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[2021] QSC 64
This case considered whether an applicant, who had been adopted by his grandparents in 1951, was entitled to an order discharging his adoption. At the time of his birth his mother had been 19 years old and unmarried, and the applicant deposed that she was “forced” to put him up for adoption. A key reason the applicant sought discharge of the adoption was so that he would be able to make a claim for family provision out of her estate. Williams J found that the applicant had not established “exceptional circumstances” so as to warrant the order sought.
Williams J
26 March 2021
Background
This judgment considered an application seeking discharge of an adoption order, pursuant to s 225 of the Adoption Act 2009 (“the Act”). [3]. The applicant (AC) sought that order “so that he is eligible to bring a family provision application in his biological mother’s estate”. [10]. The key issue in dispute was whether the applicant could establish that there were “exceptional circumstances” so as to justify discharge (per s 219(c) of the Act). [9].
In the result, Williams J was not satisfied that AC had established “exceptional circumstances”. [121].
Further background
AC was born in December 1950. His mother was 19 years old at the time, and single and unwed. [12], [14]. In August 1951, AC’s maternal grandparents adopted him. [16]. According AC, he understood that his mother had put him out to her parents for adoption as she was “forced by the government to do so”, given her youth and that she “had a baby out of wedlock”. [23]. He further deposed that he had a very close relationship with his mother throughout her life. [24].
Two years after AC was adopted by his grandparents, his mother (then aged 21 and married) adopted another child. [15]. In his mother’s will, her house is to be left to this adopted child, with the residue for AC. There was evidence that the house is worth between $640,000 to $900,000, but “after payment of debts, there will be no residue”. [32].
AC emphasised the above considerations, and that he had “not received any significant provision” from his adoptive parents, in arguing that he had established “exceptional circumstances” warranting discharge of his adoption order. [26], [35].
Why the application for discharge of the adoption order was unsuccessful
Justice Williams noted that the “onus is on the applicant to establish ‘exceptional circumstances’”. [114]. Further, it was clear from the Act that “adoption orders are intended to be final and establish legal rights”, such that they should not lightly be disturbed. [121].
Although AC’s mother likely “experienced pressure and stigma” at the time of his birth, there was no evidence that she was subject to “any particular forced adoption practices”. [123]. There was no evidence that her decision to put AC up for adoption was “other than voluntary”. [123].
As to whether the desire to seek provision from his mother’s estate was sufficient to establish “exceptional circumstances”, Williams J reviewed two cases which indicated that it would not be. In ESA v Department of Child Safety, Youth and Women [2019] QSC 234, Boddice J found that the applicant’s non-entitlement to a share in her biological father’s estate, “[a]lthough difficult and disappointing for the applicant”, fell short of establishing “exceptional circumstances”. [87]. The same view was arrived at in the New South Wales Supreme Court’s decision of Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673. [88]–[89].
Lastly, her Honour appeared to place particular emphasis on the fact that the “objects and purposes” of the Act (including the “best interests of an adopted child”) had been furthered by AC’s adoption by his grandparents. [6], [117]. His adoption “resulted in him being raised and cared for by them”, and there was no evidence that there had been neglect or abuse of any kind. [118]. In comparison, “the majority” of cases in which a discharge of adoption had been justified involved adoptive parents who had been abusive or neglectful (e.g. AED v Registrar-General of Births, Deaths and Marriages (2019) 2 QR 611). [44], [56].
Accordingly, the application for discharge of the adoption order was dismissed. [125].
W Isdale