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

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

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

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

PARTIES:

MJD

(applicant)

v

Chief Executive, Department of Communities, Child Safety, and Disability Services, Adoption Services

(first respondent)

v

BJD

(second respondent)

v

PSL

(third respondent)

v

JAL

(fourth respondent)

FILE NO:

SC No 4252 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:


14 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2015

JUDGE:

Atkinson J

ORDER:

That the adoption order finalised on 22 November 1974 be discharged

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 in 1974 – where the applicant had given consent to that adoption as provided in the Adoption of Children Act 1964 (Qld) – where the applicant suffered physical and emotional abuse from his mother and stepfather – where that abuse affected the applicant’s capacity to consent – where the applicant had not understood the effect of that consent – where the applicant suffered lifelong trauma as a result of the adoption and ongoing abuse related to it – whether the adoption order should be discharged

Adoption Act 2009 (Qld) s 219, s 220, s 221

Adoption of Children Act 1964 (Qld) s 10, s 26

COUNSEL:

S Thackeray for the applicant

K A Parrott for the first respondent

No appearance for the second respondent

No appearance for the third respondent

No appearance for the fourth respondent

SOLICITORS:

Crown Law for the first respondent

  1. ATKINSON J:  This is an application under section 219 of the Adoption Act 2009 (Qld) (‘the Act’) for the discharge of an order for adoption.  The grounds for discharge of such an order are set out as follows:

“(1) A final adoption order may be discharged on any of the following grounds –

  1. the order was made or something was done for the purpose of making the order –
  1. because of a false or misleading document or representation;  or
  2. because a person acted fraudulently or used undue influence on another person;  or
  3. in another improper way; 
  1. a consent required for the adoption was not given freely and voluntarily by a person with capacity to give the consent; 
  2. there are other exceptional circumstances that warrant the discharge.”
  1. Section 219(2) sets out the meaning of “undue influence” for this section.  It provides that:

“… a person used undue influence on another person if the first person –

  1. used or threatened to use force or restraint against the other person;  or
  2. caused or threatened to cause injury to the other person;  or
  3. caused or threatened to cause any other detriment to the other person.”
  1. Section 220 of the Act stipulates who may apply for such an order.  Subsection (a) provides that the adopted person may do so, if he or she is an adult.  That is the case here:  an adult who is an adopted person wishes to apply for the discharge of the order which provided that his stepfather adopted him.  The application must be made to the Supreme Court and must state the ground on which it is made.[1]  The applicant is required to serve a copy of the application on each party to the adoption and, if the applicant is not the Chief Executive, on the Chief Executive.[2] 
  2. The Chief Executive for the Department of Communities, Child Safety, and Disability Services, Adoption Services Queensland, appeared today to assist the Court.  The Chief Executive does not oppose the order being made. 
  3. The other parties to the adoption are the natural parents of the applicant and his adoptive father.  Each of those parties has been served; none has appeared today to argue against any order being made.
  4. The applicant has sworn an affidavit setting out details of his life and the circumstances in which he came to be adopted.  He was born into a family where his mother and father were married and three younger brothers were born.  That marriage subsequently failed and the applicant’s mother remarried when the applicant was about nine years old.  As might be expected, the applicant was confused about what was going on.  He was told to adopt the surname of his mother’s second husband and never to mention his father or his birth surname again.  He and his three younger brothers were required to use the surname of their mother’s second husband, their stepfather, at school.
  5. The applicant deposes that, as the eldest child, he bore the brunt of physical and emotional abuse from his stepfather and, unfortunately, also from his mother.  He was importuned by his mother – as he describes it, being constantly harassed, pressured and manipulated by her – to write to his birth father saying that he did not want to see him again. 
  6. At 12 years of age, the applicant went with his mother to an office of the then Department of Children’s Services in Southport to sign a consent form, which, as he deposes, he did not really understand.  That consent form was a consent form which existed under the Adoption of Children Act 1964 (Qld), since repealed.  Under section 26 of that Act, a child of 12 years could consent to the making of an adoption order.  I should say that the Act under which the present application is made is much more cognisant of the needs and vulnerabilities of children and has a long and careful process to advance the best interests of the child, including the mandatory provision of information and counselling where the child is able to form and express views about the adoption.[3] 
  7. Nonetheless, the applicant signed that consent form and the adoption order was made in 1974.  The effect of that order was to change permanently the parentage of the applicant, as well as to change his name so that his surname was the same as that of his mother’s second husband, his adoptive father.
  8. The applicant’s affidavit sets out in detail the horrific mental and physical abuse that he suffered at the hands of his adoptive father and the terrible impact upon him of that abuse.  Fortunately, he has found a stable relationship with his wife, who attended Court with him to support him.  However, she also was subject to verbal abuse from the applicant’s mother and adoptive father.  No doubt, the abuse to which the applicant had been exposed made him further vulnerable to the bullying he suffered in the workplace, which has caused him to be unable to undertake employment any longer. 
  9. I have been assisted by medical opinions exhibited to the applicant’s affidavit as to his current medical condition and the likelihood that he will never be able to work again, given the damage he has suffered.  Of great assistance to me also has been the report of a psychologist, Peter Jordan, to whom he was referred by his general practitioner under a Mental Health Plan.  Mr Jordan refers to the severe depression and anxiety suffered by the applicant, his many years of psychiatric treatment and hospitalisation for his condition, including receiving electroconvulsive therapy.  Mr Jordan says that the applicant’s condition is pervasive and he is unable to work, and that will be the case for the foreseeable future.  The precipitating stressor to his condition was workplace bullying.  But, as Mr Jordan perceptively analyses it, he was predisposed to the development of his condition because of a very fragile personality resultant from childhood abuse. 
  10. The applicant told Mr Jordan about the circumstances in which he came to sign the document giving his consent, that he had had no idea of the implications of signing the document and that his stepfather has taunted him over this issue ever since.  He was told by his mother and stepfather that his father did not love him, and they continued to denigrate him.  Mr Jordan concludes that, at the age of 12, as a child who was suffering from the impact of serious child abuse, the applicant would not have had the capacity to provide consent to adoption by his stepfather.  Even if he had had the intellectual capacity to understand what was occurring, his consent would have been meaningless, as he would have signed the document under duress.  Mr Jordan says that the applicant considers the revocation of the adoption order to be an important step in his recovery. 
  11. Section 5 of the Act provides that:

