Family provision & common mistake

In NSW, once an adoption order is made the adopted child ceases to be regarded as the child of the birth parent: s95(2) of the Adoption Act 2000.


Glenn Daley (the plaintiff) was given $5,000 in the will of his father John Richardson which stated

…I no longer have contact with my children GLENN and ROSEALIE, and due to the breakdown in our relationship, it is my wish that they don’t receive any further distribution from my estate.

Further, the Testator’s will gave

the rest and residue of my estate to my daughter DAWN


The plaintiff brought a family provision application. At mediation on 12 April 2021, the parties reached a settlement where they agreed to further provision.

However, following the mediation, it was discovered that the plaintiff had been adopted out by John Richardson.

As a corollary the plaintiff was not an eligible person to bring a family provision claim against the estate of the deceased: s57(1)(c) of the Succession Act 2006.


In Daley v Donaldson [2021] NSWSC 1507 the plaintiff sought the Court’s determination under s 73 of the Civil Procedure Act 2005 (NSW).

On the day of the mediation, there was no evidence that the plaintiff had been given up for adoption by the deceased as such he was eligible to bring a family provision claim as the deceased’s biological child.

The Defendant submitted that both parties were operating under the mistaken assumption that the Plaintiff was an eligible person, when, he was not, and that the settlement agreement had been made upon the basis of representations, including by the deceased in his Will, which were incorrect.

The Defendant also submitted that

“[I]n light of the fact that the parties operated under a common misapprehension as to basis of their negotiations, the court … should decline to give effect to the settlement dated 12 April 2021”.

Although the circumstances surrounding the adoption, its precise date, and the documents evidencing the adoption order were not in evidence the plaintiff stated that he had been adopted by Keith John Daley who was married to his mother, the former wife of the deceased.

In his affidavit of 29 June 2021, the Plaintiff stated:

At the time of swearing my first Affidavit, I was not aware that I was formally adopted by Keith John Daley.

It has since come to my attention that I was…adopted by Keith John Daley.”

The defendant submitted that the plaintiff should be recognised as the lawful child of Keith Daley in the proceedings.

The decision

The Court agreed that as the parties were mistaken about the status of the plaintiff. Furthermore, the common misapprehension concerning the status of the plaintiff as an eligible person attracts the exercise of the Court’s jurisdiction in the interests of justice.

The Court refused to make orders that reflect any compromise that was reached between the parties.

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