Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673 - NSWSC 2020 case summary — Zoe

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Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673

[2020] NSWSC 673

Supreme Court of NSW|2020-03-10|Before: Hallen J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-03-10

Before

Hallen J

Catchwords

[1999] HCA 26 Baker v The Queen (2004) 223 CLR 513
[2004] HCA 45 Director General Department of Human Services
Re M [2011] NSWSC 369 Edwards v Houghton [2019] NZFLR 1
[2011] HCA 4 In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 In the Marriage of H and H (1994) 19 Fam LR 165

Source

Original judgment source is linked above.

Catchwords

[1999] HCA 26 Baker v The Queen (2004) 223 CLR 513[2004] HCA 45 Director General Department of Human ServicesRe M [2011] NSWSC 369 Edwards v Houghton [2019] NZFLR 1[2011] HCA 4 In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 In the Marriage of H and H (1994) 19 Fam LR 165(1995) ¶FLC 92-599 In the Marriage of Kress (1976) 13 ALR 309[2010] EWCA Civ 581 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217[2018] HCA 16 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28 R v Buckland [2000] 1 WLR 1262[2001] UKHL 70 Re DG and the Adoption Act 2000 (2007) 244 ALR 195[2007] NSWCA 241 Re GRP [2019] NSWSC 710 Re S [1969] VR 490 Re Susan (2009) 41 Fam LR 596Re JLR [2015] NSWSC 926 Secretary, NSW Department of Communities and Justice v Gabrielle

Judgment (16 paragraphs)

[1]

[3]

Introduction

HIS HONOUR: This is the third occasion that the Court has been concerned with the adoption of GRP, to whom, hereafter I shall refer as Gordon (which is a pseudonym). The second occasion, in June 2019, related to the determination of a notice of motion for the joinder to these proceedings (which arose as a result of the filing of another notice of motion) of certain persons to whom reference will shortly be made. Judgment was delivered on 3 June 2019 and it bears the medium neutral citation Re GRP [2019] NSWSC 710.
These reasons concern the determination of a notice of motion, filed on 24 December 2018, by Gordon, seeking an order that an adoption order, made by Myers J, then a judge of the Supreme Court of New South Wales, on 26 August 1965, pursuant to which Gordon was adopted, "be discharged". (The determination, in 1965, was the first occasion the Court was concerned with the Plaintiff's adoption.) No consequential, or ancillary, orders are sought in the notice of motion.
I have referred, and shall refer, to the parties, and others in a way that preserves his, her, or their, anonymity, because the Court, usually, does not publish material that identifies, or is reasonably likely to identify, a person as a person affected by an adoption application. The medium neutral citation has been anonymised differently to the earlier judgment in light of Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [1] (Leeming JA, Basten and McCallum JJA agreeing).
Section 180(1) of the Adoption Act 2000 (NSW) provides that "[a] person must not publish material that identifies, or is reasonably likely to identify, a person as a person affected by an adoption application". However, an "adoption application" for the purposes of the subsection means an application for an "adoption order": Adoption Act, s 180(6). It does not, it appears, include an application for a discharge order. Yet, in Re Susan (2009) 41 Fam LR 596 at 599 [4]; [2009] NSWSC 592 at [4], Palmer J applied s 180 in the case of an application for a discharge order.
Applications for discharge orders, as with all other applications under the Adoption Act, are heard in camera: Adoption Act, s 119. It would wholly undermine the purpose of holding the proceedings in camera if, either, these reasons were published absent using a pseudonym, or if persons were able to publish any material that identifies, or is reasonably likely to identify, a person as a person affected by a discharge order.
I also observe that under the predecessor legislation to the Adoption Act, the provisions restricting publication of material were "in relation to an application under this Act or under a law of another State or a Territory of the Commonwealth for the adoption of a child or the proceedings on such an application", rather than confining it to adoption applications: Adoption of Children Act 1965 (NSW), s 53(1).
In any event, the Court, in its inherent jurisdiction, possesses the power to restrict the publication of proceedings conducted in open court: Hogan v Hinch (2011) 243 CLR 506 at 534 [26]; [2011] HCA 4 at [26] (French CJ).
There is no dispute that the adoption order had been sought on behalf of the Minister of Child Welfare, pursuant to the Child Welfare Act 1939 (NSW) (as amended) (the CW Act), Pt XIX. The adoption order was made in favour of NAP (the adoptive mother) and RWP (the adoptive father), both of whom are now deceased. An order was also made that Gordon was to be known by the name recorded in the adoption order.
In the current proceedings, Gordon did not submit that the adoption was irregularly made in accordance with the then procedure of the Court.
The respondents to Gordon's notice of motion are SK, IF, TF and GK, to whom I shall refer, collectively, as "the executors". They are all of the executors of the estate of VK, who is the birth father of Gordon (to whom I shall refer as "the deceased"). They were joined as parties to the proceedings, following the hearing in June 2019, to which I have earlier referred.
This Court made directions for notice of both of the notices of motion to be given to the Attorney-General for New South Wales. The Attorney-General is a "concerned person" pursuant to s 93(1) of the Adoption Act and appeared, by counsel, in the present proceedings to assist the Court. It was unnecessary to join the Attorney-General as a party as he has a right to appear.
A similar approach was adopted in Adoption of LVH [2014] NSWSC 1902 at [3], where Brereton J (as his Honour then was) described the counsel for the Attorney-General in those proceedings as amicus curiae. Similarly, in Re Susan, Palmer J said at [5], "[h]owever, because of the importance of the questions of principle involved in this case, I invited the Attorney-General to appear as amicus curiae". Similar remarks can be found in Adoption Re: P [2019] NSWSC 1623 at [3]-[5] (Sackar J).
As stated, the Attorney-General appeared, by counsel, and participated by issuing a subpoena and making submissions in the proceedings with which the Court is now dealing.
The Court also made directions for notice of Gordon's notice of motion filed 24 December 2018 to be served on his birth mother. She has played no part in the proceedings. There was no evidence of any notice of the proceedings given by Gordon to her. Despite being told that an affidavit from Mr J Nott, Gordon's solicitor, would be forthcoming concerning this issue, no affidavit was provided, and the Court has been left with the statement from Queen's Counsel for Gordon, made without objection, that the birth mother (Tcpt, 9 March 2020, p 18(32-39)): "… has been informed of the proceedings, that she is suffering from dementia, and she is not in a position to understand the nature of the proceedings or take a view one way or the other. She now resides in New Zealand and no-one connected with her has any wish to participate."
Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 56.10, notice was also given to the Secretary of the Department of Family and Community Services. Section 94 of the Adoption Act provides that the Court may require the Secretary to investigate the application. For reasons referred to in the earlier reasons for judgment, the Court did not require the Secretary to do so.
Subject to what is written below, there was no evidence that notice of the proceedings had been given to another child, CLS, who was also adopted by the adoptive mother and the adoptive father. It will be necessary to return to this matter later in these reasons.
At the hearing, Mr A Morris QC, of the Queensland Bar, appeared for Gordon; Mr M Bland of counsel, also of the Queensland Bar, appeared for the executors; and Mr P Guterres of counsel appeared for the Attorney-General.
Only counsel for the executors and for the Attorney-General complied with directions, made on 3 February 2020, that each party was to deliver to my Chambers, in hard and soft copy, an Outline of Submissions, which was to include an index of affidavits upon which it was intended to rely, by 4:00 p.m. on 17 February 2020, and serve a copy of the same on the other parties by the same date and time.
At the commencement of the hearing, Mr Morris QC informed the Court that he had been instructed only recently, and that he had not prepared, or served, any outline of written submissions. No reasons were provided for his instructing solicitor not having done so prior to the retainer of Queen's Counsel.

[4]

