The Adoption of Jimmy (a pseudonym)

1. [1]

   These proceedings concern the adoption of “Jimmy” (not his real name), who was 17 years of age at the time that I heard and made orders in these proceedings.

2. [2]

   By Summons and Notice of Motion filed on 30 October 2024, the Secretary sought the following orders:

   1. (1)

      Pursuant to s 4(2) of the Adoption Act 2000 (NSW) (“the Act”), the Court determines that Jimmy is not a child of Aboriginal descent, with the consequence that Jimmy is not an Aboriginal child within the meaning of s 4(1) of the Act.

   2. (2)

      Determine that, for the purposes of s 34 of the Act, the Secretary has made reasonable inquiries as to whether Jimmy is an Aboriginal child.

   3. (3)

      Pursuant to the Act, s 69(1), the Court dispense with the requirement for the consent of Jimmy.

3. [3]

   Jimmy’s birth parents, who I will call “Charlotte” (not her real name) and “Declan” (not his real name), opposed the making of those orders.

4. [4]

   The proceedings came before me in the Adoptions List for first return on 6 November 2024. On that occasion, Charlotte and Declan were joined as defendants to these proceedings. Charlotte appeared on that and all subsequent occasions by audio-visual link. Declan did not appear on that occasion or any subsequent occasion.

5. [5]

   Following a preliminary hearing before me on 27 November 2024, held pursuant to s 80(2) of the Act, I made the following orders:

   1. (1)

      Pursuant to s 4(2) of the Act, the Court determines that on the evidence filed Jimmy is not a child of Aboriginal descent, with the consequence that Jimmy is not an Aboriginal child within the meaning of s 4(1) of the Act.

   2. (2)

      Determine that, for the purposes of s 34 of the Act, the Secretary has made reasonable inquiries as to whether Jimmy is an Aboriginal child.

   3. (3)

      Pursuant to the Act, s 69(1), the Court dispense with the requirement for the consent of Jimmy.

   4. (4)

      Decline to make an order for an independent legal representative to be appointed to Jimmy.

6. [6]

   Following the making of those orders, the Secretary filed a Notice of Motion on 9 December 2024, by which he sought the following orders to be made at a final hearing listed on 16 December 2024:

   1. (1)

      Pursuant to the Act, s 72(2)(c), the Court considers that in the particular circumstances of the case it is desirable to make a consent dispense order in relation to Charlotte and Declan without notice of the application having been given.

   2. (2)

      Pursuant to the Act, s 88(4), the Court dispense with the requirement to give notice of the application to Charlotte and Declan.

   3. (3)

      Pursuant to the Act, s 67(1)(d), the Court dispense with the requirement for the consent of Charlotte and Declan.

   4. (4)

      Pursuant to the Act, s 23, an order for adoption of Jimmy in favour of the proposed adoptive parents, who I will call “Linda” (not her real name) and “Robert” (not his real name).

7. [7]

   On 16 December 2024, I made the orders sought. I indicated that I would give reasons at a later time. These are my reasons.

The circumstances of this case

1. [8]

   Jimmy was born in January 2007. Jimmy’s father was not registered on Jimmy’s birth certificate, but there was no dispute that Declan is Jimmy’s father. Jimmy was issued an amended birth certificate including Declan as his father in November 2024.

2. [9]

   Charlotte and Declan have two other children: “Ella” (not her real name), now 4 years old, and “Rowan” (not his real name), now 2 years old. Charlotte and Declan co-parent Ella and Rowan, but the children reside with Charlotte.

3. [10]

   Jimmy was diagnosed with Down Syndrome as a newborn. He has also been diagnosed with Attention Deficit Hyperactivity Disorder, Post Traumatic Stress Disorder, Oppositional Defiant Disorder, Speech and Sound Disorder, and Language Disorder. Jimmy is not able to communicate lengthy concepts via speech; he uses “key word Auslan” sign language and visual prompts to communicate effectively.

4. [11]

   Jimmy was placed with Linda and Robert in April 2012, when he was aged 5 years. He has continuously resided with them since that time.

5. [12]

   Linda and Robert have two children who reside in their home with them: “Oliver” (not his real name), now 13 years old, and “Caleb” (not his real name), now 8 years old. Oliver and Caleb have been adopted by Linda and Robert. Oliver lives with Down Syndrome. Caleb lives with an acquired brain injury.

6. [13]

   Linda and Robert have four adult children who do not reside in their home but who are very close to Linda, Robert, Oliver, Caleb, and Jimmy. Linda and Robert also had a child who died from a heart and lung condition.

7. [14]

   On 7 December 2012, the Children’s Court of New South Wales made final orders providing for Jimmy to be placed under the parental responsibility of the relevant Minister until he attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW).

