Solicitors:
Crown Solicitors (Attorney General of NSW)
File Number(s): A104 of 2013
[2]
Judgment (ex tempore)
HIS HONOUR: On 10 December 1964 in proceedings numbered 1348 of 1964 Myers J, then a judge of this Court, made an order pursuant to Child Welfare Act 1939, Part 19, for the adoption of the present plaintiff LVH by the adopting parents AMK and his wife NBMK on the basis that after the adoption, the plaintiff would be known as BHMK. By application filed in the present proceedings on 2 July 2013, the plaintiff seeks an order pursuant to Adoption Act 2000, s 93, discharging that order.
Adoption Act, s 93(3), requires that the court give notice of such an application to each concerned person other than the applicant. For relevant purposes the concerned persons are defined as the Attorney General for New South Wales and each party to the adoption. The adopting parents are both deceased, so notice cannot be given to them. The consenting birth mother JH is a person concerned, and notice has been given to her. She appeared by a solicitor at a preliminary hearing, but that solicitor has since filed notice of ceasing to act. Notice of the hearing was given to her at her last known address and she has not appeared subsequently, although an affidavit sworn by her is in evidence.
Pursuant to Uniform Civil Procedure Rules, r 56.10, notice was given to the Director General. Section 94 provides that the Court may require the Director General to investigate the application. The Court has not made such a requirement of the Director General, but the Attorney General has appeared as amicus curiae in the proceedings by counsel and has adduced relevant material and participated in the proceedings in that capacity so as to assist the Court in dealing with the matter. The court has been much assisted in that respect and is grateful for the Attorney and his counsel's assistance.
Adoption Act, s 93, provides as follows:
93 Discharge of adoption orders
(1) In this section:
concerned person means the Attorney General, or any party to an adoption.
(2) A concerned person may apply to the Court for an order discharging an adoption order (a discharge order).
(3) The Court is to give each concerned person (other than the applicant for the discharge order) notice of the application.
(4) The Court may make a discharge order if it is satisfied that:
(a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or
(b) there is some other exceptional reason why the adoption order should be discharged.
(5) The Court must not make a discharge order if it appears to the Court that:
(a) the making of the order would be prejudicial to the best interests of the child, or
(b) if the application for the order is made by the child - the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child's access to information or contact with a person under Chapter 8 (Adoption information).
(6) If the Court makes a discharge order respecting a general consent, that consent remains effective for the purpose of a further application for an adoption order in relation to the same child, unless the Court orders otherwise.
(7) If the Court makes a discharge order, 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 best interests of the child, including orders relating to the following:
(a) the name of the child,
(b) the ownership of property,
(c) the parental responsibility for the child,
(d) the domicile of the child.
(8) On the making of a discharge order, but subject to any order made under subsection (6) and to section 95 (4), the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made, but without prejudice to:
(a) anything lawfully done, or
(b) the consequences of anything unlawfully done, or
(c) any proprietary right or interest that became vested in any person,
while the adoption order was in force.
The reference in subsection (2) to "an adoption order" includes an order for adoption made under a former Act (see the definition of "adoption order" in the dictionary to the Adoption Act), and in turn a "former Act" includes the Child Welfare Act 1939. Accordingly, s 93 is available to discharge the order the subject of these proceedings.
Subsection (4) provides two grounds which each enliven a discretion to discharge an adoption order. The first relates to the means by which the original adoption order was obtained and requires that either the order itself or the consent on which it was founded was obtained by fraud, duress or other improper means. The second is that there is "some other exceptional reason" why the adoption order should be discharged. The dichotomy reflected in subparagraphs (a) and (b) indicates that such exceptional reason need not relate to the circumstances in which the adoption order (or, for that matter, any consent) was obtained, but can relate to other matters, including matters arising after the adoption order was made.
This view is consistent with the approach taken by Palmer J of this Court in the only known decision under s 93(4)(b), namely Re Susan [2009] NSWSC 592, a decision which I have found to be of great assistance, particularly in its review of the history of the adoption legislation and decisions in other jurisdictions on applications for the discharge of adoption orders. His Honour's judgment relieves me of the need to review separately and in detail the history of those provisions, but I have had regard to the decisions on similar provisions of Sholl J in A v C-S (No1) [1955] VLR 340 (particularly at 348), and of McInerney J in Re S [1969] VR 490 (at 494). In Re Susan, Palmer J referred also to observations in England in Re B (Adoption: Jurisdiction to Set Aside) [1995] 3 All ER 333-334 and in New Zealand in Attorney General v Prince & Gardener [1998] 1 NZLR 262, 291, to the effect that adoptions are intended to be final, a position which is plainly also the law in this State.