The oral application at the commencement of the proceedings

At the commencement of the hearing, Mr Morris QC also informed the Court that in addition to reading Gordon's affidavit, he wished to adduce oral evidence, by telephone, from two witnesses. One witness was Dr K K, a Clinical Psychologist, whom, he later said, had been treating the applicant for some seven or eight years, on average, once per month in a one-hour session. The second proposed witness was CLS to whom reference has been made.
Mr Morris QC acknowledged, without hesitation, that no notice of an intention to call such evidence, or the nature of the evidence proposed to be called, had been given to the executors' legal representatives, to the Attorney-General, or to the Court. He said that a précis of her evidence had been obtained on Friday 6 March, 2020: Tcpt, 9 March 2020, p 13(28-43). He was unable to provide any reason, let alone any adequate reason, for the failure to give any notice, or to make any application, prior to the hearing.
Needless to say, Mr Bland opposed the application to allow any further evidence. He referred, in relation to the proposed evidence of Dr K, to UCPR r 31.28(1)(c), which relates to the requirement to serve any expert's reports on each other active party if no order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. He pointed to UCPR r 31.28(3), which, relevantly, provides: Except by leave of the court, or by consent of the parties - (a) an expert's report … is not admissible unless it has been served in accordance with this rule, and … (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report … served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.
Mr Bland also pointed to the significant prejudice that the executors would face in having to deal with evidence that might be given by Dr K. (This was stressed, again, later, when Mr Morris QC provided to Mr Bland a written précis of the evidence that he anticipated would be given by Dr K.) Mr Bland stated that he had been "taken completely by surprise"; that he had not "had the opportunity to speak to a psychologist about the proposed evidence, nor am I in a position to call a psychologist to comment upon or otherwise respond to [Dr K's] evidence": Tcpt, 9 March 2020, p 14(02-06).
Mr Bland later reminded me of s 58(1) of the Civil Procedure Act 2005 (NSW) and the need for the Court, in deciding whether to make any order or direction for the management of proceedings, including any order granting an adjournment, to act in accordance with the dictates of justice: Tcpt, 9 March 2020, p 15(38) - p 16(13).
Mr Guterres did not wish to make any submissions on this topic: Tcpt, 9 March 2020, p 16(47) - p 17(01).
In considering how to determine the application to rely upon the proposed evidence, it is necessary to refer to some of the procedural history, the directions that had been made, and which were, obviously, by reason of the late application, not complied with.
On 27 March 2019, the first time the matter was listed before me, I noted that despite the notice of motion having been filed on 24 December 2018, no affidavit in support thereof had been filed. In response, Mr J Nott, solicitor, who appeared for Gordon, stated at Tcpt, 27 March 2019, p 2(09-43): "NOTT: Yes your Honour, you are quite right. There will be three affidavit [sic] served and if I have erred in the sequence in which those will be filed, I intended to provide them all at the same time, they will be from his treating practitioners as well as under the hand of the applicant. We liaised with the adoption clerk in New South Wales throughout the process in respect of that. If I have misunderstood that, then I apologise. HIS HONOUR: Well let's find out a bit more about that. NOTT: Yes your Honour. HIS HONOUR: When are you anticipating those affidavits are going to be done? NOTT: Within 30 days your Honour. HIS HONOUR: Mr Nott this is an adoption. I appreciate it is an adoption that was granted in 1965 but to have four months pass before I can deal with anything is not appropriate really. NOTT: I accept that your Honour. The difficulty is I am reliant on two medical practitioners who have been caring for the applicant for a period of more than a decade. HIS HONOUR: What is that medical evidence now to go to? NOTT: It will speak to a number of psychological conditions that the applicant suffers which will speak to whether or not he can raise an argument that there are exceptional circumstances your Honour. The applicant has been in the care of a psychiatrist and a psychologist for at least all of his adult life and as I am instructed in his late teens. The registered medical practitioners I have spoken to closely about the work required to prepare a report and they are required to examine their notes over more than a decade."
At the time, Mr Bland responded that Mr Nott's affidavit had been sworn on 13 March 2019, and in it, Mr Nott had stated that he required one month to serve the evidence, so that any direction allowing him further time, should take that into account. He also pointed out, without disagreement, that Mr Nott had stated that the medical, and other, practitioners, had been approached as early as October 2018, for the purpose of providing the evidence and that the even greater delay was unexplained: Tcpt, 27 March 2019, p 3(05-10).
I should note that on the second day of the hearing of the substantive notice of motion, I raised with Mr Bland the source of the date "October 2018". The following exchange clarified matters (Tcpt, 10 March 2020, p 81(16-27)): "MORRIS: I'm not sure where October comes from, but it probably doesn't matter because what the affidavit relevantly states is this: 'The applicant intends...notice of motion.' HIS HONOUR: So that's in an affidavit, is it? MORRIS: Yes. HIS HONOUR: All right, so it wasn't October, as Mr Bland‑‑ BLAND: I've obviously taken that because - as Mr Morris read, it said 'before and during November/December', so I've taken that as about October."
Notwithstanding that clarification, the effect of the submission remains the same. The medical, and other, practitioners had been approached, in or around October, November or December 2018 by the solicitor for Gordon and despite the passage of time, no written evidence from either had been obtained.
In the affidavit of Mr Nott sworn on 13 March 2019, to which Mr Bland had referred on 27 March 2019, and which I had read, Mr Nott had written: "FURTHER DIRECTIONS 7. I have been further informed by the Applicant and verily believe his advice to be true and correct that he has been under the care of the following physicians for a period of approximately eight (8) years:- a. Dr K K, Psychologist; and b. Dr A De G Psychiatrist. 8. I have been informed by Dr A De G Psychiatrist and I verily believe his advice to be true and correct that he will require a period of approximately 30 days to compile a report on behalf of the Applicant. A similar time is reasonably expected in respect of a report by Dr K, Psychologist."
(I should mention that there was no suggestion made that Dr K, if being called as an expert, had either been provided with the Expert Witness Code of Conduct or that she had agreed to be bound by it: UCPR, r 31.23.)
On 27 March 2019, the Court made, amongst other orders, the following direction and notation in respect of Gordon's evidence: "1. Directs the Applicant [Gordon] to serve any affidavits upon which it is intended to rely in support of the relief sought in the notice of motion filed 24 December 2018 by noon on 17 April 2019. 2. Notes that in the event that the Applicant [Gordon] does not comply with the direction in Paragraph 1 the Court will give consideration to dismissing the notice of motion filed 24 December 2018 for want of due dispatch."
The direction and notation referred to was made in circumstances where over three months had passed since the filing of Gordon's notice of motion, some months after the medical, and other, treating practitioner had, apparently, been approached, and when no evidence, in support of the substantive notice of motion, had yet been served.
(I digress from the sequence of events to note that the issue of the effect of an order discharging the adoption was raised in the medical records to which reference will be made, for the first time, in October 2017. Those medical records reveal that Mr Nott was the legal representative who then had raised the question.)
On 9 May 2019, the matter was again before the Court for further directions. By arrangement, Mr Nott appeared by audio-link. Gordon had sworn an affidavit on 8 May 2019 in support of the substantive notice of motion, a copy of which was served upon the executors on that date. (Gordon had been required to serve the evidence by noon on 17 April 2019.)
Mr Nott informed the Court of the reasons why the directions had not been complied with, which reasons included that "the affidavit material which has now been provided to my friends is substantive. There was a significant amount of material which took my client an extremely long period of time to try and compile": Tcpt, 9 May 2019, p 5(02-09).
On this occasion, the Court adjourned the notice of motion, regarding the joinder of the executors to 3 June 2019 for hearing.
On 3 June 2019 the Court directed Gordon to serve any evidence in reply by 4:00 p.m. on Friday, 12 July 2019.
Mr Nott's affidavit, sworn 13 March 2019, to which reference has already been made, was also read at the hearing of the notice of motion to join the executors. Mr Nott also read his own affidavit, sworn 2 June 2019, going to service of the joinder notice of motion upon the Secretary of the Department of Family and Community Services and upon the Attorney-General.
On 15 July 2019, there was no appearance by, or on behalf of, Gordon. The Court listed the notice of motion for the discharge order for hearing and made the following orders: "1. Notes that the legal representative of the Applicant was telephoned in Court and that there was no response other than by way of an answering machine message. 2. Orders that the matter be listed for hearing before Hallen J on Monday, 9 March 2020, with an estimated duration of 2 days plus. 3. Directs that the legal representatives must monitor the correctness of the trial time. 4. Directs that if the estimate for trial changes, the legal representatives are to notify Hallen J within 48 hours of becoming aware of that change. 5. Appoints 9:15 a.m. on Monday, 3 February 2020 as the date for a pre-trial directions hearing. 6. Directs that by 4:00 p.m. on Monday, 20 January 2020 that a joint index of affidavits intended to be relied upon, by any party, be forwarded to the Chambers of Hallen J, in hard and soft copy."
At my request, my Associate sent an email at 11:33 a.m. on 15 July 2019, to Mr Nott, to which was attached a copy of the orders and directions that were made on that day.
At 4:19 p.m., on Friday, 31 January 2020, during the Law Term vacation, the Court received an email from Mr Nott in the following terms: "Dear Madam Associate We refer to the Proceedings Numbered A 233 of 2018 which are listed for pre-trial directions before His Honour on 3 February 2020. The parties are in agreement with respect to the terms of order (subject to His Honour's discretion). In view of the above, we would be grateful if our Firm could appear by telephone at the directions at pre-trial directions before His Honour on 3 February 2020. Our Firm's best contact number is 04XX XXX XXX. We have copied in the solicitors for the respondents to this email correspondence. We look forward to hearing from you."
The Court did not respond to this email. It was only considered by me on Monday, 3 February 2020, the date on which the matter was listed for pre-trial directions.
On 3 February 2020, the following orders were made: "1. Notes that the matter was called outside the Court and that there was no appearance by or on behalf of the [Applicant]. 2. Directs that each party deliver to the Chambers of Hallen J, in hard and soft copy, an Outline of Submissions, which is to include an index of affidavits upon which it is intended to rely, by 4:00 p.m. on 17 February 2020, and serve a copy of the same on the other parties by the same date and time. 3. Directs that any submissions in reply be delivered to the Chambers of Hallen J by 4:00 p.m. on 26 February 2020. 4. Directs that the parties prepare a bundle of documents, in date order, upon which any party intends to rely and deliver to the Chambers of Hallen J by 4:00 p.m. on 28 February 2020. 5. Dispenses with the requirement for a Court Book. 6. Directs that a copy of these directions be sent to the [Applicant's] legal representatives by email sent no later than 4:00 p.m. on Tuesday, 4 February 2020."
At the hearing, no suggestion was made by Mr Morris QC that a copy of the directions had not been provided to Mr Nott in accordance with the direction that required him to be sent a copy of the directions made. I am satisfied that the email was sent as directed.
A copy of Gordon's affidavit, to which reference has earlier been made, had not been filed, or otherwise provided to the Court, despite Mr Nott having been sent an email, by my Associate, at my request, on 5 March 2020, noting that that the affidavit had not been filed. That email was in the following terms: "This email is sent on behalf of his Honour Dear All, This matter is listed for 3 days commencing on Monday, 9 March 2020. His Honour has perused the Court file in the above matter and notes that an affidavit of [Gordon] dated 8 May 2019 is not on the Court file. Please arrange for the original or a copy of the affidavit to be delivered to his Honour's Chambers if it is to be relied upon. Please also confirm whether the Applicant will be relying on any further submissions (other than those already filed)."
There was no written, or other, response at all to the email by Mr Nott. No explanation was provided for the failure to respond. Indeed, it was left to the lawyers for the Attorney-General to respond to the email dated 5 March 2020 by providing a copy of Gordon's affidavit to my Chambers. I am grateful for the assistance of those lawyers in so doing, as it enabled me to read the very large affidavit, subject to objections, prior to the hearing.
Nor did Mr Nott respond to the request regarding the submissions which also were not delivered to my Chambers or served upon each of the other parties.
At the hearing, Mr Morris QC explained, at Tcpt, 9 March 2020, p 1(50) - p 2(11), that: "I've only recently come into the matter. May I take instructions in relation to the points your Honour's raised? … Mr Nott accepts complete responsibility. He apologises to the Court for his discourtesy. He runs a one man operation. He has been himself under a lot of stress to prepare for the hearing of this matter. As I say, I only recently became involved. We have not discussed the provision of submissions, but he anticipated that upon my becoming involved I would wish to, as it were, reformulate the submissions."
I approached the oral application made by Mr Morris QC, to which I have earlier referred, in different ways as I appreciated there was a very difficult tension to resolve between the interests of Gordon and the interests of justice in enabling the executors to present their case opposing the discharge application fairly and properly. I considered, first, whether the "evidence" to which reference had been made should be permitted to be given at all. Then, I considered whether the application should be treated as one for an adjournment, so that the evidence could be obtained, served and, if necessary, responded to by the executors.
It is clear, from the procedural history that I have rehearsed, that nearly one year before the hearing of the notice of motion before the Court, Mr Nott was well aware of the necessity to serve any affidavit evidence going to the medical, and psychological, condition of Gordon in a timely manner. Yet, no affidavit evidence was served, and no explanation was given at all, for not complying with the directions made, and/or obtaining the relevant affidavit evidence, in admissible form, or otherwise, by either Gordon or by Mr Nott.
I considered UCPR r 10.2 which provides that a party intending to use an affidavit that has not been filed must serve it on each other interested party not later than a reasonable time before the occasion for using it arises and if the party fails to do so, that party may not use the affidavit except by leave of the court. One would think that this requirement also applies when an affidavit has not been served and oral evidence is sought to be relied upon.
Section 14 of the Civil Procedure Act provides that in relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case. "Civil proceedings" means any proceedings, other than criminal proceedings: Civil Procedure Act, s 3(1). In this case, I am not satisfied that it would be just to dispense with any of the rules of court that I have mentioned.
Naturally, I considered the dictates of justice, generally, and the potential importance of the evidence to the case being advanced by Gordon. However, in this regard, it is necessary not only to consider the dictates of justice so far as they apply to one party, but to consider those dictates for all parties.
I also considered the costs that would be thrown away by adjourning the proceedings and the ongoing costs of the proceedings. I raised the question of Gordon's financial capacity to satisfy any costs order. Mr Morris QC informed me, without objection, that Gordon's "resources are such that … some arrangements would have to be made. He certainly doesn't have the funds at hand. It has also possibly cross [sic] your Honour's mind that he may have a claim against someone else in respect of any costs that he's ordered to pay".
I assume that the reference to "someone else" is a reference to Mr Nott. Certainly, that was the assumption made by Mr Bland who added: "In that regard, it would be pertinent to mention that I have instructions to seek an order for costs against Mr Nott at the appropriate time": Tcpt, 9 March 2020, p 14(14-24). (There was no subsequent suggestion, made on behalf of Mr Nott that he would pay any costs thrown away if an adjournment were granted.)
The factual matters to which reference has been made including: the period of time since Gordon was said to have first sought the expert opinion; the time Gordon had been given to serve his evidence; the not insignificant default in compliance with court orders in relation to the service of the evidence; the opportunity that Gordon had been given to serve such evidence, and to obtain the leave of the Court to do so, albeit that any such evidence was served other than in accordance with the directions made; the failure to provide any basis at all for not having served the evidence, and merely referring to the intention to call such evidence, at the commencement of the hearing; the lack of diligence in pursuing the object of disposing of the proceedings in a timely way; the length of time between when the matter was listed for hearing, and the hearing date; the consequential, additional, costs and delay, in relation to the executors that would be occasioned if the further evidence was able to be adduced in this way; the delay in enabling the completion of proceedings, commenced by Gordon, on 1 March 2018, in the Supreme Court of Queensland, which proceedings have been stayed pending the determination of Gordon's notice of motion for the discharge order; the lapse of time between the filing of Gordon's notice of motion and its final determination beyond that reasonably required; and the general inconvenience to the Court in vacating the balance of the hearing, all spoke very strongly against permitting the evidence to be given orally, or ordering the proceedings be adjourned. (The proceedings in the Supreme Court of Queensland were referred to in Re GRP (No 1).)
Having regard to the overriding statutory purpose mandated by the Civil Procedure Act, which applies to proceedings, including those under the Adoption Act, and in particular the terms of ss 56, 57, 58 and 59, I considered that it would be inimical to the provision of a just, quick and cheap resolution of the litigation for me to permit any additional evidence to be led at the hearing or to grant an adjournment.
Finally, I also considered Gordon's best interests which should be regarded as the paramount consideration. Delaying the further hearing of the application, in my view, would not have been in his best interests. My conclusion, in this regard, is justified by the contents of some of the medical reports to which reference will be made.
Accordingly, the application made on behalf of Gordon was refused.

[6]

The Background Facts

In order to put the application for the discharge of the adoption order and the submissions of the parties into context, it is next necessary to repeat some of the background facts. The following facts are either not in dispute or, to the extent that any are, should be regarded as the findings of the Court.
Gordon was born in July 1965 and is currently almost 55 years old. He has an adoptive sister, CLS, who was also adopted by NAP and RWP.
Gordon's birth mother was YML, who was described in an undated letter to Gordon from the Family Information Services Section, of the Department of Family and Community Services (as it then was) as "a young single woman 20 years of age when you were born". It appears that YML consented to the adoption, feeling that "adoption would provide a secure family [environment] for you to grow up in".
YML played no part in these proceedings, although a copy of a number of letters, apparently written by her, in the early 1990s, formed part of Gordon's evidence. One letter, dated 15 June 1991, stated: "I am very grateful to your adoptive parents in that they retained the Christian name I gave you and that they were able to provide a home and family for you when I could not."
Although there had been some dispute, about whether the deceased was Gordon's father, paternity testing, which took place with the co-operation of the executors, established that the deceased was, in fact, Gordon's biological father.
The Attorney-General sought production of the Court's adoption file, relating to Gordon's adoption and it was produced for inspection by the parties. From the contents of the file, it is clear that Gordon's adoptive parents were NAP and RWP and that Gordon was the child in respect of whom this Court made the adoption order in August 1965. The adoption order was made pursuant to the CW Act. Thus, the adoption order was made more than 53 years before Gordon filed the notice of motion to have the adoption order discharged.
Gordon was about one month old at the time the adoption order was made. It was then acted upon, in the sense that he was accepted into the adoptive family, and brought up within the family throughout his minority.
RWP, the adoptive father, died in June 1970. Nothing is known about how his estate devolved.
Gordon left the home of NAP in 1991. It follows that he was a member of her household for over 25 years. Thereafter, he had limited contact with her.
NAP died in September 2002. By the time of her death, Gordon had not spoken to her for almost one year.
On 16 May 2003, this Court granted Probate of a Will made on 5 May 1994 by NAP to Gordon's adoptive sister, CLS, the executrix and trustee named in the Will. In that Will, Gordon and CLS were named as the only beneficiaries and, as each survived NAP, they received the whole of the estate, real and personal, in equal shares absolutely: Ex D2/01-04.
It appears from a copy of a Transmission Application dated 28 July 2003, that certain land, as described therein, was transmitted from the name of NAP to CLS as the executrix: Ex D2/06-07. By Transfer dated 15 August 2003, that land was transferred by CLS to Gordon for the consideration of $325,000: Ex D2/09-10. Assuming that he paid one-half of the value of the land to CLS, Gordon would have obtained a benefit from NAP's estate of $325,000. (There was a mortgage registered on title to the land on 8 September 2003: Ex D2/15.) By Transfer, an undated copy of which forms part of the evidence, the land was transferred, by Gordon, to third parties, for the consideration of $815,000: Ex D2/12-13. The discharge of the mortgage registered on title to the land was registered on the same day as the Transfer from Gordon was registered: Ex D2/15. It follows, that after deducting the amount of $325,000, paid by Gordon to CLS, the gross value of the ultimate benefit, seemingly obtained by Gordon from NAP's estate, was $490,000.
On 26 October 1990, the Adoption Information Act 1990 (NSW), received Royal Assent and it came fully into operation on 2 April 1991. The object of this Act was to open adoption records and to facilitate reunions between people separated by adoption. In summary, and relevantly, this Act provided that an adult adopted person would have the right to receive a copy of his, or her, original birth certificate and information which enabled him or her to identify his or her birth parents.
In 1991, Gordon accessed his pre-adoption original birth certificate. He was able to obtain information about his mother, YML, who, then, was living in Otago, New Zealand. Shortly thereafter, Gordon visited YML, in New Zealand, and she revealed that the deceased was his biological father.
There is a dispute about the nature of the relationship between Gordon and NAP, and also the nature of the relationship between Gordon and the deceased following their meeting in about 1993. I shall return to these topics later in these reasons.
The deceased died on 2 June 2017 in Queensland. He left a Will made on 19 March 2015. On 25 September 2017, the Supreme Court of Queensland granted Probate of that Will to the executors.
Relevantly, under the deceased's Will, Gordon is named as a beneficiary. The Will provides that the deceased granted to Gordon "the right to reside during his lifetime one (1) single bedroom unit of my Trustees' choosing in their sole and absolute discretion in any complex or property that forms part of the Trust property during his lifetime to have the use and occupation and enjoyment thereof rent free but subject to the payment by him of all expenses, repairs, maintenance, and rectification work to keep the said unit in the same condition and state of repair as at the commencement of habitation of said unit, in relation to the said property during the period of his occupation thereof". The executors were directed "to hold at least one (1) single bedroom unit as part of the Trust property at all times during the lifetime of the same …".
Two of the executors, SK and IF, are siblings of the deceased. The other executors, TF and GK, are nephews of the deceased. TF is the son of IF and a nephew of SK. GK is a nephew of both SK and IF. Each is a beneficiary named in the deceased's Will.
On 26 July 2017, the executors (by their agent) commenced action to obtain vacant possession of the various properties occupied by Gordon.
On 1 March 2018, Gordon filed the originating application, in the Supreme Court of Queensland, seeking an order pursuant to s 41(1) of the Succession Act 1981 (Qld) that adequate provision be made for his proper maintenance and support, out of the estate of the deceased. Naturally, the executors were the named Defendants in those proceedings: Ex D3.
For the purposes of the matter presently before this Court, nothing turns on the disputes of fact which relate to Gordon's application for additional provision out of the estate of the deceased. However, submissions were made about certain matters that appeared in the affidavit in support of that application.
There appears to be no dispute that, currently, Gordon does not have standing to make the application for a family provision order, because s 41(1) of the Succession Act 1981 (Qld) permits an application to be made only by the deceased person's spouse, child or dependant. Unless Gordon is successful in discharging the adoption order, he will not be a person in respect of whom an order for additional provision may be made and his proceedings in Queensland will, presumably, be dismissed.

