order under this section discharging an order for the adoption of a child, but subject to any order made under subsection (4) of this section and to subsection (4) of section 35, the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons shall be the same as if the order for adoption had not been made, but without prejudice to:


(a) anything lawfully done,

(b) the consequences of anything unlawfully done, or

(c) any proprietary right or interest that became vested in any person,

whilst the order for adoption was in force.”

71 The phrase “exceptional reason” in s 25(1)(c) seems to have come from the phrase “exceptional circumstances” in s 13(1) of the Adoption of Children Act 1928 of Victoria. I do not think that there is any material difference in meaning between the two phrases. McInerney J was of the same view in Re S [1969] VR 490, at 494, when his Honour came to apply s 16 of the 1964 Victorian Adoption of Children Act, which was in virtually the same terms as s 25(1)(c) of the 1965 New South Wales Act.

72 Section 13(1) of the 1928 Victorian Act provided that the Supreme Court was empowered, in its discretion, to vary or discharge an adoption order upon application made to it by a law officer who, after enquiry, had satisfied himself that “owing to the exceptional circumstances of the case” the application should be made. However, the Court could not vary or discharge the order unless satisfied that it would be for the welfare of the child.

73 It is to be noted that under s 13(1) of the Victorian Act whether circumstances qualified as “exceptional” was a question for the law officer contemplating an application, not for the Court. However, the Court would in due course have to take full account of those circumstances in dealing with the application. In A v C-S (No 1) [1955] VLR 340, at 368, Sholl J said:

“As to what are ‘exceptional circumstances’, it is unwise to attempt to limit the law officer’s judgment by any definition of such circumstances, the variety of which may plainly be infinite. It is for him to decide what are exceptional circumstances, and not for the Court, once he has applied to it, to do so; though doubtless in exercising its own discretion the Court would later have regard to them in a different aspect. In this case the Attorney-General was so plainly right in applying to the Court that I do not suppose anyone would for a moment suggest otherwise; the circumstances were quite extraordinary. But there may be very many other types of cases in which the application might be expected to be made. I am attempting no limitation by definition, in defiance of my own precept, when I say that a few of the many cases which occur to me at the moment, are the death of an adoptive parent, or of one or two adoptive parents; the divorce of the adoptive parents, or even their separation; ill-treatment of the child by its adopter or adopters; a serious decline in the character of the adopter or adopters, as, e.g., through crime or drink; the discovery that at the time of the original adoption the true character of the adopter was not known; a serious mistake (even though not going to jurisdiction, and whether by reason of mis-statement of facts to the Court or not) by the Court which made the original order; the discovery of the whereabouts of, or recovery of capacity by, a person whose consent to the adoption was dispensed with under sec. 4(3); or a desire by the child itself (whether before or after majority) to restore itself in law to its natural family. I by no means, of course, say that all such cases would necessarily constitute exceptional circumstances, the whole circumstances in each case must be looked at. Still less do I say that there may not be innumerable other cases of exceptional circumstances.”

74 It is as well to say at once that some of the “exceptional circumstances” referred to by Sholl J could not, according to contemporary standards of behaviour and morality, qualify as an “exceptional reason” for discharge of an adoption order under s 93(4)(b) of the present Act.

75 So, for example, the death of one or both adoptive parents would not, in itself, warrant discharge of an adoption order. If one or both birth parents of a child who has never been adopted die, that does not change the child’s identity as the child of those parents. The case is no different if the parents are adoptive. There can be no objection if only one parent is left to bring up the child unless that parent is demonstrably incapable of doing so. Sole parenthood does not present the difficulties that it did in former times. Indeed, it is not uncommon for an adoption order now to be made in favour of a single adoptive parent, where it is clear that that is in the best interests of the child.

76 Similarly, divorce of the adopting parents cannot itself warrant discharge of an adoption order. At the time of the judgment in A v C-S, divorce was still fault-based; it was far less common, and was attended with far greater social stigma, than it is today. The children of divorced adoptive parents are in no different case, in terms of their overall welfare, than the children of divorced birth parents.

