Adoption Re: P [2019] NSWSC 1623

Background facts

1. P was born in March 1940 to X M (birth mother) and Y N (birth father). She was born P N. It is unclear exactly when her surname changes from "N" to "M" after her mother remarries.
2. Y N died in October 1940 in an accident on a railway line. P initially lived with her birth mother and maternal grandparents in Granville New South Wales. The maternal uncles also lived in the home.
3. P states that she was a quiet, passive child; she was not rebellious and tended to just accept the things that happened to her.
4. P states that while she was growing up she did not know she had a father. He was never spoken about and there were no pictures in the home. She states her mother had what she thought were two friends, whom she called "Ma" and "Aunty". She later found out they were her paternal grandmother and her father's sister. She states that they would visit the cemetery together but that she was not told who they were visiting. It was only when she was ten years old, and could read the headstone did she discover they were in fact visiting her deceased birth father.
5. X M remarried in May 1948 to Z M (adoptive father) and the mother took the surname "M". At this time P was eight years old.
6. When P was ten years old she developed mild epilepsy. She began to take strong medication to treat the condition; the medication can have an effect on cognitive function and motor co-ordination. P stated that when she later went off the medication in her 40s, she felt like a 'new woman'.
7. In June 1951, by order of the NSW Supreme Court, the birth mother and Mr M became P's adoptive parents. The matter was heard in chambers by the Honourable Ernest David Roper, Chief Judge in Equity. In support of the applicant for adoption were affidavit's providing the consent of Mrs M and the paternal grandparents to the adoption. At the time of the adoption order, P was eleven years old. It does not appear that she participated in the procedure or even knew that it had happened.
8. P stated that she did not have a close relationship with Mr M. She stated she did not believe her mother loved him, but rather chose someone who would accept P as well as herself. She states that her mother persuaded her to call Mr M "Dad". She stated he made several disparaging comments about her growing up for example making negative comments about her physical appearance and the way that she walked. She states these comments affected the way she would dress, for a long time she wore clothes which were too big, so that they were loose fitting. P states that her mother would often come to her saying "Z said [generally unpleasant comment]". P stated that both Mr M and her mother said to her that they did not think she would ever amount to much.
9. Mr M and the birth mother subsequently had six children. P states that the younger children did not know their mother had been married before.
10. P states that her relationship with her mother was "alright". She states that her mother never spoke to her about her birth father and made disparaging remarks about her paternal family. Mrs M, it seems, from time to time, would make disparaging remarks about P, to the effect that she was unintelligent and incapable.
11. P stated she did reasonably well at school and had wanted to sit for the Leaving Certificate and become a teacher. However, her mother did not see the value in this, and she left school after obtaining her Intermediate Certificate.
12. When P was 21 her mother gave her the adoption certificate and her original birth certificate, without saying anything about them. P lost these certificates at some point. P states that this is the time that she first found out that she had been adopted.
13. There was a level of secrecy about P's birth father; she never spoke of it with her own mother. P did not know what her birth father did or the circumstances of his death. As she got older, P began speaking more about her birth father with her paternal aunt. It was the paternal aunt who first showed P a photo of her birth father.
14. P was employed for several years working for a solicitor and then for a barrister. She ceased working when she married.
