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[2026] NSWSC 77
General information, not legal advice.
Supreme Court of NSW
2026-02-16
McGrath J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Discharge of Adoption of Rose Mary Smith [2026] NSWSC 77
Hearing dates: 5 February 2026
Date of orders: 16 February 2026
Decision date: 16 February 2026
Jurisdiction: Equity - Adoptions List
Before: McGrath J
Decision: Discharge adoption order made; Order made to register details of birth
Catchwords: CHILD WELFARE — Adoption — application by adult adopted child to discharge adoption order made when a newborn child — where allegations of sexual, physical and emotional abuse of applicant by adoptive parents — where applicant reported allegations of sexual abuse more than 30 years after the alleged acts — where irretrievable and complete breakdown of relationship between adoptive parents and applicant — whether an exceptional reason shown — whether discharge of adoption order in applicant’s best interests — whether applicant’s names should be changed — HELD — discharge of adoption order in applicant’s best interests
CHILD WELFARE — Adoption — registration of details of overseas birth following discharge of adoption order — HELD — order to register details of overseas birth in New South Wales
Legislation Cited: Adoption Act 2000 (NSW), ss 7, 8, 93
Adoption of Children Act 1965 (NSW), s 25
Australian Citizenship Act 1948 (Cth), s 10A
Births, Deaths and Marriages Registration Act 1995 (NSW), ss 4(1), 13(2), 17, 19, 24, 43
Immigration (Guardianship of Children) Act 1946 (Cth)
Births, Deaths and Marriages Registration Regulation 2025 (NSW), ss 5, 6
Cases Cited: Adoption of LVH [2014] NSWSC 1902
Discharge of Adoption of Isabel (a pseudonym) [2024] NSWSC 565
Discharge of Adoption of K [2022] NSWSC 1197
Discharge of Adoption of Kate (a pseudonym) [2023] NSWSC 1317
Re Henry [2022] NSWSC 1738
Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673
Re S [1969] VR 490
Re Susan [2009] NSWSC 592
Texts Cited: Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 4
Category: Principal judgment
Parties: Taylor Jones (Plaintiff)
Secretary, Department of Communities and Justice (Intervener)
Representation: M Bradley (Plaintiff)
BJ Dean (Intervener)
File Number(s): 2025/00319263
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)
This is an application by Taylor Imogen Jones (Ms Jones) under s 93(4)(b) of the Adoption Act 2000 (NSW) seeking to discharge the adoption order which was made in respect of her by this court on 3 July 1989. At the time of the adoption order, the name of Ms Jones was “Rose Mary Smith”.
Ms Jones also seeks consequential orders under s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) to register her birth in the Births, Deaths and Marriages Register in the event that the discharge order is made.
The discharge application arises in the most distressing circumstances, being the alleged sexual assault of Ms Jones by her adoptive father during her childhood, the alleged emotional and physical abuse by her adoptive parents and the complete breakdown of her relationship with her adoptive family.
The Secretary of the New South Wales Department of Communities and Justice (DCJ) was joined as an intervener to the proceedings to assist the court in determining the discharge application. I was greatly assisted by the submissions made by the Secretary.
For the reasons set out below, I am satisfied that this is an appropriate case in which I should order the discharge of the adoption order and make the consequential orders. In this published version of this judgment, all persons and places referred to have been assigned pseudonyms in keeping with s 180 of the Adoption Act 2000 (NSW). I have not used Korean pseudonyms so as to ensure that I do not unknowingly transgress any Korean naming conventions and practices.
On 10 February 1987 at 9:10pm, Ms Jones was born as Rose Mary Smith, weighing 3.2 kilograms in Seoul, South Korea. Ms Jones was born as the daughter to her bi****rth parents, Kate Smith (nee Roberts, her bi****rth mother) and Jacob Smith (her bi****rth father), who were married to each other at that time but have since divorced.
Ms Jones has three older biological sisters: Olivia Smith, Poppy Smith and Jessica Smith.
Also on 10 February 1987, Ms Jones was taken into care by the Eastern Child Welfare Society, a Korean adoption agency. On 6 March 1987, the Executive Director of the Eastern Child Welfare Society became the guardian of Ms Jones. On 10 March 1987, the Executive Director of the Eastern Child Welfare Society gave consent to the immigration of Ms Jones to Australia and authorised the New South Wales Department of Youth and Community Services (as the predecessor to the DCJ was then known) to make any and all decisions and to take any and all legal steps necessary to accomplish her immigration to Australia and adoption.
On 25 June 1987, the adoptive parents of Ms Jones, Henry Evans (her adoptive father) and Mia Evans (her adoptive mother), arrived in Korea. The adoptive parents have an older biological child, Laura Evans (her adoptive sister), who is about 10 years older than Ms Jones.
On 30 June 1987, Ms Jones was placed in the care of the adoptive parents.
On 1 July 1987, the adoptive parents returned to Australia accompanied by Ms Jones.
At all relevant times, the adoptive parents were Australian citizens.
Ms Jones entered Australia as an immigrant child under the guardianship of the then Minister for Immigration and Ethnic Affairs, and was subject to the relevant provisions of the Immigration (Guardianship of Children) Act 1946 (Cth). The guardianship of the Minister for Immigration and Ethnic Affairs was then delegated to the Director General and other executive officers of the New South Wales Department of Youth and Community Services.