77 Again, the fact that an adoptive parent has been convicted of a crime would not warrant the discharge of an adoption order without an examination of the nature of the crime and its impact upon the ability of the adoptive parent to care for the child in his or her best interests. Doubtless, there are burglars who make exemplary parents. Discharge of an adoption order is not a punishment for bad behaviour which is unrelated to the welfare and best interests of the child.

78 Whether a serious mistake by the Court which makes the adoption order is an “exceptional reason” for discharge depends upon whether the mistake directly touches the interests of the child.

79 For example, in Re Adoption Application No AD 58/1984 (1986) 11 Fam LR 518 the welfare report on the basis of which the adoption order was made mistakenly assumed that the birth father had taken no interest in the child since his birth. The adoptive mother was the child’s birth mother, the adoptive father was the stepfather. The birth father had in fact been involved with the child continuously. The Attorney General, on behalf of the father, successfully sought a discharge of the adoption order. Kelly J in the Supreme Court of the Australian Capital Territory held (at 522) that: “When the adoption order was made without reference to the role in the life of the child which the father had played, there was … a serious mistake”, and his Honour referred to the passage from the judgment of Sholl J in A v C-S which I have cited above.

80 While I think that I may safely say that certain examples given by Sholl J in A v C-S would no longer, in themselves and without more, constitute an “exceptional reason” warranting discharge of an adoption order, I should resist the strong temptation (to which Sholl J succumbed) to give other examples of circumstances which would, in my opinion, constitute an “exceptional reason” warranting discharge. As McInerney J wisely said in Re S (supra) at 495:

“To attempt an exhaustive definition of what may constitute ‘exceptional circumstances’ or ‘exceptional reasons’ why the order should be discharged, except in so far as it is necessary to elucidate whether the facts of the given case give rise to an exceptional reason, is objectionable on the grounds that it inevitably represents a temptation to later judges to accept and apply such views mechanically instead of deciding the case on the particular facts of the case. To adapt the language of Smith, J, in Shepperdson v Lewis , [1966] VR 418, at p. 423, it is ‘an invitation to courts to enjoy the ease of travelling in a groove; that groove being one which, when available, will lead automatically to a solution in all but exceptional cases’ . I agree with the comment which Smith, J, went on to make that ‘to fetter the discretion in this way is, ... wrong in principle’ .”

81 In my opinion, the principle upon which the Court should act in an application for discharge under s 93(4)(b) can be stated no more precisely than it was by McInerney J in Re S at 495:

“I am disposed to think that under s16 [now s 93(4)(b) of the NSW Act] the Court, in considering whether there is some exceptional reason why the adoption order should be discharged, must have regard to the question whether the order if allowed to continue would fulfil or defeat the essential objects of an adoption order, as collected from the provisions of the Act.”

82 The “essential objects” of an adoption order to which his Honour refers are to advance the best interests of the child “both in childhood and in later life” (s 7(a), s 8(1)(a)) by means of establishing a secure and permanent relationship between adoptive parents and adopted child which will enable the child “for the full and harmonious development of his or her personality, (to) grow up in a family environment, in an atmosphere of happiness, love and understanding”. These last quoted words are taken from the preamble to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, to which Australia is a signatory and which is adopted by s 210 of the New South Wales Adoption Act.

Sexual abuse as “exceptional reason”

83 There can be nothing more destructive of the complete and unquestioning trust of a child in a parent than violent abuse of that child by the parent. That abuse may be physical, emotional or sexual; each in its own way is horrific and damaging.

84 The very notion of any sexual relation between a parent and a child revolts against nature. The child who has suffered serious sexual abuse by a parent is scarred for life. For some who have suffered such injury, the wounds may never heal. Some may, in turn, become sexual abusers of children. Others may cope better, but all are cheated of “the full and harmonious development of his or her personality … in an atmosphere of happiness, love and understanding”, which the upbringing of every child should seek.

85 These observations hardly need reference to authority. They are part of human experience and underlie the legislation of all civilised countries for the protection of children and young people.