15. P married in her 20s. She states her husband was "pretty tolerant" although on one occasion in about the late 1960s he slapped her face when she did not tell him she was going to consult a doctor. They were separated for about a year after this incident before reconciling in 1970. P states her husband was a good provider for her, although she was totally dependent on him for money and as she did not drive, for him to drive her anywhere.
16. P had two children with her husband, W and Y. She also experienced one miscarriage and one baby which died soon after birth. Y was named as a tribute to her birth father "Y". She stated she experienced post-natal depression after the birth of each of her two children. P also reported that she had overdosed on three separate occasions around this time. On at least one occasion she was transferred to Parramatta Psychiatric Hospital.
17. W and P had a strained relationship. W had serious ill health since the age of 21 and ultimately passed away in 2013. P states she has a closer relationship with Y; who had lived with her until he was 31.
18. P stated she started questioning her adoption in her 40s and wished that it could be reversed. P wrote to her Member of Parliament about having the adoption reversed and began writing letters to various Ministers and FACS over the subsequent years. She later made a submission to the Parliament of Australia Inquiry into Local Adoption. At some point she also approached solicitors for advice on the matter, one who told her the application would not be successful and a further two who told her they would charge $10,000 to act for her on the application.
19. P stated her husband ultimately left again in 1983. She states he was having an affair at work. After separating from her husband, P became more independent, found work again and began to travel more.
20. In 1983, when P was 43, she applied for her birth certificate. She received the birth certificate that had been issued post-adoption, naming Mr M on her birth certificate. P and her mother attempted to obtain the original from the Registry of Births, Deaths and Marriages, but they were unsuccessful.
21. It was around this time that P visited her mother's home. She was sitting in the back seat of the car, while Mr M sat in the front, as they both waited for Mrs M to come out. Mr M leaned over the back seat and rubbed P's knees. P stated she did not want to make a big thing about it but did say to him that he would not have done that to his biological daughter. She states Mr M replied "that's different". Mrs M then arrived at the car and nothing further was said.
22. On another occasion around this time, P called her mother and Mr M answered the phone. He said that Mrs M was not at home. They chatted for a short time and then Mr M asked her "When are you going to give me a naughty?" P told him he should ask her mother about that and Mr M replied that her mother was getting old.
23. P states that after these incidents she tried to avoid Mr M. She did not speak to her mother about the matter as she did not want to upset her.
24. In the 1990s, P became aware that her mother was able to apply for the original birth certificate, but that she could not. She did not think her mother would agree to this, so told her mother that she was applying for a passport and needed to produce the original birth certificate. However, P and Mrs M received the post-adoption certificate. P stated that when Mr M saw the certificate, he stated "I'm not your Dad".
25. Mr M passed away in 1996. He left his entire estate to Mrs M. P received no benefit under the will. P is the last named child on Mr M's death certificate despite being the eldest of the sibling group. She states she believes this is because she was added as an afterthought.
26. Mrs M passed away in 2008. Mrs M bequeathed all of her estate to her children including, P, in equal shares.
27. P stated that after Mrs M died, her half-sisters wanted to meet her paternal aunt. She states she felt relieved that they were finally able to talk about her birth father and paternal family.
28. In early to mid-2019, P became aware of a free service called "Adoption Reversal" provided by an organisation called "Cribmates" which she had located on Facebook. They have since assisted P fill in the various forms and encouraged her to pursue her application.