8. [15]

   On 26 September 2022, Linda and Robert filed an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act seeking that all aspects of parental responsibility for Jimmy be allocated to them, or, in the alternative, that all aspects of parental responsibility for Jimmy be allocated by way of a guardianship order to them. Charlotte participated in those proceedings. Declan initially participated, but disengaged from the proceedings.

9. [16]

   On 10 July 2023, the Children’s Court made final orders allocating parental responsibility for Jimmy to the Minister, Linda and Robert in relation to contact and residence, and to Linda and Robert in relation to education and training, health and medical, and cultural upbringing and religion. Upon the expiration of those orders on 10 July 2024, Linda and Robert were allocated parental responsibility for Jimmy until he attains the age of 18 years. Those orders remained in effect when the proceedings came before me.

10. [17]

    Thus, Linda and Robert were authorised carers providing statutory out-of-home care in respect of Jimmy within the meaning of s 135A of the Children and Young Persons (Care and Protection) Act.

11. [18]

    There was some urgency to having these proceedings finalised before the end of the 2024 Court term.

12. [19]

    Jimmy would have reached 18 years of age in January 2025, during the Court vacation period. The Court may make an adoption order in relation to a child who is 18 or more years of age if they were cared for by the applicants as their child prior to reaching the age of 18 years. [1]

13. [20]

    However, Jimmy’s capacity to consent to his adoption was at issue in these proceedings; that is what led the Secretary to seek an order dispensing with the requirement for Jimmy’s consent to his adoption.

14. [21]

    The Court may not make a consent dispense order in relation a child who is 18 or more years of age. [2] Therefore, a decision about Jimmy’s capacity to consent had to be made prior to him reaching the age of 18 years. If, as happened, I were then to make the consent dispense order, the other orders sought by the Secretary also had to be made prior to Jimmy reaching the age of 18 years.

Legal practitioner not appointed to represent Jimmy

1. [22]

   First, I considered the question of whether a legal practitioner should be appointed to represent Jimmy in these proceedings.

2. [23]

   The Court may appoint a legal practitioner to represent a child in adoption proceedings. [3] The role of that legal practitioner includes:

   1. (1)

      ensuring that the child’s views are placed before the Court;

   2. (2)

      ensuring that all relevant evidence is adduced and, where necessary, tested; and

   3. (3)

      acting on the instructions of the child, or, if the child is not capable of giving instructions, acting as a separate representative for the child.

3. [24]

   If a child is able to form their own views on a matter concerning their adoption, the Court must give the child an opportunity to express those views freely, according to their abilities, and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances. [4]

4. [25]

   The Court will, unless good reason is shown to the contrary, appoint a legal practitioner to represent a child where, relevantly, there is a dispute as to whether the child is an Aboriginal child, or the child is over 12 years and does not have capacity to consent to the adoption. [5]

5. [26]

   Therefore, prior to the preliminary hearing, I invited submissions from the Secretary and Legal Aid NSW [6] as to whether a legal practitioner should be appointed to represent Jimmy. [7]

6. [27]

   The Secretary submitted that, in Jimmy’s circumstances, there was good reason not to appoint a legal practitioner.

7. [28]

   Jimmy can be extremely resistant and hesitant to communicate with unfamiliar people and participate in new situations. The Secretary submitted that it would not be in Jimmy’s best interests to introduce yet another unknown person into these proceedings that Jimmy must interact with. Indeed, such a step may have caused distress to Jimmy, as it would have required him to quickly acquaint and trust another unknown person in circumstances where he had already communicated his wishes and views to numerous persons in the adoption assessment process.

8. [29]

   As I discuss below, I think that Jimmy’s voice was front and centre in these proceedings. Jimmy had, by this time, engaged with caseworkers in the Children’s Court proceedings, spoken with Ms Naomi Lewis for the purposes of a court report prepared in these proceedings pursuant to s 91 of the Act, and met with Ms Mary Griffin, registered counsellor, for counselling in accordance with the Act. In addition, Linda was proactive in putting Jimmy’s voice and views before this Court in her affidavit evidence, including by making available a video that Jimmy had made for the “Judge”, which I will discuss below.

9. [30]

   As Ms Griffin said in her report:

10. [31]

    Thus, in circumstances where Jimmy’s views have been adequately placed before the Court, I did not consider it an appropriate case to appoint a legal practitioner for the child.

11. [32]

    Further, I did not consider it necessary to appoint a legal practitioner for Jimmy in circumstances where Charlotte and Declan had been joined to the proceedings and played the role of contradictors to the Secretary’s application.

Circumstances relating to the family’s disclosures of Aboriginal heritage

1. [33]

   Second, I considered the questions relating to Jimmy’s Aboriginality.

2. [34]

   Charlotte and Declan have made disclosures of Aboriginal heritage in their families.

3. [35]

   In January 2011, Charlotte advised caseworkers from the Department of Communities and Justice that her father, Jimmy’s maternal grandfather, was Aboriginal. However, no steps were taken at that time to ascertain further information about the family’s Aboriginality.

