Adopted child was allegedly exposed to abuse and harm
In a recent case, the Supreme Court of New South Wales has clarified the meaning behind an “exceptional reason” to justify a discharge of an adoption order.
In Re Clare (a pseudonym) [2023] NSWSC 1009, the NSW Supreme Court discharged an adoption made in 1957 that a child, Clare, be adopted by William and Grace Jones, according to the Adoption Act 2009.
Clare was born in 1957 and is now 66. Her mother was 15 when Clare was born, and her father was not recorded. Shortly after her birth, Clare was placed in the care of William and Grace, who had two children. William and Grace separated when Clare was three years old. Clare was initially cared for by Grace, but her younger son physically abused Clare and eventually evicted her from the home.
Clare went to live with William, who stated he was unwilling to continue caring for Clare. She became a state ward. Ultimately, when she was 16 years old, Clare married and became subject to acts of domestic violence at the hands of her husband. She was divorced in 1978.
An independent social worker reviewed several psychiatric assessments that have been made concerning Clare and found that the Joneses were not well-placed to provide care for Clare. As a result, by the time Clare was in early adolescence, she “no longer expected to be parented,” and her early marriage “represented the best option for independent survival, in the absence of family support.”
The social worker said it is difficult to assess the extent to which discharge of the adoption order might assist Clare. However, the social worker also noted that Clare sought to control her circumstances and has had an “intense preoccupation regarding the circumstances and impacts of her adoption.” The social worker thinks that the discharge of the order of adoption may have a positive psychological benefit for Clare, reflecting something over which she may have agency. On the other hand, the social worker said a failure to discharge the order might have a negative impact, amplifying her sense of powerlessness.
The NSW Supreme Court noted that under the Adoption Act, the court may discharge an adoption order if it was obtained by fraud, duress or any other improper, or if “there is some other exceptional reason why the adoption order should be discharged.” The phrase “exceptional reason” is not defined in the act.
The court explained that in other contexts, for a circumstance or reason to be “exceptional,” they do not need to be unique, unprecedented or especially rare. The term “exceptional” is sometimes used as a synonym for “special.” The court emphasised that whether an “exceptional reason” to justify an order discharging an adoption order exists must necessarily be a fact-specific exercise in each case.
The court further said that in line with the parliament’s intention, adoption orders should, so far as possible, prove an adopted child with lifelong security and stability within their family. Nonetheless, s. 93(4) of the Adoption Act allows an order for adoption to be discharged if there is an exceptional reason to do so, provided that the order would not be prejudicial to the best interests of the child and is not motivated by considerations that do not affect the child’s welfare.
Furthermore, the court said that the exceptional reason for discharge does not have to relate to the circumstances in which the adoption order was obtained and can, as is the case here, relate to “other matters, including matters arising after the adoption order was made.” The court was satisfied that there was an “exceptional reason” to discharge the adoption order made concerning Clare.
The court noted that Clare described her motivation for seeking discharge of her adoption as the failure of the Joneses to care for her, exposing her to abuse and harm from others. She has experienced ongoing trauma and said she does not feel safe being legally part of the Joneses family.
The court further noted that the evidence establishes a link between Clare’s early life experiences and the impact on her psychological well-being. Her ongoing issues are complex and may be related to matters beyond the effect of adoption itself. However, the court found that the failure of Clare’s adoptive family to care for her was a salient event and one that has cast a long shadow over her life.
The court said it would be of psychological benefit to Clare if an order for discharge was made. She has suffered from a preoccupation with her negative early life experience. Discharging her adoption order would provide her agency and positively impact her psychological well-being. Accordingly, the court ordered that the adoption order be discharged.
