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

1. These proceedings concern the adoption of ‘Henry’ (not his real name), who is presently 11 years of age.

2. 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.

3. 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.

4. 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.

5. I have concluded that it is appropriate to make the orders sought, for the reasons set out below.

The circumstances of this case

6. Henry remains under the parental responsibility of the Minister for Families and Communities until he attains the age of 18 years, pursuant to orders of the Children’s Court of NSW under the Children and Young Persons (Care and Protection) Act 1998 (NSW). These orders remain in effect.

7. Henry is currently in a long term out of home care placement with Neil and Anna (the Proposed Adoptive Parents). Henry has lived with the Proposed Adoptive Parents since 28 October 2014, when he was about seven months old.

Birth parents

8. Henry’s birth mother as registered on his birth certificate is ‘Tracey’ (not her real name). She has had a long history of mental care needs which has led to Henry entering the Minister’s care.

9. The identity of Henry’s birth father remains unknown. As mentioned above, there is no father listed on Henry’s birth certificate.

Other biological family members

10. Henry has two maternal biological siblings, ‘Colin’ (not his real name) aged 15 and ‘Michael’ (not his real name) aged 22.

11. Colin is living independently, and Michael is living in assisted independent living. Henry has not to date had face-to-face visits with Colin or Michael.

12. Henry also has a maternal grandmother, ‘Maggie’ (not her real name).

Proposed Adoptive Parents

13. I have read the affidavits of the Proposed Adoptive Parents, Anna and Neil.

14. The Proposed Adoptive Parents are authorised carers who have had the care and responsibility for Henry under out of home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW).

15. Anna is currently 43 years old and works as a chaplain. Neil is currently also 43 years old and works in information technology. They have been married since 2007.

16. The Proposed Adoptive Parents currently reside in their home in New South Wales. Along with Henry, they have the following children who live with them:

1. ‘Hannah’ (not her real name), aged 11, Anna’s biological daughter.

2. ‘Patrick’ (not his real name), aged 15, Anna and Neil’s biological son.

3. ‘Monique’ (not her real name), aged 13, Anna and Neil’s biological daughter.

17. The Proposed Adoptive parents also reside with ‘Rob’ (not his real name), aged 26, who is Henry’s prospective adoptive uncle.

18. Henry has established a stable relationship with all members of the Proposed Adoptive Parents’s household, including their biological children, Hannah, Patrick and Monique.

19. Henry and his proposed adoptive family live together in a five-bedroom house with four living spaces and a backyard. They have been residing at their current address since April 2019. Henry shares a large bedroom with Patrick that has two beds, shelving and a built-in wardrobe. There are spaces for study and creative play in the house.

20. Anna was the primary caregiver in Henry’s early years and has built a close bond with him. Neil also has a close and playful relationship with Henry and currently works from home which allows for more interactions with Henry. The s 91 Report (as defined below) records a strong and loving relationship between Henry and the Proposed Adoptive Parents, with Henry referring to Anna and Neil as Mum and Dad respectively.

21. Anna and Neil have the financial capacity to meet the needs of Henry, themselves, and their biological children. Both Proposed Adoptive Parents are in good health, have stable employment and they plan to reside in their current house in the long term. There is ample space for study and play, and as older household members move out over time, the Proposed Adoptive Parents have indicated that Henry will move into his own room.

22. All of the evidence before me suggests that Henry has been well cared for and that his needs have been, and will continue to be, met by the Proposed Adoptive Parents. They maintain a warm home environment which is conducive to Henry’s wellbeing and development, as borne out by the various reports and affidavits in evidence.

The formal requirements for adoption

23. I am satisfied that the formal requirements of the Adoption Act have been satisfied, apart from the requirements for the giving of notice to the birth father, which I will address further below.

24. Pursuant to s 87(1)(b) of the Adoption Act, this application is brought by the Principal Officer as delegate for the Secretary of the Department of Communities and Justice in New South Wales.

25. At the time the application was made, Henry was less than 18 years of age and was present in New South Wales: ss 23(2)(a) and 24(1)(a). The Proposed Adoptive Parents, at the time that the application was made, were resident and domiciled in New South Wales: ss 23(2)(b) and 28(1)(a).

26. A report prepared by Ms Wienburg, as an ‘authorised person’ for the purposes of the Adoption Act, concerning the proposed adoption has been provided to me as part of the application pursuant to ss 91(1), (2) and (2A) (the s 91 Report).