4. [36]

   The question of Jimmy’s Aboriginal heritage was raised again by the Department of Communities and Justice many years later, in 2024, presumably because it was then contemplated that an adoption application would be made.

5. [37]

   In July 2024, Charlotte informed caseworkers that she has “always known” that she is Aboriginal. She said that her sister identified as Aboriginal. Declan also informed caseworkers that his extended family has Anglo-Australian, German, and Aboriginal heritage, and that his father is Aboriginal.

6. [38]

   Later that month, Charlotte’s sister, Jimmy’s maternal aunt, informed caseworkers that she identified as Aboriginal, and had identified herself as Aboriginal for the purposes of Medicare. She said that she and Charlotte were known as Aboriginal persons at school. Charlotte’s nieces and nephews, Jimmy’s cousins, all now identify as Aboriginal. Charlotte and her sister also provided information that Declan’s mother and father, Jimmy’s paternal grandparents, were Aboriginal.

7. [39]

   In August 2024, Charlotte told caseworkers that she tells people she is Aboriginal and that Ella’s name has been put down at a local Aboriginal owned and operated preschool.

8. [40]

   On that same day, Charlotte’s brother, Jimmy’s maternal uncle, informed caseworkers that he was not aware of any Aboriginal heritage in the family, and that he did not recall this being discussed during his childhood.

9. [41]

   Later that month, Jimmy’s paternal great aunt informed caseworkers that she had no knowledge of any Aboriginal heritage in the family.

10. [42]

    Later that month, Jimmy’s maternal great uncle informed caseworkers that he thought there was Aboriginal ancestry in the family “going way back”, and that he recalled having a conversation with his father about it, but he had never identified as Aboriginal or discussed Aboriginal ancestry with anyone else in the family.

11. [43]

    In September 2024, Declan told caseworkers that his family is Aboriginal, but he had never identified himself as Aboriginal for the purposes of Centrelink. Declan then identified himself as Aboriginal on the application form for registration as Jimmy’s father on Jimmy’s birth certificate.

12. [44]

    Jimmy has never identified himself as Aboriginal, for reasons that may include that Linda and Robert were not aware that Jimmy may be an Aboriginal child. When caseworkers discussed the question of Jimmy’s Aboriginality with Linda and Robert in 2024, Linda expressed concern that Jimmy has missed out on opportunities to participate in Aboriginal cultural activities in a developmentally-appropriate way, for example, at school, because they had not been made aware that Jimmy may be an Aboriginal child.

13. [45]

    Charlotte and Declan are not currently raising Ella and Rowan in any Aboriginal community or traditions, but, as I have said, Ella’s name has been put down at a local Aboriginal owned and operated preschool.

The Secretary has made reasonable inquiries

1. [46]

   Section 34 of the Act provides that:

2. [47]

   The terms of s 34(1) make clear that the time at which reasonable inquiries must be made as to whether a child is an Aboriginal child is prior to the making of an adoption application; hence the section refers to reasonable inquiries being made as to whether a child is “to be placed” for adoption.

3. [48]

   It was important for me to consider these matters. The Secretary has a statutory obligation to make these inquiries, especially in circumstances where Linda and Robert are not Aboriginal persons. [8] A finding that a child is Aboriginal or not can be of profound importance to the child and the child’s family. [9]

4. [49]

   When this question came before me at the preliminary hearing on 27 November 2024, Jimmy was in the care of non-Aboriginal carers, Linda and Robert, but had not yet been “placed for adoption” as Linda and Robert had not yet been assessed for their suitability to adopt under the Act. [10] Thus, it was the appropriate time for the Secretary to make these inquiries and for a preliminary hearing to be held in this Court about these matters.

5. [50]

   On this application, the Secretary relied on a report prepared by a family history researcher employed by the Crown Solicitor’s Office, Mr Maxwell Turner. Mr Turner has examined, with great care, such records as are available which might cast light on the question of whether either Charlotte or Declan has Aboriginal ancestry that would warrant the conclusion that Jimmy is an Aboriginal child.

6. [51]

   I have read Mr Turner’s report with great care. I will discuss the findings of his report below. I was also assisted by the written and oral submissions of Ms Hailstone, who appeared for the Secretary, as to the evidence.

7. [52]

   I was satisfied that the Secretary has now made reasonable inquiries as to whether Jimmy is an Aboriginal child.

On the evidence before me, is Jimmy is an Aboriginal child?

1. [53]

   There are two ways in which a child may be found to be an Aboriginal child for the purpose of the Act.