[7]

Other relevant matters

Gordon describes a somewhat unhappy childhood in which NAP is said to have been consumed by grief at the loss of her husband and absorbed in protracted litigation relating to the circumstances of his death. He asserted that, as a result, he was an unwelcome burden to NAP.
Gordon also asserted that his relationship with his adoptive mother was "resentful and estranged" and that she openly resented the obligation to care for him. He maintained that NAP gave him no physical affection, or emotional support, and that she was verbally, and physically, abusive towards him. By way of example, he stated that she would often speak harshly to him, saying things such as "children should be seen and not heard" and "do not speak unless spoken to" and "you'll finish what's on your plate before leaving the table". He also stated that NAP would scream at him, and that she would use a wooden spoon, or footwear, to discipline him. He said that he was unfairly disciplined and that he became petrified of NAP and was always apprehensive that she would lash out at him: Ex D1; Affidavit, Gordon, 8 May 2019.
Gordon acknowledged that NAP had a fair relationship with CLS but that he had always felt excluded by them both.
There is another aspect of the evidence given by Gordon. He referred to the effect of the adoption on his mental state. In this regard, he asserted that he always knew that he was adopted and that he felt guilty and ashamed. He became obsessed with having been adopted and became overly curious about his biological parents. He asserted that, as a child, he suffered a complete sense of abandonment and a lack of a feeling of belonging to his adoptive family. He added that after he discovered the deceased's name, he became confused as to his identity. He desperately wanted a sense of connection with the deceased and longed for a relationship with him. He says he wanted to feel secure in a family and connected to a group who cared for one another.
Gordon averred that he first wrote to the deceased because he wanted a connection with his birth family and to understand his heritage. In particular, he wanted to know why the deceased had not pursued a relationship with him. He also said that when he first met the deceased, he was optimistic that they would be able to establish a lasting relationship and that he would have a real connection with the deceased. He wanted validation and the sense of security that came with it.
Gordon met the deceased on Anzac Day 1993. He claimed that between then and 2005 he was in regular contact with the deceased speaking with him, by telephone, on a fortnightly basis, and visiting him in Brisbane three or four times a year. He asserted that the deceased invited him to relocate to Brisbane and that he did so in June 2005, moving into a property owned by the deceased, which property adjoined the deceased's own residential property.
Gordon also asserted that as his relationship with the deceased grew, he developed a real sense of belonging. The deceased told him about his extended family and they discussed the deceased's Greek heritage. Gordon complained that he felt that he had missed out on a culture, a language and a family. He wanted to establish a relationship with his aunts, uncles, cousins and grandparents.
Gordon asserted that when the deceased introduced him to SK, he was joyful because being introduced to him was a validation of his relationship with the deceased. He stated that he longed for that validation and for recognition of the family structure to which he belonged.
He asserted that he maintained his relationship with the deceased in Brisbane. He claimed that he managed a number of properties owned by the deceased. He asserted that the deceased insisted that their relationship was to be conducted in secret.
As stated, there is no expert report from any treating medical practitioner to corroborate the matters going to Gordon's mental state and the effect of his adoption upon that mental state. Equally, importantly, there is no evidence that the discharge of the adoption order would alleviate any of the feelings that Gordon asserted that he had, and no treating psychologist, or psychiatrist, has opined that the making of an order discharging the adoption order will be beneficial to Gordon's mental health by, for example, providing an improvement to Gordon's psychological well-being. Any medical records that were tendered, without objection, by Gordon (the nature of some of which will be discussed further below) were obtained after the commencement of the proceedings.
The executors submitted that the Court should conclude that there is a different motive in Gordon's application for the discharge of the adoption order. They submitted: "Although [Gordon's] affidavit in support of this application does not mention his family provision claim, the material annexed to the affidavit of GK filed on 11 February 2019 justifies the inference that the real motivation for the application has nothing to do with the various matters discussed above and derives solely from the need to restore his legal status as [the deceased's] child and thus gain standing to proceed with his family provision claim. Annexure B to [Gordon's] affidavit is [Gordon's] originating application for family provision under s 41(1) of the Succession Act 1981 (Qld) and annexure C to that affidavit is his affidavit in support of the application, both filed on 1 March 2018. In that affidavit, [Gordon] states as follows: '64 When the DNA testing is finalised, I will proceed expeditiously with my application in the Proceedings to seek the declaration of parentage between myself and [the deceased]. When I have received a declaration of parentage, I will be immediately applying [to] the Supreme Court of New South Wales to discharge my adoption pursuant to the Adoption Act 2000 (NSW) section 93, so I may legally be considered as a 'child' of [the deceased]'s. 65 It is because of the Proceedings and my anticipated discharge of adoption order that I am applying to the court pursuant to the Succession Act 1981 (Qld) section 41(9), to initiate proceedings before the time limitation expires on 2 March 2018 and so I may file further supporting documents to proceed with my further application when it is appropriate to do so.'"
Although Mr Bland did not seek to read the Affidavit of GK at the hearing, he did tender Gordon's originating application (Ex D3) and Gordon's affidavit in the Queensland proceedings (Ex D1). I have already made reference to both above.
As will be read, there is some evidentiary basis, in the medical records, relating to how the issue of the conduct of his adoptive parents had been raised.

[9]

