ESA v Department of Child Safety, Youth and Women [2019] QSC 234

SUPREME COURT OF QUEENSLAND CITATION: ESA v Department of Child Safety, Youth and Women [2019] QSC 234 PARTIES: ESA (applicant) v DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN (first respondent) EMG (second respondent) FILE NO: No 3567 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 September 2019 DELIVERED AT: Brisbane HEARING DATE: 26 June 2019 JUDGE: Boddice J ORDER: The application is dismissed. 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 the second respondent and his wife – where the applicant states that an order discharging her adoption will promote her wellbeing and best interests – where the applicant also intends to make claim on her biological parent’s estate – whether there are “exceptional circumstances” warranting the making of an order discharging the adoption order Adoption Act 2009 (Qld), ss 5, 6, 219, 221, 222, 225, 226 Adoption of LVH [2014] NSWSC 1902 Re B (Adoption: Jurisdiction to Set Aside) [1995] 3 All ER 333 Re MJD [2015] QSC 139 Re Susan (2009) 41 Fam LR 596 -- 1 of 10 -- 2 COUNSEL: The applicant appeared on her own behalf. S Munasinghe for the first respondent SOLICITORS: Crown Law for the first respondent [1] BODDICE J: The applicant seeks orders discharging a final adoption made under the Adoption Act 2009 (Qld) (“the Act”). At issue is whether there are exceptional circumstances warranting that discharge. Background [2] The applicant was born on 1 June 1975. The birth certificate issued at the time of her birth recorded her mother’s name. It did not record the name of her father. [3] On 18 June 1975, the applicant was adopted by the second respondent and his now deceased wife. A birth certificate was issued identifying them as the applicant’s parents. Application [4] The application was filed on 3 April 2019. It has been served on both respondents as required by the Act.1 [5] The first respondent, the Department of Child Safety, Youth and Women, neither consents to, nor opposes, the application and orders sought by the applicant. [6] The second respondent did not attend the hearing or provide any written submissions. The Court was informed by the respondent Department that the second respondent was not opposed to the orders.2 [7] The applicant’s other adoptive parent and both biological parents are deceased. Legislation [8] A final adoption order may be discharged on any of the following grounds: (a) “the order was made or something was done for the purpose of making the order— (i) because of a false or misleading document or representation; or 1 Adoption Act 2009 (Qld) ss 221 and 222. 2 Hearing on 26 June 2019, T1-2/16-41. -- 2 of 10 -- 3 (ii) because a person acted fraudulently or used undue influence on another person; or (iii) in another improper way; (b) a consent required for the adoption was not given freely and voluntarily by a person with capacity to give the consent; (c) there are other exceptional circumstances that warrant the discharge.”3 [9] The Court may only discharge an adoption order if satisfied of one of those grounds.4 Relevant principles [10] When considering a similar provision in Re Susan, Palmer J observed: “81. In my opinion, the principle upon which the Court should act in an application for discharge under s 93(4)(b) can be stated no more precisely than it was by McInerney J in Re S at 495: “I am disposed to think that under s 16 [now in s 93(4)(b) of the NSW Act] the Court, in considering whether there is some exceptional reason why the adoption should be discharged, must have regard to the question whether the order if allowed to continue would fulfil or defeat the essential objects of an adoption order, as collected from the provisions of the Act.” 82. The ‘essential objects’ of an adoption order to which his Honour refers are to advance the best interests of the child “both in childhood and in later life”… by means of establishing a secure and permanent relationship between adoptive parents and adopted child which will enable the child “for the full and harmonious development of his or her personality, (to) grow up in a family environment, in an atmosphere of happiness, love and understanding”. These last quoted words are taken from the preamble to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, to which Australia is a signatory and which is adopted by s 210 of the New South Wales Adoption Act.”5 [11] Traditionally, courts have been reluctant to discharge an adoption order.6 A principle reason for this was outlined by Palmer J in Re Susan: “The law equates, so far as possible, the relationship between adoptive parent and adoptive child with the relationship between birth parent and child. The parental relationship is the most fundamental, enduring and significant of all human relationships. Severance of that relationship by discharge of an adoption 3 Adoption Act 2009 (Qld) s 219. 4 Adoption Act 2009 (Qld) s 225(1). 