Supreme Court New South Wales Medium Neutral Citation: Re David [2022] NSWSC 1738 Hearing dates: 29 June 2022 Date of orders: 29 June 2022 Decision date: 29 June 2022 Jurisdiction: Equity - Adoptions List Before: Slattery J Decision: Adoption orders discharged pursuant to Adoption Act 2000, s 93(4)(b). The applicant's name changed back to his first name. Catchwords: ADOPTION – discharge of adoption orders pursuant to Adoption Act 2000, s 93(4)(b) – applicant of First Nations heritage – the applicant was adopted in 1980 away from his First Nations community – the applicant suffered sexual abuse by his adoptive father and other persons over many years – applicant seeks the discharge of adoption orders – whether sufficient evidence of sexual abuse – whether adoption orders should be discharged – whether the applicant's name should be changed back to his birth name. Legislation Cited: Adoption Act 1965 Adoption Act 2000, ss 93(4), 93(4)(b), 93(7)(a) Births, Deaths and Marriages Act 1995, s 19(2) Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Adoption of LVH [2014] NSWSC 1902 Re P [2019] NSWSC 1623 Re S [1969] VR 490 Re Susan [2009] NSWSC 592 Category: Consequential orders Parties: Applicant: [not to be published] First Respondent: [not to be published] Second Respondent: The Honourable Mark Speakman Representation: Counsel: For Secretary, Department of Communities and Justice, Crown Solicitor: Dr M Barnett The applicant: self-represented Solicitors: For Secretary, Department of Communities and Justice, Crown Solicitor: Ms N. Hailstone File Number(s): 2022/53405 Publication restriction: Yes EX TEMPORE Judgment 1. The applicant is a First Nations man. Pursuant to Adoption Act 2000, s 93(4)(b) he seeks the discharge of orders by which he was adopted in 1980. The Court today granted those orders on the proven ground that the applicant's adoptive father sexually abused him and allowed him to be sexually abused by others. 2. The Court was satisfied at the hearing of this matter on 29 June 2022 that it should make the orders sought. On an ex tempore basis Court gave its reasons for decision but said it would publish more detailed reasons later. These are those more detailed reasons. 3. Throughout these published reasons, the Court calls the applicant "David". The Adoption Act prevents the applicant's real name being published. The applicant wished to use the name David in memory of a young person who had been like a brother to him in various institutions where the applicant had suffered, but who had since died. The Motion in the Proceedings 1. By his notice of motion filed on 23 February 2022, David applies for the discharge of the orders by which a married couple resident in New South Wales adopted him. The couple cannot be named but will be referred to in these reasons as the "adoptive father" and the "adoptive mother" and collectively as the "adoptive parents". 2. David's application is brought by motion in the original adoption proceedings. The motion joins as the first respondent the Attorney General of New South Wales and the second respondent, the Secretary of the Department of Communities and Justice ("the Secretary"). 3. The Secretary was represented in the proceedings by Dr M. Barnett and instructed by Ms N. Hailstone from the office of the Crown Solicitor. David represented himself but he had present in Court several supporters and friends, who had given him assistance to bring his motion. Their friendship, legal support and continued presence in his life have allowed him to bring this application. By informal means through Ms N. Hailstone and other officers of the Crown Solicitor it was evident that a high level of communication had taken place with David to help him present his case. 4. The adoptive parents are respondents to the motion. The Court is satisfied that the adoptive parents have been served with the motion. They have not sought to appear or to oppose the orders sought. 5. The Secretary has assisted the Court by making inquiries and gathering evidence, which seeks to test and ascertain whether David's allegations of sexual abuse can be verified. The Secretary also advanced submissions to assist the Court's analysis of the evidence. The Secretary's work has considerably shortened the task of the Court in reaching its conclusions. 6. The applicant seeks three orders: (1) that pursuant to the Adoption Act 2000, s 93(4), the adoption order made in 1980 be discharged; (2) that the name of the applicant consequent upon discharge be that of his birth family; and (3) in the event that orders (1) and (2) are granted, that the Register of Births, Deaths and Marriages must not refer on any new birth certificate to the history of David's previous names during the currency of the adoption orders. 7. The Secretary submits that there are doubts whether the applicable legislation confers upon the Court the power to make an order in the form of proposed order (3). A difficulty with the order is that it seeks to enter the area of the internal management of the Registry of Births, Deaths and Marriages. Ms Hailstone could not direct the Court to any specific provision in the legislation which empowered such an order to be made. But the Court can achieve substantially the same outcome as proposed order (3) by the notations that it has made at the conclusion of these reasons. 