The medical evidence

Some medical records were tendered, without objection, by Queen's Counsel for Gordon: Ex P1.
Practice Note SC EQ 13, which applies to proceedings under the Adoption Act, states at par 33: "Although under the Adoption Act s 126 the Court has a discretion to act on any statement, document, information, or matter that may, in its opinion, assist it whether or not it would be admissible in evidence, this should be regarded as exceptional and ordinarily the court expects evidence to be given in a form and manner which is admissible in proceedings generally …"
I start with a reference to a part of a letter from Dr K addressed to the Registrar of this Court. Dr K provided the letter as part of her response to the subpoena issued by the Attorney-General. She wrote: "I am the treating clinical psychologist for [Gordon], and am responding to a subpoena request dated 14.2.2020. Please note that his chart notes are his confidential medical records, and do not comprise a medical report, and are not intended for forensic purposes. The notes are my private notes to inform treatment. As to whether or not the judge should release these notes, I make the following observations for consideration of the court: - [Gordon] has reported that he has felt intimidated and harassed by some family members (who are named as defendants, and which he has reported to police), and there is the strong possibility that information in his records could be used to cause further disruption and humiliation to [Gordon] if the information was available to them. - [Gordon] has been removed from his home due to legal proceedings by a person named as a defendant. - [Gordon] has severe mental illness and suicidality, which could be exacerbated if he were to obtain a copy of his chart notes. As such I would recommend protection of his notes be of importance to the court. I request that his chart notes and anything contained within his file not be released to the defence, nor to the plaintiff. If the court decides to release the chart, I request that [Gordon] only have access to his records whilst in the presence of a medical doctor or registered psychologist/clinical psychologist or psychiatrist to explain the terminology and answer any questions he may have regarding information contained in his record. This request applies to any chart notes under my name."
(I should also note that not all of the documents found in Ex P1 are documents produced by Dr K. The majority of them were documents produced by the Proper Officer of LPC. One, however, suspects that Dr K's concerns would apply with equal force to those documents, being of a similar nature.)
Naturally, I have given serious consideration to Dr K's concerns. In part, they formed the basis for my initial direction that only the legal representatives of each of the parties be permitted to inspect the documents produced under subpoena.
I have no doubt that counsel also held those concerns at the forefront of their minds when inspecting the documents and when, ultimately, tendering the documents that they did. However, no counsel made any submission that the relevant part of the medical records should not be referred to in these reasons or that they should not be disclosed. I also bear in mind that some of the documents were tendered by Mr Morris QC in the furtherance of Gordon's case.
I shall refer to some of the entries in those medical records that have particular reference to Gordon's application and the stressors indicated therein. (Any question of privileged material in the medical records seems to have been waived since the medical records were tendered in Gordon's case.)
I have also taken heed of Mr Bland's submission, made at the outset of his closing submissions, as to the admissibility of the medical records (Tcpt, 10 March 2020, p 82(06-11)): "BLAND: Indeed. In fact my submission about that is that the documents are admissible as business records, and to that extent they're only admissible to the extent that they record representations of fact. In other words, if there is anything in them which amounts to an express or implied opinion by a medical practitioner, that would not be admissible under the Evidence Act. But statements recorded or attributed to [Gordon] certainly are admissible."
I turn then to some of the records that form part of Ex P1.
An entry dated 2 February 2010 records: "Family background father now 83yo, Greek origin mother not married - was on a working holiday in Brisbane & worked in [illegible] shop adopted but adopted father died when he was four in hospital when [Gordon] was visiting with his mother adopted father died from a perforated bowel post-hernia repair"
It is notable that, in that background, which could only have been provided by Gordon, there is no mention of any problems with either of his adoptive parents.
An entry, dated 5 July 2011, records: "Biological mo - NZ Fa - Houses he manages She moved towns so no-one would know she was pregnant Uninformed consent - pt taken from Mo + adopted Adopted @ 10 days … Met biological Mum 1991 when laws changed. A lot of [illegible] + emotional abuse from A. mo once fa died. She didn't re-marry. Adopted Mo couldn't bear children as a result of Pinks - chemical in formula she was fed as baby Little positive reinforcement from A. Mo. Conflicting msgs from her - makes him unsure now what a r'ship should be like."
The nature of the "emotional abuse" and the "conflicting messages" is not stated.
An entry, dated 27 September 2011, records: "Was ruminating about stuff that happened to him as a child + adolescent + the struggles he's had [with] changing."
The entry does not include details of what the "stuff" referred to entailed.
An entry, dated 18 October 2011, records: "D/i pt his experience of not being acknowledged by fa, as his son. Properties pt manages - sig. to pt as Fa has trued him to do this, + has means he has ongoing contact [with] his fa. Fa lives 10min walk away, usually sees him 2 times p/wk ~ 1/2 -1hr. Mo was cold + abusive." "Things give him identity - make him feel he belongs. Pt recently sold house that's been in the family [illegible] yrs in Sydney - couldn't afford to keep it - forced into it by creditors"
Whilst the entry refers to the adoptive mother being "cold + abusive", it also refers to the house of Gordon's adoptive parents being something he was desirous of keeping, but was "forced" into selling by creditors.
An entry, dated 17 September 2013, records: "Rpted hold up in completing kitchen as fa went to hospital. Pt rpted feels rejected by Fa + doesn't feel recognised as his son."
An entry, dated 29 October 2013, records: "Same rumination about contact [with] fa - taking 2-3hrs p/day trying to work out how to get fa to accept him"
An entry, dated 16 September 2014, records: "Rpted wanted to see me today as ↑ in anger towards fa whom he feels treats him [with] disrespect + lies - pt feels insignificant to him + upset by this as pt wants a r'ship. Also upset [with] cousin whom he feels is excluding him @ times. INT/ allowed pt to debrief regarding hurt + disappointment discussed r/ship he wants to have [with] his fa. encouraged assertiveness [with] fa. discussed making pos r'ships more important in his life"
An entry, dated 14 October 2014, records: "Pt rpted ↑ in MH due to accepting how his fa behaves + not ruminating about him/his actions"
An entry, dated 11 November 2014, records: "Rpted was assertive [with] fa + has realised fa is significant stressor in his life" "INT/- identified excessive mental effort as cause of ↑ stress, not fa".
An entry, dated 6 January 2015, records: "Pt disclosed ongoing distress and anxiety in regards to his Fa's denial of paternity + abandonment by family"
An entry, dated 29 July 2015, for a session on 28 July 2015, records: "[Illegible] still [illegible] ongoing stressors from father & property manager"
An entry, dated 1 September 2015, records: "Fa keeps giving him notices to leave. ruminating on selling house @ Collaroy - wish he hadn't"
(I pause to observe that the regret which Gordon expressed, more than once, at the selling of the home of his adoptive parents seems inconsistent with the negative memories he asserts that he has of growing up there.)
An entry, dated 10 December 2015 records: "P/C to [Gordon] [illegible] 'not good' [illegible] his father's property manager has threaten to take out a restraining order and Qld Conciliation & Admin Tribunal against him in relation to [Gordon's] father. [Gordon] sounding worried and concerned. States this property manager (works for father) & friend of his father's nephew (also works for his father), has been abusive and demanding of him. States he is accusing [Gordon] of elder abuse in regard to his father"
An entry, dated 6 December 2016, records: "Pt thinking about lending Fa $100,000 to help him out of financial difficulty. Wants to achieve love respect from Fa for this. Has previously lent him $50,000 [with] no return [illegible] or financially - not paid back."
An entry, dated 6 June 2017, records: "INT/ processed [the deceased's] death. Rpted upset wasn't invited to hospital to say goodbye. Pt asked to see his body. Rpted [GK] (cousin) told him he's not welcome to see [the deceased's] open casket. Pt unsure where funeral is. Pt then asked if he could call his uncle to ask where funeral is | in our session. I said if that's what he felt he needed to do, he could Pt chose to phone Uncle [SK] on speaker phone, an wanted me to hea + understand difficulties. [SK] stated he did not want pt to attend funeral as didn't want family upset. Pt noted pursuing legal advice on will + to get a DNA sample to confirm [the deceased] as his fa. Pt rpted feeling 'curiously calm' about everything. D/i pt what he feels the needs to do to get best processing + closure [with the deceased] - would like to [illegible] [GK], view body, DNA test"
An entry, dated 18 July 2017, records: "[illegible] speech + ben, app eye contact, mood-'OK', affect - reactive, thought content on family, 3 suicidal thoughts over past 7/7 'this is all too hard, battle against family' rpted thoughts were fleeting + went quickly using mindfulness onto other things. Denied any suicidal plans or intent on direct Q'ing"
An entry, dated 1 August 2017, records: "[GK] threatening to evict pt. lawyer has advised to not be in contact [with] [GK]. Talk [with] lawyer was very reassuring. Still packing Pt stated feeling threatened by [GK] - not physically, but [illegible]. Feeling bullied + like [GK] has all the power [with] pts living arrangement"
An entry, dated 31 October 2017, records a discussion between the author practitioner and the legal representatives of Gordon: "Signed authority received from pt to discuss case [with] lawyers (pts own legal team) - Jason Knot [sic] contact lawyer ph [XXXX XXXX]. Time set for me to discuss his case - 12pm today. Two other legal representatives present - Rebecca + Kristen. Asked for dx: OCPD + depression. Moved to Bris [with] intention of developing r'ship [with] biological Fa. Felt rejected by biological family, esp. Fa. Asked about consequences if adoption d/c: I replied depends on how family reacts to news - further rejects or accepts For [Gordon] to feel connected + part of a family is of most importance. Lawyers asked me to d/i pt effect of discharging adoption on him. Informed them I could raise [with] pt & see if this is a priority for him, because my main focus is helping him stay alive"
A further entry, dated 31 October 2017, records the notes from a session with Gordon said to have occurred directly after the discussion with the legal representatives: "D/i pt openly that lawyers requested I ask him about the effect that discharging the adoption would have on him, but that my main priority is pts safety. Informed pt of convo [with] lawyers + he said OK [with] what I said. Pt rpted up + down mood - some days achieving well, others he feels paralysed [with] amount has to do + thinking too much"
An entry, dated 14 November 2017, records: "D/i pt If legal case is going to cause too much stress causing suicide choose to stop case + stay alive. Pt stated 'I don't think it will come to that' - stating he has had suicidal thoughts for years + has no plan to action thoughts … Asked pt if wanted to discuss discharge of adoption + effect on him - rpted he still feels an attachment to adoptive family. If it went through, pros + cons [illegible] pt responded he wouldn't change his name to [K], but would change to biological mo's last name." (emphasis added)
An entry, dated 19 September 2018, records: "Ongoing legal battle. DNA tests came back positive. Now lawyers trying to d/c adoption + prove parents were abusive/his circumstances weren't ideal. Told pt I wasn't aware parents were abusive as he hadn't told me. Asked for examples he said: - swearing - mixed messages. eg feels he was told to stand up for himself, but when did, that was unacceptable. - would care for mo when her mood was low. Mo was sick from teething powder she had as an infant which had mercury in it. Comforted Mo. by getting her handkerchiefs to spit into + putting hand on her shoulder - After Fa died, no memory of physical affection from Mo. Neighbours were like surrogate parents." (emphasis added)
An undated entry, from around the same period, records: "Mo in NZ - Alzheimers Rpted [illegible] sister [K] was violent + 'out of control' + at times pt would sleep [with] knife under pillow as afraid she'd attack him 1/2 bro [G] When neighbours moved, this was terrible blow to sister + him ([I] + [J]). Mo wasn't there for him emotionally. At 8yrs old realised he was on his own. as Mo not capable."
An entry, dated 24 October 2018, records: "Pt discussed - court case ongoing. Fear of being evicted from house - keeps being sent eviction notices. 25th July - attacked whilst walking home from [L's] house. Hit; kicked + hit [with] plate by males. QPS attended. 2 Offenders arrested. Fa died from P.E. from hernia operation. Mo sued for medical malpractice - unsuccessful."
An entry, dated 14 November 2018, records: "been issued 2 notices to leave in past 2/52 - finding this distressing … Challenged process of worry - spends majority of time anxious + worrying about court cases + whether he will be evicted. … … affect consistent [with] frustration, thoughts related to stressors, no current suicidal T, P, I on direct Q'ing. However, risk will ↑ if loses court case 'I can't come back from that'."
It is unclear to what court case Gordon was referring in that exchange. However, a later entry on that page, dated 12 December 2018, records: "QCAT hearing today - lawyer handling on behalf of pt".
An entry, dated 30 January 2019, records: "[GK] doing a property inspection tomorrow. Ongoing legal issues [with] [GK] trying to get him out of house … … mood - stressed, affect - tired, thought content related to legal cases, [illegible] suicidal thoughts in context of worry about legal, no plans or intent and [illegible] …"
An entry, dated 13 February 2019, records: "Pt rpted. Another hearing @ QCAT. Deferred until next wk. [GK] didn't turn up for valuation inspection. … Pt rpted walks around West End [with] voice recorder ready to tape if runs into any family members. And walks around [with] hat + sunglasses on so family don't recognise. Avoids [XXX] St where [GK] works - purposefully walks around it. … Discussed importance of budgeting for social life. Right now is not seeing friends due to cost. Everything is going into legal case … … … mood - stressed, affect - reactive, [illegible], thought content - related to legal case, kept re-directing back to own life + [illegible] pt still undecided Re: living vs dying 'depends on outcome of court case'."
An entry, dated 13 March 2019, records: "Pt rpted he 'feels like a prisoner on death row, awaiting for order to be sent to die' - QCAT + court hearings. Continually worried 'kill order' will come that has to move out of home/court case over [with] no pos. outcome."
An entry, dated 17 July 2019, records: "Pt equated the complaints with trying to 'clawback justice' after Fa's death, Mo's unsuccessful court action against Dr's for malpractice, unfairness [with] his life … … March 2020 - NSW Court - decide on d/c of adoption"
An entry, dated 9 October 2019, records: "Still living [with] worry about whether QCAT will evict him. … problem solving - where will go if evicted. Can live [with] friend [S]. Worry is the amount of possessions. QCAT in November. d/i pt importance of taking control of life + making decisions that will bring him joy and reduce suicide risk. Life is spent waiting on QCAT, Victims Assist, court case outcome."
In a referral letter, dated 6 November 2009, addressed to the LPC, Dr E C (Clinical and Forensic Psychologist) wrote: "By way of additional history, [Gordon] is adopted and his adoptive father died when he was a child. Whilst his home environment was positive up to that time, his adoptive mother struggled with her husband's death and took this out on [Gordon] to some extent. He later sought out his biological parents (who were not together) and has some regular contact with his biological father. Unfortunately, his father refuses to acknowledge his parentage (of [Gordon]) to his new wife, causing [Gordon] ongoing distress and familial rejection. To clarify, [Gordon] is the caretaker for a few properties his father owns; his father's wife believes this is his only 'role' and is unaware of the parentage issues. [Gordon] remains a vulnerable individual, however he has good insight and some motivation to work on this issues [sic]. (I do note he is somewhat pessimistic about his prognosis, but some optimism is increasing over time.) I believe that he needs multi-disciplinary assistance, and obviously face-to-face, which I hope your service can provide."
In a letter dated 28 November 2018, from Dr K to Dr I M, the following passage appears: "[Gordon] has a number of psychosocial stressors currently which are impacting on his mood. He was physically assaulted whilst walking home on 25th July this year; he has an ongoing legal case to formally discharge his adoption; an ongoing legal case to prevent him from being evicted from his home; an ongoing legal case to allow him to access assets in his biological fathers [sic] Will; a submission with Centrelink for DSP; and a case with Victims Assist Queensland to gain compensation from the attack. Unfortunately [Gordon] has now exhausted all his financial assets, leaving him in a vulnerable position. He is maintaining one main friendship. He has had an escalation of obsessive thoughts, focusing of the stressors as above, attached to the belief that it is appropriate to obsessively about these things. [Gordon] has told me that if his legal case to gain inheritance is not upheld, he will suicide as he will have nothing left financially or emotionally to survive. Given that the legal process is likely to be quite lengthy, regular risk assessments will be conducted to track his risk. Currently he reports suicidal thoughts, no specific plans or intent currently. Treatment: Treatment has been from a predominantly CBT perspective focusing on motivational interviewing for engaging with pleasant events or hobbies to improve mood, forming social connections with others through attendance at social groups, encouragement of exercise, thought diffusion to compartmentalise legal cases, and attempts to enrich his life to decrease suicide as an option now or in the future. Recently [Gordon] has been resistant to the idea that he can have a life apart from the legal cases, and feels his life is just waiting to find out the outcome. I have reinforced the importance of building his life, despite what is happening legally. Challenging of the appropriateness of obsessionality has been attempted."
In a letter dated 19 June 2019, from Dr K to Dr P S, which I observe is after the commencement of the proceedings for the discharge of the adoption order, Dr K wrote: "[Gordon] continues to experience high levels of distress, obsessionality, anxiety and depression in the context of multiple stressors including uncertain accommodation, multiple legal cases and resulting financial stress, low levels of social support and difficulties gaining speedy resolutions to stressors … [Gordon] reports that he has suicidal thoughts varying from daily to a couple per week, with varying degree of lethality in his plans including hanging, gassing himself in a friends [sic] car, eating quince seeds (which apparently contain arsenic), or eating the leaf of rhubarb which he states is toxic. [Gordon] states that his intent depends on the outcome of the legal cases, and if he does not succeed in gaining a share of his deceased Fathers [sic] estate he will suicide."
(It has been necessary to canvas these matters in detail and at such length because of the significance placed on the medical records that were said to be of crucial importance to Gordon's case.)

[10]

