The Adoption of Kevin (a pseudonym)

[2025] NSWSC 259

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Kevin (a pseudonym) [2025] NSWSC 259

Hearing dates:

17 February 2025

Date of orders:

26 March 2025

Decision date:

26 March 2025

Jurisdiction:

Equity - Adoptions List

Before:

Brereton J

Decision:

Declaration of parentage and adoption orders made.

Catchwords:

CHILD WELFARE – adoption – order – whether the making of an adoption order is in the best interests of the child – whether a guardianship order should be made as an alternative to an adoption order – whether an adoption order is the clearly preferable option – whether the Court has jurisdiction to make a guardianship order – where the Court can exercise its parens patriae jurisdiction to grant a guardianship order if it is the clearly preferable option.

CHILD WELFARE – adoption – order – where the birth parents oppose the adoption – whether the consent of the birth parents should be dispensed with to make an adoption order – where the birth mother seeks restoration.

CHILD WELFARE – adoption – adoption plans – where it is in the child’s best interests for an adoption order and declaration of parentage to be made – where the applicant seeks registration of the adoption plans to facilitate future contact with the child’s birth family post-adoption – whether the adoption plans are in the child’s best interests and proper in all of the circumstances – where the birth mother has not signed the adoption plan.

Legislation Cited:

Adoption Act 2000 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

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

Status of Children Act 1996 (NSW)

Cases Cited:

Adoption of BS (No 3) [2013] NSWSC 2033

Adoption of IEK [2019] NSWSC 171

Adoption of JLK and CRK [2017] NSWSC 7

Adoption of RCC and RZA [2015] NSWSC 813

Adoption of Taylor-Clay [2019] NSWSC 27

Application of A - re D (2006) 36 Fam LR 142; [2006] NSWSC 1056

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

Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142

Re the Adoption of CCS and FLS [2019] NSWSC 71

Texts Cited:

N.A.

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice by their delegate, Principal Officer, Adoptions, Barnardos Australia (Plaintiff)
“Garth” (First Defendant)
“Maria” (Second Defendant)

Representation:

Counsel:
R D Turnbull (Plaintiff)
P J Braine (Second Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Rafton Family Lawyers Parramatta (Second Defendant)
No other appearances

File Number(s):

2023/00110261

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).

JUDGMENT

1. These proceedings concern the adoption of a child who I will call “Kevin”, a five year old child. [1]

   1. In this judgment, all names are pseudonyms so that the persons affected by the adoption application are not identified – see s 180 of the Adoption Act. This version of the judgment may be published.

2. By Further Amended Summons for Adoption filed on 3 February 2025, the Secretary of the New South Wales Department of Communities and Justice (‘Secretary’) by his delegate, the Principal Officer, Adoptions, for Barnardos Australia (‘Barnardos’), seeks the following orders:

1. that pursuant to section 21(2) of the Status of Children Act 1996 (NSW) (‘the Status Act’), “Garth” be declared the birth father of Kevin;

2. that pursuant to section 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (‘the Registration Act’), Garth be included as the father of Kevin in the Register of Births, Deaths and Marriages;

3. that pursuant to section 67(1)(d) of the Adoption Act 2000 (NSW) (‘the Adoption Act’), the Court dispense with the requirement for the consent of the Kevin’s birth mother, “Maria”;

4. that pursuant to section 67(1)(d) of the Adoption Act, the Court dispense with the requirement for the consent of Kevin’s birth father, Garth;

5. that pursuant to section 23 of the Adoption Act, an order be made for the adoption of Kevin in favour of the adopting parents, “Robert” and “Grace”;

6. an order approving the new surname of the child;

7. that pursuant to sections 50(1) and 50(3) of the Adoption Act, the Further Amended Maternal Adoption Plan signed by Robert and Grace on 28 January 2025 and the Principal Officer, Adoptions at Barnardos on 29 January 2025 be registered; and

8. that pursuant to sections 50(1) and 50(3) of the Adoption Act, the Amended Paternal Adoption Plan signed by Garth on 1 February 2024, Robert and Grace on 8 February 2024 and the Principal Officer, Adoptions at Barnardos on 9 February 2024 be registered.