Legal principles

1. P was adopted under the Child Welfare Act 1939 (NSW), assented to on 23 October 1939.
2. P is seeking an order under the current Adoption Act 2000 (NSW). The Act allows for the discharge of adoption in certain circumstances under s 93: 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.
3. There are some particular definitions that are also relevant to this case: adopted person means a person: (a) an order for whose adoption was made under a former Act before the commencement of section 95 of this Act, or (b) whose adoption in another State or in a country outside Australia was recognised under the Adoption of Children Act 1965 as having the same effect as if an order for adoption had been made under that Act, or (c) an order for whose adoption was made under this Act, or (d) whose adoption in another State is recognised under this Act as having the same effect as if an order for adoption had been made under this Act, or (e) whose adoption in, or in a country outside, Australia is recognised and effective for the laws of this State under a law of this State or the Commonwealth. … child means: (a) a person who is less than 18 years of age, or (b) a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made. … former Act means: (a) the Child Welfare Act 1923 and the Child Welfare Act 1939 or either of those Acts, or (b) the Adoption of Children Act 1965, or (c) the Adoption Information Act 1990.
4. This means that P, is still considered a child for the purposes of the Adoption Act, and further that she has standing to seek an order under s 93 in relation to her adoption under a former Act.
5. Of course, as when making any decision under the Act, the Court must have regard to the best interests of the child, in particular taking into account the factors in s 8: 8 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, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, (f) if the child is Aboriginal - the Aboriginal child placement principles are to be applied, (g) if the child is a Torres Strait Islander - the Torres Strait Islander child placement principles are to be applied. (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.
6. There have been few decisions on the discharge of adoption in New South Wales, and few decisions in other States. Of particular relevance, however are two decisions in the New South Wales Supreme Court.
7. First was the decision by Palmer J in Re Susan [2009] NSWSC 592. In that case, Susan who was adopted by her step-father in 1958 at the age of five, applied for discharge of her adoption on the basis that between the ages of 5 and 9 years, she was repeatedly sexually abused by the adoptive father. Susan believed that the resulting trauma she had suffered throughout her life could be alleviated by formal, legal severance of the parental bond between her and the adoptive father (at [23]-[24]). His Honour, considered that importantly before making a discharge: The law equates, so far as is possible, the relationship between adoptive parent and adoptive child with the relationship between birth parent and child….Severance of that relationship by the discharge of an adoption order can overturn the identity, family structure and legal relationships not only of the adoptive 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. 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.
8. His Honour then considered a number of policy considerations that come into play in a discharge application. In particular in considering a discharge for an adoption regard must of course be had to the best interests of the child, but also the interests of the adopting parents and the need for adoption orders to give a sense of security and permanence (at [49]): 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.
9. Although His Honour declined to give examples of what may be an 'exceptional circumstance' to warrant a discharge, he was satisfied that in this case the ongoing sexual abuse of Susan clearly justified a discharge of adoption. His Honour does note however, that where conduct would have justified the severance in law of a biological relationship between parent and child, that conduct would justify severance of an adoptive parental relationship (at [86]).
10. Importantly, in concluding his judgement Justice Palmer considered that in order to determine whether or not an order for discharge would 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", further a discharge order should not be made unless the Court is comfortably satisfied that the discharge will make a significant improvement to Susan's life (at [88]).
11. The other significant decision on the discharge of adoption in this Court is the judgment of Brereton J in Adoption of LVH [2014] NSWSC 1902. In that case His Honour considered an application for a discharge of adoption under both 93(4)(a) and (b). On s 93(4)(b) in particular, the adoptee had made numerous serious allegations about his adoptive parents. His Honour noted the allegations were such that they "would plainly have justified his removal from them as parents were they his natural parents" (at [65]). Therefore, His Honour found that there were 'exceptional circumstances' and further that making a discharge order would "promote his interests by bringing him an element of closure, by aiding his healing" (at [67]).
12. On an evidentiary point, Justice Brereton considered that while he did not have to be satisfied of every detail of the plaintiff's version, he was satisfied the account was broadly accurate. He noted in particular, that there was no reason or motive for the plaintiff to fabricate any events (at [64]).
13. Another decision referred to me by Counsel for the Attorney General was the decision of Re S [1969] VR 490. In Re S, McInerney J in the Victorian Supreme Court discussed what could be considered an 'exceptional circumstance' under the Victorian legislation. His Honour noted (495): …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….
14. His Honour then considered (at 497) that "whether or not an exceptional reason exists is a matter to be determined on all the relevant facts and in this case it is the combination of the various facts to which I have alluded which constitutes the "exceptional reason" why the order should be discharged".