In the circumstances of Re Susan - which pertained to matters arising after the adoption order was made and, in particular, the sexual abuse of the child by the adoptive father - his Honour concluded at paragraph 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 for example Children and Young Persons Care and Protection Act 1998, 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.
With great respect, I do not necessarily agree with the concluding observation that what the Court has done the Court can always undo. However, the proposition that I understand his Honour to have stated in that paragraph is that there are exceptional reasons of the kind referred to in s 93(4) if such circumstances have arisen post adoption as would justify the termination of the adoptive parent's parental responsibility for the child if they were natural parents of the child. Although, as his Honour later pointed out, it is undesirable to list categories of what might amount to exceptional reasons, I think that provides a useful touchstone of the circumstances in which post adoption events might amount to exceptional reason.
I should say something about s 93(4)(a). It is clear that that subsection relates to the process by which the adoption was obtained and is confined to events that occur before the making of the adoption order. While it is arguable that "improper means" need not be construed strictly ejusdem generis with fraud or duress, the use of the adjective "improper" indicates that an element of impropriety at the very least is necessary. In any event, fraud and duress are well established common law concepts and in my view have their common law meaning. In this respect the provision is analogous to Family Law Act, s 79A(1)(a). In that context the reference to fraud includes its common law concept of actual dishonesty or conscious wrongdoing, and it is doubtful that it extends to "equitable fraud". In a statutory context, fraud is usually construed as meaning common law fraud, and in my view that is the meaning it should be given here [cf Byrne v Byrne (1965) 7 FLR 342, 343; Taylor v Taylor (1979) FLC 90-674; Green v Kwiatek (1982) FLC 91-259.
Duress involves the procuring of assent by overbearing the will of the subordinate party by illegitimate pressure. I do not consider that this extends to pressure falling short of what would amount to common law duress, namely the compulsion of a person, usually by physical harm [cf Australia & New Zealand Banking Group v Karam [2005] NSWCA 344]. Not all pressure is illegitimate.
So far as "other improper means" are concerned, as I have said, it is arguable, again by analogy with Family Law Act, s 79A(1)(a), that it is not to be confined ejusdem generis with the preceding words [cf Byrne v Byrne, 343-4, with reference to the corresponding provision in former Matrimonial Causes Act 1959, s 75]. But, as I have said, it is at least confined to circumstances preceding or accompanying the adoption order and involves or requires some element of impropriety.
With that review of the law I turn to the facts. The plaintiff's birth mother, JH, was herself a fostered child and had lived with her foster mother Mrs W since she was only a few weeks old. She fell pregnant at the age of 17 in early 1964 to one BL. Once that occurred, BL apparently wanted no more to do with her and she returned to live with her foster mother at Blackman's Flat near Wallerawang north west of Lithgow, New South Wales.
On 29 April 1964, Mrs W and a friend attended on the almoner at the Crown Street Women's Hospital to make enquiries about booking JH in for confinement. Some details were provided about JH, including that the birth father refused to marry her. The note of that attendance in the hospital records states that the foster mother thought that adoption was best because she could not possibly take on a baby at her age. She also said that JH was quite inclined to want to keep the baby when it was first discussed, observing that no-one had wanted her when she was small and so on.
On 18 June 1964, JH and Mrs W again attended at the hospital. The social worker's note records that JH's mother was a single girl who kept the baby and gave her to Mrs W to bring up and had never seen her since. The note records:
Patient will probably have her baby adopted and seemed well able to think the thing through in a sensible manner. Putative father was her boyfriend at one stage and she is still a bit keen on him but it has come to nothing.
On 5 August 1964, Mrs W wrote to the matron at the hospital, making arrangements as to when she would bring JH to the hospital for admission, it being envisaged that that would be in the middle of October.
In late August or early September, Mrs W again wrote seeking advice as to whether she could apply for a grocery order to help with JH as she had to have a number of extras and she, Mrs W, was on a war widow's pension. This is significant because I think it gives some flavour of the economic pressures that must have been a dominant consideration at the time. The social worker responded with advice on 7 September 1964.