“The main object of this Act is to provide for the adoption of children in Queensland, and for access to information about parties to adoptions in Queensland in a way that promotes the wellbeing and best interests of adopted persons throughout their lives...”

  1. It is clear that that object was not met by this adoption order.  Section 6 sets out the guiding principles under which the Act is to be administered.  The overarching principle is:

“…that the wellbeing and best interests of an adopted child, both through childhood and the rest of his or her life, are paramount.”[4]

  1. Giving effect to the paramountcy of the applicant’s interests as an adopted child, it would appear clear that, as a matter of principle, this adoption order ought to be discharged.  And, indeed, the grounds for discharging the adoption order are amply met.  In particular, under section 219(1)(b), I am satisfied that the consent was not freely and voluntarily given by a person with capacity to give the consent and, indeed, there are other exceptional circumstances that warrant the discharge.
  2. 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.[5]  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.
  3. The order sought is not an order that should be made lightly.  The impact of discharging the adoption order will be not only 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 discharging the adoption order finalised on 22 November 1974 should be made.

Order

  1. I therefore order that the adoption order finalised on 22 November 1974 be discharged. 

Footnotes

[1] Adoption Act 2009 (Qld) s 221(1), (2).

[2] Ibid s 221(3).

[3] See Adoption Act 2009 (Qld) Div 8.

[4] Section 6(1).

[5] See former Adoption of Children Act 1964 (Qld) s 10.

Close

Editorial Notes

  • Published Case Name:

    MJD v Chief Executive, Department of Communities, Child Safety, and Disability Services, Adoption Services & others

  • Shortened Case Name:

    MJD v Chief Executive, Department of Communities, Child Safety, and Disability Services, Adoption Services

  • MNC:

    [2015] QSC 139

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    14 May 2015

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
AC v The Department of Children, Youth Justice & Multicultural Affairs(2021) 7 QR 498; [2021] QSC 647 citations
AED v Registrar-General of Births, Death & Marriages; AED v GWK & Anor(2019) 2 QR 611; [2019] QSC 2877 citations
Buckingham v Buckingham [2020] QSC 230 1 citation
ESA v Department of Child Safety, Youth and Women [2019] QSC 2344 citations
STJ v Chief Executive, Department of Child Safety, Youth and Women [2020] QSC 252 2 citations
1

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