2. [54]

   First, a child may be Aboriginal if the child is descended from an Aboriginal. “Aboriginal” has the same meaning as “Aboriginal person” in the Aboriginal Land Rights Act 1983 (NSW). [11] That legislation adopts the well-recognised tripartite test for Aboriginality, namely that the person:

   1. (1)

      is a member of the Aboriginal race of Australia;

   2. (2)

      identifies as an Aboriginal person; and

   3. (3)

      is accepted by the Aboriginal community as an Aboriginal person. [12]

3. [55]

   Second, the Court has a discretion under s 4(2) of the Act to determine that a child is Aboriginal if the Court is satisfied that the child is of Aboriginal descent. Essentially, s 4(2) allows the Court to determine that a child is of Aboriginal descent, despite no ancestor satisfying the tripartite test above, [13] if the Court reaches the requisite state of satisfaction.

4. [56]

   As I have said, the basis on which it is suggested that Jimmy may be an Aboriginal child is the fact that Charlotte and Declan have disclosed Aboriginal heritage in each of their families.

5. [57]

   The Secretary relied on Mr Turner’s report to support the conclusion that it is unlikely that Jimmy is of Aboriginal descent. Mr Turner’s research was not able to confirm that Jimmy has a recorded Aboriginal ancestor. Mr Turner found that the maternal family has several important connections to Aboriginal families in a certain region, but that there is no direct ancestry. Mr Turner could not find any Aboriginal connections in the paternal family, and traced the written record of ancestry back to the United Kingdom and Europe.

6. [58]

   Further, there is no evidence of either the maternal or parental family being accepted by an Aboriginal community.

7. [59]

   Charlotte told me this at the preliminary hearing:

8. [60]

   Mr Turner’s research revealed that Charlotte’s great grandfather’s brother married an Aboriginal woman, and that other members of her family have married Aboriginal persons. This may explain why Charlotte may have heard through discussions within her family that she may be an Aboriginal woman. The Secretary submits that, for the purposes of the Adoption Act, however, Jimmy is not directly descended from any Aboriginal person within his maternal family.

9. [61]

   Ultimately, on the evidence before me, I could not reach the requisite level of satisfaction that Jimmy is a child of Aboriginal descent. [14] The consequence was that I could not be satisfied, on the basis of the evidence before me, that Jimmy is an Aboriginal child within the meaning of s 4(1) of the Act.

10. [62]

    I have made that finding only for the purpose of these proceedings. My conclusion should not be read as an affirmative finding that Jimmy is not an Aboriginal person; nor that Charlotte or Declan are not Aboriginal persons. As Mr Turner acknowledges in his report, it is possible that other records will come to light in the future, and it is also possible that family members will be able to provide further information as to Jimmy’s family history.

11. [63]

    My findings should not deter Jimmy from exploring, to the extent that he can, his family history and heritage. I have heard from Charlotte that she will continue to investigate her family history. I have also heard from Ms Hailstone that Linda and Robert are very interested in exploring Jimmy’s family history with him in a developmentally-appropriate way.

Dispensing with requirement for Jimmy’s consent

1. [64]

   Jimmy was over the age of 12 years, being the age at which a child may give sole consent to their own adoption. Jimmy had also been cared for by Linda and Robert for more than 2 years; this is required by the Act before a child can give sole consent to their adoption. [15]

2. [65]

   The question was whether Jimmy, as a person living with Down Syndrome, Speech and Sound Disorder, and Language Disorder, could give informed, effective consent to his adoption in accordance with the requirements of the Act. [16]

3. [66]

   Consent to an adoption must be given by an instrument of consent prescribed by the regulations to the Act. Before the instrument is signed, the child seeking to give consent must be counselled by a registered counsellor in accordance with the Act, that is: [17]

   1. (1)

      the counsellor must accurately explain to the person, in a way that the counsellor thinks will be understood by the person:

   2. (2)

      the counsellor must counsel the person on the emotional effects of the adoption and alternatives to adoption.

4. [67]

   The counsellor must then certify that the child understands the effect of signing the instrument of consent. [20]

5. [68]

   There were three issues to consider; first, whether Jimmy could understand the legal effect of adoption; second, whether Jimmy could understand the legal effect of signing the instrument of consent and the effect of the mandatory written information; and third, whether Jimmy could demonstrate to a registered counsellor that he understood these matters so that the counsellor could certify that Jimmy understood the effect of signing the instrument of consent.

6. [69]

   I was greatly assisted by the opinions of those who know Jimmy and understand his abilities and capabilities.

7. [70]

   Jimmy’s psychologist, Mr Grant Lyall, who has worked with Jimmy for over five years and currently sees Jimmy on a fortnightly basis, prepared an informal opinion in relation to Jimmy’s capacity to consent to adoption in November 2024:

8. [71]

   Jimmy’s educators and carers also believe that Jimmy can understand the concept of adoption and its legal effects. Jimmy’s school teacher and Deputy Principal agreed that Jimmy has demonstrated his ability to choose and give consent within the classroom context, and that he would be able to understand the questions asked by a registered counsellor. Linda, Robert, and “Micah” (not his real name), who is Linda and Robert’s son-in-law and Jimmy’s support worker, each attested to Jimmy’s information retention skills and his ability to understand consequences of choices made.

