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Discharge of Adoption of Kate (a pseudonym) [2023] NSWSC 1317 (2 November 2023)

Last Updated: 2 November 2023

Case Name:	Discharge of Adoption of Kate (a pseudonym)
Medium Neutral Citation:	[2023] NSWSC 1317
Hearing Date(s):	2 November 2023
Date of Orders:	2 November 2023
Decision Date:	2 November 2023
Jurisdiction:	Equity - Adoptions List
Before:	Stevenson J
Decision:	Order for adoption discharged; order for proposed name change made
Catchwords:	CHILD WELFARE – adoption – application by adoptive parents to discharge adoption order – whether an exceptional reason shown – where breakdown of relationship between adoptive parents and child – where adoptive parents no longer exercising parental responsibility
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Adoption of LVH [2014] NSWSC 1902 AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam) BB v DD; Re AA and the Surrogacy Act 2010 (NSW)  [2015] NSWSC 1095  Discharge of Adoption of K [2022] NSWSC 1197 R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673 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:	Adoptive Parents (Applicants) Secretary, Department of Communities and Justice (Intervener) “Kate” (a pseudonym) (Respondent)
Representation:	Counsel: J A Darvall (Applicants) B Dean (Intervener) Solicitors: Freedman & Gopalan Solicitors (Applicants) Crown Solicitor’s Office (Intervener) Legal Aid NSW (Respondent)
File Number(s):	2022/387850
Publication Restriction:	This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

1. On 2 November 2023, I made an order discharging an order made by this Court on 19 December 2018 that a child, who I will call “Kate” (not her real name), be adopted by the applicants (who I will call the “Adoptive Parents”). I also made an order changing Kate’s surname so that it is no longer that of the Adoptive Parents.
2. I said I would give reasons for my decision. These are those reasons.
3. The application for the discharge of the adoption order was made by the Adoptive Parents. It was supported by Kate, who was separately represented before me. It was also supported by the Secretary of the Department of Communities and Justice (the “Secretary”), who I invited to intervene.
4. I was greatly assisted by the submissions made on behalf of all the parties. I found it significant that although the Secretary, typically, takes a neutral position in matters of this kind, he on this occasion was supportive of the order discharging the adoption.
5. Subsections 93(4) and (5) of the Adoption Act 2000 (NSW) (the “Act”) provide:

“(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. There was no suggestion here that the adoption order was obtained by fraud, duress or other improper means. The question was whether there was “some other exceptional reason” why the adoption order should be discharged, and whether the making of the order would be prejudicial to Kate’s best interests.

Exceptional reason

7. The phrase “exceptional reason” is not defined in the Act.
8. 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]
9. Whether an “exceptional reason” to justify an order discharging an adoption order exists must necessarily be a fact-specific exercise in each case.^[2]
10. 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”.^[3]
11. 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.
12. 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”.^[4]
13. There may be an exceptional reason to discharge an adoption order if there has been, as here, a “significant and irretrievable breakdown”^[5] of the adoptive relationship.
14. I was satisfied that there were exceptional circumstances in this case such as to warrant the adoption order being discharged.
15. Kate was placed with the Adoptive Parents in 2010. She ceased living with the Adoptive Parents in November 2021 and is now in an “Alternative Care Arrangement”.
16. In the careful and thoughtful submissions, Mr Dean of counsel who appeared for the Secretary, and Ms Phillips, solicitor who appeared for Kate, outlined the circumstances that led to Kate no longer living with or being under the care of the Adoptive Parents.
17. I do not find it necessary to recount those circumstances.
18. What is clear is that there has been a significant and irretrievable breakdown of the relationship between Kate and the Adoptive Parents. It is also clear that Adoptive Parents are no longer exercising, and have no present entitlement to exercise, parental responsibility in relation to Kate.
19. Kate supports the finding that her relationship with the Adoptive Parents has undergone a significant breakdown and agrees that this is an exceptional reason to discharge her adoption order.
20. This is because, as Ms Phillips submitted:

(a) the relationship irretrievably broke down at a time when Kate was still a child and reliant on adults to meet her needs, and the Adoptive Parents are not presently doing this;

(b) adoption has not provided Kate with a sense of belonging, security, or permanence for the duration of her childhood;

(c) whether or not the adoption order is discharged, the relevant Minister intends to retain the parental responsibility given to him by orders by the Children’s Court earlier this year, until she is an adult;

(d) the relationship between Kate and the Adoptive Parents has broken down in circumstances where Kate has made some allegations against both of the Adoptive Parents and it is her view that the conduct of the Adoptive Parents has caused her significant trauma; and

(e) Kate has a large birth family, and the significant adults in her life are members of her birth family.

