The Adoption of Jimmy (a pseudonym)

Case •

[2025] NSWSC 408

•

30 April 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: The Adoption of Jimmy (a pseudonym) [2025] NSWSC 408
Hearing dates: 16 December 2024
Date of orders: 16 December 2024
Decision date: 30 April 2025
Jurisdiction:Equity - Adoptions List
Before: Stevenson J
Decision:

On the evidence before the Court, the child is not a child of Aboriginal descent, with the consequence that the child is not an Aboriginal child within the meaning of s 4(1) of the Adoption Act 2000 (NSW). The Secretary has made reasonable inquiries as to whether the child is an Aboriginal child.

Dispense with the requirement for the consent of the child.

No order made for a legal representative to be appointed to the child.

Dispense with the requirement for the consent of the birth parents.

Adoption orders made.

Catchwords:

CHILD WELFARE – adoption – Aboriginal placement – where birth parents disclosed Aboriginal heritage – whether Secretary has made reasonable inquiries as to whether child is an Aboriginal child – whether child is Aboriginal

CHILD WELFARE – adoption – best interests – alternatives to adoption – where child has been cared for by adoptive parents for more than 12 years – where adoptive parents have been granted parental responsibility for child until he attains 18 years of age – where adoptive parents not seeking guardianship orders and seek to support child to lead independent life – adoption clearly preferable in best interests of child

CHILD WELFARE – adoption – consent – dispense order – child – where 17 year old child diagnosed with speech and language disorders – where child cannot participate in registered counselling to give consent to his own adoption – where child given opportunity to express views freely about the adoption

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW)

Adoption Act 2000 (NSW)

Adoption Regulation 2015 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

Adoption of BL [2018] NSWSC 391

Adoption of F and IR (anonymised) [2022] NSWSC 262

Adoption of RCC and RZA [2015] NSWSC 813

Adoption of Taylor-Clay [2019] NSWSC 27

Application of A - re D [2006] NSWSC 1056

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793

The Adoption of Edward (a pseudonym) [2022] NSWSC 1488

Texts Cited:

Practice Note SC Eq 13

Category:Principal judgment
Parties: Secretary, Department of Communities and Justice (Plaintiff)
“Charlotte” (a pseudonym) (First Defendant)
“Declan” (a pseudonym) (Second Defendant)
Representation: Solicitors:
Crown Solicitor’s Office (Plaintiff)
First Defendant (self-represented)
Second Defendant (self-represented)
File Number(s): 2024/404876
Publication restriction: This judgment has been anonymised pursuant to s 180 Adoption Act 2000 (NSW).

JUDGMENT

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

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

  1. 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.

  2. 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.

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

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

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

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

  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).

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

  12. 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]

    1. The Act, ss 24(1)(b), 24(2)(a).

  13. 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. 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.

    2. The Act, s 69(3).

Legal practitioner not appointed to represent Jimmy

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

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

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

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

  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. The Act, s 122(2).

  1. 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. The Act, ss 8(1)(d), 9(1)(b).

  2. 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. Practice Note SC Eq 13 at [32].

  3. 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. Ms Pettitt of Legal Aid NSW appeared at the first return as amicus curiae on the basis that Legal Aid NSW would seek to be appointed as a legal practitioner for Jimmy.

    7. The Act, s 122(2)(b); Practice Note SC Eq 13 at [31].

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

  5. 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.

  6. 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.

  7. As Ms Griffin said in her report:

“The voice of the child is very important in adoption decisions and [Jimmy] has been provided with two opportunities with different adoption professionals to share his views which need to be seriously considered. [Linda] has also talked actively about adoption with him as well. I am of the view that [Jimmy] has been provided with sufficient opportunities now to share his views and any further attempts to gain his views would be disrespectful to him and possibly harmful.”

  1. 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.

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

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

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

  10. 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. 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. 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. 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. Section 34 of the Act provides that:

“34 Application of Aboriginal child placement principles

(1) The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child.

(2) The Aboriginal child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is an Aboriginal child for adoption.” (Bolded emphasis in original.)

  1. 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.

  2. 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]

    8. See the Act, ss 33-36, in particular the “Aboriginal Child Placement Principles” contained within s 35.

    9. See, for example, Adoption of F and IR (anonymised) [2022] NSWSC 262 at [19] (Sackar J).

  3. 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.

