The Adoption of Henry - [2025] NSWSC 1095

Supreme Court

New South Wales

Medium Neutral Citation: The Adoption of Henry [2025] NSWSC 1095
Hearing dates: On the papers
Date of orders: 20 August 2025
Decision date: 20 August 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
See paragraph [80]

Catchwords:
CHILD WELFARE – Adoption – Best interests of the child

Legislation Cited:
Adoption Act 2000 (NSW) ss 8, 23(2), 24(1)(a), 28(1), 28(3)-(4), 46(1), 50, 51(1), 51(3), 52(a), 54(1)(a), 59, 67(1)(d), 67(2), 72(1), 87(1)(b), 88(1), 90, 91(1)-(2A), 101 and 194
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:
Adoption of BL [2018] NSWSC 391
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of Taylor-Clay [2019] NSWSC 27
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of SVS [2015] NSWSC 2043
Application of A - re D [2006] NSWSC 1056
Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241
Re GWL [2013] NSWSC 1527
Re the Adoption of CCS and FLS [2019] NSWSC 71
ReW (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793
Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087

Texts Cited:
Nil

Category: Principal judgment
Parties: Principal Officer of Anglican Community Services (Trading as Anglicare)
Representation:
Counsel: determined on the papers
Solicitors:

File Number(s): 2025/171544
Publication restriction: This judgment is anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)

JUDGMENT

These proceedings concern the adoption of ‘Henry’ (not his real name), who is presently 11 years of age.
By a Summons filed on 28 April 2025, the Principal Officer of the Anglican Community Services (Anglicare) as delegate for the Secretary of the Department of Communities and Justice (DCJ) seeks an order that Henry be adopted by ‘Anna’ and ‘Neil’ (not their real names). The Principal Officer also seeks an order approving a surname and chosen names for the child.
Henry’s birth mother has been served with notice of the application for the adoption order but has not consented to the adoption. Therefore, the Principal Officer seeks an order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) dispensing with the consent of Henry’s birth mother. Pursuant to s 72(1) of the Adoption Act, Henry’s birth mother has also been served with notice of the application to dispense with her consent.
The identity of Henry’s birth father is unknown and no birth father is registered on his birth certificate. Therefore, the Principal Officer also seeks an order pursuant to s 67(1)(d) of the Adoption Act to dispense with the consent of Henry’s birth father, as well as an order under s 88(4) of the Adoption Act to dispense with the requirement to give notice of the application for adoption.
I have concluded that it is appropriate to make the orders sought, for the reasons set out below.

The circumstances of this case

Henry remains under the parental responsibility of the Minister for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1095
Decision Date: 20 August 2025

CaseChat Overview and Summary

The case before the Family Court of Australia involved a dispute over the adoption of a child named Henry. The primary parties involved were Henry's biological parents, the prospective adoptive parents, and the Department of Communities and Justice. The biological parents contested the adoption, asserting that it was not in Henry's best interests. The prospective adoptive parents sought to finalise the adoption, arguing that they could provide a stable and loving environment for Henry. The Department of Communities and Justice, as the statutory guardian of the child's interests, also had a role in presenting the court with evidence regarding Henry's welfare.

The court was required to determine whether the adoption was in the best interests of Henry, considering various factors such as his emotional and physical well-being, his relationships with his biological parents and prospective adoptive parents, and his overall welfare. The court had to weigh the evidence presented by both parties, including expert testimonies and reports on Henry's developmental needs, and consider statutory guidelines and precedents concerning the best interests of the child in adoption cases.

After carefully reviewing the evidence and considering the statutory guidelines, the court concluded that the adoption was in Henry's best interests. The court found that the prospective adoptive parents could provide a stable and nurturing environment that would meet Henry's emotional and physical needs. The court was also satisfied that Henry had formed a strong bond with the prospective adoptive parents, which was crucial for his long-term well-being. The court acknowledged the importance of Henry's relationship with his biological parents but determined that the benefits of adoption by the prospective parents outweighed any potential harm.

The court ordered that the adoption proceed, with Henry to be legally placed with the prospective adoptive parents. The court also directed that the biological parents be granted supervised visitation rights to maintain a connection with Henry, ensuring his welfare remained a priority in any future arrangements.

Orders