The Adoption of Max and Lily

1. [1]

   The Secretary seeks an order that ‘Max’ and ‘Lily’ (not their real names), now six and five years of age respectively, be adopted by ‘Jennifer’ and ‘David’ (not their real names) (the Proposed Adoptive Parents).

2. [2]

   The children are siblings. The birth parents of the children are aware of these proceedings but only the birth mother has formally consented to the children’s adoption. The Secretary therefore seeks an order that the Court dispense with the requirement of the birth father’s consent pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW).

3. [3]

   The Secretary also seeks orders in relation to the children’s names. In each case, the Secretary proposes that the children retain their first and middle name, but that the children’s current surnames be replaced with the surname of the proposed adoptive parents.

4. [4]

   Lastly, the Secretary seeks an order that the maternal and paternal adoption plans, signed by the Proposed Adoptive Parents, the respective birth parents and the Principal Officer of Adoptions at Barnardos Australia, as delegate of the Secretary, be registered.

5. [5]

   I have determined to make the orders sought and to register the adoption plans in respect of each child. These are my reasons for doing so.

The circumstances of this case

1. [6]

   The children are presently under the parental responsibility of the Minister for Families and Communities until each attains the age of 18 years, pursuant to orders made by the Children’s Court of New South Wales at Parramatta in December 2022. Those orders remain in effect.

2. [7]

   It is not necessary to set out the reasons why the children are presently under the parental responsibility of the Minister. The birth father has not expressed the view that it would be appropriate for the children to be restored to his care and the evidence indicates that he has made multiple statements in support of the adoption. Although the birth mother initially expressed an intention to file an application pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to have the children returned to her care, I note that she has since expressed support for the children being adopted and provided formal consent on 22 May 2025. I am satisfied that restoration to the birth parents is not a realistic possibility.

3. [8]

   Max and Lily have one maternal sibling, who is currently 2 years old. She resides with the birth mother and the birth mother’s partner. The birth mother was expecting another child at about the present time.

4. [9]

   Max and Lily also have one paternal sibling, who is currently 9 months old. He lives with the birth father and the birth father’s wife. It appears that the children do not know about their paternal sibling, and that the birth father wishes for them to remain unaware.

The proposed adoptive parents

1. [10]

   I have read the affidavit of the proposed adoptive parents and those of their referees.

2. [11]

   Max and Lily have lived with Jennifer and David continuously since 17 January 2023 when they were respectively four and three years old. Jennifer and David have been married since April 2007 and have lived together at their current address since 2009.

3. [12]

   Jennifer and David have the financial capacity to meet the needs of Max, Lily, and themselves.

4. [13]

   Jennifer is 49 years old. She is not currently employed although she previously worked in the insurance industry full time. She currently receives a weekly carer’s allowance. Jennifer hopes to recommence paid employment once the adoption has been finalised, and plans to work part-time and within school hours.

5. [14]

   David is 47 years old. He obtained a Diploma of Business (General Insurance) from TAFE NSW in 2000. He became a Fellow of the Australian Insurance Institute in 2002. He is currently employed full time an insurance company and has a good salary.

6. [15]

   Jennifer and David own a home in Sydney, New South Wales. Their home has three bedrooms, two internal living spaces and an outdoor entertaining area. The children’s school is only a kilometre away. There is a park nearby as well as a village with various facilities including a medical centre, chemist and a dentist. Jennifer hopes that they might move to a property with more space in the near future however they would seek to remain in the same area to enable both children to finish their primary schooling without disruption.

7. [16]

   Both children have, to varying degrees, been diagnosed with some developmental delay. However, all the evidence before me suggests that the children have been very well cared for and that their complex social, educational, developmental, psychological and medical needs have been met.

8. [17]

   I have had regard to the Department of Communities and Justice’s (DCJ’s) ‘De-identification of Aboriginality’ document in respect of the children. This question arose because the birth mother identified as Aboriginal through her maternal grandmother. Comprehensive inquiries by the DCJ, including discussions with the birth mother’s mother and maternal grandmother, have shown that the maternal grandmother does not identify as Aboriginal and that the birth mother is not biologically related to any Aboriginal person. I consider that the Secretary has made reasonable inquiries as to whether the children are Aboriginal: s 34(1) and that the Aboriginal child placement principles are not relevant in this current matter: s 34(2).

The formal requirements for adoption

1. [18]

   I am satisfied that the formal requirements of the Adoption Act have been met.