    10. See the Act, Part 3A “Selection of authorised carers as adoptive parents”, and the Adoption Regulation 2015 (NSW), Part 4 “Selection of authorised carers as adoptive parents of a child in their care”; see also The Adoption of Edward (a pseudonym) [2022] NSWSC 1488 at [10]-[16].

  4. 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.

  5. 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.

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

  2. 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. is a member of the Aboriginal race of Australia;

  2. identifies as an Aboriginal person; and

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

    11. The Act, s 4(1).

    12. Aboriginal Land Rights Act, s 4(1).

  1. 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.

    13. Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [86] (Leeming JA).

  2. 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.

  3. 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.

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

  5. Charlotte told me this at the preliminary hearing:

“[CHARLOTTE]: … I have always been told my whole life that I was an Aboriginal and I always believed myself to be Aboriginal, so, yes, kind of hard finding out all.”

  1. 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.

  2. 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.

    14. Hackett (a pseudonym) v Secretary, Department of Communities and Justice (supra) at [82] (Leeming JA).

  3. 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.

  4. 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. 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]

    15. The Act, s 54(2).

  2. 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]

    16. The Act, s 58(1).

  3. 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]

    17. See the Act, ss 61(3), 63(1)-(2); Adoption Regulation 2015 (NSW), r 77.

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

  1. the legal effect of signing the instrument of consent and the procedure for revoking consent; and,

  2. the effect of the mandatory written information, which sets out, amongst other things, the alternatives to adoption, the legal processes of adoption, the rights and responsibilities of other parties to the adoption, including access to information about, or contact with, the other parties to the adoption, [18] and information on the effects, if any, adoption may have on the child’s cultural identity and cultural heritage; [19] and

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

    18. The Act, s 57.

    19. See Adoption Regulation 2015 (NSW), r 79.

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

    20. The Act, s 55(1)(a)-(b).

  2. 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.

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

  4. 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:

“[Jimmy] has been diagnosed with multiple complex conditions which impact on people’s conceptualisation of the world and of their communication. It is therefore important [to] understand his capacity to understand specific concepts related to adoption in the context of his disabilities, trauma history, behaviour, and modes of communication.

Based on my observations and the information provided to me by those directly caring for him, [Jimmy] demonstrates a functional understanding of concepts underlying adoption, including but not limited to:

Permanence: [Jimmy] has demonstrated an understanding of permanence through daily interactions such as relating an understanding that death means you never [see] the person again.

Having choice and options: [Jimmy] regularly makes informed choices associated with his care activities, sporting activities, and contact with his birth family while demonstrating a clear understanding of his consideration of the ‘pros and cons’ of the options.

Cause-and-effect and Right-and-Wrong: [Jimmy] has demonstrated a clear understanding of the impact of making choices which lead to positive as well as detrimental outcomes. This includes understanding that breaking the law can lead to the involvement of Police and the Court, and potentially to severe ‘punishment’.

Ownership and inheritance: [Jimmy] has regularly demonstrated an understanding of ownership through his interactions related to lending and borrowing, and giving and receiving gifts. This has demonstrated in many contexts such as work experience, as school, shopping, and completing maintenance work with family members. Given [Jimmy’s] understanding of death it would seem reasonably to assume that he would understand the transfer of ownership following someone’s death.

Birth and adoptive family: [Jimmy] has consistently demonstrated an understanding of the distinction between his birth family and his adoptive family for many years. Furthermore, he has demonstrated an understanding of which of his sibling[s] were born into the family and which have been adopted.

Given [Jimmy’s] demonstrated capacity to understand these and other key concepts underlying the process and impact of adoption, I believe that he has the capacity to understand the underlying concepts of an ‘Open Adoption’, such as: there is a limited time to change his mind before the order is finalised, that consenting to an adoption order makes you a legal member of the adoptive family for life, the ability to stay connected with his birth family, and changes to his inheritance.”

  1. 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.

  2. 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.

  3. Mr Lyall said:

“[Jimmy] regularly demonstrates the ability to understand what has been said, however his speech and sentence structure is often specific to the individual context and difficult for many people to comprehend. It is therefore important to note that although I believe [Jimmy] could comprehend the concepts conveyed in the questions and explanations of a counsellor, a great deal of patience and augmentative and alternative communication methods (e.g. specific visual & an Auslan interpreter) are likely to be required for [Jimmy] to demonstrate his understanding and provide clear answers.”