27. The Proposed Adoptive Parents are of good repute and are fit and proper persons to fulfil the responsibility of parents under the Adoption Act: s 28(1)(b). The Proposed Adoptive Parents also satisfy the age and length of relationship requirements: s 28(3)-(4) and have been selected in accordance with the Adoption Act: s 90(1)(c).

28. Notice of the application for adoption orders has been served on the Proposed Adoptive Parents and the birth mother more than 14 days before the date of the orders contained in this judgment: ss 72(1) and 88(1).

Dispensing with the requirement to give notice to the birth father

29. As noted above, notice of the application for adoption orders have not been served on the birth father. The Court may not make an order for adoption unless notice has been served on the birth parents more than 14 days before the date of the orders contained in this judgment: ss 54(3)(a) and 88(1)(a). However, the requirement for the giving of notice may be dispensed with by the Court: ss 54(3)(b) and 88(4).

30. For the same reasons that I consider that notice of the consent dispense application under s 67(1)(a) is not required in respect of Henry’s birth father (which I discuss below), I am satisfied that it is appropriate for the Court to dispense with the requirement to provide Henry’s birth father with notice of the application for adoption orders under s 88(4).

Dispensing with the consent of the birth parents

31. The Court may not make an order for adoption unless both parents consent: Adoption Act s 52(a), or unless the requirement for consent has been dispensed with: s 54(1)(a).

Notice of application to dispense with consent to birth father

32. Henry’s birth mother has been served with notice of the application to dispense with her consent in accordance with the requirement under s 72(1). Henry’s birth father has not been served with notice under s 72(1).

33. The Principal Officer submits that s 72(2)(a) applies in respect of the birth father such that provision of notice of the application to dispense with his consent is not required to be served. Section 72(2)(a) relevantly provides:

(2)  Subsection (1) does not apply if—

(a)  the person cannot, after reasonable inquiry, be found or identified,

34. Since Henry’s birth, Anglicare and the DCJ have made numerous attempts to identify Henry’s birth father. Henry’s birth mother has indicated that she is aware of the identity of Henry’s birth father. However, despite numerous inquiries by DCJ caseworkers responsible for Henry’s care, she has declined to disclose this information. Henry’s birth mother has also not shared any information with Ms Wienburg in the preparation of the s 91 Report that would assist with the identification of the birth father.

35. I am satisfied that no further inquiry would be reasonable or would be likely to yield information that would assist in identifying or locating Henry’s birth father. Therefore, I consider that s 72(2)(a) applies to these circumstances, which means that the requirement under s 72(1) to provide the birth father with notice of the application for a consent dispense order does not apply: Re GWL [2013] NSWSC 1527 at [28]-[29] (Darke J).

Circumstances in which consent may be dispensed with

36. 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 Principal Officer seeks an order dispensing with the birth parents’ consent on the basis of s 67(1)(d), which is relevantly as follows:

(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that—

…

(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child—

(i) the child has established a stable relationship with those carers or guardians, and

(ii) the adoption of the child by those carers or guardians will promote the child’s welfare, and

…

37. Section 67(2) also provides:

(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

38. Henry’s birth mother has expressed to Ms Wienburg her support for Henry living with the Proposed Adoptive Parents and indicated that she is happy with the contents of the adoption plan. However, I respectfully acknowledge that Henry’s birth mother has not formally consented to the proposed adoption as required under s 52(a). The views of his birth father are unable to be ascertained for the reasons outlined above. 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’.

39. I may not make a consent dispense order under s 67(1)(d) of the Adoption Act unless satisfied that, relevantly, Henry has established a stable relationship with his authorised carers, being the Proposed Adoptive Parents, and that the adoption by the Proposed Adoptive Parents will promote his 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 Henry: s 67(2).

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

41. As to s 67(1)(d)(i), the evidence demonstrates that Henry has established a stable relationship with the Proposed Adoptive Parents. He has lived with them continuously from when he was about seven months old until the present time. Henry has formed strong and loving relationships with not only the Proposed Adoptive Parents but also their biological children. The s 91 Report notes that Henry refers to the Proposed Adoptive Parents as his parents and to their biological children as his siblings.

42. As to s 67(1)(d)(ii), I note that Anna and Neil have met and continue to meet Henry’s developmental, educational, social and emotional needs. They have facilitated his healthcare appointments, ensured his developmental needs are met, and have supported Henry in managing parental, sibling and peer interactions in various settings. I have every confidence that they will continue to meet Henry’s needs in a manner that promotes his welfare.