8. The Secretary has not taken a formal position as to whether the principal orders sought, orders (1) and (2), should be made. But the Secretary's final position in submissions was that the evidence does support the making of an order for discharge. The Applicable Legislation and Relevant Authority 1. Applications for discharge of adoption orders are rare. The relevant powers to order discharge have been explored in few cases since the Adoption Act was passed in 2000. 2. The application is made under s 93 of the Act which provides as follows: S93 Discharge of adoption orders (1) In this section— "concerned person" means the Attorney General, or any party to an adoption. (2) A concerned person may apply to the Court for an order discharging an adoption order (a "discharge order"). (3) The Court is to give each concerned person (other than the applicant for the discharge order) notice of the application. (4) The Court may make a discharge order if it is satisfied that— (a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or (b) there is some other exceptional reason why the adoption order should be discharged. (5) The Court must not make a discharge order if it appears to the Court that— (a) the making of the order would be prejudicial to the best interests of the child, or (b) if the application for the order is made by the child—the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child's access to information or contact with a person under Chapter 8 (Adoption information). (6) If the Court makes a discharge order respecting a general consent, that consent remains effective for the purpose of a further application for an adoption order in relation to the same child, unless the Court orders otherwise. (7) If the Court makes a discharge order, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the best interests of the child, including orders relating to the following— (a) the name of the child, (b) the ownership of property, (c) the parental responsibility for the child, (d) the domicile of the child. (8) On the making of a discharge order, but subject to any order made under subsection (6) and to section 95 (4), the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made, but without prejudice to— (a) anything lawfully done, or (b) the consequences of anything unlawfully done, or 1. (c) any proprietary right or interest that became vested in any person, while the adoption order was in force."The Adoption Act, s 94 confers powers on the Court to require Secretary to undertake investigations to ascertain whether order should be made under section 93. Section 94 provides as follows: 94 Investigation of application for discharge The Court may require the Secretary to investigate the circumstances of any application for a discharge order and report to it. 1. Before the matter came on for hearing the Secretary had undertaken substantial investigations into the background surrounding David's application around. 2. Section 93 has been considered several cases most prominent of which are Palmer J's decision in Re Susan [2009] NSWSC592, Brereton J's decision in Adoption of LVH [2014] NSWSC 1902 and Sackar J's decision in Re P [2019] NSWSC 1623. In this case the question is whether "some other exceptional reason" has been demonstrated within Adoption Act, s 93 (4)(b) why the adoption order should be discharged. These authorities closely guide the Court in that determination. 3. The expression "some other exceptional reason" in s 93(4)(b) can relate to matters arising after the adoption order was made: Adoption of LVH at [6]. An exceptional reason arising after an adoption order should be such as would justify the termination of the adoptive parent's parental responsibility if he or she were the natural parent of the adopted child: Adoption of LVH at [8] – [9]. 4. In Re Susan, Palmer J cited McInerney J's statement in Re S [1969] VR 490, at 495 with approval that: "… in considering whether there is some exceptional reason why the adoption order should be discharged [the Court] must have regard to the question whether the order if allowed to continue would fulfil a defeat the essential objects of an adoption order, as collected from the provisions of the Act." 1. Palmer J explained in Re Susan at [86] that because the Children and Young Persons (Care and Protection) Act 1998 provides a basis for a child to be removed permanently from the care of a parent in this State, who is found to have sexually abused the child, sexual abuse can also justify severance of the parental relationship created by juridical act. 2. In Re Susan the circumstances were like some of those in the present case, where sexual abuse was alleged against an adoptive parent and because of the experience of sexual abuse the applicant would feel benefit from severing the parental relationship with her abuser. In Re Susan, Palmer J concluded at [92] that "the making of the discharge order will go some way to healing the injury which has flowed from the adoption". 3. But Palmer J also pointed out in Re Susan that where serious allegations of sexual assault are made against an adoptive parent the Court must be satisfied to the appropriate standard of proof that the conduct has occurred. The Court cannot merely on the ground of advancing the child's best interests give the child benefit of the evidentiary doubt in the exercise of finding that the facts supporting the application have been proved to its satisfaction. Allegations of sexual assault which are sufficient to sever the parental bond must be very serious allegations and need to be proved to the appropriate standard: Evidence Act 1995, s 140. 