On 3 July 1989, this court made orders for the adoption of Ms Jones in favour of the adoptive parents pursuant to the Adoption of Children Act 1965 (NSW), approved her change of name to Taylor Evans and dispensed with the consent of the birth parents and the Eastern Child Welfare Society.
Ms Jones resides in Victoria and works full-time.
In June 2020, Ms Jones gave birth to her daughter Sarah, who is now five years old.
On 6 April 2021, Ms Jones (then named Taylor Evans) married Harry Jones.
Ms Jones resided with the adoptive parents in New South Wales for 13 years and then in Victoria. During the time that Ms Jones was residing with the adoptive parents in New South Wales, and when Ms Jones was seven years old, her adoptive sister moved out of the family home.
Ms Jones recalls that when she was aged around four years old, she was standing on her bed in her pyjamas saying goodnight to her adoptive father and, while he was kissing her, he stuck his tongue into her mouth. This resulted in Ms Jones pulling away and saying, “I don’t want to do this anymore”.
Ms Jones also recalls that at about the same age, she was sleeping in the bed of her adoptive parents with only her adoptive father present and, in the middle of the night, she woke up while she was being sexually assaulted by him. Ms Jones said that during this episode, her whole body felt like she was floating above the bed, which she described as a “memory of dissociating” from what was happening to her.
Ms Jones also described episodes during her growing up years with her adoptive parents to the following effect:
Her adoptive mother was often drunk and scary, including on an occasion when Ms Jones was eight or nine years old, her adoptive mother asked Ms Jones to fix the television. When Ms Jones was unable to do so, her adoptive mother threw the television remote control at her head and chased her down the hallway, trying to physically hurt her, screaming as she ran away. Ms Jones locked herself in her bedroom and told her adoptive mother she was going to call the police. Ms Jones called her adoptive father crying and told him what had occurred, but nothing happened as a result.
Ms Jones told her adoptive parents that she wanted to go back to Korea and leave them because of the way they were treating her, which resulted in her adoptive mother telling Ms Jones that if it were not for them, she would be “living in a cardboard box on the street”.
When Ms Jones was 16 years old, she was on holiday with her adoptive parents, her adoptive parents’ siblings and extended family, and her adoptive mother was very drunk. As Ms Jones was laying down on her bed, her adoptive mother was smoking inside the hotel room right next to Ms Jones’ bed. Ms Jones asked her adoptive mother not to smoke inside and to go outside and smoke, which resulted in her adoptive mother running towards Ms Jones screaming, with her arms and hands lunging at her to choke her. In an act of self-defence, as her adoptive mother lunged towards Ms Jones, she lifted her legs up and kicked her adoptive mother away, causing her adoptive mother to fall to the floor. Her adoptive mother then informed her adoptive father that Ms Jones had attacked her. Ms Jones then laid in bed, crying and numb for hours.
The grandfather of Ms Jones (the father of her adoptive father) left her a $10,000 inheritance to be held in trust until she turned 18 years old. During the period while Ms Jones was 16 to 18 years old, her adoptive father took the inheritance of Ms Jones so that when she turned 18 years old, there was only $3,000 remaining for her.
In August 2018, Ms Jones received documents from the Eastern Child Welfare Society in Korea, which included a letter from her birth mother in which she expressed her hope to see Ms Jones, her love for Ms Jones and her desire to meet Ms Jones.
In February 2023, Ms Jones located her birth mother, Kate Smith. Ms Jones has been unable to locate her birth father despite making attempts to do so. Unsuccessful attempts to locate the birth father have also been made by the Secretary in 2025.
On 30 October 2024, Ms Jones travelled with her husband to Korea to meet her birth family in person. Ms Jones met her birth mother, aunt, brother-in-law and her three sisters.
On 19 March 2024, Ms Jones told her husband of her memories of childhood sexual assault. Ms Jones was 37 years old when she told her husband of the events which occurred when she was four years old. As a result, there was a 33 year gap between the time of the alleged sexual abuse and her first mention of it to anyone.
On 20 March 2024, Ms Jones told her general practitioner, Dr Dawn Oi, of her memories of sexual assault.
On 22 March 2024, Ms Jones disclosed the memories of her sexual assault to her psychotherapist, Gianna Mazzone, and was referred to the Western Region Centre Against Sexual Assault for specialist sexual assault therapy. In May 2024, Ms Jones commenced therapy with the Western Region Centre Against Sexual Assault.
On 14 May 2024, Ms Jones again disclosed the sexual abuse and emotional abuse she had suffered to her psychotherapist, Ms Mazzone.
After visiting her birth family in October 2024 in Korea, Ms Jones told her adoptive mother of the sexual abuse she had suffered from her adoptive father. Her adoptive mother accused her of making up the allegation.
On 28 December 2024, Ms Jones contacted Victoria police to report the sexual assault that she had suffered.
During October 2025, Ms Jones spoke to members of Victoria police of her memories of child sexual assault perpetrated by her adoptive father. She was informed that the record of her report would be forwarded to New South Wales police.
My childhood with Henry and Mia was terrible, has done me irreparable harm, and the only way I can even begin to heal is to have the adoption discharged so that I do not belong to them as their ‘child’, anymore.
If my adoption is discharged, I will be legally returned to my identity, and my true family heritage will be restored. I will be placed back into the correct family tree, my ancestry and lineage will be correct, for me, my children, and their children, going forward. I will be connected to my siblings, cousins, and other relatives. I will finally be in the right place.