At some time in September 1964 - the record does not enable it to be ascertained precisely when - JH was admitted to Lady Wakehurst wing, an annex of the Crown Street Hospital, to remain there for the rest of her pregnancy. The social worker's note records:
She seems to be rather homesick for her foster mother and very much wants to keep the baby she confessed. She feels that it would not be fair either to the baby or to the foster mother. She feels that her own history makes it difficult for her to accept the idea of giving the baby away. Application for SB [special benefit] made.
Word of her apparent mixed feelings about adoption, whether following that admission or following the earlier visit of 18 June, must have reached Mrs W who at some stage wrote to the social worker at the hospital, observing that JH:
… is not very happy, is she, about parting with the baby. So I have been thinking things over and I am willing to try to help her with it.
She then made a number of queries about what assistance might be available if JH were to keep the baby. On 12 October 1964, the senior social worker responded that Ms Wallis (the social worker with whom Mrs W corresponded) was away, but the letter would be handed to her on return. There does not appear to be any record of any further correspondence prior to 9 November 1964, on which date JH was confined and the plaintiff was born by instrumental delivery.
On 12 November 1964, JH was seen by Jayne Elizabeth Grimes who worked as an allotment officer for the Department of Child Welfare with Crown Street Hospital. It seems that, on the first visit, Ms Grimes completed a series of notes as to particulars of the child, the birth mother and the birth father and it is very likely that at that visit on 12 November, she also obtained the requisite particulars to prepare the application for registration of the birth.
JH was seen again by Ms Grimes on 13 November 1964 when she signed a request that the Minister proceed to arrange an adoption, relinquishing any further claim to her child, and she also signed the requisite form of consent to adoption in the presence of Ms Grimes.
It appears that the birth of the plaintiff was registered at the Registrar of Births, Deaths and Marriages also on 13 November 1964.
JH was discharged from the hospital on 15 November 1964 to the care of Mrs W.
On 16 November, Mrs W wrote to the social worker at the hospital expressing thanks for her kindness and understanding and observing of JH, "She is happy to be home but very weak and just now fretting over the baby", and requesting support by way of a food parcel.
Another letter, dated only "Wednesday" - but by deduction I infer almost certainly written on Wednesday 18 November 1964 - reads:
You told me to write to you if I have worry [JH] doing no good. She won't eat and cries out all the night for her baby. Is it too late to save it now? I would take it, dear, if it is not too late. I am so upset, dear. You have been such a friend to me, not just an almoner.
On 20 November 1964, the young plaintiff was released from the hospital into the care of the then proposed adoptive parents. On that day, Mr McK and Mrs McK signed an authority requesting the Minister to commence proceedings for adoption. On the same day, Ms Grimes swore an affidavit verifying the consent of JH.
Ms Wallis, the social worker, wrote to JH advising her "that your baby was taken home by his new parents today" and providing some information about them and some encouragement to JH. There is a letter, which appears to be a response from Mrs W dated only "Saturday", which in an era of overnight mail trains and Saturday morning mail deliveries could have been Saturday 21 November but could have been Saturday 28 November 1964, expressing:
A thousand thanks for everything. JH was sad but happy and had a little weep to herself but your letter made her happy too.
On 1 December 1964, a departmental officer, Mr Murden, swore two affidavits in support of the application for adoption. One of them annexed two references; one of them apparently by a near neighbour of theadoptive parents, and the other by a medical practitioner who, as was then required, certified that the proposed adopting parents were unlikely to be able to have children naturally, and also attested to their good character. That reference was dated 12 March 1962. The other affidavit of Mr Murden deposed, inter alia, that a district officer of the department had inspected the home of the proposed adopting parents on 21 August 1964.
Those dates - both of the inspection and of the doctor's reference - are of significance because they indicate that adoption had been contemplated and pursued by the MKs not only for some months, but possibly for some years, before November 1964.
On 8 December 1964, the formal application for adoption was filed in this Court, together with a request that it be dealt with in private Chambers, as was and remains quite routine for an adoption application. The matter was referred to Myers J who, as I have said, made the order of adoption on 10 December 1964.
It is with no disrespect but relevant to record that Myers J was well-known, and remains renowned to this day, for punctilious insistence on compliance with every pre-condition and prerequisite to the making of an order - not just in the area of adoptions - to the point that might be regarded by some, unfairly, as pedantry. In short, it is most unlikely that that judge would not have scrutinised the application very closely indeed.