43. As to s 67(2), I am also satisfied that it is in the best interests of Henry that the consent requirement is dispensed with. My reasons for being satisfied with this requirement are, essentially, the same as my reasons for being satisfied that it is in the best interests of Henry for the adoption orders to be made, which I address below. Having formed the view that it is in the best interests of Henry to make the adoption orders, I am satisfied that it is appropriate to dispense with the requirement of the birth parents’ consent.

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

44. The paramount consideration in an application for adoption is the best interests of the child the subject of the application. Section 8(1) of the Adoption Act provides the relevant applicable principles:

(1)   In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles—

(a)   the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b)   adoption is to be regarded as a service for the child,

(c)   no adult has a right to adopt the child,

(d)   if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e)   the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(e1)   undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare, …

45. Section 8(2) of the Adoption Act sets out matters to which I must have regard when considering the child’s best interests:

(2)   In determining the best interests of the child, the decision maker is to have regard to the following—

(a)   any wishes expressed by the child,

(b)   the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c)   the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d)   any disability that the child has,

(e)   any wishes expressed by either or both of the parents of the child,

(f)   the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g)   the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h)   the nature of the relationship of the child with each proposed adoptive parent,

(i)   the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j)   the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

46. Section 90 of the Adoption Act further provides:

(1)   The Court must not make an adoption order in relation to a child unless the Court is satisfied—

(a)   that the best interests of the child will be promoted by the adoption, and

(b)   that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and

(c)   if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and

(d)   that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

(e)   if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and

(f)   if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and

(g)   if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and

(h)   in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that 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.

(2)   The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3)   The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.

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

“… it is worth remembering that these inquiries are concerned with the future rather than with the past. At their centre is ascertaining the best interests and welfare of the child, now and in the future, and not the rights and wrongs of past conduct and decisions – whether of the birth parents, the adoptive parents or the Department.”

48. 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.’

49. 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]:

“[15] Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction ‘beyond reasonable doubt’ [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be ‘clearly preferable’ is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]].

[16] The answer to the question whether adoption is ‘clearly preferable’ is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:

-   Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;

-   Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and

-   Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.”

50. His Honour continued at [74]:

“[74]   Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are:

-   restoring the child to the care of the birth mother;

-   allocating parental responsibility in favour of the applicants;

-   maintaining the status quo, with the Minister having parental responsibility and the child in foster care; and

-   deferring determination of the question until the child is older, either maintaining the status quo or making a parental responsibility order in the meantime.”

51. 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) [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 Henry?

52. Applying the principles outlined above, I am comfortably satisfied that adoption is ‘clearly preferable’ in the best interests of Henry: s 90(3). In coming to this conclusion, I am also satisfied that there is no other option available that I consider is better for Henry’s long-term best interests, having regard to the factors in s 8(2), and I consider this to be the case overwhelmingly.

53. When considering Henry’s best interests, I must have regard to the relationship that the birth parents and any other significant people have with Henry as well as any wishes the birth parents have expressed about the adoption: s 8(2)(e)-(f). There is some indication in the s 91 Report that the birth mother has conveyed, including on 20 January 2025, that she is happy with Henry’s place in the Proposed Adoptive Parents’ family and is happy with how they care for Henry. Since Henry’s birth father’s identity is unknown, his views have not been able to be obtained.

54. Henry has become an integrated member of the Proposed Adoptive Parents’ family and, as stated above, views the Proposed Adoptive Parents as his parents and their biological children as his siblings. The s 91 Report records that the family home is a loving and relaxed environment where Henry has been able to grow and flourish.

55. The Proposed Adoptive Parents have displayed their ongoing dedication to ensuring Henry’s developmental needs are met, including in relation to his diagnosis of Attention Deficit Hyperactivity Disorder. They have also sought to ensure that the educational setting that Henry is in will be able to meet his needs.

56. Henry’s cultural heritage and identity will be strengthened by the Proposed Adoptive Parents. They plan to raise Henry in their religion, which Henry’s birth mother agrees with.

57. The Proposed Adoptive Parents have also demonstrated a recognition of the importance of Henry understanding his identity and relationship with his birth family members. They have supported him with age-appropriate information on his life story and support contact with Henry’s birth family, as appropriate. They have facilitated visits between Henry and his birth mother and maternal grandmother from time to time, and have expressed that they are happy to continue to do so. This indicates to me that the Proposed Adoptive Parents will continue to support Henry’s development of a positive identity and sense of self.

58. The Proposed Adoptive Parents have a thorough and responsible attitude to parenting. They are in tune with Henry’s emotional, psychological and physical needs. They are both positively contributing members of society, who can sustain a suitable familial environment for Henry. Thus, Henry’s adoption by the Proposed Adoptive Parents 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].