Currently, because I am adopted, I am forced to exist in a fabricated identity, as the wrong person, in the wrong family tree. I am caught in an unjust lie, legally bound to the wrong people, listed as my ‘parents’ and the wrong ‘sister’. Because I am adopted everything is wrong. I have a real identity but because I am adopted, I am not allowed to live in it. Not being allowed to live in my own identity causes me constant, inescapable distress.
I cannot exist happily as this fake person, in a fake identity, with a fake ‘family’. It makes me feel sick to my stomach that two child abusers who stole me from my entire family are currently listed on the records as my legal parents and the grandparents of my children. This sick feeling is with me 24/7 and the only way I can escape it is to escape this adoption, which is a cruel prison inflicted on my person.
…
I have suffered chronic abuse across all forms from my adopters, across all ages of life: sexual assault, physical abuse, emotional abuse, psychological abuse and financial abuse.
To live the rest of my life being adopted will be detrimental to my mental health. I will never begin recovery unless I am free of this scenario.
…
As an adult, I have a voice, and I am using this voice to ask the Court for help.
Nobody will ever take away the pain I have to live with every day, but the Court could provide me freedom from my adopters and to correct legally what has taken place, via a discharge. …
Ms Jones has been consulting with her psychotherapist, Gianna Mazzone, for the past eight years. Ms Mazzone provides support services to Ms Jones as part of her role in providing free ongoing support to families formed through intercountry adoption, which was established through funding provided by the Commonwealth Department of Social Services.
In a report dated 12 October 2025 provided to the court, Ms Mazzone has provided the following opinions:
In her therapy sessions [Ms Jones] has detailed a harrowing account of trauma and abuse at the hands of her adoptive parents which began in childhood.
Grief, loss and identity are some of the core issues in adoption and having a sense of belonging, connection and safety are imperative in developing a secure sense of self.
Ms Jones does not have a current sense of belonging legally, emotionally or psychologically and continues to experience distress caused by the ongoing contact with her adoptive parents.
I support the notion that the discharge of her adoption is of the utmost importance to Ms Jones in freeing her from any ties to her adoptive family.
Ms Jones is seeking to legally remove the link between herself and her adoptive family to improve her sense of identity separate from them and to protect her family from the ongoing trauma she has experienced.
As her long term Psychotherapist, I strongly support Ms Jones’s request for a discharge of her adoption and trust that it will bring great healing. [Ms Jones] has been committed to ongoing therapy and other support services to maintain her mental health and well-being for the benefit of herself and her own family.
In my professional capacity I strongly believe that should the discharge not be granted this will have a significant and detrimental impact on Ms Jones’s mental health and well-being.
I respectfully ask the court to grant the discharge to allow Ms Jones to begin the healing process and be free of the family tie that has caused her much harm.
Adoptees often express being robbed of any agency around their adoption and as an adult, [Ms Jones] should be allowed to take back control of her life by deciding who she wants to include in her family.
I have also been provided with an affidavit dated 29 September 2025 from the treating general practitioner of Ms Jones, Dr Dawn Oi.
In her affidavit, Dr Oi stated as follows:
I have been seeing Ms Taylor Jones as a patient since 2019.
During her visits with me since then she has articulated her reasons for seeking a discharge of her adoption.
Ms Jones has stated to me during her visits over the years several times that she had been sexually abused by her adoptive father during childhood, and emotionally abused by her mother from childhood into adulthood. This has produced severe trauma within Ms Jones and also affected her own parenting of her daughter Sarah.
The discharge of her adoption is of utmost importance to Ms Jones in freeing her from any ties to her adoptive family.
Ms Jones is suffering grief, loss and identity issues as a result of her adoption, and especially since she has suffered emotional and sexual abuse at the hands of her adoptive parents she has no sense of belonging, connection nor safety either legally, emotionally or psychologically.
Ms Jones is seeking to legally remove the link between herself and her adoptive family to improve her sense of identity separate from them. I, as her General Practitioner of six years wholly support her in this action.
In her affidavit Ms Jones outlines the importance of having a full sense of identity that is not linked to the people she was placed with through adoption. I as her General practitioner support her with this.
I agree that Ms Jones was not given a voice as [a] child nor was she consulted on her wishes in regard to being adopted.
Ms Jones asks that the Court now [sic] her voice and give due weight to her request that her adoption be discharged. I as her General practitioner support her in this request and trust that this will bring great healing to her.
In her professional capacity I strongly believe that should the discharge not be granted this will have a significant and detrimental impact on Ms Jones’s mental health and wellbeing.
I as her General practitioner respectfully ask the court to grant the discharge to allow Ms Jones to begin the healing process and be free of a family tie that has caused her much harm.
I have also been provided with a letter dated 18 June 2025 in which Dr Hannah Dobson states that Ms Jones suffers from obsessive-compulsive disorder and that she is on medication for anxiety.
Ms Jones has also stated that even with medication and regular treatment, she experiences “intrusive thoughts daily that someone will take my daughter from me or will sexually assault her”.
Amongst the matters which are recorded in the treatment notes of Dr Oi and Dr Dobson are repeated reports by Ms Jones of her significant anxiety around child safety and intrusive thoughts about potential harm to her daughter, with specific obsessions related to her daughter being sexually assaulted. These anxieties included significant difficulty in trusting others with childcare for her daughter, especially family members and close friends.
