Discharge of Adoption of Kate (a pseudonym)

1. [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. [2]

   I said I would give reasons for my decision. These are those reasons.

3. [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. [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. [5]

   Subsections 93(4) and (5) of the Adoption Act 2000 (NSW) (the “Act”) provide:

6. [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

1. [7]

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

2. [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]

3. [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]

4. [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]

5. [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.

6. [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]

7. [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.

8. [14]

   I was satisfied that there were exceptional circumstances in this case such as to warrant the adoption order being discharged.

9. [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”.

10. [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.

11. [17]

    I do not find it necessary to recount those circumstances.

12. [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.

13. [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.

14. [20]

    This is because, as Ms Phillips submitted:

15. [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:

16. [22]

    Dr Smith also opined:

17. [23]

    Dr Smith concluded that:

18. [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:

19. [25]

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