Not long after the adoption order was made, the MKs, with their adopted son, the plaintiff, moved to South Australia.
The MKs had another adopted son, one Andrew, who it would seem was of North American indigenous descent. He was some three years older than the plaintiff.
In his affidavit evidence in these proceedings, the plaintiff records an unhappy childhood. It is unnecessary in these reasons to spell out the full detail but the matters he recounts includes many episodes of corporal punishment, some of which may have been within what were then normal limits, but, it would seem, with a frequency and to an extent that considerably exceeded that. Other aspects, including malnutrition by way of being fed only bread and drippings, and physical maltreatment through being struck and threatened with a knife, are, if true, well beyond what would be regarded as within the bounds of even a somewhat turbulent parent/child relationship. Many of those events, if they occurred, constituted criminal offences.
During his childhood, and not least because of the very obvious physical differences with his brother Andrew, the plaintiff and Andrew both raised questions as to whether they were adopted, which was denied by the adoptive parents, and in particular by the adoptive mother who responded with threats of violence.
In about 1976, when he would have been 15 years old, Andrew left the home and the plaintiff has had no contact with him since. He has some hearsay information that he may have been killed in a motor vehicle accident.
In February 1980, the adoptive parents each made a will through the Office of the Public Trustee of South Australia. So far as can be ascertained, it seems that each of them gave the whole of their estate to the other, provided the other survived for a period of 28 days, and if not, to the Public Trustee upon trust for the plaintiff. The instructions recorded by the Public Trustee include a note that no provision was made for Andrew, now aged 19, who had left home four years ago. Mr and/or Mrs McK must have been the source of that information.
One matter which appears to have enraged the adoptive mother was the plaintiff's relationship with girls and, in particular, with one M with whom he had established a relationship not long before he attained 17 years of age. That she was of Italian origin and Catholic religion was a matter of particular offence to the adoptive mother.
In 1981, Mr and Mrs McK announced that they were moving to live in a caravan park at Bass Hill, in the western suburbs of Sydney. The plaintiff declined to accompany them and remained in South Australia. In due course, he obtained work as a mechanic. In 1982, he and M came to Sydney to visit her parents and at the same time visited the adoptive parents at Bass Hill. That visit was described by him as "a disaster".
The plaintiff married M on 10 August 1985. Their first child S was born on 22 May 1986. It appears that there must have been a separation in 1987, as there were proceedings for guardianship, custody and delivery up of the child between them in the Family Court of Australia at Adelaide in September of 1987, but they became reconciled and their second child M was born on 6 February 1990.
M has Asperger's syndrome to a serious degree, which has had a serious impact on his upbringing and on his parents. It seems that there must have been another separation in 1992, as there were substantial proceedings between them in the Family Court between July and September 1992 in relation to custody and delivery up of a child. However, they again became reconciled and their third child T was born on 2 August 1996 after they had lost another couple of pregnancies, presumably through miscarriages.
Before T's birth, however, the adoptive father informed the plaintiff that the adoptive mother was seriously ill and in hospital, and the plaintiff visited them in New South Wales where they were then residing in Port Macquarie, although Mrs McK was in hospital. She died on 24 August 1995 of lung cancer from which she had been suffering for about six months before then. Her death certificate records that the informant was the plaintiff. Following her death, the adoptive father accompanied the plaintiff back to South Australia and lived with him there for the rest of his life.
On 21 September 1995 Mr McK made a new will, full details of which are not available, but which nominated the plaintiff as his executor and presumably sole beneficiary. Mr McK died in South Australia on 18 May 1996. Before his death he had confessed to the plaintiff that he was, indeed, adopted. The plaintiff attributes to him additional statements to the effect that it cost a lot of money and that they had fled New South Wales for fear of being "caught" in connection with the adoption. At that time, Mr McK was suffering, and had for months been suffering, from an advanced stage of lung cancer. In the other circumstances to which I have referred surrounding or leading up to the adoption, I find it difficult to accept that Mr McK made statements in the way in which they have now been interpreted by the plaintiff. It may well be that the adoption process cost some money. It is conceivable that there may have been reservations about validity of the adoption of Andrew, which was apparently a "private" adoption. But I am not prepared to accept that Mr McK confessed to, in effect, having paid bribes to procure an adoption.