On 7 November 2025, a Citizenship Helpdesk Officer within the Commonwealth Department of Home Affairs confirmed in writing that, assuming Ms Jones to be an Australian citizen, her Australian citizenship will not cease as a result of any discharge of the adoption order. This is because s 10A of the Australian Citizenship Act 1948 (Cth) (ACA) resulted in an automatic acquisition of Australian citizenship upon the making of the adoption order on 3 July 1989.
Section 10A of the ACA applied from 22 November 1984 and stated:
10A Citizenship by adoption
A person, not being an Australian citizen, who:
(a) under a law in force in a State or Territory, is adopted by an Australian citizen or jointly by 2 persons at least one of whom is an Australian citizen; and
(b) at the time of the person’s adoption is present in Australia as a permanent resident;
shall be an Australian citizen.
At the time of the adoption order on 3 July 1989, Ms Jones had entered Australia on 1 July 1987 pursuant to a permanent visa and both of the adoptive parents were Australian citizens. As a result, I consider that by the satisfaction of both conditions under ss 10A(a) and (b) of the ACA, Ms Jones became an Australian citizen on the making of the adoption order on 3 July 1989.
The Secretary has sought legal advice from Joanne Kinslor of Kinslor Prince Lawyers, an accredited specialist in immigration law, on various immigration and citizenship law issues in relation to Ms Jones, including what impact, if any, an adoption discharge order would have on her Australian citizenship.
The legal advice provided by Ms Kinslor is confidential. After giving consideration to that advice, I am satisfied that if I make an order to discharge the adoption order in respect of Ms Jones, it is highly likely that she will remain an Australian citizen.
93 Discharge of adoption orders
(1) In this section—
concerned person means the Attorney General, or any party to an adoption.
(2) A concerned person may apply to the Court for an order discharging an adoption order (a discharge order).
(3) The Court is to give each concerned person (other than the applicant for the discharge order) notice of the application.
(4) The Court may make a discharge order if it is satisfied that—
(a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or
(b) there is some other exceptional reason why the adoption order should be discharged.
(5) The Court must not make a discharge order if it appears to the Court that—
(a) the making of the order would be prejudicial to the best interests of the child, or
(b) if the application for the order is made by the child—the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child’s access to information or contact with a person under Chapter 8 (Adoption information).
(6) If the Court makes a discharge order respecting a general consent, that consent remains effective for the purpose of a further application for an adoption order in relation to the same child, unless the Court orders otherwise.
(7) If the Court makes a discharge order, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the best interests of the child, including orders relating to the following—
(a) the name of the child,
(b) the ownership of property,
(c) the parental responsibility for the child,
(d) the domicile of the child.
(8) On the making of a discharge order, but subject to any order made under subsection (6) and to section 95 (4), the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made, but without prejudice to—
(a) anything lawfully done, or
(b) the consequences of anything unlawfully done, or
(c) any proprietary right or interest that became vested in any person,
while the adoption order was in force.
The Dictionary to the Adoption Act defines “adoption order” to mean “an order for adoption of a child made or recognised under this Act or a former Act”, and defines “former Act” to include the Adoption of Children Act 1965 (NSW). This means that s 93 applies to an adoption order made under the Adoption of Children Act 1965 (NSW) as occurred with respect to Ms Jones.
In the present case, the focus of the submissions was on the question of whether there was “some other exceptional reason why the adoption order should be discharged” under s 93(4)(b) of the Adoption Act.
The objects of the Adoption Act are stated in s 7 of the Adoption Act, which include:
“to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice” (s 7(a));
“to make it clear that adoption is to be regarded as a service for the child concerned” (s 7(b)); and
“to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas” (s 7(e)).
Section 8 of the Adoption Act sets out the paramount consideration in making a decision about the adoption of a child to be the best interests of the child and the matters which must be considered in determining those best interests. Section 8 is relevantly in the following terms:
8 What principles are to be applied by persons making decisions about the adoption of a child?
(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles—
(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,
(b) adoption is to be regarded as a service for the child,
(c) no adult has a right to adopt the child,
(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,
(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,
(e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare,
…
(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,
…
The Dictionary to the Adoption Act states that “child” means a person who is less than 18 years of age or a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made.
It is clear from s 8 of the Adoption Act that a “decision about the adoption of a child” includes the discharge of an adoption order made in respect of a child who is older than 18 years of age, and that the paramount consideration in deciding whether to make the discharge of an adoption order is the best interests of the child throughout the child’s life. I discern that in applying s 8, the interests or expressed wishes of persons other than the child are only relevant for determining those best interests of the child.
This court has previously considered the question of whether to discharge an adoption order for an “exceptional reason” on the basis of alleged sexual abuse of the child by an adoptive father and the resulting trauma to the child. Those decisions provide strong guidance on the approach of the court to that question.
In Re Susan [2009] NSWSC 592, Palmer J dealt with allegations of repeated sexual assault of the adopted child (Susan) by her adoptive father from the time she was five years old, as well as allegations of sexual assault of her sister (Mary). The adoptive father was later charged and convicted of the sexual assault of Mary and sentenced to imprisonment for 12 months. Palmer J noted at [28] that Susan’s allegations could not be corroborated or denied as the adoptive parents were dead, there was no witness of the alleged episodes, Susan did not make a complaint against the adoptive father until many years later, there was no contradictor in the case and Susan’s evidence was not tested by cross-examination.