9. [72]

   However, all those who are close to Jimmy agreed that it is hard for Jimmy to convey his understanding of complex concepts and information. As I have said, Jimmy has a Language Disorder. Jimmy can use spoken language, but it is often unclear and difficult to interpret accurately what he has said; even people who have worked closely with Jimmy for a long time have at times struggled to understand what he says. Jimmy relies on “key word Auslan” sign language and visual prompts to communicate effectively.

10. [73]

    Mr Lyall said:

11. [74]

    Ms Lewis, who prepared a court report pursuant to s 91 of the Act for these proceedings, said the following in relation to Jimmy’s capacity to consent to his adoption:

12. [75]

    Linda deposed:

13. [76]

    On 11 November 2024, Ms Griffin met with Jimmy to provide counselling in accordance with the Act. She provided a report in relation to Jimmy’s capacity to consent to his adoption, in which she said:

14. [77]

    Thus, I made the consent dispense order sought by the Secretary.

Adoption Orders

1. [78]

   Finally, I considered whether I should make the adoption orders sought by the Secretary.

2. [79]

   I was satisfied that the formal requirements of the Act had been satisfied, namely:

   1. (1)

      Jimmy was present in New South Wales when the proceedings were commenced; [21]

   2. (2)

      Linda and Robert were resident and domiciled in New South Wales when the proceedings were commenced; [22]

   3. (3)

      Linda and Robert are of good repute and are fit and proper persons to fulfil the responsibility of parents; [23]

   4. (4)

      Linda and Robert have been selected in accordance with the Act; [24]

   5. (5)

      Linda and Robert satisfy the age and length of relationship requirements. [25]

3. [80]

   Ordinarily, notice of an adoption application is required to be given to parents whose consent is required more than 14 days before the order is made. [26] I dispensed with the giving of that notice in relation to Charlotte and Declan. [27]

4. [81]

   By this time, Charlotte and Declan were parties to the proceedings. They had been served with all material filed by the Secretary in these proceedings. Charlotte participated in the preliminary hearing before me on 27 November 2024 where I listed the matter for final hearing. Both Charlotte and Declan were given an opportunity to respond to the Secretary’s evidence before the final hearing.

5. [82]

   In those circumstances, I considered that Charlotte and Declan had adequate notice of the nature of issues to be determined at the final hearing on 16 December 2024.

6. [83]

   Adoption is to be regarded as a service for the child, [28] and not as a right of the adults with whom they are placed. [29]

7. [84]

   The paramount consideration in an application for adoption is the best interests of the child the subject of the application. I could not make an adoption order unless satisfied that the best interests of Jimmy would be promoted by the adoption and that, as far as practicable and having regard to his age and understanding, Jimmy’s wishes and feelings had been ascertained and due consideration given to them. [30] I had to have regard to the best interests of Jimmy, both in childhood and later life. [31]

8. [85]

   I was satisfied that an order for adoption would be in Jimmy’s best interests.

9. [86]

   When considering Jimmy’s best interests, I had regard to the matters set forth in s 8(2) of the Act, relevantly:

   1. (1)

      any wishes expressed by Jimmy;

   2. (2)

      Jimmy’s age, maturity and level of understanding;

   3. (3)

      Jimmy’s physical, emotional and educational needs, including Jimmy’s sense of personal, family and cultural identity;

   4. (4)

      any disability that Jimmy has;

   5. (5)

      the wishes expressed by Jimmy’s parents;

   6. (6)

      the nature of the relationship that Jimmy has with his parents and any siblings or significant other people;

   7. (7)

      the attitude of the proposed adoptive parents to the responsibilities of parenthood; and

   8. (8)

      the nature of the relationship of Jimmy with each of the proposed adoptive parents.

10. [87]

    I was greatly assisted in hearing and ascertaining the voice of Jimmy, that is his wishes and feelings about the adoption, through Ms Griffin’s report of registered counselling of 12 November 2024, Ms Lewis’s court report of 9 December 2024, and the affidavits prepared by Linda and Robert.

11. [88]

    As I have said, Jimmy has some difficulty conveying his understanding of adoption and its legal effects due to his experiences of living with Down Syndrome and a Language Disorder. But it is clear from the material filed that Jimmy has a developmentally-appropriate understanding of what adoption will mean for him and his relationships with Linda, Robert, and their family.

12. [89]

    Jimmy has been part of many conversations with Linda and Robert and adoption assessors about the meaning of adoption. He also knows that Oliver and Caleb have been adopted by Linda and Robert, and has seen what adoption has meant to them.

