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Queensland Judgments
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STJ v Chief Executive, Department of Child Safety, Youth and Women

 

[2020] QSC 252

SUPREME COURT OF QUEENSLAND

CITATION:

STJ v Chief Executive, Department of Child Safety, Youth and Women [2020] QSC 252

PARTIES:

STJ (a pseudonym)

(applicant)

v

CHIEF EXECUTIVE, DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN

(respondent)

FILE NO:

5923 of 2020

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

30 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 June 2020

JUDGE:

Ryan J

ORDER:

Application granted

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – ADOPTION – DISCHARGE OF ORDER – where the applicant was adopted by his stepfather as a young child – where the stepfather is now deceased – where the applicant suffered physical, sexual and emotional abuse from his stepfather – where the applicant lived with the aftermath of his stepfather’s abuse for decades – where evidence from experts is to the effect that discharging the adoption would improve the applicant’s mental health –whether the adoption order should be discharged

Adoption Act 2009 (Qld), s 219(1)(c)

MJD v Chief Executive, Department of Communities, Child Safety and Disability Services, Adoption Services & Ors [2015] QSC 139

COUNSEL:

J Fulcher for the applicant

S Munasinghe for the respondent

SOLICITORS:

Hopgood Ganim for the applicant

Crown Law for the respondent

The applicant applies for orders which will have the effect of discharging him from his adoption by his now-deceased stepfather and mother; restoring his original birth certificate so that it records as his parents his biological father and mother; and removing his name as a child of his stepfather on his stepfather’s death certificate.

The evidence before me reveals that the applicant’s stepfather abused him physically, sexually and emotionally, in horrible ways, from when he was a young child until he was old enough to escape. 

He has lived with the aftermath of his stepfather’s abuse for decades.  It altered his sense of self and it caused him, at times, to be aggressive and to self-harm.  It caused him to behave antisocially and he has spent years in prisons throughout Australia.  It has also compromised his physical health.

To his enormous credit and as a reflection of his strength of character, he was able to build up a successful business, which employed many people, over 30 years.  He has been in a relationship with his wife for almost two decades and he bears her surname.

The evidence before me from experts is to the effect that my making the orders sought would improve the applicant’s mental health.  He feels forced to carry the name of a man who treated him cruelly and whom he hates. 

As he sees things, he began the healing process in 1991.  It was around that time that he began transforming his life and, perhaps against the odds, he has been able to do so.  The evidence before me establishes that he is a respected person, a good husband and a sincere friend. 

In 2017, he sought specialist psychological treatment to assist him to deal with the aftermath of his stepfather’s abuse.  He found that treatment of assistance, but his recovery is ongoing.  The only way he sees closure to his traumatic past is to have his stepfather’s name removed from his birth certificate.

In this application, I have the benefit of carefully and thoughtfully-prepared written submissions from both parties. 

This application is brought under the Adoption Act 2009 (Qld) (“the Act”), which permits an adopted person to apply for the discharge of their adoption.  The Act sets out the grounds upon which an adoption order may be discharged, and the applicant relies upon the grounds stated in section 219(1)(c) - that is, that exceptional circumstances warrant the discharge.

The relevant case law is discussed in the respondent’s written outline. 

I have taken into account the seriousness of an order discharging an adoption, and that the approach of the courts has been not to make such an order lightly. 

I have taken into account the need to ensure that I do not, by making the orders sought, defeat the essential objects of an adoption order.  The essential objects of an adoption order are to advance the wellbeing and best interests of the child, as a child and later in life. 

On the evidence before me, maintaining the order will not advance the applicant’s interests.  I infer that it will have the opposite effect.  Discharging the order will relieve the applicant from ongoing traumatic associations with his stepfather’s name. 

The statements of her Honour Justice Atkinson in MJD v Chief Executive, Department of Communities, Child Safety and Disability Services, Adoption Services & Ors [2015] QSC 139 (“MJD”) are relevant here.  Her Honour said, and I quote:

If the aim of adoption today is to ensure the best interests of the child, then those aims were clearly not met by this adoption.  Even the Act under which it was made required that the welfare and interests of the child concerned in an adoption should be paramount, but they were manifestly not treated as paramount in this case.  The applicant has suffered exceptionally from physical and emotional abuse which made him vulnerable to further damage during his adulthood and has now rendered him in a pitiable state.  Unfortunately, while it cannot be said that it is exceptional for children to be treated badly, the extent of the abuse in this case does fulfil the criterion of exceptional circumstances.

The order sought is not an order that should be made lightly.  The impact of discharging the adoption order will not only be on the applicant but also on his siblings and his natural and adoptive parents.  Nevertheless, he has satisfied me that circumstances which provide grounds for discharge of the adoption order have been made out.  Considering that the Act quite properly requires me to apply the paramount principle that the Act is to be administered so that the wellbeing and best interests of an adopted child both through childhood and the rest of his life, are met, I am satisfied that the order … should be made.

Thankfully, the present applicant is not in the pitiable state of the applicant in MJD, but that has nothing to do with his stepfather and everything to do with his own strength of character.  His legal association with his stepfather continues to harm his mental wellbeing.  I consider the circumstances sufficiently exceptional as to warrant the discharge of the final adoption order.

I note for completeness that the applicant’s application is not opposed by his siblings or stepsiblings. 

I note that there is no issue about appropriate service under the legislation, and that the respondent very properly concedes that exceptional circumstances are made out on the material. 

I will therefore make an order in terms of the draft provided, with the amendments indicated to me and later discussed, and I will make that order by initialling that draft and placing it on the file. 

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Editorial Notes

  • Published Case Name:

    STJ v Chief Executive, Department of Child Safety, Youth and Women

  • Shortened Case Name:

    STJ v Chief Executive, Department of Child Safety, Youth and Women

  • MNC:

    [2020] QSC 252

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    30 Jun 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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