On the issue of the nature of the relationship between an adoptive parent and child, determining the interests of the child and the appropriate standard to apply in finding the facts in circumstances of alleged sexual abuse in support of an adoption discharge application, Palmer J at [23]–[27] stated as follows:
[23] The law equates, so far as is possible, the relationship between adoptive parent and adoptive child with the relationship between birth parent and child. The parental relationship is the most fundamental, enduring and significant of all human relationships. Severance of that relationship by the discharge of an adoption order can overturn the identity, family structure and legal relationships not only of the adopted person but of many others as well. While the Court has paramount regard to the interests of the child in exercising its discretion whether an adoption order should be discharged if the facts alleged have been established, the Court must, in satisfying itself that such facts have indeed been established, bear in mind the effect that the order may have on the interests of others.
[24] Accordingly, in an application for discharge of an adoption order by an adopted child, the Court cannot, on the ground of advancing the child’s best interests, give the child the benefit of the evidentiary doubt in the exercise of finding whether the facts supporting the application have been proved to its satisfaction. The Court must be satisfied to the appropriate standard that the facts calling into play the exercise of the discretion have been proved.
[25] Section 140 Evidence Act 1995 (NSW) provides:
*“*Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.”
[26] As I have said, the nature of an application to discharge an adoption order is of the most serious and permanent kind. Because an adoption order cannot be discharged under s 93(4)(b) other than for some “exceptional reason”, the facts alleged in support of the application are likely to be, in themselves, exceptional. In this case, the allegations of sexual abuse of a child by an adoptive father are of the gravest kind.
[27] Bearing in mind these considerations, I should not find that Susan has established the allegation of sexual abuse which is the foundation of her application unless I am satisfied by clear and cogent proof: Director General of Department of Community Services; re Sophie [2008] NSWCA 250, at [50], [68]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 171.
On the other hand, Susan’s account of what happened to her has been repeated consistently by her to her psychiatrists and psychologists since she first became able to talk about her experience. Her evidence is indirectly corroborated by that of Mary, who gives similar fact evidence and evidence of a tendency to sexual abuse on Ralph’s part. It is also corroborated, indirectly but cogently, by Ralph’s conviction for indecent assault on Mary. It is corroborated by Susan’s medical records showing some likelihood of sexual interference in June 1963. It is corroborated also by Susan’s subsequent life history which is, according to the expert psychiatrist, entirely consistent with, and typical of, trauma caused by sexual abuse as a child.
In Re Susan at [30], Palmer J expressed that “I am fully satisfied that Susan’s allegations of sexual abuse by Ralph have been proved”. His Honour then went on to detail the effects of the sexual abuse on Susan and survey the relevant provisions of the Adoption Act and the approach taken to the discharge of adoption orders in this and other jurisdictions. Palmer J at [47]–[53] described two competing policy considerations in an application to discharge an adoption order, being:
the paramount consideration of the interests of the child as enshrined in s 8 of the Adoption Act; and
if adoption orders can easily be set aside, then it would undermine the proposition that the relationship between an adoptive parent and adoptive child is in all respects the same as between a natural parent and child, being a permanent and irrevocable commitment to the child.
Amongst the authorities relied upon by Palmer J in Re Susan was the decision on Re S [1969] VR 490. In Re S, McInerney J considered the meaning of “exceptional circumstances” in s 13(1) of the Adoption of Children Act 1928 (Vic), which was materially in the same terms as the “exceptional reason” used to ground the discharge of an adoption order under s 25 of the Adoption of Children Act 1965 (NSW). In Re Susan, Palmer J at [80]–[81] said:
[80] … 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.
[83] There can be nothing more destructive of the complete and unquestioning trust of a child in a parent than violent abuse of that child by the parent. That abuse may be physical, emotional or sexual; each in its own way is horrific and damaging.
[84] The very notion of any sexual relation between a parent and a child revolts against nature. The child who has suffered serious sexual abuse by a parent is scarred for life. For some who have suffered such injury, the wounds may never heal. Some may, in turn, become sexual abusers of children. Others may cope better, but all are cheated of “the full and harmonious development of his or her personality … in an atmosphere of happiness, love and understanding”, which the upbringing of every child should seek.
[85] These observations hardly need reference to authority. They are part of human experience and underlie the legislation of all civilised countries for the protection of children and young people.
[86] When a natural parent is found to have sexually abused his or her child, or to have condoned or encouraged such abuse, the child may be removed permanently from the care of such parent and, in an appropriate case, placed for adoption: see e.g. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 23(c), s 43(3)(b), s 71(1)(c), s 79(1)(b), s 83(3), s 83(4). If sexual abuse can justify the severance in law of the biological relationship between birth parent and child, how much more so does sexual abuse justify severance of a parental relationship created by juridical act. What the Court has done, the Court can always undo.
Palmer J at [88] expressed the view that “the Court must seriously examine whether a discharge order will make any appreciable difference to Susan’s healing process” and “bearing in mind the high importance of maintaining permanency in the adoptive relationship, the Court should not discharge the adoption order in this case unless it is comfortably satisfied that discharge will make a significant improvement to Susan’s life”.
Palmer J at [94] concluded that on the facts in Re Susan, there was an exceptional reason to discharge the order for Susan’s adoption.
In Adoption of LVH [2014] NSWSC 1902, Brereton J at [9] held that while it is “undesirable to list categories of what might amount to exceptional reasons” under s 93(4)(b) of the Adoption Act, the expression in Re Susan at [86] of there being circumstances arising “post adoption as would justify the termination of the adoptive parent’s parental responsibility for the child if they were natural parents of the child” did provide “a useful touchstone of the circumstances in which post adoption events might amount to exceptional reason”.