86 When a natural parent is found to have sexually abused his or her child, or to have condoned or encouraged such abuse, the child may be removed permanently from the care of such parent and, in an appropriate case, placed for adoption: see e.g. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 23(c), s 43(3)(b), s 71(1)(c), s 79(1)(b), s 83(3), s 83(4). If sexual abuse can justify the severance in law of the biological relationship between birth parent and child, how much more so does sexual abuse justify severance of a parental relationship created by juridical act. What the Court has done, the Court can always undo.

Conclusions

87 In this case, discharge of the adoption order is not sought to prevent continuation of sexual abuse of a child or young person still in the care of the adoptive parent or parents. If an application of that kind were made and sexual abuse were proved, discharge of the adoption order would follow almost as a matter of course. One might go so far as to say that in such a case there would have to be an “exceptional reason” for not making a discharge order.

88 This is a case in which discharge of the adoption order is sought in order to alleviate psychological injury which has already occurred and from which Susan is still suffering. The wounds have not healed. The Attorney General correctly submits that, in order to determine whether a discharge order will be in Susan’s best interests, the Court must seriously examine whether a discharge order will make any appreciable difference to Susan’s healing process. She has suffered much in life and her present psychological condition is the product of many emotional impacts in addition to the abuse which she suffered from Ralph. The Attorney General says that, bearing in mind the high importance of maintaining permanency in the adoptive relationship, the Court should not discharge the adoption order in this case unless it is comfortably satisfied that discharge will make a significant improvement to Susan’s life.

89 The Attorney General draws attention to s 93(5)(a) which provides that the Court must not make a discharge order if it appears that the order “would be prejudicial to the best interests of the child”. Mr Bourke says that this negative injunction does not lower the threshold for a decision under s 93: the decision still must be made for an affirmative purpose, i.e., “in the best interests of the child”, as required by s 8(1)(a).

90 I agree. Section 93(5) is probably most relevant if the discharge of an adoption order is sought by a person other than the child and the child cannot speak for himself or herself. The subsection merely emphasises that the child’s best interests are paramount in all cases.

91 I accept the evidence of Susan that it will make her feel much better about herself to sever once and for all a relationship with Ralph which she finds odious and distressing and with which she is confronted every time she has to use her birth certificate. I accept that she feels it repugnant to be burdened with an identity, as a child of Ralph, which she feels is false and which is, in truth, not a biological but a juridical fact. I accept her evidence and the evidence of the psychiatrist that restoration of Susan’s biological father to her birth certificate will:

“i) provide [Susan] with a concrete and symbolic connection to her beloved father, thereby aiding her struggle to find her own identity

ii) improve her sense of self efficacy – the Court has listened to her need and wishes and provided for her; she will be helping others in her situation; she has been strong enough to endure the legal process.”

92 It is unreal to suppose that the trauma which Susan has suffered will be wiped away completely by revocation of her adoption. I am satisfied, however, that the making of the discharge order will go some way to healing the injury which has flowed from the adoption. To refuse the order, on the other hand, would certainly inflict another injury. In summary, if the adoption order is allowed to continue in this case, the essential objects of the order will be defeated: Susan’s best interests in later life will be set back, not advanced, as required by s 8(1)(a) of the Act.

93 I take into account that if the adoption order is discharged, Susan will no longer be, in law, the sister of her siblings: Jack, Bill and Mary. Susan and Mary are aware of that fact and have taken it into consideration. I do not know anything of the present relationship between Susan and her brothers. However, in considering this application I have to pay regard to the interests only of a “party to the adoption”: s 93(1), s 93(3). Susan’s siblings are not “parties” to Susan’s adoption although they are the subject of the same adoption order: see Dictionary definition of “parties to an adoption”. I therefore do not take into account whatever attitude Susan’s siblings may have to the discharge of her adoption.

94 For these reasons, I was satisfied at the conclusion of submissions that Susan had proved that there was an exceptional reason for the discharge of her adoption, and I made orders accordingly.

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