5 Re Susan (2009) 41 Fam LR 596 at [81]-[82]. 6 Re MJD [2015] QSC 139 at [17]. -- 3 of 10 -- 4 order can overturn the identity, family structure and legal relationships not only of the adopted person but of many others as well. While the Court has paramount regard to the interests of the child in exercising its discretion whether an adoption order should be discharged if the facts alleged have been established, the Court must, in satisfying itself that such facts have been established, bear in mind the effect that that order may have on the interests of others.”7 [12] His Honour went on to observe that: “It has long been recognised that if adoption orders can easily be set aside, then the proposition that the relationship between adoptive parent and adoptive child is in all respects the same as between natural parent and child is an illusion.” 8 [13] Similar observations were made by Swinton Thomas LJ in Re B (Adoption: Jurisdiction to Set Aside): “…to invalidate an otherwise properly made adoption order would, in my view, undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child”.9 [14] In Re Susan, the Court held the prolonged sexual abuse of the applicant at the hands of her adoptive father constituted such “exceptional circumstances” as to warrant the discharge of the adoption order.10 [15] Similarly, in Adoption of LVH, Brereton J found that the applicant having incurred Post Traumatic Stress Disorder because of severe corporal punishment, physical maltreatment and malnutrition inflicted by his adoptive parents, constituted exceptional circumstances warranting the discharge of the adoption order.11 In so finding, his Honour noted: “The treatment that the plaintiff received as a child, as I have found it to be, is such as would plainly have justified his removal from them as parents were they his natural parents, and the termination of their parental responsibility. In that way, it falls within the concept of exceptional reason referred to in s 94(3)(b). The discretion to discharge the adoption order is therefore enlivened.” 12 [16] More recently, in Re MJD, Atkinson J found that the extensive physical and mental abuse suffered by the applicant at the hands of his adoptive father was sufficient to constitute “exceptional circumstances” warranting the making of order discharging the original adoption order.13 Her Honour observed: 7 Re Susan (2009) 41 Fam LR 596 [23]. 8 Re Susan (2009) 41 Fam LR 596 [49]. 9 Re B (Adoption: Jurisdiction to Set Aside) [1995] 3 All ER 333 [48]. 10 Re Susan (2009) 41 Fam LR 596. 11 Adoption of LVH [2014] NSWSC 1902. 12 Adoption of LVH [2014] NSWSC 1902 at [65]. 13 Re MJD [2015] QSC 139. -- 4 of 10 -- 5 “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 the case does fulfil the criterion of exceptional circumstances.”14 Further affidavit material [17] In the present application, there was initially no suggestion the applicant suffered any physical or sexual abuse or neglect at the hands of her adoptive parents. Indeed, in the written submissions relied upon at the hearing of the application the applicant said that her parents “weren’t bad people, we just weren’t a great fit. I didn’t belong, and I never had felt that I did.”15 [18] During the hearing of the application, it was explained to the applicant that the orders sought are only to be made in exceptional circumstances, usually where there was evidence of neglect or abuse by the adoptive parents. [19] It was put to the applicant that her adoptive parents, “by the material, were kind to you. They see you as their child. And one of the reasons these orders are not lightly made is because they undo all of that in circumstances which can be emotionally very harmful to others.”16 The applicant responded by noting that her “mum” – that is, her adoptive mother – had passed away and that her adoptive “dad gave me the best of luck for today because he knows how important it is to me”. 17 [20] At the conclusion of the hearing, orders were made allowing the applicant time to file and serve any further affidavits. The applicant provided an additional affidavit that included, as an exhibit, a letter she had written which made serious allegations against her adoptive family. [21] The applicant specifically declined to serve that additional affidavit on her adoptive father, the second respondent. The applicant maintained that position, even when advised that the Act required service if she sought to rely upon it. 14 Re MJD [2015] QSC 139 at [16]. 15 Court document 4, exhibit B, p 2. 16 Hearing on 26 July 2019, T1-8/25. 