In Re Henry [2022] NSWSC 1738, Slattery J considered the application to discharge an adoption order made by a First Nations man (Henry), who alleged that he was the subject of regular and persistent sexual abuse from when he was about four years old by his adoptive father and other male relatives living in the same household.
In Re Henry, Slattery J addressed the issue of the standard of proof required to be satisfied in relation to the findings of fact regarding sexual assault to support an application to discharge an adoption order, saying at [21]:
But Palmer J also pointed out in Re Susan that where serious allegations of sexual assault are made against an adoptive parent the Court must be satisfied to the appropriate standard of proof that the conduct has occurred. The Court cannot merely on the ground of advancing the child’s best interests give the child benefit of the evidentiary doubt in the exercise of finding that the facts supporting the application have been proved to its satisfaction. Allegations of sexual assault which are sufficient to sever the parental bond must be very serious allegations and need to be proved to the appropriate standard: Evidence Act 1995, s 140.
Slattery J found at [43] that the abuse resulted in “Henry suffering severe psychological damage and a diagnosis of post-traumatic stress disorder” as confirmed in the medical reports of two psychiatrists. Slattery J also found at [44] that Henry was “treated with the hostility, vilification, and active verbal and physical abuse because of his indigenous heritage”. At [54]–[58], Slattery J concluded that there was corroboration of Henry’s evidence of abuse in the DCJ’s records, the medical reports of the psychiatrists and the expert evidence of a social worker who reviewed the DCJ’s records.
In Re Henry, Slattery J at [59]–[71] also focussed on the effect of a discharge order for Henry, being to “begin to release him from the pain and damage he suffered as a result of the sexual abuse”, “allow him to heal”, restore the connection with his indigenous identity and have a public acknowledgment of his parentage and heritage, matters which were supported by the expert evidence. Slattery J concluded at [69]–[71]:
[69] The legislature left the power in Adoption Act, s 93 largely unconfined except by the general objects of the Act itself and the need to find an exceptional reason why the order should be made. Legislation which more closely confined the discretion would perhaps not have anticipated cases such as this. Although the aboriginal child placement principles were not present in the Adoption Act when Henry’s adoption order was made, they are there now, and they present relevant considerations to guide the Court’s reasoning on this application. The absence of those aboriginal child placement principles from his adoption has been evident through Henry’s life. And the making of an adoption discharge order can now be justified as a step likely to restore some of what was lost due to their absence and to give effect to the wider present legislative policy that they represent about what is essential for the adoption of indigenous children.
[70] The evidence confirms that the power in Adoption Act, s 93 should be exercised here for the exceptional reasons that are demonstrated this case. Exercise of the power will assist Henry’s proper advancement, well-being, and welfare in his future life. Two pre-eminent exceptional reasons are: the completion of Henry’s separation from, and rejection of, a relationship with his adoptive parents which has caused him irreparable harm through sexual abuse; and, the coordinate restoring of his identity and sense of belonging to his First Nations family and community which will help him heal from that sexual abuse.
[71] This approach also gives effect to the factors identified in Adoption Act, s 8(1). The decision serves the best interests of the child, Henry, on this occasion “in later life” as the paramount consideration. It reflects Henry’s views and preserves his cultural ties.
The discharge of an adoption order on the basis of an “exceptional reason” may also be supported on the ground that there has been a breakdown in the relationship between an adopted person and there adoptive family: Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673, Hallen J at [228], cited in Discharge of Adoption of K [2022] NSWSC 1197, Stevenson J at [17]; Discharge of Adoption of Kate (a pseudonym) [2023] NSWSC 1317, Stevenson J at [13]; and Discharge of Adoption of Isabel (a pseudonym) [2024] NSWSC 565, Stevenson J at [17].
The relevant principles to be applied in determining an application to discharge an adoption order based on “exceptional reason” are aptly and succinctly stated in Discharge of Adoption of Isabel by Stevenson J at [13]–[19] as follows (footnotes omitted):
[13] The Adoption Act 2000 (NSW) makes provision for adoption orders to be discharged in very limited circumstances. The circumstance that is relevant here is whether there is “exceptional reason” to discharge the adoption order.
[14] As I have explained to Isabel, the reason that exceptional circumstances are needed to set aside an adoption order is that the Adoption Act bespeaks Parliament’s intention that adoption should be, so far as possible, able to provide a child who is adopted with lifelong security and stability within their adoptive family. Thus, it has been said in earlier cases that “an adoption order is a transformative order that changes the child’s status in a way that is intended to be legally permanent”.
[15] Nonetheless, s 93(5) of the Adoption Act provides that an adoption order may be discharged if there is an exceptional reason to do so, provided that the order would not be prejudicial to the best interests of the child, and is not motivated by consideration that did not affect the child’s welfare.
[16] The “exceptional” reason for discharge does not have to relate to the circumstances in which the adoption order was obtained and can, as is the case here, relate to “other matters”, including matters arising after the adoption order was made.
[17] There may be an exceptional reason to discharge an adoption order if there has been, as is the case here, a “significant and irretrievable breakdown” in relationship between the parties to the adoption.
[18] It has been held in another context that for a circumstance or reason to be “exceptional”, it does not need to be unique or unprecedented or especially rare. The term “exceptional” is sometimes used as a synonym for “special”.
[19] Whether an “exceptional reason” to justify an order discharging an adoption order exists might necessarily be a fact-specific exercise in each case.
