Discharge of Adoption of K

1. [1]

   On 30 August 2022 I made orders that:

2. [2]

   I also ordered that the discharge under s 93(4)(b) of the Act be suspended until 5pm on 2 December 2022 and that K have liberty to apply in respect of that order. I noted that the intended effect of those orders was that, unless K exercised that liberty to apply, the discharge order would take effect at 5pm on 2 December 2022.

3. [3]

   These are my reasons for making those orders.

4. [4]

   On 8 March 2018 this Court made an order pursuant to s 23 of the Act for the adoption of K in favour of CG. The Court also ordered that K’s name be changed from her birth name to her adoptive name.

5. [5]

   By a Notice of Motion filed on 5 May 2022 CG applied for an order under s 93 of the Act that the adoption order be discharged.

6. [6]

   Subsections 93(4) and (5) of the Act provide:

7. [7]

   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 K’s best interests.

8. [8]

   On 14 July 2022 I made an order that the Secretary for the Department of Communities and Justice be joined as an intervenor to the proceedings.

9. [9]

   CG appeared for herself before me.

10. [10]

    Mr Dean of counsel appeared for the Secretary. I have been greatly assisted by Mr Dean’s careful written and oral submissions. Much of what follows is drawn, with gratitude, from those submissions.

Exceptional Reason

1. [11]

   The phrase “exceptional reason” is not defined in the Act.

2. [12]

   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]

3. [13]

   Whether an “exceptional reason” to justify an order discharging an adoption order exists must necessarily be a fact-specific exercise in each case.

4. [14]

   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]

5. [15]

   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.

6. [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”. [3]

7. [17]

   There may be an exceptional reason to discharge an adoption order if there has been, as here, a “significant and irretrievable breakdown” [4] of the adoptive relationship.

Background

1. [18]

   K was born in 2003 and was, on the date I made the orders, 18 years of age.

2. [19]

   K was assumed into care and commenced living with CG in June 2011, when she was seven, almost eight.

3. [20]

   On 25 August 2011, the Children’s Court made an order pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”) that parental responsibility of K be allocated to the relevant Minister until she attained 18 years of age.

4. [21]

   As I have said, an adoption order was made on 8 March 2018.

5. [22]

   By the end of 2018, the relationship between K and CG had culminated in incidents on 10 and 11 January 2019, when it appears K attempted to inflict physical harm against CG.

6. [23]

   On 11 January 2019 an Apprehended Domestic Violence Order was issued against K for CG’s protection.

7. [24]

   From 30 January 2019, the Secretary took care responsibility for K pursuant to s 151(2) of the Care Act. K left CG’s care at that time and has not lived with her since.

8. [25]

   On 29 April 2019 K was admitted to hospital, due to concerns relating to her mental health. At that time K’s temporary carers relinquished care of her. On the same date, the Secretary assumed care responsibility of K pursuant to s 44 of the Care Act.

9. [26]

   On 9 May 2019, the Children’s Court made an order placing K under the interim parental responsibility of the relevant Minister. On 4 September 2020, the Children’s Court made a final order placing K under the parental responsibility of the Minister.

10. [27]

    In the meantime, K appears to have resumed a relationship with her biological mother, BB, and her mother’s de-facto partner, ST.

11. [28]

    For a period of about eight months in 2020, K lived with BB and ST at their home in Victoria. K has since left that home. Her current whereabouts are known to the child protection services.

12. [29]

    K gave birth to a baby during the week before the hearing.

The breakdown of the relationship between K and CG

1. [30]

   As I have stated, the relationship between K and CG has broken down.

2. [31]

   Ms Penny Haskins, a social worker and independent expert engaged by the Secretary in relation to this matter, described K’s and CG’s current relationship as “fractured”.

3. [32]

   Thus, Ms Haskins opined:

4. [33]

   As I have said, K ceased living with CG in January 2019 and has not returned to CG’s care at any time since then. Between July 2021 and February 2022 K and CG were, as recorded by Ms Haskins, “in and out of contact over the phone”. However, they ceased all contact in February of this year.

5. [34]

   In April 2019 K told a psychologist, Mr John Tredinnick, that she did not want CG “anywhere near [her]”, that “I would rather [the Department] be my legal guardian than [CG]” and that she would “run away or kill [herself]” if she were made to return to CG’s care.

6. [35]

   Ms Haskins recorded that, very recently, K said that she wished to have no further legal ties with CG and was concerned to make sure that “[CG] can never have any power over my baby”. K told Ms Haskins that she wanted “the papers to go through and it to be all over” and that “I want this to happen … I don’t want her near my baby. We tried to be friends but it can’t work – she can’t be my friend because she sees me as a kid”.