17 Hearing on 26 July 2019, T1-8/45-T1-9/3. -- 5 of 10 -- 6 [22] In that additional material the applicant alleged that: “…I lived in an abusive household. I was neglected, emotionally, verbally and at times physically abused by my parents. It is something I do not talk about. It is something I have chosen to bury. My brother abused me from the ages of 6- 11. Not an uncommon occurrence in adopted families. I was so afraid of being rejected, again, that I chose to tell no-one except my psychiatrist. I would ask that the Courts not make me detail this experience. I ask it for my dad, my brother, my children and myself.”18 [23] To support these allegations, the applicant referred to a letter, dated 13 August 1996, from Dr QN, her treating psychiatrist between 1996-7. Dr QN stated: “There seems to be quite an amount of disharmony between [ESA] and her adoptive parents. She describes both of them in scathing terms and says that they have only ever given conditional love and affection. She feels that she has gone out of her way to be their “perfect daughter”, and feels that they have always let her down by putting more effort into managing her dreadful older brother. She wonders if some of her panic and anxiety isn’t to do with the amount of hostility and resentment that threatens to break out because of her feelings about her parents.” 19 [24] In relation to the applicant’s brother, Dr QN wrote “[ESA]’s brother sounds like quite a psychopath, he is violent, selfish and drug abusing.” 20 [25] Dr QN’s letter does not suggest the applicant’s adoptive parents were abusive towards the applicant. At the further hearing of the application, the applicant also expressly disavowed the suggestion of physical abuse by her adoptive father, saying, “my parents were neglectful, my brother was abusive”. 21 This is in stark contrast to the allegations of physical abuse raised in ESA’s affidavit, signed 23 July 2019. [26] Against that background, it would be unfair and unjust to allow the applicant to rely on the additional affidavit material in support of her application, without first affording the second respondent an opportunity to respond to these new assertions. [27] Accordingly, the application will be determined without regard to the contents of the applicant’s further affidavit. 18 Affidavit of S Edwards signed 23 July 2019. 19 Affidavit of S Edwards signed 23 July 2019. 20 Affidavit of S Edwards signed 23 July 2019. 21 Hearing on 27 August 2019, T1-2/45. -- 6 of 10 -- 7 Consideration [28] It is not contended the adoption order was made or something was done for the purpose of making the order because of a false or misleading document or representation, or because a person acted fraudulently, used undue influence or in another improper way. Neither is there evidence that a consent required for the adoption was not given freely and voluntarily by a person with capacity to give the consent. [29] The sole issue is whether, in the present application, “other exceptional circumstances” exist which warrant the discharge of the adoption order. [30] The phrase “other exceptional circumstances” is not limited by the grounds identified in s 219.22 However, in determining whether s 219 is enlivened, it is necessary to have regard to the purposes of, and guiding principles within, the Act as a whole. [31] Section 5(a) of the Act identifies one of its main objects as “to provide for the adoption of children in Queensland, and for access to information about parties to adoptions in Queensland, in a way that… (a) promotes the wellbeing and best interests of adopted persons throughout their lives”.23 [32] Section 5(c) states that another principle object of the Act is to ensure compliance with Australia’s obligations under the Hague Convention on Protection of Children and Co- Operation in Respect of Intercountry Adoption 1993.24 [33] Section 6 sets out principles to guide how the Act is administered, including: “(1) This Act is to be administered under the principle that the wellbeing and best interests of an adopted child, both through childhood and the rest of his or her life, are paramount. (2) Subject to subsection (1), this Act is to be administered under the following principles— (a) the purpose of an adoption is to provide for a child’s long-term care, wellbeing and development by creating a permanent parent-child relationship between the child and the adoptive parents; … (g) a child’s adoptive parents have the primary responsibility for the child’s upbringing, protection and development; (h) an adopted child should be cared for in a way that— (i) ensures a safe, stable and nurturing family and home life; and 22 JHC v Department of Child Safety, Youth and Women and Ors, Flanagan J, 11 March 2019. 23 Adoption Act 2009 (Qld) s 5(a). 24 Adoption Act 2009 (Qld) s 5(c). -- 7 of 10 -- 8 (ii) promotes openness and honesty about the child’s adoption; and (iii) promotes the development of the child’s emotional, mental, physical and social wellbeing”. 