Re Susan

Case [2009] NSWSC 592 26 June 2009

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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

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 Susan

Details

AGLC: Re Susan [2009] NSWSC 592
Case: [2009] NSWSC 592
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the case of Re Susan, the applicant, who had been adopted, sought the discharge of her adoption order. The applicant alleged that she had been repeatedly sexually abused by her adoptive father during her childhood. This abuse had caused significant psychological trauma, which the applicant believed would be alleviated if the adoption order were discharged. Consequently, she aimed to regain her identity with her birth father. The Family Court of Australia was tasked with determining whether the applicant's allegations of sexual abuse had been proven, the standard of proof required for such allegations, and whether the discharge of the adoption order would indeed alleviate her psychological injury. Additionally, the court needed to decide if there was an "exceptional reason" for discharging the adoption order and to outline the principles to be applied in such cases.

The court first assessed the evidence regarding the applicant's allegations of sexual abuse. It concluded that while the evidence supported a finding of abuse, the standard of proof necessary for such allegations was not definitively met. The court then examined whether the discharge of the adoption order would alleviate the applicant's psychological injury. It noted that while the discharge might help in her emotional healing, it was not a guaranteed remedy for her trauma. The court also considered whether an "exceptional reason" existed for discharging the adoption order. It found that while the applicant's situation was undoubtedly tragic, the legal requirements for an "exceptional reason" were stringent, and in this instance, they were not met. The court applied established principles that an "exceptional reason" must be both exceptional and related to the discharge of the adoption order itself, rather than the consequences of the adoption.

In conclusion, the court found that the applicant had not proven her allegations of sexual abuse to the required standard. It also determined that the psychological injury would not necessarily be alleviated by discharging the adoption order, and there was no exceptional reason to warrant such a discharge. Therefore, the court dismissed the applicant's application for the discharge of her adoption order. The court's decision emphasised the high threshold for discharging adoption orders and the need for clear and convincing evidence in such sensitive cases.

Orders