My impression of Gordon

It is clear from what I have read, that one of the significant stressors in Gordon's life has been his relationship with the deceased. This is evident from what has been referred to above.
He acknowledged, also, that in order to proceed with his application for provision in Queensland, it was necessary for the adoption order to be discharged. This was put to him and his response is found at Tcpt, 9 March 2020, p 29(17-34): "Q. To proceed with an application, you understand that you have to have your adoption order discharged. A. Yes. Q. So that's the reason you've brought this application, isn't it? A. That's the reason why I brought the application to discharge my adoption, yes, in order to gain recognition of who I am. Q. Well, no. It's a step that you have to take to claim a share in your biological father's estate. That's the reason you've brought the application. A. That's a consequence of what might occur. Q. Consequence of what occurred? A. That, that that, that's a consequence of the discharge of the adoption for - from what I understand. Q. Yes, it will enable you to proceed with your family provision claim. A. Yes."
However, he denied that "the real purpose [of] this application is simply to enable you to proceed with your claim against your biological father's estate": Tcpt, 9 March 2020, p 29(40-43). He also denied that the application to discharge the adoption order "really has nothing to do with your relationship with your adoptive mother or your biological father": Tcpt, 9 March 2020, p 29(45-50).
I do not accept the absolute truth of the denials for the following reasons. First, these proceedings were commenced only after he had commenced the proceedings in the Supreme Court of Queensland. Even if his relationship with his adoptive mother was not particularly close, there is no suggestion in what is recorded in the medical records that it was as bad as he had asserted in his affidavit. This is demonstrated by the passage in the entry dated 19 September 2018. It is apparent that the serious problems in his relationship, particularly with his adoptive mother, which he asserted in these proceedings, had not been raised, in any meaningful way, previously.
Secondly, Gordon took no steps to commence proceedings to discharge the adoption order, for many years after the death of his adoptive mother, having, in the meantime, enjoyed the fruits of her testamentary bounty. Nor did he do so during the lifetime of the deceased. Indeed, he did not do so until late in 2018 only after the commencement of the Queensland proceedings.
Thirdly, Gordon recorded a conversation with the deceased, on a mobile telephone, without informing the deceased that he was doing so: Tcpt, 9 March 2020, p 36(01-38), p 42(49) - p 43(06) and he gave evidence of that conversation in his affidavit.
Fourthly, a comparison of his affidavit sworn 8 May 2019 in these proceedings and his affidavit sworn 1 March 2018 in the Queensland proceedings (Ex D1 in these proceedings) reveals some inconsistencies. In cross-examination, Mr Bland took Gordon to the following passages in his affidavit sworn in the Queensland proceedings: "66. … I believe I am entitled to adequate provision as I believe I am the only biological child of [the deceased] and we reconnected and have had a good relationship on his terms for some twenty-four (24) years before his death … … 73. I seek adequate provision out of my father's Estate. I have had a close relationship with him for almost twenty-four (24) years …"
Gordon maintained that those passages were correct.
Mr Bland then took Gordon to par 73 of his affidavit sworn in these proceedings. In that paragraph, Gordon averred to the contents of a conversation that was said to have occurred between the deceased, SK, IF, GK and himself. Relevantly, Mr Bland took Gordon to the following aspects of that conversation: "[The Deceased]: '… You told me last week you want the chance to change your last name.' [Gordon]: 'Why not?' [The Deceased]: 'Well I told you to forget about it.' … [The Deceased]: 'Anyway, I don't want you to call people cousins, aunty and things like this. Its [sic] bad. Because I don't feel like. I feel like, I don't know. I don't want people to know what happened for two full weeks I was with someone …'
Mr Bland then took Gordon to a further passage of his affidavit sworn in these proceedings: "74. … After the conversation referred to above I again suffered hurt, humiliation and rejection."
The following exchange then occurred between Mr Bland and Gordon (Tcpt, 9 March 2020, p 35(15-35)): "Q. [Gordon], there's no mention of that in your Queensland affidavit, is there? That's the one that says you had a good or close relationship with [the deceased]? A. It was as close as he would ever allow and on his terms. It was always on his terms and it was close and the limit of what it could be, which I was aware with him it wasn't, I suppose I was almost conditioned to believe in that it was an acceptable relationship on those terms. Q. I'll ask you again. You don't say anything in your Queensland affidavit about suffering hurt, humiliation and rejection after this family meeting, do you? A. It's already mentioned in the other one, so I'm guided as to-- Q. I'm simply pointing out, [Gordon], that your Queensland affidavit while saying that you had a good and close relationship with your biological father makes no mention of this conversation in which he effectively refused any paternal intimacy with you, denied any feelings for you? A. I haven't been through both of them to - I, so I'm unsure about that and I don't know why, and if it needs to be, I don't know why it isn't. If it, if it does need to be. And I'm looking for, for dates whether one's dated before or after, and I don't know what from, from my very limited knowledge of the law I don't know what needs to be in one affidavit or another."
Mr Bland then took Gordon to a further passage of his affidavit sworn in these proceedings: "69. On another occasion some years earlier I attended the [Hospital] uninvited to enquire about my biological father's health. I was told by my cousin [AK] that he had been admitted to hospital. And I was extremely concerned about him. When I was able to see him he was displeased and said to me 'what are you doing here'? I replied that I was worried about him. He told to leave [sic]."
Gordon accepted that the paragraph did not give sufficient context of what had occurred and, moreover, accepted that he had not deposed to that conversation in his affidavit sworn in the Queensland proceedings (Tcpt, 9 March 2020, p 36(48) - 37(23)): "Q. When you replied that you were worried about him he told you to leave? A. We had a conversation and exchanged pleasantries, spoke about what he was doing there and I ended up helping him into my cousin's vehicle afterwards, [AK]. Q. That paragraph doesn't accurately represent what happened on that occasion? A. Well, it's, it's representative of some of what happened, yes. Yes. Q. Do you see that the affidavit indicates that it was very short and very terse exchange between you? He asked you what you were doing there. You said you were worried about him. He told you to leave. A. Well, there was obviously more to it that I had overlooked at the time. Q. The paragraph is wrong. A. It's not wrong, it's a brief interpretation of what occurred. Q. In the sense that it doesn't give sufficient detail to know what happened between you on that occasion. Is that right? A. There could be more detail perhaps to enable a better context. Q. At any rate you don't mention that conversation in your Queensland affidavit either, do you? A. I wasn't aware that both, both documents required the same information and I don't know what needs to be in each, as I've said, and I'm simply guided by what I need to do."
Mr Bland, again, took Gordon to other passages in his affidavit sworn in these proceedings: "66. … I did not want to recognise the traits in my biological father but part of his request for me to move was out of necessity and greed. I learned over a period of time that he wanted me to manage a number of investment properties he had. … 76. … [The deceased] was a man motivated by greed."
The following exchange then occurred (Tcpt, 9 March 2020, p 38(25-44)): "Q. I want to suggest to you that there is no mention of your biological father's greed in your Queensland affidavit. No reference to that character trait whatsoever. A. All right. So I don't know what you, what you are suggesting. Q. I'll tell you what I'm suggesting. Nowhere in your New South Wales' affidavit do you describe your relationship with your biological father as close. A. All right. Q. I suggest to you that your affidavits give a different account. Your two affidavits give a very different account of your relationship with your biological father depending on what you think you need to prove in each matter. To put it bluntly one paints a very rosy picture of your relationship with him with no difficulties or problems whatsoever and the other affidavit paints a very different picture, shows that you had a very troubled relationship with your biological father. Do you accept that now that I've taken you to the various points that I have made? A. I, I don't know why they, they are different and I, I just assumed when they were placed here that they would be the same and I do not know why they are different or, or for what reason."
The Court gave Gordon a further opportunity to read the relevant passages of the affidavits to which he had been taken. The following exchange is instructive (Tcpt, 9 March 2020, p 39(14-27)): "Q. … I think in broad terms what is being suggested to you is that one paints a rosy picture, that is, the Queensland affidavit paints a rosy picture whereas the affidavit in New South Wales presents other than a rosy picture. HIS HONOUR: Is that a fair way of putting it, Mr Bland? BLAND: Yes. HIS HONOUR Q. Do you agree or disagree? A. That might appear to be the case but the relationship was, well, it was - it did have its ups and downs like most relationships ..."
Mr Morris QC canvassed this matter during his re-examination of Gordon and asked initially (Tcpt, 10 March 2020, p 58(44) - p 59(06)): "Q. First, I want to ask you this. Mr Bland asked whether you wrote the affidavit yourself. A. Yes, I have given it some further thought and I did have some assistance, so the, the words were put together by me and they were paragraphed with assistance. Q. Assistance by whom? A. My solicitor. Q. Is every word that you drafted reflected in the affidavit as it was printed or aren't you able to say? A. I'm not able to say entirely. It's, what is it, two years ago now, isn't it? Yes, two years ago now, so."
Mr Morris QC took Gordon to a number of paragraphs of his affidavit sworn in the Queensland proceedings and asked (Tcpt, 10 March 2020, p 60(14-18): "Q. We may be at cross‑purposes. I want you to focus on the accusation made by Mr Bland, no doubt on instructions, that you set out in this affidavit to paint a rosy picture of your relationship. Can you tell the Court whether or not that was your intent? A. I was simply stating facts."
Mr Morris QC took up the matter, again, in his closing oral submissions. He submitted that there had been no attempt by Gordon to paint a different picture in each of the different proceedings. Rather, Mr Morris QC submitted, any differences between the affidavits could be seen as a reflection of the fact that different things were relevant in the different proceedings: "MORRIS: As I said I didn't intend to be expansive. The first issue that has to be addressed is the evidence and particularly what weight you place on the evidence. An attempt has been made by my friend, Mr Bland, with not only the ability but the propriety that one would expect of counsel to paint my client as a man who told different stories in different affidavits, gave a rosier picture in one version than in another and, in particular, inflated the difficulties with his adoptive mother whilst minimising the difficulties with his natural father. As will be apparent from the re‑examination the second charge is plainly untrue. The affidavit filed in Queensland contains the same details regarding the father's avarice as the affidavit filed in this Court, although putting them under a separate subheading dealing with financial circumstances. HIS HONOUR: I must say I read that evidence that you took him to as going to a matter what we have here under s 60(2) of the Succession Act that I thought the matters went to contribution. I didn't view it as you do. I view it as supportive of his application for a family provision order by asserting that he had, in fact, contributed to the building up of the estate assets by doing the sorts of things that were identified in paras 40 to 45 or thereabouts. MORRIS: It was certainly included for that purpose and that, may is say, is the flaw in the cross‑examination that when any client provides instructions, either written or oral, for the preparation of an affidavit, it's the solicitor's function to winnow it back to what is relevant to the proceedings, and in proceedings in Queensland, which seek family provision, different things are relevant from the proceedings currently before you. The point I'm making is that there was no attempt in that context to paint a rosier picture in Queensland than the picture which was painted her. It is still a picture of a father, a biological father, who was, one might say, rapacious in relation to financial matters.": Tcpt, 10 March 2020, p 65(35) - p 66(15)
Some of the answers that Gordon gave, in both cross-examination and re-examination, were somewhat unsatisfactory. It is clear from the passages of his affidavits to which he was taken that, whether with the assistance of his solicitor or otherwise, Gordon appears to have tailored the account of his relationship with the deceased to the particular proceedings in which the affidavit was sworn. I am unable to accept the submission of Mr Morris QC to the contrary.
One might have thought that his adoptive sister would have been an important witness to give evidence in support of Gordon's case. To leave it to the day of the hearing to raise her availability to do so, does not assist Gordon.

[11]

The effect of the adoption of Gordon

The modern law of adoption is wholly the product of legislation. The current legislation in New South Wales is the Adoption Act. However, at the time of Gordon's adoption, the relevant legislation was the CW Act. (In 1967, the CW Act was replaced by the Adoption of Children Act 1965 (NSW).)
The long title of the CW Act was "An Act to consolidate and amend the law relating to children and young persons; to repeal the Child Welfare Act, 1923, and the Child Welfare (Amendment) Act, 1924; to amend the Interstate Destitute Persons Relief Act, 1919, and certain other Acts; to validate certain matters; and for purposes connected therewith".
Part XIX of the CW Act, commencing at s 162, dealt with adoption. Section 168 provided: When an order of adoption is made, for all purposes civil and criminal, and as regards all legal and equitable rights and liabilities, the adopted child shall be deemed to be a child of the adopting parent, and the adopting parent shall be deemed to be a parent of the adopted child, as if such child had been born to such adopting parent in lawful wedlock, and the order of adoption shall terminate all rights and liabilities existing between the child and his natural parents other than the right of the child to take property as heir or next of kin of his natural parents or of their lineal or collateral kindred: Provided always that such adopted child shall not by such adoption - (a) acquire any right, title, or interest in any property under any deed, will, or instrument whatsoever made or executed prior to the date of such order of adoption unless it is expressly so stated in such deed, will, or instrument; (b) be entitled to take any property limited to the heirs of the body of the adopting parent; (c) be entitled to take any property as next of kin to any lineal or collateral kindred of the adopting parent; (d) be entitled to take any property as next of kin to any child of the adopting parent.
When an adoption order was made, an amended birth certificate was issued by the Registry of Births, Deaths and Marriages, showing the adopted person to be the child of the adoptive parents. The adopted child, even as an adult (until 1991), had no right to access the original birth certificate, except on the order of a court. Similarly, birth parents had no right to obtain a copy of the amended birth certificate: New South Wales, Law Reform Commission, Review of the Adoption Information Act 1990, (July 1992) at [2.8].
Thus, under the CW Act, as under the current Act, an adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents' family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded, in law, as the parents of the adopted child. The parental responsibility for the adopted child by the birth parents is also extinguished. By operation of law, a legal fiction is created.
An adoption order results, not only in the creation of a new legal status between individuals, but also in the destruction of the status as between others: Re DG and the Adoption Act 2000 (2007) 244 ALR 195 at 196 [4]; [2007] NSWCA 241 at [4] (Basten JA). (These principles operate in other jurisdictions within Australia: see, for example, s 214 of the Adoption Act 2009 (Qld).) An adoption order is the only order that permanently, and, subject to a discharge order, irrevocably, terminates the relationship between a parent and child. Accordingly, the act of adoption is regarded as possessing a peculiar finality: see, for example, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 at 251-252 (Sir Thomas Bingham MR).
Also, as has been pointed out in regard to the effect of an adoption order, in Oxfordshire County Council v X [2011] Fam 31 at 34 [4]; [2010] EWCA Civ 581 at [4] (Lord Neuberger MR, Moses and Munby LJJ agreeing): "… it is important to remember that this is not just some legal fiction. As Thorpe LJ said in In Re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption 'is the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences.'"
The consequence of setting aside an adoption order is a reversion in law to the status quo ante: Re W (A Child) [2010] EWCA Civ 1535 at [12] (Thorpe LJ, Munby LJ and Coleridge J agreeing).

[12]

Obtaining a discharge order

As applications to discharge adoption orders are relatively rare, I shall discuss the legal principles. Indeed, there are very few decisions of this Court where such an application has been made. I have been able to find Re Susan (2009) 41 Fam LR 596; [2009] NSWSC 592 (Palmer J); Adoption of LVH [2014] NSWSC 1902 (Brereton J, as his Honour then was); and Adoption Re: P [2019] NSWSC 1623 (Sackar J).
(There is also a decision of Powell J (as his Honour then was) in Re an Adoption Application (No A 6018 of 1979) (1981) 7 Fam LR 850. It was a rather peculiar case, and offers little assistance in the present circumstances. His Honour had made orders for an adoption, but shortly thereafter the adoptive parents separated. It was necessary in those circumstances for the adopted child to be placed with new parents. The judgment is a record of the course that his Honour took, and the discussions that occurred in chambers with representatives of the Department of Youth and Community Services and of the Crown. Although his Honour made a discharge order (of the original adoption), there was no discussion of any relevant principles.)
(Palmer J referred to another unreported decision, but as his Honour pointed out, at [67], "[a]lthough 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".)
Section 170 of the CW Act provided: 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.
As is clear, the CW Act identified no specific ground upon which a discharge order could be made and provided no time limit for the making of an application for a discharge order. The section conferred a broad discretion on the Court.
The effect of the discharge order is that the legal relationship reverts to what they were immediately prior to the making of the adoption order.
In Adoption of LVH, Brereton J (as his Honour then was) was dealing with an adoption order made in December 1964, and an application, filed in July 2013, seeking an order pursuant to s 93 of the Adoption Act 2000 discharging that order at [1]-[5]. The same approach was adopted, most recently by Sackar J, the Adoptions List Judge, in Adoption Re: P at [40]-[42].
None of the parties submitted that this was an inappropriate way to proceed. Therefore, I shall, hereafter, refer to the relevant provisions of the Adoption Act.
"Child" is relevantly defined in the Dictionary to the Adoption Act as "(b) a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made".
The Dictionary defines "adoption order" to mean "an order for adoption of a child made or recognised under this Act or a former Act". "Former Act", relevantly, 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". "Discharge order" means "an order for the discharge of an adoption order".
In making any decision about adoption, the Court must have regard to the principles set out in s 8(1), and to the circumstances set out in s 8(2), of the Adoption Act, so far as they are relevant. The section provides: (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.
Section 93(5)(a) of the Adoption Act, which, as stated, deals with an order for discharge, specifically requires such an order not to be made if it would be prejudicial to the best interests of the child.
Of course, and unsurprisingly, there is no definition of either of the terms "the best interests" or "the paramount consideration" in the Adoption Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that "paramount" means "overriding": In the Marriage of Kress (1976) 13 ALR 309 at 317; (1976) FLC 90-126 at 75,599 (Goldstein J); In the Marriage of H and H (1994) 19 Fam LR 165 at 170; (1995) FLC 92-599 at 81,974 (Nicholson CJ). The word does not indicate exclusivity. As Kirby J considered in AMS v AIF (1999) 199 CLR 160 at 207 [143]; [1999] HCA 26 at [143]: "Statute may, and commonly does, instruct that the 'welfare' (or 'best interests') of the child should be the paramount consideration. It may provide a list of considerations or 'principles' to be applied in the exercise of the court's powers. However, the 'paramount' consideration is not the same as the 'sole' or 'only' consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation." (citations omitted)
Section 8 of the present Adoption Act contains an expansive list of "principles" and factual circumstances to which the Court is to have regard, a list absent from s 17 of the Adoption of Children Act.
The test to determine the best interests of the child cannot be implemented by the devising of a code of rules (substantive, procedural or evidentiary) embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept whose application in any given case is inherently imprecise: Re B (A Minor) [2002] 1 WLR 258 at 264 [16]; [2001] UKHL 70 at [16] (Lord Nicholls, Lord Mackay, Lord Hoffmann, Lord Millett and Lord Rodger agreeing). The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have: Director General Department of Human Services; Re M [2011] NSWSC 369 at [89]-[90]; cited with approval by Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926 at [93], and by Black J in In the matter of S [2018] NSWSC 367 at [14].
Section 93(1) of the Adoption Act provides that "concerned person" means the Attorney-General, or any party to an adoption. It is only "a concerned person" who may apply to the Court for an order discharging an adoption order.
Section 93(3) provides that the Court is to give each concerned person (other than the applicant for the discharge order) notice of the application. Importantly, s 93 does not state that only a "concerned person" is able to be a party to the application for the discharge order.
Section 93(4) provides that 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. It is noticeable that the sub-section is narrowly drawn and that it provides only two alternative grounds which enliven a discretion to discharge an adoption order.
As was written by Brereton J in Adoption of LVH at [6]: "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."
In the present case, it has not been asserted that the adoption of Gordon was obtained by reason of fraud, duress, or some other improper means. It follows that the relevant question, therefore, in the present case, is whether there is an "exceptional reason" why an adoption order should be discharged.
Section 93(5) provides that 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 of the Adoption Act (Adoption information).
There was no dispute that s 93 is available to found the basis of Gordon's application for a discharge order.
Section 93(8) provides that on the making of a discharge order, but subject to any order made under subsection (6) and to s 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, inter alia, "(c) any proprietary right or interest that became vested in any person … while the adoption order was in force".
Section 94 of the Adoption Act provides that the Court may require the Secretary to investigate the application. The Court has not made such a requirement of the Secretary in light of certain correspondence read in the proceedings for the joinder of the executors: Re GRP (No 1) at [8]-[9], [47].
Under s 95 of the Adoption Act, as earlier referred to, if an adoption order is made, the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child. In addition, the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child. Section 95 does not have the effect of depriving an adopted child of any vested, or contingent, property right acquired by the child before the making of the adoption order: Adoption Act, s 97(1).
Subject to s 97(1), s 95 of the Adoption Act, relevantly, has effect in relation to a disposition of property, whether by will, or otherwise, and whether made before, or after, the commencement of the relevant provisions. In neither s 95 nor s 98 of the Adoption Act is there anything that affects the operation of any provision in a will or other instrument, whether made or coming into operation before or after the commencement of s 98, distinguishing between adopted children and children other than adopted children: s 98(4) of the Adoption Act. Of course, in the present case, Gordon is referred to, by name, in the deceased's Will.
If an order were made discharging the adoption order made in respect of Gordon (subject to the conditions, if any, named in the discharging order), then Gordon and his biological parents are deemed, for all purposes, to be restored to the same position, inter se, as existed immediately before the order of adoption was made.