Evidence

1. P swore 3 affidavits in the proceedings dated 7 June, 11 September and 14 October 2019. P outlines her personal history, and her relationships with her birth mother, adoptive father, and wider family as detailed above. P further states in relation to the adoption…. I think of it every single day. It makes me feel trapped, and angry. I don't know why my mother did this to me, there was no reason to do it. Because of what she did, I am living under a legal identity that I consider to be false, and am part of a family that I do not consider myself to be part of (affidavit 7 June 2019 [17])
2. P stated that the adoption did not create any bonding between herself and her adoptive father (10 September 2019 [12]).
3. P was not required by the Intervener for cross-examination.
4. P also provided a letter from her counsellor, Virginia Johnstone dated 4 September 2019. Ms Johnstone states that P has maintained that she wishes to have her adoption discharged and has talked about it frequently during sessions. Ms Johnstone further states that in her opinion a discharge of adoption would provide an improvement to her psychological well-being.
5. The Attorney-General provided the affidavit and report of Ms Dianne Starkey, dated 15 October 2019. Ms Starkey's report was based on material provided by P as well as a separate interview conducted by Ms Starkey. Ms Starkey stated that P's response on the Depression, Anxiety and Stress Scale yielded scores was in the Extremely Severe Range for depression, in the severe range for anxiety and in the normal range for stress. There are some pertinent passages from Ms Starkey's report that are worth extracting in full: The current report is an unusual one as the author has not come across someone who wished to have their adoption discharged for so long into adulthood that at the age of 79 it has become her most prominent goal to achieve before she dies. It is not something that she has dreamed up late in life, as it appears to be something she has been thinking about and actively engaged in, mentally and emotionally, for over 25 years. It appears to equate to the longing for biological family and belonging that was much more frequent in the past than it has been more recently with the current Open Adoption legislation in NSW. Indeed, P is a good example in some ways of the confusion that has in the past ensued when an adopted child does not know where she belongs and ends up feeling she does not really belong anywhere.
6. On P's relationship with Mr M, Ms Starkey noted: …she does not appear to have been physically or sexually abused by him as she was growing up. She stated that she did not hate him, although they were not close, but she did not really dislike him until after her husband left and he made at least one sexualised comment to her and touched her on her knee in an inappropriate manner on at least one occasion. … While there is no suggestion that P was directly abused by Z during her childhood, I note that the inappropriate comments he made about her body….and about her gait…made her very self-conscious about her appearance to the point where she wore ill-fitting clothes to hide her body. His view of her as deficient in some way was also distressing for her. …she saw these two incidents as having significantly affected her relationship with Z and I am also of the opinion that they also significantly affected her relationship with her mother. She felt uncomfortable with Z from then on, but she felt she had to hide her dislike of him so she did not have to tell her mother about what he had done. She felt this would hurt her mother and she wanted to protect her.
7. On the effect of an adoption discharge on P, Ms Starkey wrote: It is the opinion of the author of this report that P will be assisted by the discharge of the adoption order in that she will be able to stop ruminating interminably on her situation, including the loss of her father before she was consciously aware; the loss of her identity in terms of the paternal side of her family, the fact that her mother was referred to as her "adoptive mother"; and what she sees as the injustice of having her birth father wiped from her life by his erasure from her birth certificate. She is grieving these loses, and this unresolved grief reaction has contributed to her present depressive symptoms.

Submissions

1. Counsel for the Attorney-General provided detailed written submissions to the Court. The Attorney-General submitted that the key issue was whether there was an 'exceptional reason' why the adoption order should be discharged (s 93(4)(b)) and relatedly, whether a discharged order would be prejudicial to P's best interests (s 93(5)(a)). The Attorney-General submits that the inappropriate touching by Mr M and the request for sex may be considered 'exceptional reason', further the disparaging comments made by Mr M and the fact that he denied being P's father may justify severing the parental relationship. It does not matter that this conduct occurred after the adoption had taken place. The Attorney-General further submits that it is clear from the evidence of Ms Starkey as well as P and the letter from Ms Johnstone that she is distressed by the adoption and will be assisted by a discharge order. The Attorney-General submits that an adoption discharge order would not be prejudicial to P's best interests if the Court finds that the threshold of an 'exceptional reason' is met.