2. [19]

   Pursuant to s 87(1)(b) of the Act, this application is brought by the Secretary of the DCJ. The children are less than 18 years of age and are present in New South Wales, including at the time when the application was made: ss 23(2)(a) and 24(1)(a). The Proposed Adoptive Parents are, including at the time the application was made, resident and domiciled in New South Wales: ss 23(2)(b) and 28(1)(a).

3. [20]

   A report concerning the proposed adoption authored by an ‘authorised person’ for the purposes of the Adoption Act (the s 91 report), has been provided to me as part of the application: ss 91(1), 91(2) and 91(2A). On the evidence before me, the Proposed Adoptive Parents are of good repute and are fit and proper persons to fulfil the responsibility of parents under the Act: s 28(1)(b). The Proposed Adoptive Parents satisfy the age and length of relationship requirements: s 28(3)-(4) and have been selected in accordance with the Act: s 90(1)(c).

4. [21]

   Notice of the application for adoption orders has been served on the Proposed Adoptive Parents and the birth parents more than 14 days before the date of the orders contained in this judgment: Adoption Act ss 72(1) and 88(1). The Proposed Adoptive Parents and the birth parents have also been provided with copies of the Mandatory Written Information: s 59.

Dispensing with the consent of the birth father

1. [22]

   The Court may not make an order for adoption unless both birth parents consent: s 52(a), or unless the requirement for consent has been dispensed with: s 54(1)(a). The circumstances in which the Court may dispense with the requirement for consent are set out in Part 5, Division 3 of the Adoption Act. In this case, the Secretary seeks an order dispensing with the consent of the birth father on the basis of s 67(1)(d), which is relevantly as follows:

2. [23]

   Section 67(2) provides:

3. [24]

   Despite indications of verbal consent given by the birth father on various occasions as set out in the s 91 report, including statements such as that adoption was what was best for the children, I respectfully acknowledge that he has not formally consented to the proposed adoption. In such circumstances, I do not treat the question of whether the adoption order should be made as being a foregone conclusion. As Brereton J said in the Adoption of RCC and RZA [2015] NSWSC 813 at [17], dispensing with the consent of a birth parent to the adoption of their child ‘is a grave step, not lightly to be taken’.

4. [25]

   I may not make a consent dispense order under s 67(1)(d) of the Adoption Act unless satisfied that, relevantly, the children have established a stable relationship with their authorised carers, being the Proposed Adoptive Parents, and that the adoption by the Proposed Adoptive Parents will promote their welfare: ss 67(1)(d)(i)-(ii). Before making a consent dispense order, I must also be satisfied that to do so will be in the best interests of the children: s 67(2).

5. [26]

   Upon considering these factors, I am satisfied that it is appropriate to make an order dispensing with the consent requirement of the birth father in this case. That is for the following reasons.

6. [27]

   As to s 67(1)(d)(i), the evidence demonstrates that the children have established a stable relationship with the Proposed Adoptive Parents. They have lived with the Proposed Adoptive Parents now for almost three years. The evidence before me bears out that the Proposed Adoptive Parents have a strong and loving bond with each child.

7. [28]

   As to s 67(1)(d)(ii), I note that the Proposed Adoptive Parents have met the complex and demanding care needs of both children for several years now. I have every confidence that the Proposed Adoptive Parents will continue to promote the children’s welfare in the future.

8. [29]

   As to s 67(2), I am also satisfied that it is in the best interests of both children that the consent requirement is dispensed with in respect of the birth father. My reasons for being satisfied of this requirement are, essentially, the same as my reasons for being satisfied that it is in the best interests of the children for the adoption orders to be made, which I address below at [36]-[52]. Having formed the view that it is in the best interests of the children to make the adoption orders, and in considering the requirements in ss 67(1)(d)(i)-(ii) fulfilled, I am satisfied that it is appropriate to dispense with the requirement of the birth father’s consent.

Adoption orders generally and the ‘best interests’ principle under the Adoption Act

1. [30]

   Section 8 of the Adoption Act provides:

2. [31]

   Section 90 of the Adoption Act further provides:

3. [32]

   I note the paramount consideration in s 8(1)(a). Of this principle, and adoptions more generally, Brereton J said in Adoption of SVS [2015] NSWSC 2043 at [9]:

4. [33]

   Brereton J further summarised the principles applicable to the interaction of ss 8(2) and 90 of the Adoption Act in Adoption of NG (No 2) [2014] NSWSC 680 at [15]-[16]:

5. [34]

   His Honour continued at [74]:

6. [35]

   The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached which will be inherently imprecise: Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead), cited with approval in Re the Adoption of CCS and FLS [2019] NSWSC 71 at [164].