3. On 11 April 2023, Kevin’s birth mother, Maria, and birth father, Garth, were each served with a notice of the adoption application from the Secretary via express post to their respective residential addresses. Barnardos followed up both Maria and Garth for confirmation that they had received the notices of the adoption application. Maria confirmed receipt via text message. No response was received from Garth.

4. Maria has actively participated in these proceedings from their commencement. She is the Second Defendant. Notices of Appearance were filed by Maria on 18 April 2023, and by her legal representative on 20 July 2023. Throughout these proceedings, Maria has maintained her unwavering position that she opposes the making of an adoption order in relation to Kevin.

5. Garth has also participated in these proceedings, but to a much more limited extent. He is the First Defendant. He filed a Notice of Appearance on 20 October 2023 and initially opposed the making of an adoption order in relation to Kevin. Notwithstanding his initial opposition, Garth indirectly consented to the adoption order by signing the Amended Paternal Adoption Plan on 1 February 2024. Garth also later communicated to Barnardos that he was in favour of the adoption.

The circumstances

6. Kevin has two maternal siblings, “Ethan” and “Cameron”. In June 2018, Ethan and Cameron were removed from Maria’s care by the Department of Human and Health Services in Victoria.

7. Kevin was born on 15 March 2020.

8. On 27 March 2020, Kevin was assumed into care and removed from Maria.

9. On 1 April 2020, a care application was made in the Children’s Court pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘the Care Act’) in relation to Kevin.

10. On 3 April 2020, the Children’s Court made an interim order allocating parental responsibility for Kevin to the Minister for Families and Communities (‘Minister’).

11. On 4 May 2021, the Children’s Court made final orders for Kevin to be placed under the parental responsibility of the Minister until he attained the age of 18 years pursuant to the Care Act. At the date of the proceedings, these orders remained in effect.

12. Barnardos is a designated agency pursuant to section 138(1)(a) of the Care Act. Barnardos, as a result of entering into a Deed of Agreement with the Secretary, has held delegated parental responsibility for Kevin since 11 June 2021.

13. Robert and Grace (‘the PAPs’) were approved as dually authorised carers on 18 July 2019. Kevin has resided with them continuously since 11 June 2021. At the time of this placement, Kevin was almost 15 months old.

14. The Secretary commenced these proceedings on 4 April 2023.

15. On 7 August 2023, a mediation conference in relation to the adoption proceedings was hosted by Legal Aid NSW with Maria, who was legally represented. Garth did not attend.

16. On 22 September 2023, Maria filed an application in the Children’s Court pursuant to section 90 of the Care Act, seeking leave to commence an application for the rescission of the care order made in relation to Kevin on 4 May 2021 and for the restoration of Kevin to her care (‘Rescission Application’). The Secretary opposed this application.

17. The Rescission Application was heard in the Children’s Court on 18 January 2024. The Magistrate did not grant leave to Maria to commence an application for the rescission of the care but did grant leave, pursuant to section 90 of the Care Act, on the issue as to whether a contact order should be made by the Children’s Court pursuant to section 86 of the Care Act.

18. On 30 January 2024, an additional mediation conference was hosted in relation to the adoption proceedings by Legal Aid NSW. Maria and Garth were in attendance. They were legally represented throughout the mediation conference. Amendments were incorporated into the Maternal Adoption Plan and Paternal Adoption Plan as a result of this mediation. The Amended Paternal Adoption Plan was signed by Garth on 1 February 2024. Maria did not sign the Amended Maternal Adoption Plan.

19. On 9 April 2024, the Children’s Court directed the parties to attend a dispute resolution conference in relation to the issue of Maria’s contact arrangements with Kevin.