[13]

Some other exceptional reason

As stated, Gordon is required to establish "some other exceptional reason" for the discharge of the adoption order.
There is no definition of the term "exceptional reason" in the Act. The task of construing the meaning of those words is "by reference to the language of the instrument viewed as a whole" and involves the use of text, context and purpose to give the words the meaning that the legislature is taken to have intended them to have: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78]; [1998] HCA 28 at [69], [78] (McHugh, Gummow, Kirby and Hayne JJ).
Nor is there, otherwise, a fixed definition of what would constitute an "exceptional reason". It is a term of uncertain, nebulous and elastic contours given the vicissitudes of human experience. What would amount to an exceptional reason is "is inherently incapable of exhaustive statement": Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 229 [30]; [2018] HCA 16 at [30] (Gageler, Keane and Nettle JJ).
The word "exceptional" is an ordinary, familiar, English adjective, and should not be construed as a term of art. It denotes that the thing to which it is applied (in the Adoption Act, the reason) is unusual, or out of the ordinary, in some way special, or an exception to the general run of things. But, to be "exceptional", a reason need not be unique, or unprecedented, or very rare: R v Kelly (Edward) [2000] QB 198 at 208 (Lord Bingham of Cornhill CJ). It can include a single exceptional reason, a combination of exceptional reasons, or a combination of ordinary reasons, which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26] (Rares J).
Sholl J in A v C-S (No 1) [1955] VLR 340 at 368 wrote: "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."
McInerney J was of the same view in Re S [1969] VR 490 at 495, writing: "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."
His Honour also wrote, at 495: "I am disposed to think that under s 16 [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 …"
In Fay v Fay [1982] AC 835 at 842, Lord Scarman (Lord Diplock, Lord Roskill, Lord Bridge and Lord Brandon agreeing) wrote, in dealing with the expression "exceptional hardship or depravity" in legislation dealing with matrimonial causes: "It is not possible to define with any precision what is meant by 'exceptional' hardship or depravity. The imprecision of these concepts with the resultant impossibility of definition must have been deliberately accepted as appropriate by the legislature and is itself an indication that the determination of what is exceptional is essentially a matter for the judge. All can be said with certainty is … that the hardship suffered by the applicant (or the respondent's depravity) must be shown to be something out of the ordinary."
In Baker v The Queen (2004) 223 CLR 513 at 523 [13], 573 [173]; [2004] HCA 45 at [13] (Gleeson CJ), [173] (Callinan J), it was pointed out that the words, "exceptional reasons", like the words "special reasons" or "special circumstances" are used where "it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition".
In deciding whether a reason is exceptional within the meaning of a particular statutory provision one must keep in mind the rationale of that particular statutory provision: R v Buckland [2000] 1 WLR 1262 at 1268; [2000] EWCA Crim 1 at 9 (Lord Bingham of Cornhill CJ for the Court).
Whether there is an exceptional reason giving rise to a discretion to grant a discharge order will always be a case specific question of fact and degree. The Adoption Act does not prescribe any limitation on what may constitute an "exceptional reason" and it is open to the Court to take into account a broad array of circumstances.
The "exceptional reason" for discharge of the adoption order does not have to relate to the circumstances in which the adoption order or consent were obtained; rather, the reason can relate to "… other matters, including matters arising after the adoption order was made": Adoption of LVH at [6] (Brereton J). The exceptional reason can be a combination of various circumstances or facts: Adoption Re: P at [62] (Sackar J).
What might constitute exceptional reasons will depend upon the facts in each particular case. For example, mistreatment by the adoptive parent of the child adopted may enliven the discretion to discharge an adoption order. In MJD v Chief Executive, Department of Communities, Child Safety, and Disability Services, Adoption Services [2015] QSC 139 at [16]-[17], Atkinson J wrote: "If the aim of adoption today is to ensure the best interests of the child, then those aims were clearly not met by this adoption. Even the Act under which it was made required that the welfare and interests of the child concerned in an adoption should be paramount, but they were manifestly not treated as paramount in this case. The applicant has suffered exceptionally from physical and emotional abuse which made him vulnerable to further damage during his adulthood and has now rendered him in a pitiable state. Unfortunately, while it cannot be said that it is exceptional for children to be treated badly, the extent of the abuse in this case does fulfil the criterion of exceptional circumstances. The order sought is not an order that should be made lightly. The impact of discharging the adoption order will be not only on the applicant but also on his siblings and his natural and adoptive parents. Nevertheless, he has satisfied me that circumstances which provide grounds for discharge of the adoption order have been made out. Considering that the Act quite properly requires me to apply the paramount principle that the Act is to be administered so that the wellbeing and best interests of an adopted child both through childhood and the rest of his life are met, I am satisfied that the order discharging the adoption order finalised on 22 November 1974 should be made." (citations omitted)
In that case, Atkinson J, at [10], had referred to the evidence of the "horrific mental and physical abuse that [the applicant] suffered at the hands of his adoptive father and the terrible impact upon him of that abuse".
In Re Adoption Application No AD 58/1984 (1986) 11 Fam LR 518, the Court concluded that an exceptional reason was that 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. In fact, the birth father had been involved with the child continuously. Kelly J in the Supreme Court of the Australian Capital Territory held, at 522, that "[w]hen 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".
In A v C-S (No 1), Sholl J, although considering it unwise to limit what may constitute 'exceptional circumstances', remarked at 368: "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 of 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. I have included the case of a child, after majority, seeking discharge or variation of an adoption order, because the matter was discussed in argument, and I am of opinion that the clause in sec. 13(1) as to the welfare of the' infant' does not exclude from the scope of the earlier part of the sub-section a case where the adoptee is a 'child' but no longer an 'infant'; the final clause simply does not operate in such a case."
It is clear that many of the circumstances described by his Honour would not, in society today, constitute exceptional reasons for the discharge of an adoption order.
In relation to one matter that may be relevant in Gordon's case, Palmer J wrote, at [74]-[75], in Re Susan: "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. 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." (emphasis in original)
Similarly, on the basis of the language as it now appears in the Adoption Act and the public policy considerations to which reference is made below, it could not be said that "a desire by the child itself (whether before or after majority) to restore itself in law to its natural family" could, of itself, constitute an "exceptional reason".
Where, as in this case, the exceptional reason is said to arise after the adoption order is made, the conduct should be such as would justify the termination of the adoptive parent's parental responsibility if she or he was, or they were, a natural parent of the adopted child: Adoption of LVH at [8]-[9] (Brereton J); Re Susan at [86] (Palmer J). An example might be where there is a material misrepresentation that the adoptive parents were fit and proper to be in a parental role to the adopted child: Edwards v Houghton [2019] NZFLR 1 at 2 [7]-[9]; [2018] NZFC 2716 at [7]-[9] (Judge Black). Another example might be, depending upon the nature and extent, where the adoptive relationship has undergone a significant and irretrievable breakdown. Neither is suggested as the reason for discharging the order in this case.
In a case where a discharge order is sought to alleviate psychological injury which has already occurred and from which an applicant is still said to be suffering, the Court must "seriously examine whether a discharge order will make any appreciable difference" to the healing process. The Court should not discharge an adoption order in such circumstances unless comfortably satisfied that the discharge will lead to a significant improvement in the applicant's life. However, satisfaction that discharge will go "some way to healing the injury which has flowed from the adoption" is sufficient, if the applicant's best interests in later life will be set back by refusal to make the order: Re Susan at [88], [92] (Palmer J).
There are sound public policy reasons why adoption orders ought not easily be set aside. Indeed, public policy considerations ordinarily militate against revoking an adoption order that has been properly made. (This is not to say that instances can and do arise where it is appropriate so to do.) As stated earlier, an adoption order, when made, is meant to be final and establishes legal rights which have significance beyond just those of the adopted person and, as has recently been written by Kunc J in Secretary, NSW Department of Communities and Justice v Gabrielle; Re Olivia and Ava [2020] NSWSC 281 at [55]: "Legal status or relationships, which confer legally recognised rights and responsibilities, are no less real because they are invisible. Nor is their importance diminished because their existence and application in day to day life may be subtle or subliminal. They are always present, although perhaps not called to conscious attention until they are threatened with breach or relied upon to justify some action."
The legal aspect of the status of parent and child should not be reduced to a technicality or incidental detail.

[14]