Is adoption clearly preferable in the best interests of Max and Lily?

1. [36]

   I am comfortably satisfied that adoption is clearly preferable and in the best interests of both Max and Lily: see s 8(1)(a). There is no other option available that I consider is better for their long-term best interests, having regard to the factors in s 8(2), and I consider this to be the case overwhelmingly.

2. [37]

   At the outset, I note that the s 91 report indicates how settled the children are in the placement with their Proposed Adoptive Parents but that, due to their current ages, they do not fully comprehend what adoption would mean. Based on the children’s current ages, I have not placed much weight on this factor alone: ss 8(2)(a)-(b); see also ss 8(1)(d) and 90(1)(b).

3. [38]

   In respect of s 8(2)(c) (see also s 8(1)(e)), the evidence shows that the children’s cultural heritage and religious ties will be celebrated and strengthened by the Proposed Adoptive Parents. David is of Australian heritage and was raised in the Anglican faith but does not adhere to any religious beliefs. Jennifer is of Sri Lankan heritage and follows the Catholic faith. The birth mother is of Anglo-Australian heritage and the birth father is of Filipino heritage. The birth parents do not follow any religion.

4. [39]

   Jennifer and David have incorporated Filipino culture into the children’s lives by, for example, taking them to Filipino restaurants and attending celebrations such as the Filipino Christmas Festival at Tumbalong Park. Lily and Max have been calling friends of their Proposed Adoptive Parents ‘Tita’, which in Filipino language means ‘Aunt’. Jennifer has said that they would love to visit the Philippines and Sri Lanka as a family together.

5. [40]

   The Proposed Adoptive Parents are also open to providing Max and Lily the opportunity to develop their understanding of different religious principles and practices, so that they can make informed decisions in the future about their own belief systems.

6. [41]

   The Proposed Adoptive Parents are in tune with the children’s needs, including in relation to the developmental delays that both children are experiencing: s 8(2)(c). They facilitate regular appointments for each child with an occupational therapist, speech therapist and counsellor to assist with their development.

7. [42]

   When considering the children’s best interests, I must have regard to the relationship that the birth parents and any significant other people have with them as well as any wishes the birth parents have expressed about the adoption: s 8(2)(e). There is indication in the s 91 report that both birth parents have conveyed that Jennifer and David will be excellent adoptive parents to Max and Lily. The paternal grandmother, with whom the children have been having frequent contact visits with, also described the ‘kindness and love’ that she saw from both the Proposed Adoptive Parents. The paternal grandmother said that the children needed stability, love and security and that she felt the Proposed Adoptive Parents could provide that.

8. [43]

   The Proposed Adoptive Parents support contact with the children’s birth family, as appropriate: s 8(2)(f) (see also s 8(1)(e)). They are mindful of the children’s relationship with their birth parents, siblings and extended family. They have made an effort to foster these relationships, not just in proposing that their given names be preserved. Since 28 July 2023, the proposed adoptive parents have been independently facilitating visits with the birth mother and the children’s maternal biological sibling. Since 26 November 2023, they have been independently facilitating visits with the paternal grandmother. The children have not had any contact with the birth father since late August 2023 as he thought that it was what was ‘best for the children’ and ‘less confusing’. However, the Proposed Adoptive Parents are also supportive of Max and Lily having visits with the birth father, paternal biological sibling and maternal grandmother in the future.

9. [44]

   The Proposed Adoptive Parents have a thorough and responsible attitude to parenting: s 8(2)(g) and by all accounts, the evidence shows that the relationship they share with the children is loving: s 8(2)(h). They are both positively-contributing members of society, who can sustain a suitable familial environment for Max and Lily that is conducive to their emotional and intellectual needs: s 8(2)(i).

10. [45]

    I must also consider whether adoption is ‘clearly preferable’ in the children’s best interests to any alternative care order: ss 8(2)(k) and 90(3). I am fortified in the view that it is, because maintaining the status quo, namely that the children remain wards of the state in the foster care of the Proposed Adoptive Parents, has no practical advantages over an adoption. Indeed, it is quite the opposite, and would in all likelihood stymie the children’s positive bond with, and attachment to, the Proposed Adoptive Parents. This would also mean that the Proposed Adoptive Parents would be unable to make significant decisions concerning Max and Lily, which decisions would require the approval of the Minister.

11. [46]

    Another possible alternative, being an order allocating parental responsibility for the children to the Proposed Adoptive Parents, would alleviate some of the disadvantages of leaving the status quo in place, but it would remain a temporary order expiring when the children reach 18 years of age, and in the meantime the Minister and relevant caseworkers would also remain involved in the children’s life.

