In this matter, the Court held that the “exceptional circumstances” required for the discharge of a final adoption order (together with consequential amendments to the register of births) were established, in circumstances where the applicant had been sexually abused by her adoptive father and was able to sufficiently identify her biological father such that a declaration of parentage could be made.
13, 22 November 2019
The applicant was an adult woman whose mother married a man who was not the applicant’s birth father while the applicant was a child. –. In 1970, that man adopted the applicant. . A revised birth certificate was issued that showed the adoptive father as the applicant’s father and the applicant’s surname as that of her adoptive father. . On the applicant’s original birth certificate, the section relating to her father’s details had been left blank. . During the applicant’s childhood, her adoptive father sexually abused her. . Following the separation of her mother and adoptive father, the applicant informed her mother of the abuse. Her adoptive father was charged, and later gaoled after he pleaded guilty. .
The applicant applied for:
- a declaration that her biological father was her parent, pursuant to s 10 of the Status of Children Act 1978 (SOCA);
- orders directing the Registrar-General to correct the register of births to identify her biological father as her father, pursuant to s 42 of the Births, Deaths and Marriages Registration Act 2003;
- orders discharging the final adoption order made in respect of the applicant in 1970, pursuant to s 225 of the Adoption Act 2009; and
- orders correcting the register of births to identify the applicant’s full name as showing her biological father’s surname, pursuant to s 225(2)(b) of the Adoption Act 2009 and s 42 of the Births, Deaths and Marriages Registration Act 2003.
The applicant had taken steps to identify her biological father. There was evidence before the Court that a man born in Ireland in 1942, and who died in 1976 in Victoria, was the appellant’s biological father. –. Despite some discrepancies in the evidentiary material, Davis J was satisfied that it was far more likely than not that the applicant had identified her biological father. .
To obtain the declaration of parentage sought under s 10 of the Status of Children Act 1978, it was not necessary to prove her biological father’s identity beyond reasonable doubt – “comfortable satisfaction” was sufficient. . In any event, Davis J considered there was “little if any doubt” that the man identified was her biological father. . In the circumstances, it was appropriate to make the declaration of parentage: the applicant had a proper interest; there was no opposition; there was no evidence of any existing estate of the applicant’s biological father; and, there were no discretionary reasons to refuse the declaration. . Furthermore, his Honour considered that the Registrar should correct the register to reflect the declaration. .
With respect to the application to discharge the final adoption order under s 225 of the Adoption Act 2009, his Honour noted that the applicant had to show “exceptional circumstances” pursuant to s 219(1)(c) of that Act, as none of the prescribed grounds in s 219 were made out. . Justice Davis observed that public policy required final adoption orders to not easily be set aside. Such an order “is meant to be final and establishes legal rights which have significance beyond just those of the adopted person”. .
That being so, “[m]istreatment by the adoptive parent of the child adopted may enliven the discretion to discharge an adoption order”. . His Honour held that “exceptional circumstances” justifying discharge of the adoption order existed. These included: the adoptive father accepting that he offended against the applicant; the adoptive father’s regret and some level of insight into his actions; the lack of opposition to the application; the applicant mother’s support of the application; the existence of psychological evidence that the making of the discharge order would be beneficial to the applicant’s mental health; and, the Department of Child Safety, Youth and Women’s concession that exceptional circumstances existed. .
It followed that the birth register should also be corrected to record the applicant’s surname as that of her biological father. .
In the result, therefore, the orders sought by the applicant were made. , .