Guided by the principles expressed in Re Susan, Re Henry and Discharge of Adoption of Isabel outlined above, in my opinion the combination of the various factors which are present in these proceedings constitute there being an “exceptional reason” to make the order discharging the adoption order made in relation to Ms Jones.
First, I am satisfied to the requisite degree that there is clear and cogent proof that Ms Jones was sexually abused by her adoptive father for the following reasons:
Although the two instances of the alleged sexual abuse are not lengthily described in the evidence of Ms Jones, I must give weight to the fact that they are the memories of a now 39 year old woman regarding events that took place when she was four years old. To that extent, I have received direct evidence of the sexual abuse from an adult complainant in relation to events that took place about 35 years ago for which I would not expect there to be any direct corroboration, given that no person other than the adoptive father was present when those events took place and they were not reported at the time. I also have no evidence to the contrary.
Although Ms Jones did not first report her memory of the sexual abuse for about 33 years, I must take judicial notice of the fact that it is common for those who suffer from child sexual abuse to take considerable time to disclose it. The “Final Report, Volume 4, Identifying and Disclosing Child Sexual Abuse” of the Royal Commission into Institutional Responses to Child Sexual Abuse, dated December 2017, observed at [2.3] that “many victims of child sexual abuse do not disclose until many years later, often when they are well into adulthood”, and stated that “[f]rom what survivors told us, it took an on average, 23.9 years to disclose the abuse, with men taking longer to disclose than women (25.7 years for men and 20.6 years for women)”.
Ms Jones has consistently reported the sexual abuse to her husband, her adoptive mother, her general practitioner, her psychotherapist and members of Victoria police. The written reports that are contained in the files of her general practitioner and psychotherapist are consistent with the allegations she has made in relation to the sexual (and other abuse) by her adoptive parents, and are, therefore, indirectly corroborative of them.
The mental health conditions with which Ms Jones has been diagnosed and the circumstances of the trauma with which she lives (as detailed in the medical records of her treating practitioners) are consistent with her having suffered from sexual abuse as a child.
Second, I am also satisfied to the requisite degree that Ms Jones has suffered periods of emotional, verbal and physical abuse by her adoptive parents, principally by her adoptive mother. I have direct evidence from Ms Jones of those events and no evidence to the contrary. The written medical reports are consistent with Ms Jones having suffered such abuse, as are the mental health conditions from which she suffers. This abuse has also been destructive of the relationship between Ms Jones and her adoptive parents.
Having determined that I should make a discharge order pursuant to s 93(4)(b) of the Adoption Act, s 93(7) of the Adoption Act empowers the court to make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the best interests of the child, including orders relating to the name of Ms Jones.
Ms Jones wishes to change her name from “Taylor Imogen Jones” to “Rose Mary Jones” to reflect the first names she was given by her birth parents at the time she was born while retaining her married surname.
I am satisfied that it will promote the best interests of Ms Jones to change her name to “Rose Mary Jones”. I accept that the existing first names, “Taylor Imogen”, connect Ms Jones to her adoptive parents and are part of what she regards as her “fake identity” that causes her distress and from which she seeks freedom. I also accept the proposed new first names, “Rose Mary”, connect Ms Jones to her birth parents and are part of what she regards as her “real identity” in which she can begin to heal. The change of her first names will also bring her closer to the heritage and culture of her birth family, which she was unable to experience growing up with her adoptive family in Australia.
Ms Jones seeks an order under s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (BDM Act) to register the details of her birth because the consequence of the discharge of the adoption order will be that her birth record will be cancelled. This application requires the consideration of the relevant provisions of the BDM Act and the regulations made under it.
The Registrar of Births, Deaths and Marriages (defined as the “Registrar” in s 4(1) of the BDM Act) must maintain a register or registers of registrable events: s 43(1) of the BDM Act.
The Register under the BDM Act must contain the particulars of each registrable event required under the BDM Act or another law to be included in the Register: s4(1) (definition of “Register”) and s 43(2) of the BDM Act.
A “registrable event” is defined to mean a birth, adoption or discharge of adoption, change of name, change of sex, death or marriage: s 4(1) of the BDM Act.
The Registrar registers a birth by making an entry about the birth in the Register, including the particulars required by the regulations and, if the particulars available to the Registrar are incomplete, the Registrar may register a birth on the basis of incomplete particulars: s 17 of the BDM Act.
Section 5 of the Births, Deaths and Marriages Registration Regulation 2025 (NSW) (BDM Regulation) provides:
(1) For the Act, sections 14 and 17(1), the following particulars are required—
(a) the sex of the child,
(b) the date, time and place of birth of the child,
(c) the weight of the child at birth,
(d) whether or not the birth was a multiple birth,
(e) the full name of each parent of the child, including, if applicable, the original surname of each parent,
(f) the date of birth or age, place of birth and occupation of each parent of the child,
(g) the usual place of residence, at the time of delivery, of each parent of the child,
(h) if the parents of the child are married—the date and place of the marriage,
(i) the full name, sex and date of birth of other children, including any deceased children, of either of the parents of the child,
(j) whether or not either of the parents of the child is of Aboriginal or Torres Strait Islander origin,
(k) if either parent of the child was born outside Australia—the period of residence in Australia of that parent.
…
(2) The particulars specified in subsection (1) are not required if the person registering the birth is, after making all reasonable inquiries, unable to supply the particulars.
…
The Registrar registers an adoption or discharge of an adoption by registering the record of the adoption or discharge sent to the Registrar under Chapter 7 of the Adoption Act and making an entry about it in the Register, including the information required by the regulations: s 24 of the BDM Act.