13. [90]

    Jimmy’s understanding of adoption seems to be characterised by an understanding that adoption will provide him with long-term permanency. As Ms Lewis stated that the following in her court report:

14. [91]

    And:

15. [92]

    Jimmy’s understanding of adoption is also characterised by his deep love and affection for Linda, Robert and their family, and a desire to be connected with them. As Ms Griffin stated in her counselling report:

16. [93]

    Ms Lewis said in the court report:

17. [94]

    I was able to hear directly from Jimmy as to his wishes and feelings about the proposed adoption in accordance with his abilities. [32] At the preliminary hearing, the Secretary tendered a video of Jimmy addressing the camera. I have been told that Jimmy understood he was speaking to the Judge who would hear the adoption application. Linda has transcribed what Jimmy said in that video:

18. [95]

    I was grateful to receive this video from Jimmy. It was very important for me to hear Jimmy’s words and take them into account on this application. It was clear to me that, while not able to give his consent in accordance with the Act, Jimmy held a deep desire to be adopted by Linda and Robert and could express his support for the adoption according to his abilities.

19. [96]

    Linda and Robert are clearly able to provide for Jimmy’s physical, emotional and educational needs. When Jimmy was first placed with Linda and Robert, he had very limited language skills and displayed a range of challenging emotional and behavioural symptoms that impacted on his participation in normal routines at home and school. He has thrived in the care of Linda and Robert.

20. [97]

    Linda and Robert have significant parenting experience, having parented seven children, including three children that they have adopted. They have successfully adjusted their parenting style to suit the needs of each of the children in their care. Their positive approach to parenting is characterised by good humour, affection and the use of open and respectful dialogue.

21. [98]

    Linda and Robert have significant experience in caring for children with disabilities. They have continuously advocated for Jimmy in relation to his ongoing needs since he entered their care. They have been proactively involved with the development, performance, and review of Jimmy’s NDIS Plans, Positive Behaviour Support Plans, and Individualised Education Plans. They have facilitated Jimmy’s engagement overtime with a speech pathologist and psychologist. They have collaborated with Jimmy’s educators to devise behavioural support strategies that are responsive and respectful to Jimmy’s needs. Linda is also committed to attending training events to increase her skills and understanding of care for children with disabilities.

22. [99]

    Linda and Robert have consistently maintained a safe, consistent and predictable environment for Jimmy. They know the behavioural supports and strategies that will help Jimmy to feel calm and comfortable. They have facilitated Jimmy’s access to relevant supports to ensure his ongoing growth and development. They know his personality, and they provide Jimmy with opportunities to engage in his interests and hobbies, including Jiujitsu and Mixed Martial Arts.

23. [100]

    Linda and Robert’s attitude to parenting Jimmy is evident in their support for Jimmy living an independent life under their guidance. Linda and Robert have formed the view that it is not necessary for them to seek guardianship orders for Jimmy. Instead, they are committed to teaching Jimmy the necessary life skills for him to be empowered to make his own choices despite living with disabilities. They will support Jimmy to complete high school and transition into life after high school. Jimmy will continue to reside with them, and they will support Jimmy to attend TAFE while continuing with his hobbies. They will continue to encourage Jimmy to “have a voice”.

24. [101]

    It is clear that Jimmy has a strong sense of belonging with Linda and Robert’s family, and has a strong connection with each of them. Jimmy refers to Linda and Robert as “Mum” and “Dad”. Jimmy enjoys gardening and cooking with Linda, and spends time with her every day while walking Jimmy’s dog. Jimmy enjoys spending time with Robert working in their shed, and they regularly go on holidays on the mid-north coast of New South Wales together. Jimmy has a “big brother” bond with Oliver and Caleb. Jimmy also has a special bond with Natalie and Micah. As I have said above, Micah was Jimmy’s support worker at school, and is Jimmy’s positive role model and mentor. Jimmy likes to stay over at Natalie and Micah’s house where he learns new skills, including dirt bike riding.

25. [102]

    As Ms Griffin said:

26. [103]

    It is clear that Linda and Robert’s entire family is very committed to Jimmy. As Linda said:

27. [104]

    When considering Jimmy’s best interests, I had regard to the relationship that Charlotte and Declan have with Jimmy and any wishes they, as Jimmy’s birth parents, have expressed about the adoption. [33]

28. [105]

    At the time of the final hearing, contact between Jimmy, Charlotte and Declan was taking place monthly for two hours, usually at a local park. Linda coordinates the visits, and Robert tends to accompany Jimmy on the visits. Ella and Rowan attend these visits with Charlotte and Declan.

29. [106]

    The current arrangements for contact have been in place since August 2023. Contact had been suspended between 2017 and 2023 due to concerns that Jimmy was experiencing stress and regression leading up to and directly following family visits. Linda and Robert had long expressed concerns about Jimmy’s significantly heightened emotional and behavioural symptoms. Jimmy’s educators and therapists had also reported significantly escalated oppositional and withdrawal behaviours in Jimmy around family visits.