4. Adoption Act, s 8 factors require determinations about adoption to be made in the best interests of the child, both in childhood and later life as the paramount consideration. Counsel for the Secretary, Dr Barnett persuasively points out, Adoption Act, s 8 factors relevant to the making of adoption orders also have significance when a discharge order is under consideration. On its proper construction, s 8 applies to "a decision about the adoption of a child". The decision to discharge an adoption order is "a decision about the adoption of a child". 5. An additional element to David's allegations of sexual abuse and another factor in this case that grounds his application is open hostility to his indigenous background and heritage. It is an additional factor which the Court takes into account. But the case would have been made out in any event by reason of the allegations of sexual abuse. 6. In this case as will be seen the Adoption Act 1965 ("1965 Act") applied when David's adoption order was made. By the time the discharge order was applied for in these proceedings the 1965 Act had been replaced by the current Adoption Act which included new and detailed provisions covering the adoption of indigenous children. It is the current Adoption Act that applies, sets legislative policy and guides the Court's considerations to this application for discharge. 7. The1965 Act did not contain Part 2 Division 2 of the current Adoption Act, which makes special provision for the adoption of aboriginal children and providing for aboriginal participation in decision-making (s 33) and the application of aboriginal child placement principles (s 34). These principles (s 35) provide that the first preference for placement of an Aboriginal child for adoption is with a prospective adoptive parent or parents belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belongs, or the next preference is for the child to be placed with a prospective adoptive parent or parents from another Aboriginal community and only then for placement outside an indigenous community. 8. Those principles include the following legislative statement made in Adoption Act, s 35(3) in relation to the placement of a child with a person who is not aboriginal. (3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent— (a) has the capacity to assist the child to develop a healthy and positive cultural identity, and (b) has knowledge of or is willing to learn about, and teach the child about, the child's Aboriginal heritage and to foster links with that heritage in the child's upbringing, and (c) has the capacity to help the child if the child encounters racism or discrimination in the wider community, and that the Aboriginal child placement principles have been properly applied. 1. Now the law is that an aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making the adoption order is clearly preferable in the best interests of the child and to any other action that could be taken by law (s 36). This provision adds for indigenous children to a similar provision in s 90(3) for all children, the need to consider all other options to ensure that aboriginal child placement principles can be applied before an indigenous child is adopted. Some Preliminary Matters 1. The formal aspects of s 93 have been satisfied here. David is a "concerned person" and may apply for a discharge order: s 93(2). As earlier indicated the adoptive parents, who are "concerned persons" within s 93(1) have been served with the motion and supporting evidence in conformity with s 93(3) and have not appeared. 2. The Court can exclude the considerations under s 93(5) which would prevent a discharge order being made. The Court is satisfied that that the prohibitions listed within s 93(5)(b) do not apply. There is no inhibition on the Court making a discharge order because it might prejudice David's best interests or because it is motivated by extraneous emotional or other considerations that do not affect his welfare. The bringing of this application has been considered over many years and is not based upon any passing, transient or emotional consideration. Rather, it is a profoundly thought through structural change that David seeks to make to his life for his long-term wellbeing. 3. Nor does this application arise because David has formed relationships due to his having had access to information under Adoption Act, Chapter 8. 4. As these reasons explain, in David's case the evidence strongly indicates that the making of the order would not only not prejudice David's best interests and is therefore not excluded by s 93(5)(a) but is plainly in his best interests. 5. The conclusion that the making of a discharge order is in David's best interest emerges from the discussion below as to whether there is, within s 93(4)(b) "some other exceptional reason why the adoption order should be discharged". 6. David's case was not advanced based on s 93(4)(a). It was not contended in his case that the adoption order was obtained by fraud, duress, or other improper means. David was adopted away from his First Nations community, and he lost connection with his people. That loss of connection and the adoptive parent's treatment of his indigenous background contributed to the dysfunction with his adoptive parents, ultimately contributing to his vulnerability to abuse. This was directly put on David's behalf as a consideration going to make out "some other exceptional reason why the adoption order should be discharged" within s 93(4)(b). It was not necessary for the Court to explore whether the same factor might found an argument under s 93(4)(a). David's Background, Adoption and Early Life 1. Adoption Act, s 119, requires that adoption proceedings be heard in closed Court. An account of David's adoption must be told in a way that does not allow him to be identified. This inevitably means a loss of detail in these findings, but their substance is clear. 