Section 6 of the BDM Regulation states:
6 Registration of adoption
For the Act, section 24(2), the following information is required—
(a) the full name, sex and date and place of birth of the child to whom the record of adoption or discharge relates,
(b) the full name of the child’s adoptive parent or parents including, if applicable, the original surname of each adoptive parent,
(c) the date of birth or age, place of birth, occupation and usual place of residence of the child’s adoptive parent or parents,
(d) if the adoptive parents of the child are married—the date and place of the marriage,
(e) the full name and date of birth of other children of either of the adoptive parents, including—
(i) adopted children, and
(ii) deceased children.
19 Orders for registration of birth or inclusion of registrable information
(1) The District Court may, on application by an interested person or on its own initiative, order—
(a) the registration of a birth, or
(b) the inclusion of registrable information about a birth or a child’s parents (including details of the marriage of a child’s parents) in the Register.
(1A) Such an order may only be made in respect of a birth—
(a) in the case of an order under subsection (1) (a), if the birth occurred in the State, in an aircraft during a flight to an airport in the State or on a ship during a voyage to a port in the State, and
(b) in the case of an order under subsection (1) (b), if the birth has been registered under this Act.
(2) If any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child’s parents, the court may order registration of the birth or inclusion of registrable information about the birth or the parents in the Register.
As a result, if I make a finding about Ms Jones’ birth or her parents, I may order the registration of her birth or inclusion of registrable information about it. The “registrable information” is defined to mean information that must or may be included in the Register: s 4(1) of the BDM Act.
Section 13(2) of the BDM Act provides that if a court orders the registration of a birth, the birth must be registered under the BDM Act.
I am satisfied that in the circumstances of this case, I should order the registration of the birth of Ms Jones and the inclusion of as much of the registrable information about her birth and her birth parents in the Register as is known. I do so based on my view that in accordance with the law of New South Wales, the legal parental responsibility held by the birth parents of Ms Jones between her birth on 10 February 1987 and her arrival in Australia on 1 July 1987 was never disturbed, and on the making of the discharge of the adoption order, her birth parents will revert to being her legal parents.
I am conscious that in arriving at this conclusion, I have not received any evidence or submissions from the birth parents of Ms Jones apart from the letter in August 2018 from her birth mother indicating that she was very content to reconnect with Ms Jones. However, given they are not situated or resident in Australia and there is no evidence that they will be in the future, I do not consider that it is necessary for me to hear from them before I make the relevant orders under the BDM Act.
ORDERS:
(a) the name of the plaintiff at birth was “Rose Mary Smith”; (b) the sex of the plaintiff as “female”; (c) the date, time and place of the birth of the plaintiff as “9.10pm on 10 February 1987, at Seoul, Korea”; (d) the weight of the plaintiff at birth as “3.2kg”; (e) the plaintiff’s birth was not a multiple birth; (f) the full name of the plaintiff’s mother as “Kate Smith (née Roberts)”; (g) the full name of the plaintiff’s father as “Jacob Smith”; (h) the parents’ usual place of residence, at the time of delivery, as “Seoul, Korea”; (i) the plaintiff’s parents were married at the time of the plaintiff’s birth; (j) the plaintiff has three biological older sisters, named “Olivia Smith”, “Poppy Smith” and “Jessica Smith”; (k) the plaintiff’s parents are not of Aboriginal or Torres Strait Islander origin; and (l) the plaintiff’s parents have not resided in Australia for any period.
NOTATIONS:
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(1992) 67 ALJR 170
Ms Jones ceased living with her adoptive parents as soon as she could, leaving their home when she was 17 years old.
Subsequently, Ms Jones says that she has been consistently asked for money by her adoptive father and her adoptive sister, and she has felt obliged to provide them with funds. Ms Jones also says that even while she has been a grown adult, her adoptive mother has continued to yell at her and verbally abuse her.
Third, Ms Jones has described in considerable detail the harm she has suffered from being part of the family of her adoptive parents, and that for the adoption order to remain will be detrimental to her mental health and prevent her from recovering from her trauma-induced conditions. As part of her recovery, Ms Jones will have the opportunity to live in what she regards as her “real identity”. The views of Ms Jones are supported by the evidence of her treating medical practitioners.
Fourth, in light of the gravity of the allegations which Ms Jones has made against her adoptive parents and the deleterious impact they have had on her mental health, I accept that there has been an irretrievable and complete breakdown in the relationship between Ms Jones and all three members of her adoptive family. I consider that the abuse of Ms Jones has been destructive of the complete and unquestioning trust of her adoptive parents that is required to exist in their parent/child relationship. It has caused significant harm to Ms Jones and has resulted in her ceasing all contact with her adoptive parents.
Fifth, I am satisfied that making the discharge order is not likely to have any effect on the Australian citizenship of Ms Jones.
Taking all of these matters into account, it is my strong view that this case is an appropriate one in which the paramount consideration of the best interests of Ms Jones are undoubtedly served by the discharge of the adoption order made in respect of her. While I recognise that the making of such an order is of a most serious and permanent kind, I am satisfied that the damage that has been suffered, and will continue to be suffered, by Ms Jones if the adoption order remains in place is also of a most serious and permanent kind. To adopt the words used in Re Susan, in my view the discharge order will make an “appreciable difference” to the life of Ms Jones by enabling her to continue to heal from the trauma she has suffered and significantly improve her life.