Daley v Donaldson [2022] NSWCA 96

Daley v Donaldson [2022] NSWCA 96

An adoption order made in Queensland in favour of the applicant’s stepfather and birth mother severed the applicant's status as a child of the deceased under s 95(2)(d) of the Adoption Act 2000 (NSW), and s 95(3) does not preserve the relationship with the biological father unless the birth parent was living with the step-parent; thus, the applicant is not an 'eligible person' as a child of the deceased under s 57(1)(c) of the Succession Act 2006 (NSW). Any compromise reached between the parties for a family provision order required the court's approval and the prerequisites to be met; since the applicant was not eligible, and there was a mistaken belief as to his status, the court...

Parties
Applicant: Glenn Eric Daley; Respondent: Dawn Donaldson
Jurisdiction
Australia
Judgment Date
17 June 2022
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court of New South Wales, Equity Division
Outcome
Appeal dismissed with costs. Leave granted to appeal, applicant to file notice of appeal, requirements of service dispensed with.
Legal Topics
Family Provision Orders, Effect of Adoption on Eligibility for Provision, Approval of Compromise Under Succession Act 2006 (nsw) S 98, Common Mistake in Settlement, Discretion of Court to Make Consent Orders
Succession Law Family Provision Adoption Law Civil Procedure Family Provision Orders Effect of Adoption on Eligibility for Provision Approval of Compromise Under Succession Act 2006 (nsw) S 98 Common Mistake in Settlement +1 more

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Parties

Glenn Eric Daley

Applicant

Dawn Donaldson

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 Whether adoption order caused applicant to cease to be a child of the deceased for succession purposes
  2. 2 Whether executrix’s notice of possible adoption affected enforceability of compromise
  3. 3 Whether court has discretion to refuse to make orders reflecting settlement

Ratio Decidendi

An adoption order made in Queensland in favour of the applicant’s stepfather and birth mother severed the applicant's status as a child of the deceased under s 95(2)(d) of the Adoption Act 2000 (NSW), and s 95(3) does not preserve the relationship with the biological father unless the birth parent was living with the step-parent; thus, the applicant is not an 'eligible person' as a child of the deceased under s 57(1)(c) of the Succession Act 2006 (NSW). Any compromise reached between the parties for a family provision order required the court's approval and the prerequisites to be met; since the applicant was not eligible, and there was a mistaken belief as to his status, the court...

Court Disposition

Appeal dismissed with costs. Leave granted to appeal, applicant to file notice of appeal, requirements of service dispensed with.

Orders

  • Grant leave to appeal in terms of the amended notice of appeal including ground 5A.
  • Direct the applicant to file a notice of appeal; dispense with requirements of service.