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Re Clare (a pseudonym) [2023] NSWSC 1009 (21 August 2023)

Last Updated: 22 August 2023

Case Name:	Re Clare (a pseudonym)
Medium Neutral Citation:	[2023] NSWSC 1009
Hearing Date(s):	21 August 2023
Date of Orders:	21 August 2023
Decision Date:	21 August 2023
Jurisdiction:	Equity - Adoptions List
Before:	Stevenson J
Decision:	Adoption order discharged; declaration of parentage made
Catchwords:	CHILD WELFARE – adoption – discharge of adoption order made in 1957 – whether exceptional reason shown – whether declaration of parentage should be made
Legislation Cited:	Adoption Act 2000 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Status of Children Act 1996 (NSW)
Cases Cited:	Adoption of LVH [2014] NSWSC 1902 AX and Anor v SX and Ors [2021] EWHC 1121 (Fam) BB v DD; Re AA and the Surrogacy Act 2010 (NSW)  [2015] NSWSC 1095  R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 Re L: Application for Parentage Order [2022] NSWSC 1155 S v B; O v D [2014] NSWSC 1533 Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Category:	Principal judgment
Parties:	“Clare” (a pseudonym) (Plaintiff) Secretary, New South Wales Department of Communities and Justice (Intervenor)
Representation:	Counsel: J Harris (Intervenor) Solicitors: Plaintiff (self-represented) Crown Solicitor’s Office (Intervenor)
File Number(s):	2022/343389; No 562 of 1957
Publication Restriction:	This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. On 21 August 2023, I discharged an adoption made on 26 June 1957 that a child, who I will call Clare (not her real name), be adopted by William and Grace Jones (not their real names), pursuant to s 93(4)(b) of the Adoption Act 2000 (NSW) (“the Act”).
2. I also declared, pursuant to s 21(2) of the Status of Children Act 1996 (NSW), that David Smith (not his real name) is Clare’s father. I also made an order pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) that David Smith be recorded in the Register of Births, Deaths and Marriages as Clare’s father.
3. These are my reasons for making those orders.
4. Because of the unusual circumstances of this case, I invited the Secretary of the New South Wales Department of Communities and Justice to intervene in the proceedings. I am very grateful for the assistance that the Secretary has given the Court in this matter, including the comprehensive and sensitive submissions of Mr Harris, who appeared for the Secretary before me.
5. Clare was born in 1957 and is now 66. Her mother, who died in 2020, was 15 at the time of Clare’s birth.
6. Clare’s birth father was not recorded at the time, although Clare believes, and the evidence establishes, that it is probably correct that David Smith is her father. It appears that David died in Thailand in 2013.
7. Shortly after her birth, Clare was placed into the care of Mr and Mrs Jones with the consent of her mother. Mr and Mrs Jones had two sons who were then 18 and 14.
8. Mr and Mrs Jones separated in 1960, when Clare was aged three. They were divorced in 1965. Clare was initially cared for by Mrs Jones.
9. In 1968, Mrs Jones suffered a stroke and was hospitalised for several months and required ongoing care. Clare then lived with Mr and Mrs Jones’ younger son, who was then around 21, and later his wife. When Mrs Jones returned from hospital, Clare acted as her main carer.
10. Mr and Mrs Jones’ younger son physically abused Clare and Mrs Jones and, in around 1970, evicted Clare and Mrs Jones from the home. Mrs Jones went to a convalescent hospital and Clare went to live with family friends.
11. A short time later, also in 1970, Clare went to live with Mr Jones who, by July of that year, stated that he was unwilling to continue to care for Clare.
12. Clare was then just 13 years of age.
13. Thereafter, neither Mr nor Mrs Jones took any care of Clare. They have since died.
14. Clare became a state ward. Ultimately, when aged 16, Clare married, but was subjected to acts of domestic violence at the hands of her husband. She was divorced in 1978.
15. The Court has the benefit of an independent report of a social worker, who I will call Ms Skinner (not her real name). Ms Skinner has reviewed a number of psychiatric assessments that have been made in relation to Clare and has noted a substantial consensus in those assessments of the “very substantial contribution of [Clare’s] earlier childhood adversity resulting from her placement with [Mr and Mrs Jones] and subsequent events”.
16. Ms Skinner noted the failure of Clare’s adoptive family to support her and opined that the motivation for Mr and Mrs Jones’ adoption of Clare, a desire to compensate for the absence of a daughter, was inconsistent with the contemporary approach to adoption. Ms Skinner concluded that Mr and Mrs Jones were not well placed to provide care for Clare. Ms Skinner reported that the result was that, by the time Clare was in early adolescence, she “no longer expected to be parented” and that her early marriage “represented the best option for independent survival, in the absence of family support”.
17. Ms Skinner was asked to consider the nature and impact on Clare if the adoption order was not discharged. Ms Skinner reported that it “is difficult to assess the extent to which discharge of the adoption order might assist her” but that Clare has sought to be in control of her circumstances and has had an “intense preoccupation regarding the circumstances and impacts of her adoption”. Ms Skinner opined that the discharge of the order may have a positive psychological benefit for Clare, reflecting something over which she may have agency, whereas a failure to discharge the order might have a negative impact, amplifying her sense of powerlessness and distress.
18. Pursuant to s 93(4) of the Act, the Court may discharge an adoption order if it was obtained by fraud, duress or any other improper means (there is no suggestion of that here), or if “there is some other exceptional reason why the adoption order should be discharged”.
19. The phrase “exceptional reason” is not defined in the Act.
20. It has been held in other contexts that for a circumstance or reason to be “exceptional” they do not need to be unique or unprecedented or especially rare. The term “exceptional” is sometimes used as a synonym for “special”.^[1]
21. Whether an “exceptional reason” to justify an order discharging an adoption order exists must necessarily be a fact-specific exercise in each case.
22. No doubt the terms of s 93(4) bespeak the Parliament’s intention that adoption orders should, so far as possible, provide an adopted child with lifelong security and stability within their adoptive family. As has been said, “an adoption order is a transformative order that changes the child’s status in a way that is intended to be legally permanent”.^[2]
23. Nonetheless, s 93(4) 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 considerations that do not affect the child’s welfare.
24. 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”.^[3]
25. I was satisfied that there was an “exceptional reason” to discharge the adoption order made in relation to Clare.
26. As Mr Harris submitted:

“[Clare] describes her motivation for seeking discharge of her adoption as the failure of the [Joneses] to care for her. This, she explains, exposed her to abuse and harm from other relatives, other families, and resulted in her becoming a State Ward. She has experienced ongoing trauma as a result. She says she does not feel safe being legally part of the [Jones] family.

It is submitted that [Clare’s] experience of her adoptive family is sufficiently ‘exceptional’ to justify discharge of the order. Her adoptive family lasted barely three years before the [Jones’] separation. Her experience of family life thereafter did not meet her needs. Her abandonment and entry into care followed.

The evidence establishes a link between [Clare’s] early life experience and the impact on her psychological wellbeing, as described in the reports of [the psychologists]. [Clare’s] ongoing issues are complex, and they may be related to matters beyond the effect of the adoption itself.

But, on any view, the failure of [Clare’s] adoptive family to care for her was a salient event, and one which has cast a long shadow over her life. As [Ms Skinner] observed, [Clare] likely felt, as a young adolescent, that she no longer expected to be parented. The physical abuse, the lack of care, lack of financial support, and indifference to her situation would all be properly regarded as matters that ‘would justify the termination of the adoptive parent’s parental responsibility for the child if they were natural parents of the child’.

As to the impact on [Clare’s] best interests if an order for discharge were made, there is a basis to find it would be of psychological benefit to her. She has suffered a preoccupation with her negative early life experience. Discharging her adoption order would provide [Clare] agency in her life, and a positive impact on her psychological wellbeing.” (Emphasis omitted.)

27. Clare put it this way:

“I do not feel safe being legally a part of the [Jones] family. It is really important to me to have my adoption order discharged so I can feel safe in my remaining years”.

27. For those reasons, I ordered that the adoption order be discharged.
28. As to Clare’s application under the Status of Children Act, s 21(1)(b) of that Act provides that a person who alleges that the relationship by way of parent and child exists between that person and another named or identified person may make an application to the Court for declaration of parentage.
29. The Secretary has caused research to be undertaken by a Family History Researcher at the Crown Solicitor’s Office. That researcher has carefully analysed the available documentary records and has concluded that, as Clare believes, her father is likely to be the person I have described as David Smith.
30. Based on that evidence, I was satisfied that I should make the declaration sought by Clare.

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^[1] See R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208 (Lord Bingham of Cornhill CJ); Re L: Application for Parentage Order [2022] NSWSC 1155 at [22] (Parker J); Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 at [15] (Slattery J); S v B; O v D [2014] NSWSC 1533 at [30] (White J, as his Honour then was); BB v DD; Re AA and the Surrogacy Act 2010 (NSW)  [2015] NSWSC 1095  at  [36] -  [37]  (Robb J) and Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66] (Campbell JA; Tobias JA and Handley AJA agreeing).
^[2] AX and Anor v SX and Ors [2021] EWHC 1121 (Fam) at [80] (Theis J).
^[3] Adoption of LVH [2014] NSWSC 1902 at [6] (Brereton J, as his Honour then was).