Re: The Adoption of "Z"

[2020] NSWSC 1725

Supreme Court

New South Wales

Medium Neutral Citation:

Re: The Adoption of "Z" [2020] NSWSC 1725

Hearing dates:

1 December 2020

Date of orders:

1 December 2020

Decision date:

01 December 2020

Jurisdiction:

Equity - Adoptions List

Before:

Sackar J

Decision:

See paragraph [6] - Discharge Adoption orders

Catchwords:

FAMILY LAW AND CHILD WELFARE  — Children — Adoption — Discharge of adoption orders — Whether orders for adoption should be discharged

FAMILY LAW AND CHILD WELFARE — Children — Adoption — Discharge of adoption orders — Whether consequent upon the discharge order the applicant’s name should be changed pursuant to s 93(7)(a) of the Adoption Act2000 (NSW) and an order made pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act1995 (NSW) directing the Registry to record the changed name on the applicant’s birth certificate — Where applicant had already changed her name prior to the making of the discharge order

FAMILY LAW AND CHILD WELFARE — Children — Adoption — Discharge of adoption orders — Whether a further order should be made pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act1995 (NSW) that a new birth certificate be issued recording the names of the applicant’s biological mother and father — Where biological father not recorded on original birth certificate — Where DNA and other evidence used to identify biological father

Legislation Cited:

Adoption Act 2000 (NSW) ss 93, 126

Child Welfare Act 1939 (NSW) pt XIX

Births, Deaths and Marriages Registration Act1995 (NSW) s 19(2)

Cases Cited:

Adoption Re: P [2019] NSWSC 1623

Texts Cited:

n/a

Category:

Principal judgment

Parties:

N P Z (plaintiff)
Attorney General of New South Wales (intervener)

Representation:

Counsel:
Self-represented with McKenzie friend (plaintiff)
Ms D Ward (Attorney General of New South Wales)

Solicitors:
Crown Solicitor of New South Wales (Attorney General of New South Wales)

File Number(s):

2020/188080

Publication restriction:

Anything that would identify the applicant

Judgment

Introduction

1. Before the court is an application for four orders.

2. The first is to discharge an order for adoption, pursuant to s 93(4)(b) of the Adoption Act 2000 (NSW) (the Adoption Act), made by Roper J in this court in March 1952 pursuant to Part XIX of the Child Welfare Act 1939 (NSW).

3. Secondly an order that upon the first order being made, and pursuant to s 93(7)(a) of the Adoption Act, that the applicant’s name be changed consequent upon the discharge and recorded as “N P Z”.

4. Thirdly that an order be made, pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act1995 (NSW) (the BDMR Act), directing the Registry to record “N P Z” as the name on the applicant’s birth certificate.

5. Fourthly a further order pursuant to s 19(2) of the BDMR Act that a new birth certificate be issued recording the names of the applicant’s biological mother and father.

6. The matter came on for hearing before me on 1 December 2020. I made orders in relation to the items referred to above in [2] and [5], but otherwise declined to make the other orders requested. I said I would provide brief reasons in due course for the making of those orders. These are they.

The Application for Discharge

7. The applicant has under s 93(4)(b) to show some exceptional reason why the order for adoption should be discharged.

8. Such an application must be made by a “concerned person” pursuant to s 93(2) of the Act. The applicant here is clearly such a person.

9. I have recently reviewed the authorities in Adoption Re: P [2019] NSWSC 1623 at [44]-[52]. It is clear the categories are not closed but sexual abuse has for obvious reasons been regarded as a factor generally warranting the discharge of an order for adoption.

10. Here the applicant alleges such abuse took place. She refers to it in numerous of her statements filed in the case (at CB.27, 30, 32 and 54). She also describes domestic violence occurring in the home. The two clinicians who have consulted with her, Dr Karen Hitchcock, her physician (CB.51-53) and Ms Joanne Wyles, social worker and author of a report for the court (CB.120-130), had no reason to doubt her version of events and having carefully considered the materials nor do I.

11. There is no doubt in my mind that if the abuse had been reported to the appropriate persons at the time it would most likely have led to a termination of the parental relationship and a removal of the child from the adoptive care.

12. I have taken into account that she has a sibling relationship with another person adopted by the same couple shortly before the applicant who may still be alive. However the applicant has had no relationship in fact with the person concerned.

13. In addition I have also taken into account that the applicant has had a distribution from the estate of the adoptive parents. But that fact does not automatically lead to the application being refused. I am more than satisfied the applicant’s motives here are not financial. She genuinely seeks to rectify wrongs perpetrated upon her and for good reason.

14. In my view the interests of justice require the order for adoption to be discharged.

The Change of Name

15. When the applicant was born she was initially given the name “C E” on her original birth certificate and that is also recorded in the Supreme Court file. The origin of the name “C” is something of a mystery. The birth mother’s name is recorded on the birth certificate as T V E (CB.23).

16. The adoptive parents chose the name “G I K”.

17. However the applicant has in any event changed her name in 1997 to “N P Z” and the change was registered at or about that time. In my view no occasion arises in the interests of justice for any alteration to the original birth certificate and I refused to make the order sought in that respect.

The Applicant’s Biological Father

18. There was no father named on the applicant’s original birth certificate. The applicant found out for the first time who at least the birth mother believed the father was when the applicant met with the birth mother in 2009. He was identified as X A R by the mother.

19. There is evidence before the court from two witnesses that would make that seem more likely than not and I note that in proceedings under the Adoption Act the rules of evidence do not apply (s 126 Adoption Act).

20. The applicant sought the assistance of a Mr Peter O’Brien who has experience in the interpretation of DNA results. The applicant submitted a sample of her DNA. Mr O’Brien was of the view having undertaken his analysis (CB.151-154) that there is a very high probability that X A R was the father of the applicant.

21. However in addition the Attorney-General also retained an expert historian, Mr Michael Flynn, who analysed Mr O’Brien’s opinion including his methodology. He had some outstanding queries which were resolved in a video conference which included My Flynn, his colleague and research officer, Mr Tim Dauth, and Mr O’Brien. As a result Mr Flynn expressed the view that Mr O’Brien’s methodology was sound and that he and Mr Dauth were also comfortable that his conclusions were sound and that there was a very high probability that Mr X A R was the father of the applicant (CB. 211-211c).

22. Likewise I am satisfied I should accept their opinions and I therefore am prepared to make an order accordingly.

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Decision last updated: 04 December 2020