Submissions

As stated above, no written submissions were provided on Gordon's behalf prior to the hearing. However, Mr Morris QC did make detailed oral submissions, to which I have had careful regard.
Mr Morris QC began by submitting that the nature of the relationship between Gordon and the deceased could be explained by reference to the deceased's conservative nature. The deceased, so Mr Morris QC submitted, wanted to avoid any perceived stigma arising from his fathering of an ex-nuptial child.
In support of that submission, Mr Morris QC referred to the following passages of the affidavit of IF affirmed 20 June 2019: "At one time, [Gordon] became friendly with my son AF and began visiting our house. During those visits, [Gordon] started calling me 'Theía', which means aunt in Greek. I questioned him about that and he said words to the effect of: 'You are my aunt and [the deceased] is my father.' When I later told [the deceased] what [Gordon] had said, he responded with words to the effect of: 'No, no, no, he is not. I don't want anything to do with him apart from business and if he comes to your house push him away.'"
Therefore, so Mr Morris QC submitted (Tcpt, 10 March 2020, p 66(29-39)): "That's the relationship which the father wanted to project even to close family members and to the community at large. He was, on any view of the evidence, a man of conservative, old fashioned Greek traditions for whom it was anathema to be known as the father of an ex nuptial child. The entire context of the relationship was, as my client has deposed to, a relationship which was on the father's terms and had to be discreet, so within that narrow rubric of a discreet relationship the father did what he could to promote the relationship. My client says he saw the father three times a week. In the medical notes there are references to conversations up to three hours on various days; they were across the back fence."
The following exchange then occurred (Tcpt, 10 March 2020, p 66(41) - p 67(03)): "HIS HONOUR: I didn't get the impression from reading all of the evidence that the deceased was projecting an image, as you've put it, to family and friends that was different to what was being projected to the applicant. Am I wrong in that? MORRIS: I think you are in this sense, that he arranged for my client to live literally across the back fence and provided him with a business opportunity, which I wouldn't go so far as to say it was a sinecure, but it was an advantageous opportunity for a man who was plainly not in a position to hold down a regular job where he could rent properties from his father as head tenant and then sublet them to international students and others in order to generate some income on the difference between the higher amount and the lower amount."
I asked Mr Morris QC whether a reading of the medical records suggested that Gordon had complained of being rejected, rather than embraced, by the deceased. He submitted in response (Tcpt, 10 March 2020, p 67(31) - p 68(05)): "MORRIS: I submit and, of course, ultimately this is all a matter for you, it's actually consistent in its entirety with this fairly complex situation where you have a natural son who is, on any view, emotionally vulnerable. You have a biological father who is in an awkward position because the biological father's wife doesn't want to know anything about the ex-nuptial child. You have a biological father who has an abhorrence of the idea of being exposed, particularly in his own family, as the father of an ex-nuptial child. And you have a biological father who is, as I've already submitted, a man of conservative or traditional outlook who sees himself as the head of the family and the one who has to promote the ethical standards that are appropriate to the family. In that very unusual situation my client comes into it. He is acknowledged privately by his father and told that his father wants to maintain a relationship, but it has to be discreet. But when he's speaking to his psychiatric counsellors, he's quite frank in explaining that this isn't particularly satisfactory. He would like to have more of a relationship with his father. He would like to have more answers, he would like to know more, but he understands that his father is only prepared to do things on this very discreet basis. That's why, as I say, your Honour must in my submission look at this in a number of ways so far as my client is concerned. What is exchanged between him and his father and his acceptance of the restrictions that the father puts on the relationship is obviously at odds with his emotional need when he's speaking to his psychiatric consultants. That he would like the relationship to be different from that but that's what he's stuck with."
Having so described the relationship, Mr Morris QC then submitted that the "exceptional reason" in this case arose from a "concatenation of circumstances". He pointed, specifically, to five circumstances (Tcpt, 10 March 2020, p 73(19-44)): "MORRIS: … In this context the exceptional reason consists of a concatenation of circumstances, which are on the one hand the early death of the adoptive father, depriving him of the benefit of a father figure in his childhood. Number 2, the lack of emotional support received from the adoptive mother; number 3, the limited relationship formed with the biological father. … MORRIS: Number 4 is his emotional fragility, for whatever reason. I don't seek to put the blame for that on the mother or the sister or anyone else. I just say that that is part of the combination of circumstances. And number 5 is the knowledge that he is the only son of the deceased. That combination of circumstances. None of them taken individually could be described as exceptional or extraordinary, but in combination they make a unique scenario sufficient to enliven your Honour's discretion. I don't submit, I couldn't submit, that it compels a particular outcome, but it certainly enlivens the discretion."
Mr Morris QC went on to submit (Tcpt, 10 March 2020, p 73(45) - p 74(03)): "Once one gets to the point the discretion is enlivened. Whilst the discretion, like any discretion, is at large, the legislation points to the best interests of the adoptive child as being the touchstone. HIS HONOUR: Yes. MORRIS: On that issue there can be no question regarding what's in his best interests, whether it's viewed financially - as your Honour has said, there is a potential pot of gold there. It's only a potential, but it is a potential pot of gold."
Mr Morris QC submitted, in respect of the exercise of the court's discretion (Tcpt, 10 March 2020, p 75(47) - p 76(15)): "I make no apology for urging the submission - you may or may not accept it - that the best interests of [Gordon] are in favour of exercising the discretion as he seeks for three reasons; the first is financial, the second is emotional and the third, which flows from the second, is the risk of suicide. HIS HONOUR: The risk of suicide is in the context of not getting an inheritance, not not obtaining an order discharging the adoption. MORRIS: I'm sorry, but that's, in some way, a distinction without a difference, because we all accept that whilst there is a chance of getting an inheritance, if the adoption is set aside there is no chance. HIS HONOUR: I don't view it that way necessarily. It seems to me that if the risk of suicide was ameliorated by simply discharging the adoption, we wouldn't have to worry about the family provision proceedings in Queensland, because that's why I say the risk of suicide is in the context only of being able to continue the proceedings in Queensland, it's not to obtain the removal of the adoptive parents as fictionally the birth parent and substitute the deceased as the birth parent …"
Finally, at the conclusion of his submissions, Mr Morris QC raised a "potential" sixth circumstance forming part of the "exceptional reason" said to exist in this case (Tcpt, 10 March 2020, p 78(42) - p 79(01)): "MORRIS: Finally, your Honour, I did in answer to a question from your Honour earlier identify the five circumstances which I said together made this case an exceptional one. Without departing from that may I say there is a potential sixth? I put it no higher than that. And that is, the treatment he is receiving from his biological cousins, particularly - and I note when your Honour asked me whether there were any conversations which should have been challenged in cross examination, this is one that falls within that category - where he says that he was told by one of the executors that under the provisions of the will he could be, for example, provided with a one room apartment in … and that that was the executors decision as to what he would be provided with."
Mr Bland, on behalf of the executors, provided written submissions prior to the hearing. In fairness to Mr Bland (and equally to Mr Guterres for the Attorney-General) he was forced, in effect, to guess what Gordon's case would be. This was in light of the absence of any submissions on Gordon's behalf being provided prior to the hearing.
Nonetheless, in his written submissions Mr Bland addressed several aspects of Gordon's affidavit evidence. He began, first, with the matters that Gordon had deposed to regarding his treatment by NAP. Mr Bland submitted at pars 13 and 19 of his written submissions: "The treatment deposed to by [Gordon] falls short of the kinds of physical and sexual abuse that have been accepted in previous cases as exceptional reason to discharge an adoption order. … The defendants submit that the treatment deposed to by [Gordon], while no doubt unpleasant, cannot be described as exceptional. Before finding that the extent of the abuse in MJD v Chief Executive fulfilled the criterion of exceptional circumstances, Atkinson J observed at [16] that: 'Unfortunately, … it cannot be said that it is exceptional for children to be treated badly …'"
Referring to a passage of Brereton J's judgment in Adoption of LVH, Mr Bland submitted further at pars 22-23: "The defendants submit that, invoking the touchstone suggested by Brereton J, the treatment deposed to by [Gordon] would not have justified the termination of NAP's parental responsibility for him had she been his natural parent. In any event, the defendants submit that there is no evidence that a discharge order would ameliorate any remaining effects of that treatment."
Mr Bland then referred to Gordon's evidence on what, he said, was the effect of the adoption on his mental state. Mr Bland submitted at pars 32-33: "The defendants submit that [Gordon's] affidavit does not support a finding that this sense of abandonment and desire for a connection with his biological family differ from the common experience of most adoptive children or are otherwise exceptional for the purposes of s 93(4)(b). Further, the defendants submit that there is no evidence that a discharge order would alleviate the effect that [Gordon's] adoption has had on his mental state."
Next, Mr Bland submitted, on what he characterised as a rejection by the deceased of Gordon, at pars 42-44: "The defendants submit that there is no evidence that [the deceased's] inability or unwillingness to bond with his biological son was in any way exceptional, particularly as [Gordon] did not make contact with [the deceased] until [Gordon] was aged 28. The defendants also submit that there is no evidence that a discharge order would do anything to ameliorate the hurt he suffered as a result of [the deceased's] rejection of him or to achieve a reconciliation between him and his biological family. Indeed, it is difficult to see how a discharge order could have any effect of that kind. [The deceased's] rejection of [Gordon] is now final and irreversible. Moreover, the discharge of [Gordon's] adoption order would lead to the litigation of his family provision claim and it is reasonable to anticipate that this would exacerbate the acrimony between him and his biological family."
Additionally, Mr Bland submitted that, notwithstanding the exceptional reasons that had been asserted, "the real motivation for the application has nothing to do with the various matters discussed above and derives solely from the need to restore his legal status as [the deceased's] child and thus gain standing to proceed with his family provision claim".
He submitted: "Section 8(1)(a) of the Adoption Act requires that a decision about the adoption of a child be made with paramount consideration to the best interests of the child. It might be contended that to enable [Gordon] to claim further provision from [the deceased's] estate would be in his best interests. However, s 8(1)(a) does not compel the Court to make a discharge order merely because that might result in a financial benefit to the applicant. … The defendants' submission is accordingly that the prospect that a discharge order will result in a financial benefit to the applicant can never outweigh the importance of maintaining the permanence of adoptions. Thus, the prospect that [Gordon] would obtain a financial windfall from [the deceased's] estate is not a 'reason' to make a discharge order for the purposes of s 93(4)(b)."
Finally, Mr Bland referred to the benefit that Gordon received from NAP's estate and submitted at par 56: "The defendants therefore submit that, having received a substantial benefit from his adoptive mother's estate, [Gordon] should not be granted a discharge of the adoption order that founded the relationship which gave rise to that benefit."
At the hearing, Mr Bland made a number of oral submissions going to Gordon's credit as a witness (Tcpt, 10 March 2020, p 81(44) - p 83(40)): "BLAND: Thank you, your Honour. I don't propose to repeat anything in my outline. I simply want to add to it by making submissions about [Gordon's] credit. As I said yesterday, much of his affidavit is corroborated by the contents of the medical records. As I said yesterday, they're broadly consistent. My submission about [Gordon's] credit is simply that he has exaggerated the circumstances of his childhood. HIS HONOUR: When you say it's broadly consistent with the medical records, you mean it's broadly consistent with the assertions of fact to the extent that they are repeated, either - they're consistent with what he said in the medical records. BLAND: Indeed. In fact my submission about that is that the documents are admissible as business records, and to that extent they're only admissible to the extent that they record representations of fact. In other words, if there is anything in them which amounts to an express or implied opinion by a medical practitioner, that would not be admissible under the Evidence Act. But statements recorded or attributed to [Gordon] certainly are admissible. HIS HONOUR: You said he exaggerated. BLAND: Yes. There's no doubt that he had a difficult childhood. I don't dispute that. But there doesn't seem to be any proper basis for the assertions in the affidavit about being physically disciplined. That is inconsistent with both the - well, both the documents I took him to earlier today. It's particularly striking in the handwritten notes by the therapist, because he's asked for instances of abusive treatment by his adoptive mother and he refers to swearing and mixed messages and so forth but nothing in the nature of violence, which is what you'd expect in response to a request for examples of abusive treatment. And there's the other points that I made or endeavoured to make in cross examination. It's inconsistent with his characterisation of the relationship that he remained living with his adoptive mother until he was 25, and it's curious - it's unusual that he ignored his adoptive mother in the year prior to her death, during her final illness, while his adoptive sister cared for her during that period in Hobart, and yet his adoptive mother didn't, in light of that, change her will. She treated each of her adoptive children equally. That I say is inconsistent also with [Gordon's] characterisation of his childhood treatment. Now, about the contrast between the two affidavits, I didn't contend and do not contend that the difference between them is - or the contrast is absolute. It's more subtle than that. For example, it's true that the New South Wales affidavit in para 60 describes the relationship between them, at least at the period which is in question. HIS HONOUR: You mean the relationship between the applicant and the deceased? BLAND: Yes, I'm sorry, between [Gordon] and his biological father. Paragraph 6, he says, 'My relationship with biological father throughout that period was good, although we always remained discreet.' Also, in para 74 of the New South Wales affidavit [Gordon] says, 'My biological father...up a façade.' But I maintain that the impression created by the two affidavits is very different. A good example of that is the matter that my friend took up in re examination. It's true that in the Queensland affidavit [Gordon] deposes that his biological father continually raised the rent on the houses that he was managing and squeezed his margins, but that contrast strongly, I submit, with the version given in the New South Wales affidavit which is given in this context. In para 65, para 65 begins, 'In early 2005…how I felt.' It's in the next paragraph that [Gordon] says, 'I did not…properties he had,' and so on. In that paragraph there's the very rhetorical repetition of the phrase, 'I obliged'. The effect of the reference to his biological father's treatment of their financial dealings in the New South Wales affidavit is characterised as a deception, that he deceived or perhaps even took advantage of [Gordon's] desire for a relationship to persuade him to move to Brisbane and only to be put to the realisation that that was a stratagem to make use of him as a manager, and that's simply not the impression you get from the Queensland affidavit. As I say, it's a subtle difference, but the fact remains that there is really no reference to the conversations in the New South Wales affidavit, the ones where he visits his biological father in hospital and is told to go away, or the recorded conversation in para 73, they're not mentioned. Nowhere in the New South Wales affidavit does [Gordon] describe their relationship as close, which is the adjective used in the Queensland affidavit. As I say, I submit the proper inference is that [Gordon's] affidavit in this proceeding is exaggerated. HIS HONOUR: You might be right, but I have to also remember that the two affidavits were prepared, effectively, for different purposes. One was a purpose to support an application for a family provision order and one was prepared for the purpose of applying for a discharge of that. The factual matrix in relation to each of them might be quite different. BLAND: They certainly are, but I submit that really makes my point. It was perceived that in order to support the family provision claim that it would be advantageous to characterise the relationship as close to depose that he managed to re-establish a good relationship with his biological father, whereas when it came time some time later to compile the New South Wales affidavit in support of this application, [Gordon] was looking to characterise the relationship as fraught and as supporting an argument that he seeks the discharge order in order to achieve some kind of closure to somehow repair the bridge between them, however you like to characterise it. There certainly is a difference between the factual matrix necessary to support each application, but that's really my point."
Mr Bland then referred, in conclusion, to the six circumstances that Mr Morris QC advanced at the hearing as amounting to an "exceptional reason" and submitted (Tcpt, 10 March 2020, p 84(07) - p 85(24)): "… What's required is that those circumstances constitute a reason why the adoption order should be discharged and I submit that's where the submissions for the applicant break down. It's necessary for [Gordon] to show that somehow a discharge order would improve his circumstances and thereby justify the making of such an order. In that context my friend referred to three ways in which it could be expected that a discharge order would improve [Gordon's] circumstances, firstly, financial; secondly, emotional; and, thirdly, the aversion or amelioration to suicidal tendencies. As to the financial aspect I've endeavoured to address that argument as best I can in paragraphs - it starts at para 48, I refer to the decision of Palmer J in Re Susan and make my submission in para 50, and I've expressed my submissions there as best I possibly can so that no purpose would be served to have me repeat myself. As to the emotional factor, I submit there's simply no evidence whatsoever that a discharge order would assist with [Gordon's] emotional state, emotional condition. He does not say that himself either in his affidavit nor anywhere in the medical records at least that I've noticed. My friend said that those records and the affidavit shows that [Gordon] has sought recognition of his status as his biological father's son. That's true that he sought that recognition from his biological father, not from anyone else and not from the Court. I submit a discharge order will do nothing to ameliorate his rejection by his now deceased biological father. Thirdly, is the issue of [Gordon's] suicidal tendencies and for completeness my friend has already referred to the letter of 28 November 2018 in the medical records, could I refer also, please, to a letter also by [Dr K] to her colleagues, Drs [S] and others, dated 19 June 2019 where at the end of the second paragraph - it's also on the Griffith University letterhead - [Dr K] says, '[Gordon] states that…he will suicide.' I submit that's an even more unambiguous assertion of the link between the suicidal inclination and failure to obtain a financial benefit from the estate. HIS HONOUR: It's certainly consistent with how I read the earlier. BLAND: Indeed. Could I also make an observation about the earlier letter? HIS HONOUR: Just pause for a moment, would you? BLAND: By all means. HIS HONOUR: It's exactly the same. If you look at the report of 19 June 2019 - I'm sorry, there was something else - as in 28 November 18 it's, 'If his legal to gain inheritance is not upheld he will suicide.' Then in 19 June report it's, 'If he does not succeed in gaining a share of his deceased father's estate he will suicide.' BLAND: Yes. My friend placed reliance upon the continuation of the sentence in 28 November letter where it said that, 'He will suicide as he will have nothing left financially or emotionally to survive.' I submit the reference to those two factors parallels something in the earlier paragraph where [Dr K] says, 'Unfortunately, [Gordon] has now exhausted all of his financial assets leaving him in a vulnerable position and he has maintained one main friendship'. So that, I submit, read in context those are the financial and emotional challenges that [Dr K] has in mind in that first sentence in the second paragraph. HIS HONOUR: It seems to me what makes the later report significant is that whilst it's fair to say that on 28 November 2018 these proceedings were not commenced, by 19 June 2019 the proceedings were commenced, yet despite the commencement of the proceedings in which a discharge order is sought, when he sees the doctor in June 2019 by which time the matter was close to being set down for hearing, it isn't that if he doesn't obtain a discharge order he will suicide. It remains if he doesn't obtain a greater share of the inheritance he will suicide. BLAND: Yes. I submit the second matter is much less ambiguous."
Mr Guterres provided written submissions in advance of the hearing on behalf of the Attorney-General. His written submissions helpfully summarised the background facts and the law. He went on to state: "The Attorney General reserves his position in relation to this ultimate question pending consideration of the oral evidence and submissions of the parties. The Attorney General makes the following submissions in relation to the relevant principles to be applied."
Mr Guterres repeated that reservation at pars 44-45 of his written submissions. However, he was prepared to submit, on the basis of the evidence that had been served at the time of the preparation of the submissions: "The Attorney General submits, however, that that there are significant evidentiary deficits in the applicant's case having regard to the various principles that have fallen from the relevant authorities. In this regard, the Attorney General makes the following observations: a. The applicant's evidence about the conduct of the adoptive parents is largely general in nature and short on detail. The most serious allegation could be said to be the claim that the applicant was struck with implements as a form of discipline. b. It is submitted that it is difficult to discern with precision the extent, frequency and seriousness of the adoptive mother's conduct. It is submitted that it would be difficult for the Court to conclude that the conduct was such as to justify the severance of the parental relationship. c. There is no corroborating evidence whatsoever of the applicant's claims about his treatment by the adoptive mother. d. The Attorney General submits that a significant omission in the evidence is the absence of any expert evidence in relation to the applicant's mental health and the likely impact on his mental health if an order is/is not made. Such evidence would be necessary if the applicant were to rely on any psychological injury he is said to have suffered. e. Likewise, the applicant fails to address at all whether he benefited from a distribution of his adoptive mother's estate. Notably this is a matter about which the applicant has been on notice for some time. f. The applicant's evidence likewise fails to contemplate the implication of his application upon his adoptive sister about whom little is known."
Mr Guterres closed his submissions with the observation, with which I respectfully agree: "In the meantime, the Attorney General observes that the facts of this case highlight the profound nature and impact that an adoption order has on not only the parties to the order but those around them. Similarly, the matter also illustrates the gravity of an order discharging an adoption order."
In his oral submissions, Mr Guterres addressed what Mr Morris QC had submitted were the circumstances amounting to an "exceptional reason" in the present case (Tcpt, 10 March 2020, p 85(44) - p 87(09)): "Firstly, your Honour, turning to the exceptional reasons identified, the first two of which appear to be related to the childhood, [Gordon's] childhood, that being the death of his adopted father and secondly the lack of emotional support. Your Honour, Palmer J in Re Susan at para 75 says this in relation to the circumstances of the death of an adoptive parent. He says, 'For example, the…of those parents.' I accept that my friend suggests that there was a combination of factors, but certainly your Honour could accept that, in and of itself that that would not be a circumstance that would be exceptional for the purposes of the Act. When your Honour considers [Gordon's] evidence about his childhood, can I invite your Honour to take into account the following evidence. Firstly, that [Gordon] continued to live with his adoptive mother until the age of 26, that is, well until the age - well into adulthood. Your Honour might consider that that is inconsistent with an unhappy environment, and that's an approach that is consistent with that taken by Brereton in LVH where he considered in that case that the fact that the applicant had left home at 15 or 16 as corroborative of his allegations against the deceased's adoptive parents. HIS HONOUR: What was the paragraph number in LVH? GUTERRES: Paragraph 60, your Honour. 60 onwards. Your Honour also might consider [Gordon's] evidence to the effect that his sister had provided, his adopted sister had provided, him with some financial assistance for these proceedings. Your Honour, one might take from that that he has a supportive relationship with his adoptive sister, which is a relevant consideration in my submission when your Honour considers the general evidence insofar as his childhood and family circumstances go. Your Honour doesn't have any evidence from her, so your Honour can't take into account or determine the effect of the discharge of an adoption order upon her. HIS HONOUR: Well there's really no evidence of anyone corroborating the evidence of the applicant in relation to his-- GUTERRES: That's so. HIS HONOUR: And there would have been. There were people who he gave evidence about; the next door neighbours - who he identified - and his sister, who he has obviously got some form of relationship with, because there was not only the recent events but in 2002 she and he were able to agree on the sale of the property to him. GUTERRES: That's so. Furthermore, your Honour, he says to the effect in his affidavit - I can't put my finger to the paragraph now - but to the effect that his adoptive mother resented the obligation that she had to provide for him and for his sister. The obligation to provide for these adopted children that she was left with. That appears, your Honour, might think inconsistent with the terms of her will. Your Honour might also consider that at para 60 of the applicant's Queensland affidavit he says this in relation to his therapy. 'I began seeing…and my depression.' He goes on to say at para 61, 'Since about 2009… [Dr K].' Your Honour might have formed the view having read those paragraphs that the treatment that he says he received in the early 90s continued with the subsequent treaters. But that's not reflected, in my submission, your Honour, in the medical records. Whilst it is the case that some aspects of his childhood are referred to from time to time, certainly your Honour couldn't form the view that it was the principle occupation of either [Gordon] or indeed of his treaters. And the clearest indication of that in my submission is the entry of 19 September 2018 where the person making the note expresses some surprise about the circumstances of his upbringing. HIS HONOUR: Well she - I think the person says, 'You didn't tell me about this before.' GUTERRES: Yes."
I interpose the recitation of Mr Guterres' submissions to observe a submission that Mr Morris QC made in reply relying on Browne v Dunn. Mr Morris QC submitted (Tcpt, 10 March 2020, p 93(36) - p 94(06)): "MORRIS: The second point of law I was going to raise is a Browne v Dunn point. The submissions on behalf of the Attorney General raised a series of criticisms of my client's evidence, not one of which was the subject of challenge in cross examination. Just to remind you of some of those submissions, reference was made to the affidavit in which my client deposes that his adoptive mother resented looking after him and his adoptive sister, and it was suggested in submissions that that was inconsistent with her will. That's something which would be a very good point in cross examination. HIS HONOUR: Mr Bland put it. MORRIS: Mr Bland put something else in relation to the will. He didn't identify a supposed inconsistency with the mother's resentment. HIS HONOUR: I see. MORRIS: As you work through the submissions - and I'm not going to go through all of that, I'm not seeking to have a second address on the facts - but each of the propositions advanced on behalf of the Attorney General critiquing my client's evidence is a proposition which could have been and wasn't put in cross examination."
With respect, Mr Morris QC's submission puts the matter too highly. A number of the criticisms that Mr Guterres made of Gordon's evidence were the subject of cross-examination by Mr Bland. For example, Mr Bland put to Gordon that his continued residence with NAP until 1991 was inconsistent with a negative view of the relationship: Tcpt, 9 March 2020, p 27(42) - p 28(02).
However, Mr Morris QC was correct to submit that the matter of the inconsistency of NAP's Will with her supposed resentment of Gordon was not a matter put to Gordon in cross-examination.
Where appropriate, I have considered where Mr Guterres has made a criticism of Gordon's evidence that may not have been put, expressly, in cross-examination.
Returning to Mr Guterres' submissions, he submitted as to the next of the circumstances raised by Mr Morris QC (Tcpt, 10 March 2020, p 87(09-17)): "The next factor or circumstance that is suggested is relevant for the purposes of being an exceptional reason is the emotion fragility of the applicant. Your Honour could have no doubt that that is an accurate description of him, but for your Honour to be satisfied that it is part of, or in itself, or in combination with others, an exceptional reason for discharging the order, your Honour would in my submission have to consider that a discharge of the order would ameliorate his mental health functioning. And in my submission your Honour would have some difficulty reaching that conclusion on the evidence before you."
Mr Guterres then took me to a number of entries in the medical records to which I have already referred. He then submitted (Tcpt, 10 March 2020, p 89(10-17)): "Certainly the upshot of those particular entries is that your Honour couldn't make any determination at all, and in fact it might be a dangerous thing for your Honour to do, that is to form a view as to how a dismissal or a discharge of the order - dismissal of the application or discharge of the adoption order - is likely to impact [Gordon's] psychological wellbeing. Your Honour simply couldn't form a view that it would improve his mental health in doing, and your Honour couldn't form a view that it would increase the risk of suicide."
Mr Guterres submitted, in conclusion (Tcpt, 10 March 2020, p 90(13) - p 91(02)): "GUTERRES: … It would be open to your Honour to consider that the motivating factor, I think - and certainly based on my friend's submissions on behalf of the applicant - that the precipitating factor at least in bringing these proceedings is a desire to be an eligible person for the purposes of making a family provisions claim in Queensland. If your Honour were to find that that was the case, that is that that is the motivation for bringing the application, the Attorney's position is that your Honour would not exercise your Honour's discretion in favour of discharging the order. It could not be an exceptional reason - or exceptional reason could not be that a person is ineligible to make a family provision claim. HIS HONOUR: Well, that's the whole effect of the adoption order. GUTERRES: That's so. HIS HONOUR: That you're no longer a child of the birth parent. GUTERRES: That's so, and there are a number of policy considerations that the Attorney General says flow from if your Honour were to reach that conclusion. That is, it would undermine entirely the very notion of permanency of adoption. It potentially provides a financial incentive for other litigants or other adoptees in terms of making such applications. It undermines or dampens the promotion of openness in adoption. When your Honour looks to the objects of the Act, that's a specific object that is set out in s 7, along with - that's at s 7(g), is 'to encourage openness in adoption'. Section 7(c) is also a relevant consideration, that is 'to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage'. In my submission it is a likely consequence, if your Honour were to discharge an adoption order on the basis that it - or to enable an applicant to be able to make a family provision claim. The likely consequence of that is that birth parents would not seen to have contact with adoptees. That is a relevant and important consideration when your Honour considers firstly whether or not there's an exceptional reason for doing so, and secondly if your Honour does consider that there's an exceptional reason for doing so when your Honour takes into account - or whether or not your Honour exercises your Honour's discretion."