59. I must also consider whether adoption is ‘clearly preferable’ in Henry’s best interests to any alternative care order. In this case, the apparent alternatives to making an adoption order are:

1. An order allocating parental responsibility to the Proposed Adoptive Parents pursuant to s 92 of the Adoption Act.

2. Making no order and maintaining the status quo, such that Henry remains under the parental responsibility of the Minister until he attains 18 years of age.

3. Restoring Henry to his birth mother’s care.

60. If I were to take the second course expressed above, the Proposed Adoptive Parents would be unable to make significant decisions concerning Henry, which decisions would require the approval of the Minister’s delegate. Maintaining the status quo would only increase the sense of uncertainty or lack of permanence regarding his legal status that Henry has already expressed to Ms Wienburg.

61. An order allocating parental responsibility to the Proposed Adoptive Parents would alleviate some of the disadvantages to maintaining the status quo, but would not provide the same level of lifelong stability and security that an order for adoption would be able to. That is because such an order would be temporary, expiring when Henry attains 18 years of age which would result in Henry losing his legal connection to the Proposed Adoptive Parents and their biological children at that point.

62. I must also turn my mind to restoration to the birth parents as an alternative to adoption: Adoption of Taylor-Clay [2019] NSWSC 27 at [66]; Adoption of RCC and RZA at [69]-[72]. However, no party suggests that there is any realistic prospect of restoration of Henry to the birth parents and the birth mother herself has identified that she does not have the capacity to care for Henry. As for the birth father, placement of Henry into his care is not possible as his identity remains unknown. Therefore, I do not consider that restoration of Henry to one or both of his birth parents is either a realistic possibility or in his best interests.

63. Therefore, any alternative course of action lacks the long-term certainty of an adoption order. An adoption order provides for certainty and permanency for Henry in what is already a very healthy environment for him, and recognises his bond with the Proposed Adoptive Parents, allowing him to live in a family that is recognised in law as his own. It mitigates any stigma that Henry might experience from being a ‘foster child’. As Brereton J put it in Adoption of Taylor-Clay [2019] NSWSC 27 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.

64. I will therefore make the order sought for the adoption of Henry, subject to the below matters, 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 plans

65. The Principal Officer has prepared a maternal adoption plan and paternal adoption plan pursuant to s 46 of the Adoption Act that include provisions for the means and nature of contact between Henry and his birth family. Despite that Henry’s birth parents have not formally consented to the adoption of Henry, the Principal Officer has given Henry’s birth mother the opportunity to, as far as possible, participate in the development of, and agree to, an adoption plan. The s 91 Report notes that Tracey confirmed to Ms Wienburg that she is happy with the contents of the maternal adoption plan.

66. Although the proposed adoption plan has not been signed by either birth parent, it has been signed by two or more parties to the adoption, being the Proposed Adoptive Parents and the Principal Officer, as required by s 46(1) of the Adoption Act.

67. I may not make an adoption order, where the parties to the adoption have agreed to an adoption plan or plans, unless I am satisfied that the arrangements proposed are in the child’s best interests and are proper in the circumstances: s 90(2). I note that in this matter, no order for the registration of the proposed adoption plans is proposed by the Principal Officer.

Maternal adoption plan

68. The maternal adoption plan in this case essentially maintains the arrangements for contact with Henry’s birth family which the Proposed Adoptive Parents, to their credit, have already been and continue facilitating.

69. The maternal adoption plan outlines the following arrangements:

1. Henry is to have face-to-face visits with his birth mother and maternal grandmother for a minimum duration of two hours a visit and a minimum of four times a year. The Proposed Adoptive Parents will organise and support these visits.

2. There are currently no face-to-face visits with Henry and his birth siblings Colin or Michael. However, the Proposed Adoptive Parents are supportive of visits potentially occurring a minimum of four times a year for a minimum of two hours per visit.

3. The proposed Adoptive Parents will support Henry with any requests he makes to have telephone contact with his birth mother and maternal grandmother, including on special occasions, and will welcome phone calls from them to Henry.

4. There is currently no electronic communication between Henry and Colin or Michael, but the Proposed Adoptive Parents agree to facilitate and supervise telephone contact and electronic communication between them where it is appropriate and until such a time that Henry is able to communicate with them independently.

5. The Proposed Adoptive Parents agree to provide Henry’s birth mother and maternal grandmother with updates on Henry’s progress and photographs four times a year, including school reports. Information exchange and photographs may be provided via different means as well as outside of the formal updates.