7. [36]

   In these circumstances it appears that there is little or no possibility of any reconciliation in the relationship between CG and K.

CG’s motivation for seeking discharge

1. [37]

   A suggestion emerges from Ms Haskins’ report that CG is motivated to seek the discharge of adoption order to “manage the parent/child estrangement … between she and [K]” and attempt to “make [CG’s] feelings of grief, anger, disappointment and regret go away”.

2. [38]

   CG has deposed, and I accept, that she feels her mental health is “significantly jeopardised by the continuing relationship with [K]”.

3. [39]

   These matters, of course, cannot take precedence over the mandatory considerations that the Act imposes concerning K’s best interests.

4. [40]

   I also accept, however, that CG is motivated, not only by matters concerning her own welfare and mental health, but also by her concern for the best interests of K and her belief that K’s best interests may also be better served by a discharge of the adoption order.

The objective of adoptions and related policy considerations

1. [41]

   Mr Dean drew my attention to the observations of Palmer J in Re Susan. [5] His Honour said:

2. [42]

   However, s 93 of the Act makes clear that adoption is not incapable of dissolution and that the policy objectives of the Act are met by limiting the circumstances in which an adoption order may be discharged to those situations in which there is an exceptional reason and where the child’s interests are not prejudiced.

3. [43]

   The mere fact of a broken relationship may not itself constitute such an exceptional reason. However, where the relationship is, to use Ms Haskins’ word, “fractured” in the circumstances I have described, I was persuaded that exceptional circumstances existed.

Removal of parental responsibility

1. [44]

   This is also a case where CG’s parental responsibility was removed pursuant to the Care Act.

2. [45]

   As Mr Dean pointed out, the Children’s Court has determined that the circumstances that existed in the adoptive relationship as at September 2020 were sufficient to remove from CG any ongoing parental responsibility with respect to K.

3. [46]

   That is a further factor pointing to the existence of the exceptional reasons in this case.

The best interests of K

1. [47]

   I must not make a discharge order unless satisfied that to do so would not be prejudicial to K’s best interests.

2. [48]

   I am here guided, to a significant extent, by the opinions expressed by Ms Haskins.

3. [49]

   Ms Haskins has acknowledged in her report that the discharge of the adoption order is likely to have a psychological impact on K and potentially an impact on her “general functioning”. Ms Haskins stated:

4. [50]

   However, as Mr Dean pointed out, K has expressed unambiguous views about her desire to sever her legal connections with CG, leading Ms Haskins to remark that:

5. [51]

   Ms Haskins continued:

6. [52]

   Ms Haskins further identified that there may be some benefit in “disconnecting” K and CG “from what they both consider a toxic mess” to the extent that “it could provide emotional distance enough to allow a more dispassionate understanding of what happened and a possible release from real and imagined responsibilities, guilt, shame and anger”.

7. [53]

   Ms Haskins expressed the opinion that this could be a “good outcome”.

8. [54]

   K has informed Ms Haskins that she is in favour of a discharge order.

9. [55]

   It appears from Ms Haskins’ report that K has the requisite maturity and a sufficient understanding of the implications of a discharge of the adoption order to express that view.

Conclusion

1. [56]

   Overall, I was satisfied that there was an exceptional reason in this case why the adoption order should be discharged and that the making of the order would not be prejudicial to K’s best interests, indeed it is likely to promote those best interests.

2. [57]

   K was served with CG’s Notice of Motion several months ago. She has not entered an appearance but has, recently, expressed to Ms Haskins some interest in being heard on the application.

3. [58]

   From K’s point of view, the matter is complicated, to an extreme degree, by her advanced state of pregnancy in the weeks leading to the hearing before me, and the fact that she gave birth to her child several days before the hearing. I was concerned that although it appeared K did not oppose, and indeed welcomed, the prospect of the adoption order being discharged, I had not heard her on the application, even if only to explain why she supported it.

4. [59]

   I raised with CG and Mr Dean the possibility of making the discharge order but suspending its operation for a number of months and granting K liberty to apply if she wished to make any statement or submission, thereby allowing K’s voice further to be heard on the application, if she so desired. Both supported the proposal.

5. [60]

   I also raised this possibility with Ms Haskins who said, “I would have thought that that was a very appropriate middle road”.

6. [61]

   I decided to follow that course.

Consequential orders

1. [62]

   It was common ground that, having made an order for discharge (albeit suspended until 2 December 2022), I should make the orders that I have set out above concerning K’s name. Both CG and Ms Haskins told me that this was what K wanted and that it would be in her best interests that these orders be made.