21. I have also been greatly assisted by a detailed report prepared by a psychiatrist, Dr Smith (not their real name) in which Dr Smith has opined:

“... discharging the adoption is likely to have numerous positive impacts on [Kate’s] mental health and well-being that may further enhance her day-to-day functioning. Specifically, [Kate] will likely perceive a discharge of the adoption as consistent with her wishes, and she will therefore feel a greater sense of control and agency in her own life, both now and as she moves into adulthood. She will also likely feel a sense of freedom once she [is] formally disconnected from the adoptive parents, and what she perceives as their ownership and control over her. Further to this, she will likely feel a greater capacity to re-connect to her birth family, which she has repeatedly identified as important for her. While I have some concerns that [Kate] has and will continue to feel some loss associated with separating from her adoptive family (particularly [the Adoptive Father]), this has already occurred and cannot be resolved by maintaining the adoption.

In contrast, if the adoption order is not discharged, [Kate] will likely interpret this as another sign that she lacks control and agency, and that her adoptive parents and the system more generally have failed her. There is also significant risk that she will interpret this as extending or re-triggering her trauma, and/or that others do not believe or care about the allegations she has made. If the adoption is not discharged, she may feel that she neither belongs with her adoptive family, nor her birth family, leaving her with a sense of disconnection to any family. Not having a sense of belonging will likely add to her psychological fragility.”

22. Dr Smith also opined:

“a. [Kate] impressed as a young person who was strident in her views and clear in her desire for her adoption order to be discharged.

b. [Kate] spoke about how she used to hit her head and cry every day when she was in the care of [the Adoptive Mother]. She said she was ‘so depressed’ that she had thoughts of suicide almost every day. She said she tried to overdose on Nurofen and Panadol once. She opined that the suicidal thoughts commenced at the age of 13 and were persistent and enduring until recently.

c. [Kate] then spoke about how she felt ‘trapped’ when she was with [the Adoptive Mother], how she could not do anything and likened it to ‘being in a cage’.

d. [Kate] indicated that her relationship with [the Adoptive Mother] was damaged beyond repair, such that she does not ‘[care] about’ [the Adoptive Mother]. ... She described much softer feelings for [the Adoptive Father], stating that she ‘still love[s] him’ that she ‘forgive[s] him for everything’. She said that she would still want to see him but does not know if he would want to see her. She then said that she would not really care if she did not have contact with either of them again but that she wants her personal belongings back. She added that she would like to see the animals.

e. She indicated that she has thought about being unadopted for years, that she is ‘very sure’, and said that she did not ‘really even want to be adopted’.

f. If the court grants the discharge the adoption, [Kate] said she would feel happier because she can focus on being herself and not worry about her adoptive parents. She indicated there would be a sense of finality for her.

g. My understanding from the adoptive parents is that [Kate] expressed a wish to be ‘unadopted’ as early as 2020. This account was supported by [Kate’s biological sister] and a review of the collateral documentation. In 2021, the Helpline assessment refers to her wanting to ‘divorce’ her adoptive parents. In February 2023 she reportedly told a caseworker that she was ‘incredibly happy’ about the prospect of the adoption being discharged and the potential for her not to be ‘owned’ by the adoptive parents. In the current assessment, [Kate] expressed a clear and strong wish for the adoption to be discharged, and showed no hesitations, reservations, or concerns about that.”

23. Dr Smith concluded that:

“Overall, the benefits for [Kate] that will likely arise from discharging the adoption far outweigh the risks”.

24. As well as making the order discharging the adoption, I ordered that Kate’s name be changed so that her surname is no longer that of the Adoptive Parents but uses a combination of her birth parents’ surnames. Kate was clear that this was her wish. The proposed name was the one that her sister uses. And as Dr Smith stated:

“... the shared surname will likely strengthen [Kate’s] sense of connection to her sister and birth parents. My view is that her wishes should be respected, and that her surname should be changed if the adoption order is discharged.”

25. For those reasons, I made the orders to which I have referred.

**********

^[1] See R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 249 (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); Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66] (Campbell JA; Tobias JA and Handley AJA agreeing).
^[2] Discharge of Adoption of K [2022] NSWSC 1197 at [13].
^[3] AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam) at [80] (Theis J).
^[4] Adoption of LVH [2014] NSWSC 1902 at [6] (Brereton J, as his Honour then was).
^[5] Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673 at [228] (Hallen J).