2. David was born in the late 1960s in country New South Wales. His birth mother was a Kamilaroi woman, who was born in the 1930s. David's father was a Kamilaroi man, who was born in Moree in 1920s. David's father had died prior to his birth in circumstances that left David's mother destitute and facing immense difficulties in looking after her children. David was removed from her care at the age of eight months as a neglected child. 3. David has three siblings. They were all adopted outside their indigenous circles of kinship and community to different families. No opportunity was afforded to David's mother to see if David could be cared for by immediate family members so that the children could be brought up to learn, understand and identify with their indigenous heritage. This can be inferred from the absence of relevant material in the Court file relating to David's adoption. 4. The Court has had access original Court file and evidence of David's adoption. Whilst there are oblique references to David's indigenous heritage, none of the considerations which are now reflected in s 35(3) were included in the evidence for the adoption order or apparently considered when it was made. But given the legislation during this period this is not surprising. The order made by the judge was regular on its face in accordance with the law that applied at the time. 5. The Court has only indirect evidence about the circumstances in which David's mother gave him up for adoption. This Court is not equipped on this application to investigate those circumstances any further to ascertain what happened. But from what is known a reasonably clear picture emerges that David's mother was most reluctant to give up any of her children for adoption, but they were all taken away from her and then later adopted against her will. 6. The Court infers from the available evidence that David's mother expressed wishes to be reunited with him and her other children for many years after his and their adoption. The inference is clearly available from the absence of relevant evidence and the absence of legislative requirements at the time that David's mother, David, and his three siblings were not afforded what is now the recognised right to have the aboriginal child placement principles applied for their benefit and for the benefit of their communities and kinship groups. 7. David was placed with his adoptive parents in regional New South Wales away from the lands where he had been brought up by his mother, away from her and from all his siblings. He had no contact with any of them after his adoption. Again, by the standards of the applicable law and adoption practice at the time that was not unusual. 8. The Court is satisfied that whilst David lived in the household of the adoptive parents from about the early 1970s when he was about four years of age, he was sexually abused by several persons, including his adoptive father and other male relatives of the adoptive parents who were living in the same household. The most frequent sexual abuse was by a male relative, but some was by the adoptive father who David explains "justified sexually abusing me with some sort of preference to my colour and the Bible". Sometimes the adoptive father and the male relative were involved in the abuse together or with others and sometimes the adoptive father and the male relative watched other persons perpetrating the sexual abuse on David. It is unclear the extent to which the adoptive mother was aware of the abuse as she suffered from anxiety and appeared to have withdrawn from David as a result. But the sexual abuse was regular and persistent from when David was a young age particularly with respect to the leading role of the male relative. 9. David says that then child welfare department officers would come and visit the household but that he was threatened with corporal punishment if he revealed to the officer what was happening. Much of David's sexual abuse occurred before David was adopted but given the dynamic in the household from the sexual abuse it can be inferred he had little real say in his adoption, despite the adoption papers saying he agreed to it. 10. The abuse resulted in David suffering severe psychological damage and a diagnosis of post-traumatic stress disorder. Two medical reports of psychiatrists who have examined David, Dr Shaikh and Dr Roberts, confirm this diagnosis and the consistency of his account and his symptoms. The conclusions of these specialist doctors are consistent with the abuse of which he complains having taken place. Their reports represent strong confirmatory evidence of the validity of David's account. Although their evidence is complicated by the fact that he suffered further abuse after he left the adoptive parents' household. 11. David's indigenous heritage and identity were not recognised or valued by his adoptive parents. He recounts incidents from his earliest memories of being treated with hostility, vilification, and active verbal and physical abuse because of his indigenous heritage. He was bashed by his adopted siblings because of his aboriginal heritage. His account is confirmed by departmental records which show that he was not told about his indigenous heritage until 1976, when child welfare officers prompted the adoptive parents to reveal it to him, which they were reluctant to do because they had engendered in him an adverse attitude towards indigenous people. 