6. The Proposed Adoptive Parents agree to provide Colin and Michael with updates on Henry’s progress and photographs two times a year via text messages or email.

Paternal adoption plan

70. The Proposed Adoptive Parents have also signed a paternal adoption plan supporting Henry’s contact with his birth father in the event he is identified.

71. The paternal adoption plan outlines the following arrangements:

1. Should a putative birth father come forward in the future, he may be required to undergo DNA testing prior to any contact occurring. A risk assessment will also be required to be undertaken by the DCJ prior to establishing contact.

2. The birth father may be asked to provide the Prospective Adoptive Parents with some information about himself to assist Henry to know about his father.

3. Face-to-face visits, telephone and electronic communication and information exchange including photographs will occur as agreed between Henry, the Prospective Adoptive Parents and the birth father.

4. Should a putative birth father be confirmed and he has children born before or after the making of an adoption order, the Prospective Adoptive Parents agree to support contact between them and Henry.

Conclusion as to adoption plans

72. In the circumstances, I am satisfied that the adoption plans are in Henry’s best interests and 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 Henry’s best interests, which is paramount in all decisions here. It reflects well on the parenting skills of the Proposed Adoptive Parents. It is now up to the Proposed Adoptive Parents, in coordination with the birth family members, to independently facilitate contact in accordance with the registered Adoption Plan/s.

73. It is appropriate to make an order pursuant to s 194(2) to allow the Adoption Plans to be made available to Tracey, Maggie and the birth father (if he is identified).

Proposed name change

74. It is proposed that, on the making of the adoption order, Henry is to have the name ‘Henry’, two middle names, and the surname of the Proposed Adoptive Parents.

75. Before making an order changing his name, I must consider any wishes expressed by Henry and any factors relevant to the weight that should be given to those wishes: Adoption Act s 101(2). I do note however that, being under the age of 12 years, Henry’s consent to the change is not necessary: s 101(4).

76. Henry has said that his preferred name if he were to be adopted is the name proposed by the Principal Officer. He has expressed that he would like his surname to be changed to that of the Proposed Adoptive Parents, in order to have the same last name as his proposed adoptive siblings, Patrick and Monique. This will also alleviate the negative impact from Henry’s peers questioning why he has a different surname to his prospective adoptive siblings. One of the proposed middle names is a reference to one of Henry’s proposed adoptive uncles with whom Henry has a special connection, and also aligns with Henry’s desire to have a middle name ‘relating to God’. Henry is also happy having Tracey’s surname as a middle name which acknowledges his connection to his birth family.

77. Ms Wienburg’s s 91 Report notes that Henry’s birth mother has confirmed that she is content with Henry’s preferred name if he is adopted.

78. 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 the best interests of the child. In this respect, I agree with the Principal Officer and the Proposed Adoptive Parents as to the rationale they have given for Henry’s name change. I agree that it is in the best interests of Henry, as the retention of his birth mother’s surname as a middle name will allow him to retain a connection with his birth family, life story and identity, whilst the addition of the other proposed middle name and the Proposed Adoptive Parents’ surname as Henry’s surname will also allow him to be recognised as a part of his prospective adoptive family. All significant members of Henry’s birth and prospective adoptive families are in agreement with this name and supportive of the change.

79. Once the adoption order is made, an Integrated Birth Certificate will be created which will include details of Henry’s birth parents. It will form an important part of Henry’s life story.

Conclusion

80. I am grateful for the assistance of all involved in this matter. The Court makes the following orders:

1. Order pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) that the Court dispense with the requirement for the consent of the child’s birth mother.

2. Order pursuant to s 67(1)(d) of the Adoption Act that the Court dispense with the requirement for the consent of the child’s birth father.

3. Order pursuant to s 88(4) of the Adoption Act that the Court dispense with the giving of notice of the application to the child’s birth father.

4. Order for the adoption of the child Henry in favour of the adopting parents Anna and Neil and approve the proposed name changes for the child.

5. Order pursuant to s 194(2) of the Adoption Act that leave be granted to provide a copy of the maternal adoption plan to the birth mother, Tracey, and maternal grandmother, Maggie.

6. Order pursuant to s 194(2) of the Adoption Act that leave be granted to provide a copy of the paternal adoption plan to the birth father, should he be located and his identity confirmed.

Notations

81. The Court notes that:

1. it is satisfied that the arrangements proposed in the maternal adoption plan are in the children's best interests and are proper in the circumstances; and

2. it is satisfied that the arrangements proposed in the paternal adoption plan are in the children's best interests and are proper in the circumstances.

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Decision last updated: 24 September 2025