30. [107]

    Jimmy’s behaviours surrounding family time up to 2017 may have been attributable to a range of factors, including his experiences of Post Traumatic Stress Disorder, his complex emotional and behavioural functioning generally, and stress associated with coping with unplanned, unpredictable experiences with birth family. Suspending contact seems to have allowed Jimmy to fall into a safe, stable and consistent routine in those years. In the intervening period, Linda and Jimmy’s caseworkers sent letters and photographs to Charlotte and Declan to update them on Jimmy’s progress.

31. [108]

    Jimmy was gradually reintroduced to Charlotte and Declan in 2023, beginning with Linda and Robert familiarising Jimmy through conversations at home about Charlotte, and slowly progressing to face-to-face family visits. These visits have been positive for all involved.

32. [109]

    Even so, in the time since Jimmy has been reintroduced to contact with Charlotte and Declan, his caseworkers and therapists have observed a shift in Jimmy’s attitude towards his birth family. Jimmy experiences noticeable changes in behaviour when Charlotte, Declan, or other members of his birth family are mentioned: Jimmy becomes confused, indifferent, avoidant or agitated. Ms Griffin noted in her registered counselling session with Jimmy that Jimmy’s verbal answers and body language were “quite tense and somewhat angry” when Ms Griffin talked about Charlotte and Declan; this was “totally different” to when Ms Griffin and Jimmy discussed other aspects of his life.

33. [110]

    Linda and Robert have assisted Jimmy to know his life story and family in a developmentally-appropriate way while remaining responsive to Jimmy’s attitudes and needs.

34. [111]

    Charlotte was opposed to the adoption of Jimmy by Linda and Robert. She had told caseworkers for the Department of Communities and Justice that she understands why Linda and Robert wanted to adopt Jimmy, but that Jimmy is her child. Charlotte has expressed her sadness at not having a relationship with Jimmy because of the time that contact was suspended, and her wish for Jimmy to have a relationship with her and his younger siblings, Ella and Rowan. She also suggested that Jimmy does not “fully” understand the meaning of adoption now, but he may understand it in the future, and so does not want an adoption order to be made now.

35. [112]

    Prior to the final hearing, Charlotte sent me a letter to tell me what she wanted for Jimmy and to explain her experiences to me, Jimmy, and the other people in his life. Charlotte told me this:

36. [113]

    I congratulate Charlotte on the courage it must have taken her to write her letter, and the dignity with which she expressed herself.

37. [114]

    Declan opposed the adoption order being made, but as he has not engaged in these proceedings in this Court I was not able to hear directly from him about his wishes for Jimmy. I am grateful to Ms Lewis for setting out Declan’s views in the court report. Declan said that he does not consent to the adoption, and supports Charlotte in her wishes for Jimmy.

38. [115]

    I may not make an order for adoption unless satisfied that the making of such an order is “clearly preferable” in the best interests of Jimmy than any other action that could be taken by law in relation to the care of Jimmy. [34] The making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law. [35]

39. [116]

    I must therefore be satisfied that there is more than a slight preponderance of considerations in favour of adoption over other alternatives. I must achieve the degree of conviction in favour of adoption commensurate with the gravity of the decision. [36]

40. [117]

    I was not satisfied that restoration of Jimmy to Charlotte or Declan, or an order allocating parental responsibility for Jimmy to Charlotte or Declan, was a realistic prospect, nor in the best interests of Jimmy. [37] In any event, Charlotte and Declan did not seek restoration of Jimmy to their care. Both Charlotte and Declan have told caseworkers from the Department of Communities and Justice that they are not in a position to care for Jimmy themselves, and have acknowledged that Jimmy’s home is with Linda and Robert.

41. [118]

    If I made no order, the orders made by the Children’s Court on 10 July 2023 would have remained in effect, and Linda and Robert would have retained parental responsibility for Jimmy. However, that was a temporary order that would have expired when Jimmy reached 18 years of age. Therefore, Linda and Robert’s legal connection to Jimmy would have ceased when he reached 18 years of age. This would not have been in Jimmy’s best interests, as it would sever any legal ties that Jimmy has to Linda and Robert, who he views as his family.

42. [119]

    Furthermore, this would not have been in Jimmy’s best interests as it would have created barriers for Linda and Robert in continuing to advocate for Jimmy as he navigated adulthood. As I have said, Linda and Robert have made the decision not to seek guardianship orders over Jimmy, as they wish to support Jimmy to live an independent life under their guidance. However, as Jimmy would not have had any legal ties to Linda and Robert, they would not be recognised by service providers as legitimate advocates for Jimmy. As Ms Griffin said:

43. [120]

    The benefit of making an adoption order is that it will achieve a secure, stable, reliable permanent and lifetime placement for the child in the adoptive family. [38] Adoption serves the identity needs of the child in question, in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family, bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own, not only during childhood but for life. [39]

44. [121]

    Adoption will certainly provide Jimmy with certainty, stability and security into adulthood within the family to which he belongs. It will also enable Linda and Robert to provide support to Jimmy as his legal parents as he navigates adulthood as a person living with disabilities.