12. He was told from his earliest years by his adoptive parents that his mother was dead and had wanted nothing to do with him. But that was not true as he later found out. David has examined the Department's files. He has ascertained that his birth mother's contact with the Department indicates that she continued to look for him long after his adoption. 13. A tipping point in David's life came in the year that the adoption order was made in December 1980 just before he turned 13. His mother had died in June 1980, several months before his adoption order was made. He was not told of his mother's death until October that year. He had been in foster care with the adoptive parents before then. His mother's death meant that her consent did not have to be obtained to his adoption. The timing of the summons for adoption and the evidence in support, all dated in September and October 1980 after David's mother's death, gives reasonable cause to infer that David's mother did not consent to his adoption and that was well-known. Her death removed the requirement for her consent. It was ultimately not necessary to refer to David's mother in the adoption application other than to provide her death certificate. 14. But David was told at the time of the adoption that his mother had recently died and he realised for the first time he had been misled about his birth mother being alive throughout his life until then. He began to believe that he had also been misled about her wanting to be with him, along with her other children. The knowledge that he had been misled in this way, together with the denial of value to his First Nations heritage, together with the sexual and physical abuse, caused him to react strongly and to seek freedom from the family structure into which he had been adopted. 15. David soon began to react with anger and hostility to his adoptive parents. By 1981-82 he was being charged with break and enter offences. His anti-social behaviour probably appeared troubling, unpredictable, and undeserving to his adoptive parents. Features of the case show that his adoptive parents made efforts to do what they could for David. But they were ultimately not able to control him. He was eventually placed in a boys' home at about the age of 14 and from then throughout his teenage years he was placed into several other homes and institutions, as well as spending some time back with the adoptive parents. This in turn made him vulnerable and took him into far riskier situations which would harm him even more. 16. Sexual abuse was not the only reason for David's anti—social behaviour. Modern adoption orders encourage even adoptive parents to support contact between adopted children and their birth parents. That law did not exist when this adoption took place. David remained wholly disconnected from his birth family. The psychiatric evidence shows that David's disconnection from his family was an aggravating factor contributing to depressive episodes in his life and some of his anti-social behaviour. 17. The Court is satisfied from David's account and from Departmental records that in these institutions David became the victim of both casual opportunistic abuse inside, and organised trafficking outside, several homes and institutions where he had been placed in residential care and should have been protected. The trafficking made him available for abuse throughout his teenage years by paedophiles, some of whom David could identify as having been convicted of crimes of sexual assault against young men and boys. 18. David engaged in substance abuse, became depressed and suicidal at times, was imprisoned, and had difficulty maintaining employment although he found satisfaction joining and serving the Army Reserve. 19. But through all this David always maintained hope and kept something for himself. A remarkable feature of his evidence is that despite the long-term and persistent abuse suffered throughout his youth and the penumbra of disadvantage in which he has lived, he has always retained and fostered several identifiable positive driving forces in his life. First, he has expressed and partly fulfilled his ambition to educational attainment. He has taken a Masters degree in indigenous studies. Secondly, he has used his capacity to identify friends and a wider circle of people who are sincere in caring for him well and looking after his true best interests. He had some of those people in Court with him. Thirdly, he has successfully acted upon his profound desire to find his birth family. 20. These factors show a thirst for the positive in David's life as he seeks to restore, as best he can, his identity and integrity, despite his life experience. He advances this application as part of that process. And the Court accepts that it is. 21. There is demonstrable consistency in the evidence which David advances which allows the Court to accept with confidence David's account of his early life and the abuse within the household of the adoptive parents. There are three main sources of this corroborating evidence. 