As I have said, the plaintiff's third child T was born on 2 August 1996. The plaintiff and M finally separated on 6 January 2004 decree nisi for dissolution of their marriage was pronounced in the Federal Magistrate's Court in Adelaide on 1 March 2005 and became absolute one month thereafter. By this time it seems that the plaintiff was a disability pensioner. It is clear that the child M, who remained in his care following the separation, was causing very considerable difficulties.
On 12 September 2006, the plaintiff consulted a solicitor who prepared a statement that recorded his history, particularly his childhood and some of the features of it to which I have referred.
On 22 May 2008, the plaintiff was seen by a consultant psychiatrist, Dr Skinner, who recorded again that he reported an abusive childhood, including being threatened with a knife at his throat when he questioned whether he was adopted. She observed that on a practical level the most urgent thing to help him was to continue his actions to get closure on his past.
On 24 February 2009, he was seen by Dr Chris Branson, psychiatrist, who took a lengthy history over more than two hours and prepared a comprehensive report. Again, the history obtained elicited many of the events of the plaintiff's with the adoptive parents that I have mentioned. Of significance, Dr Branson recorded by way of diagnosis:
Whilst I note that the psychiatrist, Dr Skinner, has not reached a formal diagnosis in the report with which you have provided me, it seems to me clear that the plaintiff could appropriately be diagnosed as suffering from a post traumatic stress disorder as a result of childhood abuse he suffered. This has affected his lifelong sense of competence and confidence and has made him feel that he has little adequate control over his life in various areas ...
I believe that some form of resolution and closure of the issue of his adoption will assist him with moving forward more successfully in his life.
Against that factual background, it is now necessary to address the two grounds under s 93(4) that can be invoked to support a discharge order. The plaintiff has submitted that the adoption order, and/or JH's consent which founded it, was procured by fraud or duress or other improper means. I have already recited the history over a period of many months that culminated in the making of the adoption order. When one appreciates that from JH's perspective, adoption was being contemplated, although not resolved upon, from April 1964, and that it was being sought by the MKs, at the very least, from August 1964 if not from 1962, the idea that this was some fraudulent conspiracy manipulated by the MKs becomes a very unlikely one.
The correspondence and social worker's notes to which I have referred demonstrate that, like many unmarried mothers of that era, JH found herself in a socially, economically and emotionally very difficult position. The references to the requirement for food parcels and the like demonstrate some of the economic pressures that were involved. The idea that Mrs W was somehow involved in manipulating her into an adoption against her will is rebutted by Mrs W offers to explore the possibility of keeping the child. To me it is very plain on the documentary evidence that JH was distressed at the thought of giving up her child, but at the same time did not want to foist on Mrs W the responsibility of caring for him. That led her to make a decision which I think she fully understood and was voluntary in the legal sense, although one that she was not happy to have to make.
Reference has been made to the administration of medication during her admission to Crown Street. There is no doubt that throughout her administration she was administered barbiturates; however, close analysis of the medical record shows that almost throughout her admission she received 100 milligrams of Pentabarbitone each night at about 8.15pm. Pentabarbitone was described in the MIMS of the day as a short acting hypnotic drug. Both that description and the time at which it was administered, indicates very clearly that it was administered as a sleeping pill each evening. Because it was a short acting hypnotic, it would not have had the effect of producing ongoing sedation.
In the first week of November or thereabouts, she also received 30 milligrams of Amytal three times a day. Amytal is a light sedative or anxiolytic used for the purposes of producing light sedation or relieving light anxiety. 30 milligrams is a low dose and suggests it was used to treat anxiety in the week or so before confinement. Significantly, other than as a hypnotic at about 8.15 in the evening, JH did not receive barbiturates after confinement and, so far as the medical record reveals, received no barbiturate at all - not even a sleeping pill - in the 24 hours prior to the time when the consent was signed on 13 November 1964.
Comment has also been made about the administration to her of the drug Stilboestral. That drug was administered to her post confinement, for the purpose of suppressing lactation. It was also used, though not in her case, pre-confinement to prevent miscarriage. When used in those circumstances it could, and apparently has, increased the risk of cancer in daughters born to woman who have used it in that context. There is no evidence that it has any such effect in respect of male children and, as the evidence of Dr Hinde to the New South Wales Parliamentary inquiry demonstrated, it was not demonstrated to have any adverse effect when used post confinement to control lactation. In any event, there is no basis for thinking that it had any impact on the ability of JH to give a valid consent.