25 [34] Circumstances deemed exceptional enough to warrant the making of such an order often involve situations where the adopted child has suffered significant emotional, psychological or physical harm inflicted by one or both of their adoptive parents. Such circumstances demonstrate a failing of the objects and purposes of the Act. Discharge of the adoption order in those circumstances is appropriate because the order creating the adoption so grossly failed to provide for the wellbeing and best interests of the child as required by the Act. [35] The applicant grounded her application in an assertion that she has lived with in the past, and continues to live with, “constant pain” and “deep, profound grief” that she believes is a consequence of her adoption.26 She has struggled with mental health issues since she was a teenager and often experienced an “overwhelming sense of loneliness, disconnection, and depersonalisation”.27 The applicant speaks of hating being adopted with every fibre of her being and that it makes her feel as if “someone has branded me as a less than worthy human”.28 She is sick of living with the “the shame and social stigma” that goes with being adopted. 29 [36] The applicant asserted that a discharge of the adoption order will help her live her best life with a lower level of pain that will be easier to manage, consolidate her acceptance of the past and the disadvantages it has placed on her, facilitate forgiveness of people and institutions who she feels have wronged her and allow her to live her authentic self. It will help her feel that she was worth keeping.30 The applicant believed her wellbeing and best interests will be promoted by a discharge of the adoption order. Without it her wellbeing will continue to suffer and her best interests will be compromised.31 [37] An additional reason for the application arose during the hearing of the application. It involved the administration of the estate of the man the applicant says is her biological father. The applicant had the great fortune of building a relationship with him throughout her adult life. She describes a particularly close relationship. Upon meeting him, the applicant “no longer felt lost and alone. I felt connected, I felt loved, I felt like I belonged. 25 Adoption Act 2009 (Qld) s 6. 26 Court document 3 [10]. 27 Court document 4, exhibit B, p 1. 28 Court document 3 [18]. 29 Court document 3 [18]. 30 Court document 3 [20]. 31 Court document 3 [20]. -- 8 of 10 -- 9 I felt well.” 32 They spoke often, supported one another and visited when possible. For her, he was “a confidant[e], a role model, my support base. And I was his”.33 [38] Although he died more than two decades after having met the applicant, he did not make a Will including the applicant as a beneficiary. The applicant asserts this was because he had forgotten he had previously made a Will. That Will left his estate to his parents and, in the event they predeceased him (which they did), to his brother. [39] The applicant alleges that in the years between the making of the Will and his death, her father and his brother had become estranged. She wants her father to rest and he will not “if his brother and his wife profit from his death. If my children and I are left with nothing of his estate, his life.”34 [40] If an order discharging the adoption order is made, the applicant intends to seek DNA evidence to prove she was in fact her biological father’s child. She would then seek to have his name documented on her birth certificate and thereby make a claim on his estate. [41] To discharge an adoption order is a grave step. Upon the making of such an order, “the rights, privileges, duties, liabilities and relationships of the child and all other persons are the same as if the final adoption order had not been made.”35 Such an order thereby dismantles a family unit in the eyes of law. [42] The applicant has undoubtedly experienced great pain throughout her life. The deep unhappiness she feels in respect of her adoption largely arises because of the disruption caused to the development of her identity, her sense of belonging and connection to others, from the social stigma of being an adopted child. The applicant’s disappointment is compounded by the knowledge that the estate of her biological father was inherited by his brother. [43] Although difficult and disappointing for the applicant, these circumstances fall short of exceptional circumstances warranting the discharging an adoption order. [44] The evidence now before me does not support a conclusion that the objects and purposes of the Act failed in the present case. The applicant was adopted by a couple who took care of, and raised her, as their own child. [45] Any inadequacies in undertaking that role are no more than shown by many biological parents. Those inadequacies do not warrant overturning the final relationship intended to be created by an adoption order. 32 Court document 4, exhibit B, p 2. 33 Court document 3 [24]. 34 Court document 4, exhibit B p 2. 35 Adoption Act 2009 (Qld) s 226. -- 9 of 10 -- 10 Conclusion [46] The applicant has not established a ground for the making of an order discharging the adoption order. [47] The application is dismissed. -- 10 of 10 --