22. The first source is the Department's own records. These show that even before the adoption occurred the adoptive father had been found to have been unfit, due to demonstrated sexualised discussions and immature conduct with his youthful charges in a boys' home. As a result, moves were made to bar him from working in the boys' home but he was allowed to resign. The evidence does not reveal why that important fact was not communicated to the adoption authorities or the Court considering David's adoption in 1980. The adoption papers refer to the adoptive father as "not adversely known to the local police". The adoptive father had not been approved as a fit person for adoption. His name had not been entered "in the register of persons approved to adopt children". This requirement was waived for his adoption. Deeper inquiries would probably have revealed his being barred from working at the boys home. This omission was to David's great disadvantage. 23. Other departmental documents accounting for the period of David's residence in various homes and institutions is also substantially consistent with his account of having suffered abuse at this later time by staff in those places. 24. The second source of confirmation of David's account is the evidence of the two psychiatrists, Dr Shaikh and Dr Roberts. Their medico-legal examinations and diagnosis of post-traumatic stress disorder, they say are consistent with David being severely negatively impacted by an experience of sexual abuse by one or more persons. Those psychiatric reports accept David's account of a history of abuse. The consistent history David has given to several independent professional persons (such as a psychiatrist), strongly affirms the consistency and reliability of his account of events. Whilst this evidence does not implicate the adoptive father directly it does indicate that the abuse had been going on for a long time which is consistent with the adoptive father committing and enabling it. 25. The third source of confirmation and consistency is the evidence of Ms Bronwen Elliott, who has provided expert evidence, from her social working and psychological background, reviewing the Department's documentation. She has found nothing in the material inconsistent with his account. And she also identifies David's early desire to find his indigenous identity and reject associations with his adoptive parents is consistent with what had occurred to him. Consideration of Ms Elliott's Analysis and David's Reasons for This Application 1. David's evidence and Ms Elliott's analysis also reveal that his present application fits into a long history in his life of seeking to restore his indigenous identity. 2. Ms Elliott points to an important factor in David's history. Not long after David left the household of his adoptive parents David restored and began to use his birth name which is an amalgam of his birth mother's and birth father's surnames. He has continuously used that name since thereby recognising his birth parents and his indigenous heritage and rejecting the consequences of the adoption order which had been made. 3. Ms Elliott concludes, in a manner consistent with the views David expresses himself, that to discharge the adoption would make his legal identity congruent with that which is claimed through changing his name and developing connections with his indigenous family and community. 4. Ms Elliott is also of the opinion that the making of the adoption discharge order would be likely to reduce David's anxiety in some situations that he faces. But most importantly in her opinion the making of such an order will give him a sense of agency, control of his life, and his identity, which can be expected to have ongoing therapeutic and positive effects for him to overcome the effects of his sexual abuse. The psychiatrists also confirm this, saying that the making of discharge orders is likely to aid David's healing and reduce the effects of his post-traumatic stress disorder resulting from his sexual abuse, for which they recommend continuing treatment. 5. It is evident from what David has said to the Court today and from his history, now having children and grandchildren of his own, that he has a life experience and background that enables him to put forward with considered conviction his desire to discharge this adoption order as a step towards restoring his connection with his indigenous heritage. 6. David explained to the Court that he has long ago found his three siblings and restored rich and rewarding relationships with them. An ever-present feature of this case is the reported strong desire of each of those four siblings to be the family they once were, despite their removal from their birth mother and their adoption by different families. David's birth family members never gave up the search for one another, and his welfare is much served by being restored legally as well as informally to that family by the making of a discharge order. 7. David also explained that he wishes for the orders to be made, as heritage and lineage go in both directions. He says that the discharge the orders will enable his own three children and his grandchildren to know in every legal and formal sense their true heritage. 8. David says that he no longer wishes to have to explain where he came from and that he wants to have the Register of Births, Deaths and Marriages publicly acknowledge his true parentage and heritage. That will happen as a result of the making of these orders. 