  1. 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:

“It is my professional opinion, based on the information provided and my own conversations, as a result of [Jimmy’s] Down Syndrome and intellectual delay, [Jimmy] has difficulty communicating his understanding of being in foster care, and whilst he may understand the concept of adoption, he is unable to communicate this and/or the legal effects of adoption.

…

I understand that prior to my discussion with [Jimmy], he had not been provided the Mandatory Written Information on Adoption (MWI). Given his developmental delay I do not believe [Jimmy] has the physical capacity to read the document himself. I also do not believe [Jimmy] has the capacity to understand the MWI now, if the MWI was read to him … Further, I do not believe [Jimmy] would be able to reflect the contents of the document back in a way which indicates a sufficient level of understanding to be indicative of being able to give consent.

…

[Jimmy] is over 12 years of age and it is my professional opinion that whilst he may have the capacity to understand adoption as a legal concept, he does not have the physical capacity to consent to his own adoption at this time due to limitations in understanding and considering the MWI and to communicate back his understanding.” (Bolded emphasis in original.)

  1. Linda deposed:

“Whilst I believe [Jimmy] understands what adoption is, I do not think that [Jimmy] will have the capacity to consent to his adoption formally under the legislation, as not only does he not have the capacity to read the mandatory written information, but he also will not be able to communicate to a Registered Counsell[or] that he understands the Mandatory Written Information.”

  1. 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:

“I therefore must conclude based on my Registered Counselling meeting with [Jimmy] on 11 November 2024 that in my opinion [Jimmy] is not capable of understanding the effect of signing the instrument of consent. This statement should in no way diminish what [Jimmy] shared with me during our meeting and what he said or shared by other means (visual gestures) needs to be valued and taken into consideration into any adoption application that progresses.”

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

Adoption Orders

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

The formal requirements for adoption

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

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

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

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

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

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

    21. The Act, s 23(2)(a).

    22. The Act, s 28(1)(a).

    23. The Act, s 28(1)(b).

    24. The Act, s 90(1)(c).

    25. The Act, s 28(3)-(4).

  1. 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]

    26. The Act, s 88(1)(a).

    27. The Act, s 88(4).

  2. 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.

  3. 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.

Adoption is in Jimmy’s best interests

  1. 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]

    28. The Act, s 8(1)(b).

    29. The Act, s 8(1)(c).

  2. 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]

    30. The Act, ss 8(1)(a), 90(1)(a).

    31. The Act, s 8(1)(a).

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

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

  1. any wishes expressed by Jimmy;

  2. Jimmy’s age, maturity and level of understanding;

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

  4. any disability that Jimmy has;

  5. the wishes expressed by Jimmy’s parents;

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

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

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

  1. 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.

  2. 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.

  3. 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.

  4. 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:

“[Jimmy] spoke of adoption being ‘forever’ when I asked him what adoption is.”

  1. And:

“From my perusal of [Jimmy’s files], as well as conversations with [Jimmy], [Linda], [Robert], [Linda and Robert’s children], [Micah], and Mr Lyall, I believe [Jimmy’s] understanding of adoption relates to a feeling of safety and stability, allowing him to continue living where he lives now, with his family.”

  1. 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:

“… [I] asked him ‘Do you know what adoption means?’ He thought for a minute and then used sign language and some single words pointing to his heart area and saying ‘[Jimmy], Mum’. He did this with a shy smile on his face but did the hand signal a couple of times. It was quite a touching gesture.”

  1. Ms Lewis said in the court report:

“When asked about living with [Linda] and [Robert], he called them ‘Mum’ and ‘Dad’ and used the words ‘fun’ ‘good’ and ‘love’. When asked about [Oliver], he replied ‘love’ and ‘he’s my brother’ and when asked about [Caleb], … [he] said ‘brother’ … When asked again [Jimmy] confirmed he wants to live with ‘Mum and Dad’ and when asked if he could live anywhere else, he said he would live with ‘[Micah] and [Linda and Robert’s daughter, who I will call “Natalie” (not her real name)]’.”

  1. 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:

    32. The Act, s 8(2)(a).

“I older

I feel good, adoption

Sense

You Mum, Dad

[Caleb], [Oliver], brother

This home

Mum, Dad, make happy

Adoption sense

I love Mum

I love Dad

I love [Caleb]

I love [Oliver]

I love [Jimmy’s dog, a daschund]

I love [Family dog, a labrador]

I happy home

Mum, Dad, Me happy”.

  1. 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.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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”.

  6. 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.