[15]

Determination

I have thought long and hard about the evidence and the submissions. Respectfully, the submissions made on behalf of the executors and on behalf of the Attorney-General are far more persuasive than those made on behalf of Gordon.
It is Gordon, as a litigant who seeks to have a court discharge the adoption order made over 50 years ago, who bears the onus of proving facts and presenting argument that persuades the court that it is appropriate to make such an order. In deciding whether it there is an "exceptional reason" within the meaning of s 93, the Court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors. But, the reason does not need not be one that is unique, unprecedented, or very rare. The conclusion that the reason is exceptional can arise in many ways. Ultimately, it is the nature of the reason, or reasons, which provides the answer to the question whether to discharge the adoption order.
Yet, where there is an exceptional reason, whether or not to grant a discharge order remains a matter of discretion. In accordance with the objects of the Adoption Act, as stated in s 7(a), the interests of the child, in "later life", must be the paramount consideration. Section 7(a) provides: "The objects of this Act are … to emphasise that the best interests of the child concerned; both in childhood and in later life, must be the paramount consideration in adoption law and practice …"
Of course, now, the best interests of the child, in childhood, cannot be relevant as he is now about 55 years old. However, whether to discharge an adoption order in respect of a person who has since become an adult will remain a decision in which his best interests are paramount. Also, in considering the best interests of Gordon, one cannot ignore the effect that the order may have on the interests of others.
In determining the best interests, and considering whether there is an exceptional reason, there is a need for caution when considering uncorroborated, and otherwise unsupported, events which are said to have occurred after the adoption order as a basis for discharging the adoption order. As was written by Palmer J in Re Susan at [24]: "… 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."
Furthermore, unlike the applicant in the Adoption of LVH, in this case, it could be said that there is a reason, or motive, to at least exaggerate, if not fabricate, the events concerning Gordon's treatment at the hands of the adoptive mother. In this case, there may be a "pot of gold at the end of these proceedings for him" as was acknowledged in the submissions of Queen's Counsel.
There is nothing in the complaints made, even accepting that the conduct of NAP has been established, about such conduct to suggest it was "exceptional". The treatment by NAP deposed to by Gordon falls well short of the kinds of physical, and sexual, abuse, which has been accepted in other cases as exceptional reasons to discharge an adoption order. Even if regarded as unpleasant, the conduct of NAP towards Gordon could not, in my view, be regarded as providing an exceptional reason to discharge the adoption order. At its highest, it seems to me to demonstrate no more than commonplace human failing or inadequacy and a deficiency in parental character.
It is further necessary to note that there is no corroborating evidence, whatsoever, of his claims about his treatment by NAP.
That Gordon is emotionally upset and disturbed by rejection by his adoptive mother is a relevant matter. Yet, in examining whether a discharge order will make any appreciable difference to Gordon, I have come to the clear view that it would not. There is no evidence that, almost 20 years after NAP's death, a discharge order would ameliorate any remaining effects of the treatment that Gordon asserted that he suffered at her hands.
So far as Gordon is also emotionally upset and disturbed by the rejection by the deceased, his natural father, I am of the same view. In particular, there is no evidence that a discharge order would do anything to ameliorate the hurt he feels as a result of the deceased's rejection of him, or that a discharge order will lead to reconciliation with members of his biological family. Indeed, the opposition by the executors of the estate of the deceased, all of whom are members of the deceased's immediate family, suggests that the relationship which Gordon has with his biological relatives is unlikely to improve.
Furthermore, the sense of abandonment and desire for a connection with his biological family may be seen as part of the experience of many adopted children. In my view, that sense and desire is not, of itself, exceptional, for the purposes of s 93(4)(b). In any event, there is no evidence that a discharge order would alleviate the effect that Gordon's adoption has had on his mental state.
Of course, a discharge order may enable Gordon to continue with his application for a family provision order in Queensland. However, I accept the submission made by the executors that "the prospect that a discharge order will result in a financial benefit to the applicant can never outweigh the importance of maintaining the permanence of adoptions. Thus, the prospect that [Gordon] would obtain a financial windfall from [the deceased's] estate is not a 'reason' to make a discharge order for the purposes of s 93(4)(b)".
I have earlier referred to the benefit Gordon received following the death of NAP. Having received that benefit, Gordon should not be granted a discharge of the adoption order that founded the relationship which gave rise to that benefit. This is a matter to be taken into account in the exercise of the Court's discretion even if there were established an exceptional reason.
Gordon has failed to satisfy me that there is any exceptional reason to make the discharge order.
The Court orders that the notice of motion filed 24 December 2018 be dismissed with costs.
In accordance with what was agreed by the parties at the conclusion of the hearing and in the interests of saving further costs, I will publish these reasons without requiring the parties to appear: Tcpt, 10 March 2020, p 95(32-50).

Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673

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