20. On 2 May 2024, the parties attended the dispute resolution conference in accordance with the directions of the Children’s Court. The parties reached an agreement regarding an updated contact schedule between Maria and Kevin. Maria signed the updated contact agreement on 21 May 2024.

21. Maria filed an appeal in the District Court of New South Wales on 8 May 2024 in relation to the Magistrate’s decision to refuse leave on 18 January 2024 (‘Appeal Application’).

22. On 28 August 2024, the Appeal Application was heard. Maria’s Appeal Application was dismissed on 2 September 2024.

23. On 17 September 2024, the Children’s Court directed the Secretary to file an amended Care Plan incorporating the updated contact arrangements concerning Kevin and Maria. The Secretary filed an amended Care Plan on 21 October 2024.

24. The Children’s Court approved the amended Care Plan on 22 October 2024 and Maria confirmed her withdrawal of the Rescission Application.

25. On 17 December 2024, the Secretary provided written submissions to the Court to address the issue of whether Kevin should be appointed a separate legal representative in these proceedings. On the same date, the Court advised the parties that it did not propose to make such an order for Kevin.

26. On 3 February 2025, the Secretary filed the Further Amended Summons, annexing the Further Amended Maternal Adoption Plan and the Amended Paternal Adoption Plan.

Kevin’s parentage

27. The Secretary seeks an order that pursuant to section 21(2) of the Status Act, Garth be declared the father of Kevin and subsequently, pursuant to section 19(2) of the Registration Act, that Garth is included as Kevin’s father in the Register of Births, Deaths and Marriages.

28. The Secretary is a nominated person authorised to bring an application for a declaration of parentage under the Status Act. [2] Upon receipt of such an application, the Court may make a declaration that a named or identified person is a child’s parent. [3]

    2. Status Act, s 21(1)(d); see Principal Officer, Family Spirit Adoption Services v D (ANONYMISED) [2022] NSWSC 142 at [11] (Sackar J).

    3. Status of Children Act, s 21(2).

29. It is not in dispute in these proceedings that Garth is the father of Kevin.

30. The Plaintiff has stated in evidence that they were having challenges engaging with Garth in relation to amending Kevin’s birth certificate.

31. I am satisfied that Kevin’s paternity is proven on the balance of probabilities on the evidence before me.

32. First, Garth considers himself to be Kevin’s birth father, referring to Kevin as “my child” during discussions with Barnardos.

33. Second, Maria has identified Garth as Kevin’s “biological father” in her evidence.

34. Third, DNA testing results dated 29 May 2020 have indicated that Garth was “not excluded” from identification as Kevin’s biological father, with a relative chance of paternity of 99.99999995%.

35. I am also satisfied that a declaration recognising Garth as Kevin’s birth father is in Kevin’s best interests. The inclusion of Garth on Kevin’s birth certificate will support an ongoing relationship with his birth father and provide a further sense of identity as he grows up. A declaration of parentage will also enable Kevin to access information concerning Garth in due course, if he wishes to do so, pursuant to the information provisions embedded in the Adoption Act. [4]

    4. Adoption of BS (No 3) [2013] NSWSC 2033 at [100] (Brereton J).

36. Accordingly, I propose to make a declaration pursuant to section 21(2) of the Status Act that Garth is the birth father of Kevin. I will also make an order pursuant to section 19(2) of the Registration Act that the Registrar of Births, Deaths and Marriages include Garth as the birth father of Kevin in the Register of Births, Deaths and Marriages.