45. [122]

    The Court must not make an adoption order in relation to a child who is less than 18 years of age unless, relevantly, consent has been given by each parent of the child, or any person who has parental responsibility for the child. [40]

46. [123]

    As Linda and Robert are the proposed adoptive parents, their consents as persons with parental responsibility for Jimmy are not required. [41]

47. [124]

    I also considered it necessary to make a consent dispense order in relation to Charlotte and Declan.

48. [125]

    I would not have made a consent dispense order under s 67(1) of the Act unless satisfied that, relevantly, Jimmy had established a stable relationship with Linda and Robert, and that the adoption by Linda and Robert would have promoted Jimmy’s welfare. [42] I also had to be satisfied that to do so would be in the best interests of Jimmy. [43] I was comfortably satisfied about these matters. Jimmy has formed a stable relationship with Linda and Robert over the last 12 years, and is thriving in their care.

49. [126]

    I have made a consent dispense order in relation to Jimmy. Despite finding that Jimmy was incapable of giving consent to his adoption, I was satisfied that an adoption order should be made because of the exceptional circumstances, and because it was undoubtedly in Jimmy’s best interests for the adoption order to be made. [44]

50. [127]

    The parties have not agreed to an adoption plan in these proceedings, likely because Jimmy reached 18 years of age soon after these proceedings. Adoption plans usually envisage that the agreed contact arrangements will continue until the child reaches 18 years of age, at which point it is considered that the child can make their own choices and arrangements in relation to contact with their birth family.

51. [128]

    Nevertheless, I have considered the issue of post-adoption contact because it is apparent that the absence of birth family contact was the main barrier to Linda and Robert progressing an application to adopt Jimmy, and it remains the main issue in dispute between Linda, Robert, Charlotte, and Declan.

52. [129]

    Charlotte told me this in her letter:

53. [130]

    It is clear that Charlotte and Declan are concerned to ensure that Jimmy is cared for and has a positive experience at family visits with them. Declan has told that caseworkers that his priority is for Charlotte, Ella and Rowan to be able to attend visits.

54. [131]

    Indeed, the recent face-to-face family visits that have occurred between Jimmy, Charlotte, Declan, Ella, and Rowan have been very positive. Jimmy is now able to cope better with attending family visits now that he is older and has learnt behavioural coping strategies.

55. [132]

    It is in Jimmy’s best interests for him to have every opportunity to build a positive relationship with Charlotte, Declan, Ella, and Rowan. He should be given opportunities to be with Charlotte, Declan, Ella and Rowan in positive settings, and to learn more about Charlotte and Declan at his own pace.

56. [133]

    As there is no adoption plan, Charlotte and Declan have no legal steps available by which they can ensure contact occurs with Jimmy.

57. [134]

    I hope Charlotte and Declan are comforted by Linda and Robert’s renewed commitment to facilitating Jimmy having contact with them. Jimmy is not yet self-motivated to attend family visits, but does so when visits are facilitated by Linda and Robert and supported by them to attend. Thus, it remains up to Linda and Robert, in coordination with Charlotte and Declan, to independently facilitate contact.

58. [135]

    Linda and Robert have proven their ability to manage and facilitate family visits without significant casework intervention or support. They have adopted three children before now, and are currently facilitating birth family contact for Oliver and Caleb. Up to now, Linda has been responsible for creating the family visit schedule for Jimmy, and communicates with Charlotte regularly via text message in the lead up to these visits.

59. [136]

    Charlotte has said in relation to Linda, Robert, herself, and Declan: “We’re both trying, talking to each other … it’s going ok”.

60. [137]

    It is clear that there is much history for Linda, Robert, Charlotte, and Declan to overcome. I encourage Linda, Robert, Charlotte and Declan to continue to work together to find arrangements that work for the best interests of Jimmy, and make family visits a positive experience for Jimmy.

61. [138]

    The Secretary did not seek any orders to change Jimmy’s name. This is consistent with Jimmy’s wishes and discussions that Linda has had with Jimmy about his name. Jimmy identifies strongly with his name, and it is not a barrier to any feelings of belonging within Linda and Robert’s adoptive family. He clearly recognises it as his name and is proud of his identity. The name will preserve and honour Jimmy’s ongoing connection to Charlotte and Declan.

Conclusion

1. [139]

   An Integrated Birth Certificate will be created for Jimmy which will include Linda, Robert, Charlotte, and Declan’s details. This Certificate will form an important part of Jimmy’s life story.