9. David's own reflections upon his life story, set out in the last paragraphs of his affidavit, make a compelling case for the making of today the orders he seeks. They show he wishes to distance himself from the sexual abuse he suffered at the hands of the adoptive father. That which is bound in with restoring his indigenous identity. Those reflections closely track Ms Elliott's opinion. "I feel like my life was hijacked right from the start. Being adopted means I am trapped living a lie. My identity is false. I am not and have never been [his adopted name]. I am [David] a proud Kamilaroi man. I changed my name to reflect my true identity but that is not enough. I want my identity to be restored properly with birth records that reflect accurately my true heritage. I am not the offspring of the terrible strangers who adopted me and I want the record to show that. I just want this nightmare to end. A discharge acknowledges the disaster that was inflicted on me and it means the Government has done everything it can to bring this terrible tragedy to a close. If the discharge is granted I will able to begin the healing process and be able to live the rest of my life as my authentic self. I will no longer feel unjustly in a construct imposed on me by others. If I am not released from this adoption and my pain and suffering will continue, I cannot comprehend going forward trapped in this scenario. I respectfully ask the Court to right this wrong and release me from this cruel situation and let me move on to begin a new life as my true self the man I really am". 1. The deeper themes upon which David reflects in these words resonate in the considerations to which the Adoption Act requires the Court to attend. David says and the Court accepts that the public recognition of discharging the adoption order will begin to restore his identity and dignity, will begin to release him from the pain and damage he has suffered as a result of the sexual abuse which was enabled by adoption, and will allow him to heal and "begin a new life as my true self the man I really am". 2. The legislature left the power in Adoption Act, s 93 largely unconfined except by the general objects of the Act itself and the need to find an exceptional reason why the order should be made. Legislation which more closely confined the discretion would perhaps not have anticipated cases such as this. Although the aboriginal child placement principles were not present in the Adoption Act when David's adoption order was made, they are there now, and they present relevant considerations to guide the Court's reasoning on this application. The absence of those aboriginal child placement principles from his adoption has been evident through David's life. And the making of an adoption discharge order can now be justified as a step likely to restore some of what was lost due to their absence and to give effect to the wider present legislative policy that they represent about what is essential for the adoption of indigenous children. 3. The evidence confirms that the power in Adoption Act, s 93 should be exercised here for the exceptional reasons that are demonstrated this case. Exercise of the power will assist David's proper advancement, well-being, and welfare in his future life. Two pre-eminent exceptional reasons are: the completion of David's separation from, and rejection of, a relationship with his adoptive parents which has caused him irreparable harm through sexual abuse; and, the coordinate restoring of his identity and sense of belonging to his First Nations family and community which will help him heal from that sexual abuse. 4. This approach also gives effect to the factors identified in Adoption Act, s 8(1). The decision serves the best interests of the child, David, on this occasion "in later life" as the paramount consideration. It reflects David's views and preserves his cultural ties. Conclusions and Orders 1. It serves the overall objective of the orders to be made under Adoption Act, s 93 that orders should also be made under the Births, Deaths and Marriages Act 1995 that the Registry is to record [the applicant's pre-adoption surname] as his name on his birth certificate. 2. The Court agrees with the doubts that the Secretary has expressed about the Court's powers to make an order in exactly the form which David sought to control the future content of the Registry of Births, Deaths and Marriages in relation to him. But the Court understands discussions have taken place with David and he is aware of those limitations. The legal representatives of the Secretary have discussed a form of amended orders with David, which involved making the notation below. This notation seems to achieve practically much the same effect as the orders originally proposed and the Court will make them in that form. 3. For these reasons the Court makes the following orders and notations: 1. Pursuant to s 93(4)(b) of the Adoption Act 2000 the adoption order made on 18 December 1980 for the applicant in favour of the adoptive father and the adoptive mother is discharged; 2. Pursuant to s 93(7)(a) of the Adoption Act 2000 the name of the applicant the adopted adult consequent upon discharge be [the applicant's pre-adoption surname]; 3. Pursuant to s 19(2) of the Births, Deaths and Marriages Act 1995 that the Registry is to record [the applicant's pre-adoption surname] as his name on his birth certificate; 4. Pursuant to s 19(2) of the Births, Deaths and Marriages Act 1995 that a new birth certificate be issued recording the names of the applicant's biological mother and father; and 5. Note for the attention of the Registry of Birth, Deaths and Marriages that there is likely to be significant trauma experienced by the applicant in any reference to the name of the adoptive parents or a near relative of theirs remaining on the birth certificate issued to the applicant. It is requested that any further documentation issued by the Registry of Birth, Deaths and Marriages refer to the applicant by [the applicant's pre-adoption surname]. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2022