12. [47]

    I must also turn my mind to restoration as an alternative to adoption: Adoption of Taylor-Clay [2019] NSWSC 27 at [66]; Adoption of RCC and RZA at [69]-[72]. However, as already mentioned above, no party currently suggests that there is any realistic prospect of restoration of the children to the birth parents, and I do not consider this to be in the best interests of the children.

13. [48]

    There was also nothing in the evidence to suggest that it would be clearly preferable to defer the determination of the question to when the children are older, with either the status quo or an order for parental responsibility to operate in the meantime.

14. [49]

    The adoption by the Proposed Adoptive Parents of Max and Lily will exemplify what was described as one of the ‘principal benefits of adoption’, namely to ‘achieve a secure, stable, reliable, permanent and lifetime placement for the child in the adoptive family…’: Re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 at [64].

15. [50]

    I am confident that this adoption will provide certainty and permanence for Max and Lily in what is already a very healthy environment for them. Formal adoption recognises their bond with the Proposed Adoptive Parents beyond their adolescence. It also mitigates any stigma that may be associated with being a ‘foster child’, and instead recognises that, as a matter of law, Max and Lily live with their family, who can make decisions about what works best for them. As Brereton J put it in Adoption of Taylor-Clay at [58], 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 – by 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 their childhood but for life.

16. [51]

    As noted above, the Prospective Adoptive Parents have been selected in accordance with the Act: s 90(1)(c). The birth mother has consented and the birth father’s consent has been dispensed with: s 90(1)(d).

17. [52]

    I am therefore satisfied that this adoption is in the children’s best interests. I will therefore make the order sought for the adoption of the children, subject to the below, having satisfied myself to a degree commensurate with the gravity of this decision: Application of A – re D [2006] NSWSC 1056 at [53]; Adoption of BL [2018] NSWSC 391 at [13] (Sackar J).

The Adoption Plan

1. [53]

   I may not make an adoption order, where the parties to the adoption have agreed to an adoption plan, unless I am satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances: Adoption Act s 90(2). I must also not make an adoption order unless the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption: s 90(1)(h).

2. [54]

   Both birth parents have signed the adoption plans. The proposed adoption plan essentially maintains the arrangements for contact with the children’s birth family which Jennifer and David, to their credit, have already had in place for some time.

3. [55]

   The proposed adoption plans provide, in summary, for the following:

   1. (1)

      A minimum of 6 visits per year with a minimum duration of 1.5 hours each time with the birth mother and their maternal sibling. The maternal grandmother can attend these visits. Any other children that the birth mother may have may attend these visits.

   2. (2)

      A minimum of 2 visits per year for a minimum duration of 1.5 hours each time with the maternal aunt. Her partner may also attend.

   3. (3)

      As the children have not had contact with the birth father for a protracted period of time, should the birth father wish to re-engage in family visits, there will be an ‘introductory period’ during which the birth father may be asked to meet with David and Jennifer and to provide photographs of himself to assist with the re-introduction of the birth father to the children. The birth father will then be asked to participate in three videocalls with Max and Lily, to be scheduled over a six-month period. Following this introductory period and videocalls, face to face visits will occur at a minimum of 3 times per year for a minimum of 1.5 hours each time. Any further children that the birth father may have can also attend.

   4. (4)

      A minimum of 3 visits per year for a minimum of 1.5 hours each time with the paternal grandmother.

   5. (5)

      Telephone, Skype or other forms of electronic communication between the children and members of their birth family on birthdays and other important occasions. David and Jennifer agree to provide email updates and photographs at least two times a year to the birth parents, paternal grandmother and maternal grandmother, and cards, letters, photographs and gifts to the birth parents on other significant occasions. Members of the birth family can also sent cards, letters, photographs and gifts.

   6. (6)

      A Cultural Plan has been devised to assist the Proposed Adoptive Parents to attend to Max and Lily’s identity and heritage.

   7. (7)

      No particular religion is set out for Max and Lily; however, the Proposed Adoptive Parents (as noted above) are open to the children developing their own religious beliefs.

4. [56]

   I am well satisfied that the adoption plan is in the children’s best interests and is proper in the circumstances. It seems to me to be eminently sensible and the product of a mature and level-headed approach by the Proposed Adoptive Parents to the prioritisation of the children’s best interests, which is paramount in all decisions here. It reflects well on the parenting skills of the Proposed Adoptive Parents.