Other issues raised included a suggestion that the timeframe within which the adoption took place bespoke some impropriety. I agree that it is surprising that a birth would be registered quite so quickly as it was, particularly if it was registered on the same day that the documents were prepared at the hospital. But it seems to me that probably the relevant information for registration was obtained the previous day when Ms Grimes first saw JH, that is on 12 November, leading to registration on 13 November. There is no evidence one way or the other as to whether that was uncommonly expeditious. Even if it was, it says nothing as to the consent process as distinct from the registration process.
As to the consent process, Ms Grimes' evidence demonstrates that what happened in this case was broadly consistent with the practice of the times. There is no reason to suspect anything out of the order or unusual in that respect. Even today, it is possible, although it does not always happen, that an adoption order could be made within a couple of days of the filing of an adoption application, where all the consents are in order. As I have sought to demonstrate, the process formally commenced with the giving of consent on 13 November and culminated with the order being made on 10 December.
There has been a suggestion that the adoption was irregular because of the age of the adoptive father, who the evidence suggests was 47 when the adoption order was made. It is true that the departmental policy appears to have been that adopting parents were preferred to be not older than 45, but that is as far as it goes - a matter of preference, and not a matter of rule. The adoptive mother, who was 38, was 38 significantly less than that. I do not think any adverse inference can be drawn from the mere fact of Mr McK's age at the time.
There was also a suggestion that it was inappropriate that no steps were taken to pursue the birth father. Just what the birth father would have been pursued in respect of is not entirely clear, although it may have been a suggestion that he should have been sued for maintenance. That possibility was contemplated in one of the letters from Mrs W who, having enquired, of the birth father's mother, was told he would deny paternity. The result of that would be, in the days before the parentage testing that is now available, a contest of his word against hers, in a setting where he would no doubt allege, as it typically then happened, that there were many other candidates - to the detriment of her character and reputation. In those circumstances, it is I think entirely understandable why birth mothers were reluctant to pursue that course. In any event, once an adoption had proceeded, there was no remaining claim for maintenance and nothing further to pursue the birth father in respect of.
My conclusion that the consent process and the adoption process was not the result of some improper scheme is I think supported by the birth mother's affidavit of 7 April 2014, in which she says:
I did sign the consent to adopt out my child. I recall I felt under pressure at the time I signed the forms, as I was told words to the effect, 'It would be better for your child.' I can't recall if I was medicated or not when I signed those forms. I recall my adoptive mother who was elderly and was my legal guardian at the time wanted the child to come home and opposed the adoption. The question of adoption was discussed with me from at least April 1964 and it was assumed the baby would be adopted. I remembered I wanted to keep the baby but I didn't know how I was going to support the baby and my adoptive mother … would look after the child. She was helping support me on a war widow's pension, so we struggled to get by even without the child...
What is expressed in that affidavit seems to me to very much reflect the tension in JH's mind in the months culminating in November 1964, but does not establish, and does not begin to establish, fraud or duress or other improper means. As I said earlier, not all pressure is illegitimate, and the pressures imposed by the economic and social circumstances in which JH then found herself were not illegitimate pressures. They were pressures nonetheless, which drove her to make the decision she did. Accordingly I am not satisfied that any ground under s 93(4)(a) has been made out.
I turn to subsection (b). I have already referred to the evidence the plaintiff has given of his childhood experiences. The allegations he makes are serious, and the only persons who could corroborate or deny them, namely Mr and Mrs McK and Andrew, are either dead or, in Andrew's case, unable to be found. Accordingly, his allegations cannot be directly corroborated nor directly denied. There is no contemporary record of them, the first such record being the report in the statement prepared by the solicitor in September 2006. On the other hand, that report and subsequent ones to Dr Skinner, to a mental health worker in South Australia and to Dr Branson, are substantially consistent.
There are a few significant facts that also provide some indirect corroboration. The first is Andrew's departure from the home at the age of 15. The plaintiff's version of that is corroborated by a note in the Public Trustee's file which could only have been sourced from Mr or Mrs McK. What is significant in that respect is not only that the fact of his having left home at that point is corroborated, but the very fact that he did so at the age of 15 points to a dysfunctional domestic situation, culminating in the enormous decision of a 15-year-old to leave the home.