Consideration

1. Importantly, as a preliminary point, it is necessary to note that there is no evidence that the adoption of P was obtained by fraud, duress or other improper means. On the contrary, it can be generally assumed that it was not uncommon for step-parents to adopt the children of their spouse. Indeed in the current form of the Adoption Act, there are provisions specifically for the adoption of a child by a step-parent. There are therefore no grounds for discharging the adoption under s 93(4)(b).
2. I am of the view, however, that there are exceptional circumstances that justify the discharge of an adoption in this case. It is clear to me that taken together, there are various circumstances that persuade me that the threshold under s 93(4)(b). I note in particular, as expressed by McInerney J in Re S, this is a case where a combination of various facts effectively constitute an 'exceptional circumstance'.
3. Perhaps most significantly, it is clear to me that this adoption has caused P a significant amount of distress over her life. She gave evidence of how she feels like she did not belong to anyone one, and did not feel like herself. It appears that P was never truly part of the family and always craved the sense of belonging and certainty that she came to associate with her birth father. In particular she expressed extreme distress and pain over the fact that her birth certificate did not reflect who she truly felt she was. I accept her evidence as credible and there is no doubt in my mind that P is genuinely aggrieved by the situation. It is clear that she has been seeking to discharge her adoption for some significant time, that this is not a new idea to her and she has been actively working towards this, she has written to Ministers and sought the preliminary views of two solicitors. It is apparent that there is no ulterior motive
4. I am further persuaded that the context surrounding P's adoption, and what can be said about the secrecy that used to surround the system of adoption, was such to cause a significant amount of distress and pain to children adopted during that time. The fact that P, although aged eleven when she was adopted had no role to play in the proceedings and in fact was not even told she was adopted is entirely disempowering. The fact she was taken to visit a grave site without knowing that it was her birth father buried there, is incredibly insensitive. P was unable to speak of her birth father, unable to ask her mother questions about him and was not even able to inform her half-siblings that their mother had been married before. The secrecy surrounding P's heritage, identity and paternal family only served to increase the disruption she felt from the loss of her birth father.
5. It is clear, moreover, that the adoption order did little to foster any psychological bonding between P and either her birth mother or Mr M. The birth mother, it seems, was always distant and would often make disparaging remarks about her daughter. It is clear that in the time of her adoption there was not available to parties, any information or training and there was a general lack of education available to adoptive parents especially in relation to the importance of developing relationships with adopted children. This appears to have severely damaged P's relationships with her birth mother and Mr M and left her longing for a sense of belonging and stability. There was no attempt by Mr or Mrs M to bond with P or forge the strong psychological bonds that are essential to forming a young child's self-esteem and identity.
6. Indeed, as highlighted by Ms Starkey, this case can be seen as an example of the pain and trauma that can result from the old system of closed adoption and the secrecy that surrounded the process during that time. There is an element of cruelty in preventing a child from asking about her heritage and precluding her from understanding her identity and birth family.
7. Significantly, I consider the actions of Mr M distressing and totally inappropriate. I accept P's evidence that the events occurred broadly as she described them. These were predatory actions on the part of the adoptive father, and a deep betrayal of P as a daughter and of her mother who had been married to the man for many years. Although there was not a strong bond that had existed, Mr M clearly still performed a father-like role in P's life, indeed she had been required to call him 'Dad' for some time. These sexual advances came at a time when P was vulnerable, having just separated from her husband, and the pain was only exacerbated by the fact she had to keep secret Mr M actions to protect her mother. I am satisfied that these actions of P's father-figure totally disrupted her sense of family and belonging and caused her a great deal of distress over the years. It is entirely clear to me that this action on the part of an adoptive father would constitute an exceptional circumstance.
8. I also note, although it is not entirely clear on the evidence, there is a possibility that neither Mrs M and Mr M understood that an adoption order would permanently change P's birth certificate. Both seemed surprised when the P's certificate had removed the birth father's name and they may not have fully comprehended the legal ramifications of an adoption order.
9. I note importantly, in the decisions of both Palmer J and Brereton J as referred to above, the Court must considered how an order discharging an adoption will affect the adoptee and moreover how it will improve their psychological well-being. In particular I must be satisfied that a discharge order would be in the best interests of the adoptee.
10. There can be no doubt in this case that an order for discharge would have a significant impact on P's emotional well-being. I note from Ms Starkey's report that achieving an adoption discharge and amending her birth certificate has become P's primary goal in life. She has expressed for some time now, the pain that her adoption has caused and has experienced depression for much of her life. It is clear to me that discharging her adoption, and importantly amending her birth certificate, will go some way in P's healing process.
11. For these reasons I made the orders on the hearing of the application. I made orders discharging P's adoption, and further birth certificate and marriage certificate by removing Mr M and substituting Mr N as P's father.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2019