5. [57]

   Accordingly, I will make an order for the adoption plan to be registered, such that it will have effect as an order of the Court: Adoption Act s 50(4). I note that, should it be necessary, the Court can review an adoption plan on the application of one or more parties to the plan and make such changes, if any, to the provisions of the adoption plan as it considers appropriate: ss 51(1) and (3), although I hope that, given the good sense underlying the children’s plans, this will not be necessary.

Proposed name change

1. [58]

   The Secretary seeks an order that both children take Jennifer and David’s surname as their new surname, but that the children each keep their first name and their middle name.

2. [59]

   Before changing their names, I must consider any wishes expressed by Max and Lily and any factors relevant to the weight that should be given to those wishes: Adoption Act s 101(2). There was limited evidence as to their wishes in this regard, and even if there were, I would not be minded to place much weight on such evidence given their age. To this point, it is also not necessary that they consent to the change as the children are both under the age of 12 years: s 101(4).

3. [60]

   I must not approve a name change of a child who is more than one year old unless I am satisfied that the name change is in their best interests. In this respect, I agree with the Secretary and the Proposed Adoptive Parents as to the rationale they have given for the children’s respective name changes. I agree that it is in the best interests of the children, as the retention of their given names will allow them to retain a connection with their birth family, life story and identity, whilst the change in their surnames will also allow them to be formally recognised as part of Jennifer and David’s family.

4. [61]

   The evidence suggests that the children have responded positively to the proposed name changes.

5. [62]

   Once the adoption order is made, an integrated birth certificate will be created for the children which will include details of their birth parents. This will be an important part of their life story.

Conclusion

1. [63]

   Sackar J pointed out in Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] that ‘arguably the most important work at least in this Division of the court by a very large margin in my view is determining applications for adoption. It is one of the most profound and important decisions a judge can be called upon to make.’ This sentiment was echoed by Hallen J in Re the Adoption of CCS and FLS [2019] NSWSC 71 at [157], where his Honour called adoption orders ‘one of the most, if not the most, significant, and, in human terms, far-reaching of all orders available to a judge.’ I respectfully agree with these statements, and I am grateful to all concerned for their approach to this matter.

2. [64]

   The orders of the Court in respect of the child ‘Max’ (not his real name) will be:

   1. (1)

      Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the Court dispense with the consent of the child’s birth father.

   2. (2)

      The Court makes an order for the adoption of the child Max in favour of the Proposed Adoptive Parents and approves the proposed name changes for the child.

   3. (3)

      Pursuant to ss 50(1) and (3) of the Adoption Act, the Maternal Adoption Plan signed by the Proposed Adoptive Parents and the birth mother on 21 May 2025, and signed by the Principal Officer on 26 May 2025, be registered.

   4. (4)

      Pursuant to ss 50(1) and (3) of the Adoption Act, the Paternal Adoption Plan signed by the birth father on 22 May 2025, signed by the Proposed Adoptive Parents on 29 July 2025, and signed by the Principal Officer on 1 August 2025, be registered.

   5. (5)

      Pursuant to s 194(2) of the Adoption Act, leave is granted to provide a copy of the Maternal Adoption Plan, which has been registered, to the birth mother.

   6. (6)

      Pursuant to s 194(2) of the Adoption Act, leave is granted to provide a copy of the Paternal Adoption Plan, which has been registered, to the birth father.

3. [65]

   The orders of the Court in respect of the child ‘Lily’ (not her real name) will be:

   1. (1)

      Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the Court dispense with the consent of the child’s birth father.

   2. (2)

      The Court makes an order for the adoption of the child Lily in favour of the Proposed Adoptive Parents and approves the proposed name changes for the child.

   3. (3)

      Pursuant to ss 50(1) and (3) of the Adoption Act, the Maternal Adoption Plan signed by the Proposed Adoptive Parents and the birth mother on 21 May 2025, and signed by the Principal Officer on 26 May 2025, be registered.

   4. (4)

      Pursuant to ss 50(1) and (3) of the Adoption Act, the Paternal Adoption Plan signed by the birth father on 22 May 2025, signed by the Proposed Adoptive Parents on 29 July 2025, and signed by the Principal Officer on 1 August 2025, be registered.

   5. (5)

      Pursuant to s 194(2) of the Adoption Act, leave is granted to provide a copy of the Maternal Adoption Plan, which has been registered, to the birth mother.

   6. (6)

      Pursuant to s 194(2) of the Adoption Act, leave is granted to provide a copy of the Paternal Adoption Plan, which has been registered, to the birth father.