Secondly, although it is less well-documented, there does not appear to be any significant doubt that the MKs left South Australia and returned to Bass Hill before the plaintiff attained 17 years of age, leaving him behind in South Australia. Although on his version he said, in effect, that he wasn't going with them, that again points to a significantly dysfunctional relationship.
Next, insofar as it might be thought that the plaintiff's version is that of a disenchanted man who has difficulty in sustaining relationships with anyone, the fact is that he managed to sustain a relationship with his wife M, despite a couple of separations, from when he was 16 years old until 2004 and in the course of that, to raise three children, one of whom with significant difficulties and challenges who remained in his care.
In addition, the plaintiff's story is one that he does not appear to have any reason or motive to invent. There is no pot of gold at the end of these proceedings for him. The incidents he described are not such as one might imagine a fabricator would invent. Ultimately, while I do not need to be satisfied of the detail of every one of them, I think the plaintiff's version of his childhood is a broadly accurate one. It is also striking that he now describes his birth mother, with whom he has had some contact, as "the only mother I have ever known" and that the MKs "are nothing to me".
The treatment that the plaintiff received as a child, as I have found it to be, is such as would plainly have justified his removal from them as parents were they his natural parents, and the termination of their parental responsibility. In that way, it falls within the concept of exceptional reason referred to in s 94(3)(b). The discretion to discharge the adoption order is therefore enlivened.
That does not mean that the Court must make a discharge order. In particular, subsection (5) provides that the Court must not make a discharge order if it appears that the making of the order would be prejudicial to the best interests of the child or, in the case of an application made by a child, the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child's access to adoption information.
I am satisfied that the making of the order would not be prejudicial to the best interests of the plaintiff. To the contrary, the making of an order would, on the evidence, promote his interests by bringing him an element of closure, by aiding his healing (as was described by one of the psychiatrists), and in that way assisting to resolve his present problems.
I have considered closely whether it might be said that the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of the receipt of adoption information. No doubt the establishment of contact with the plaintiff's birth mother, and the discovery of the circumstances relating to his adoption, have played some role in his decision to seek a discharge order. But ultimately I do not think that the application is motivated by considerations arising out of a relationship formed with his birth mother because of access to adoption information. Rather, it is motivated by considerations that do affect his welfare and that arise not out of a relationship with his birth mother but with the absence of a relationship with, and maltreatment by the adoptive parents.
Normally, it would be a relevant consideration that making a discharge order would have an impact on sibling relationships created by the adoption order, but in circumstances where the only sibling is Andrew and, if not deceased, his whereabouts are unknown and the plaintiff has had no contact with him since about 1976, that is no reason not to make the discharge order.
One matter which has, however, caused me considerable concern is the circumstance that so far as the evidence reveals, both the adoptive parents died leaving wills which, in the case of Mrs McK, nominated the plaintiff as the gift over in the event of the prior death of Mr McK and, in the case of Mr McK, appointed him executor and sole beneficiary. Had the plaintiff taken any benefit under either of those wills, that would stand very uncomfortably with now discharging the adoption order which essentially founded the relationship which gave rise to them. However, searches in New South Wales and in South Australia indicate that probate was never obtained of either will and the plaintiff has informed the Court that there were no assets in Mr McK's estate. In those circumstances, while the circumstance that the adoptive parents died leaving wills to such effect is, in my mind, a significant discretionary consideration, it does not outweigh those that favour making a discharge order.
Section 93(8) provides that on the making of a discharge order, the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made.
Section 93(7) provides that if the Court makes a discharge order, 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 best interests of the child, including orders relating to the name of the child.
In the light of subsection (8) it may not be necessary but, unless it is submitted that I should not do so, it seems to me appropriate also, for more abundant clarity, to make an order in relation to the name of the child pursuant to s 93(7)(a), that the plaintiff have the name by which he was originally registered and by which, as I understand it, he presently wishes to be known.
Accordingly, and for the reasons I have given, the Court orders that:
1. Pursuant to Adoption Act 2000, s 93, the adoption order made on 10 December 1964 in proceedings 1348 of 1964 be discharged;
2. Pursuant to s 93(7)(a), the name of the child consequent upon the discharge order be LVH.
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Decision last updated: 04 February 2015