  7. As Ms Griffin said:

“[T]hroughout my meeting with [Jimmy], he demonstrated his strong connection and positive regard for his carers and their family. This was shown by his smiles, laughing and relaxed behaviours every time we spoke of them. This was particularly demonstrated when I first asked about adoption and he pointed to his heart area and said ‘[Jimmy], mum’ and did this a few times which signified to me the importance of it to him. This was further [reinforced] throughout the meeting when I mentioned someone in his (carer) family, he smiled and/or laughed automatically.”

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

“[Jimmy] will need lifelong support but us and our extended family are the best to provide that for him”.

Jimmy’s parents

  1. 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]

    33. The Act, ss 8(2)(e)-(f).

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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:

“I don’t want to consent to [Jimmy] being adopted because I don’t want him to think I’ve ever given up on him and that I don’t want him.

I want [Jimmy] to know that I love him.

[Linda] and [Robert] take great care of [Jimmy], and I have always said they have. They have been able to care for [Jimmy] more than I was able to. They know what they are doing and have been able to get him the services he requires and give him the love and care he needs. I’ll always be grateful that [Jimmy] was placed into a steady home when I could not provide that for him.

…

I understand that [Jimmy] will become an adult once he turns 18 and so the current order for parental responsibility to [Linda] and [Robert] will ‘expire’.

I would prefer for the current orders to stay in place providing for parental responsibility of [Jimmy] to [Linda] and [Robert]. This is because I am worried about my contact with [Jimmy] stopping, as it has done before, if an Adoption Order is made. … But I understand that a big reason why [Linda] and [Robert] want this adoption order is because they understand [Jimmy] needs help after he turns 18 to make decisions and they feel that an adoption order will help them do that.”

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

  2. 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.

Adoption clearly preferable in the best interests of Jimmy

  1. 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]

    34. The Act, s 90(3).

    35. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J, as the Commissioner then was).

  2. 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]

    36. Application of A - re D [2006] NSWSC 1056 at [53] (Palmer J); Adoption of BL [2018] NSWSC 391 at [13] (Sackar J).

  3. 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.

    37. I must consider restoration as an alternative to adoption: see Adoption of Taylor-Clay [2019] NSWSC 27 at [66] (Brereton J); Adoption of RCC and RZA (supra) at [69]-[72] (Brereton J).

  4. 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.

  5. 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:

“[I]f an adoption order is not seriously considered and made by the time [Jimmy] is 18, he will not have active/vocal advocates for him post 18 recognised by service providers as his (birth) parents would still be his parents on his birth certificate … Without an adoption, [Linda and Robert] would not have the status of being [Jimmy’s] legal parents post 18 and have the advantages this would provide to them to be involved and support [Jimmy] in receiving the ongoing services he will require over his life.”

  1. 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]

    38. In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 at [64] (McFarlane LJ; Jackson and Lindblom LJJ agreeing).

    39. Adoption of Taylor-Clay (supra) at [58] (Brereton J).

  2. 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.

Consent to Jimmy’s adoption

  1. 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]

    40. The Act, s 52(a).

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

    41. The Act, s 54(1)(b).

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

  4. 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.

    42. The Act, ss 67(1)(d)(i)-(ii).

    43. The Act, s 67(2).

  5. 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]

    44. The Act, s 55(2).

No Adoption Plans

  1. 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.

  2. 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.

  3. Charlotte told me this in her letter:

“I have a massive fear that if [Linda] and [Robert] adopt [Jimmy] then we will no longer be in his life, as they have stopped the visits before – what’s to stop them once he is no longer ours?

I hope that [Linda] and [Robert] will continue to help him arrange contact with me, his dad, [Ella] and [Rowan] as part of this understanding that [Jimmy] will likely continue to need their help with arranging and attending contact, like he will need their help with other things in his life.

I think [Jimmy] will continue to benefit from having this relationship with me, [Ella] and [Rowan], as will [Ella] and [Rowan] in continuing to get to know their big brother [Jimmy]. We all have a lot of fun together.”

  1. 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.

  2. 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.

  3. 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.

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

  5. 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.

  6. 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.

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

  8. 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.

No name change

  1. 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. 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.

**********

Endnotes

Decision last updated: 30 April 2025

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Cases Citing This Decision

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Cases Cited

7

Statutory Material Cited

4

Adoption of BL [2018] NSWSC 391
Adoption of F and IR (anonymised) [2022] NSWSC 262
Re Adoption of RCC and RZA [2015] NSWSC 813