whilst the order for adoption was in force."
71 The phrase "exceptional reason" in s 25(1)(c) seems to have come from the phrase "exceptional circumstances" in s 13(1) of the Adoption of Children Act 1928 of Victoria. I do not think that there is any material difference in meaning between the two phrases. McInerney J was of the same view in Re S [1969] VR 490, at 494, when his Honour came to apply s 16 of the 1964 Victorian Adoption of Children Act, which was in virtually the same terms as s 25(1)(c) of the 1965 New South Wales Act.
72 Section 13(1) of the 1928 Victorian Act provided that the Supreme Court was empowered, in its discretion, to vary or discharge an adoption order upon application made to it by a law officer who, after enquiry, had satisfied himself that "owing to the exceptional circumstances of the case" the application should be made. However, the Court could not vary or discharge the order unless satisfied that it would be for the welfare of the child.
73 It is to be noted that under s 13(1) of the Victorian Act whether circumstances qualified as "exceptional" was a question for the law officer contemplating an application, not for the Court. However, the Court would in due course have to take full account of those circumstances in dealing with the application. In A v C-S (No 1) [1955] VLR 340, at 368, Sholl J said:
"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. It is for him to decide what are exceptional circumstances, and not for the Court, once he has applied to it, to do so; though doubtless in exercising its own discretion the Court would later have regard to them in a different aspect. In this case the Attorney-General was so plainly right in applying to the Court that I do not suppose anyone would for a moment suggest otherwise; the circumstances were quite extraordinary. But there may be very many other types of cases in which the application might be expected to be made. 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 or 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."
74 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.
75 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.
76 Similarly, divorce of the adopting parents cannot itself warrant discharge of an adoption order. At the time of the judgment in A v C-S, divorce was still fault-based; it was far less common, and was attended with far greater social stigma, than it is today. The children of divorced adoptive parents are in no different case, in terms of their overall welfare, than the children of divorced birth parents.
77 Again, the fact that an adoptive parent has been convicted of a crime would not warrant the discharge of an adoption order without an examination of the nature of the crime and its impact upon the ability of the adoptive parent to care for the child in his or her best interests. Doubtless, there are burglars who make exemplary parents. Discharge of an adoption order is not a punishment for bad behaviour which is unrelated to the welfare and best interests of the child.
78 Whether a serious mistake by the Court which makes the adoption order is an "exceptional reason" for discharge depends upon whether the mistake directly touches the interests of the child.
79 For example, in Re Adoption Application No AD 58/1984 (1986) 11 Fam LR 518 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. The adoptive mother was the child's birth mother, the adoptive father was the stepfather. The birth father had in fact been involved with the child continuously. The Attorney General, on behalf of the father, successfully sought a discharge of the adoption order. Kelly J in the Supreme Court of the Australian Capital Territory held (at 522) that: "When 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", and his Honour referred to the passage from the judgment of Sholl J in A v C-S which I have cited above.
80 While I think that I may safely say that certain examples given by Sholl J in A v C-S would no longer, in themselves and without more, constitute an "exceptional reason" warranting discharge of an adoption order, I should resist the strong temptation (to which Sholl J succumbed) to give other examples of circumstances which would, in my opinion, constitute an "exceptional reason" warranting discharge. As McInerney J wisely said in Re S (supra) at 495:
"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. To adapt the language of Smith, J, in Shepperdson v Lewis , [1966] VR 418, at p. 423, it is 'an invitation to courts to enjoy the ease of travelling in a groove; that groove being one which, when available, will lead automatically to a solution in all but exceptional cases' . I agree with the comment which Smith, J, went on to make that 'to fetter the discretion in this way is, ... wrong in principle' ."
81 In my opinion, the principle upon which the Court should act in an application for discharge under s 93(4)(b) can be stated no more precisely than it was by McInerney J in Re S at 495:
"I am disposed to think that under s16 [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."
82 The "essential objects" of an adoption order to which his Honour refers are to advance the best interests of the child "both in childhood and in later life" (s 7(a), s 8(1)(a)) by means of establishing a secure and permanent relationship between adoptive parents and adopted child which will enable the child "for the full and harmonious development of his or her personality, (to) grow up in a family environment, in an atmosphere of happiness, love and understanding". These last quoted words are taken from the preamble to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, to which Australia is a signatory and which is adopted by s 210 of the New South Wales Adoption Act.
Sexual abuse as "exceptional reason"