Orders for adoption

37. I now turn to the orders sought by the Plaintiff in relation to the adoption of Kevin by Robert and Grace.

The formal requirements for adoption

38. The formal requirements of the Adoption Act have been satisfied, namely:

1. Maria and Garth were each independently served with sufficient notice of the application for adoption orders; ^[5]

   5. Adoption Act, s 88(1)(a).

2. Kevin was present in New South Wales when these proceedings were commenced; ^[6]

3. Robert and Grace were resident and domiciled in New South Wales when these proceedings were commenced; ^[7]

4. Robert and Grace are of good repute and are fit and proper persons to fulfil the responsibility of parents; ^[8]

5. Robert and Grace have been selected in accordance with the Adoption Act; ^[9] and

6. Robert and Grace satisfy the age and length of relationship requirements. ^[10]

   6. Adoption Act, s 23(2)(a).

   7. Adoption Act, s 28(1)(a).

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

   9. Adoption Act, s 90(1)(c).

   10. Adoption Act, s 28(3)-(4).

Whether adoption in the best interests of the child

39. An adoption order is one of the most significant and far-reaching orders that the Court has power to make. [11]

    11. Re the Adoption of CCS and FLS [2019] NSWSC 71 at [157] (Hallen J).

40. In reaching a decision about the adoption of Kevin, I must have regard, as far as is practicable or appropriate, to the principles that adoption must be regarded as a service for the child, [12] and that no adult has a right to adopt a child. [13]

    12. Adoption Act, s 8(1)(b).

    13. Adoption Act, s 8(1)(c).

41. The paramount consideration in any decision concerning the adoption of a child must be what is in the child’s best interests, both in childhood and in later life. I am unable to make an adoption order in relation to Kevin unless I am satisfied that his best interests will be promoted by the adoption and that, as far as practicable and having regard to Kevin’s age and understanding, his wishes and feelings have been ascertained and due consideration has been given to them. [14]

    14. Adoption Act, s 8(2)(a).

42. In considering what is in Kevin’s best interests, I have regard to the matters outlined in section 8(2) of the Adoption Act, including:

1. Kevin’s age, maturity, level of understanding, gender, background, family relationships and any other characteristics that I considered relevant; [15]

2. Kevin’s physical, emotional and educational needs, including his sense of personal, familial and cultural identity; [16]

3. Robert and Grace’s attitude towards Kevin and the responsibilities that are associated with parenthood; [17]

4. the nature of the relationship that Kevin has developed with Robert and Grace; [18] and

5. the suitability and capacity of both Robert and Grace to provide for Kevin’s needs, including his emotional and intellectual needs. [19]

   15. Adoption Act, s 8(2)(b).

   16. Adoption Act, s 8(2)(c).

   17. Adoption Act, s 8(2)(g).

   18. Adoption Act, s 8(2)(h).

   19. Adoptions Act, s 8(2)(i).

43. In assessing Kevin’s adoption application, I was greatly assisted by the court reports prepared in accordance with section 91 of the Adoption Act by the case manager at Barnardos, dated 4 April 2023 and 2 October 2024 respectively.

44. Kevin is too young to provide his consent to the adoption. Nevertheless, I am satisfied that he has an age-appropriate understanding of the adoption at five years of age.

45. It is evident that Kevin has formed a strong connection with both Robert and Grace independently.

46. Kevin relayed to the case manager at Barnardos that he has “two mummies” and “two daddies”, identifying the Robert and Grace as his parents, alongside Maria and Garth. Kevin consistently refers to Robert and Grace as his Mummy and Daddy and he demonstrates a strong connection to them as his parents. Kevin expressed his understanding that Grace was his mummy that he lived with and Maria was his birth mother.

47. I am confident that Robert and Grace will assist Kevin in further understanding his birth family history and what open adoption means. During cross-examination, both Robert and Grace expressed their understanding and support of open adoption. Grace stated that ensuring Kevin maintains contact with his birth family is important for his identity and to ensure that “he can have a connection with his birth family for the rest of his life”. Grace stated that she wishes for Kevin to have a “very positive relationship” with Maria and acknowledged her role in fostering this relationship in the future. Similarly, Robert also stated his wishes to maintain a respectful relationship with Maria, noting it is in the best interests of Kevin.

48. Both Robert and Grace have consistently facilitated family time visits between Kevin and his birth family since he was placed in their care. Robert acknowledged in evidence that: “We need [Kevin] to know who he is, where he comes from, so as he grows up, there’s not a gaping hole that he’s missing something. We always need to do what’s in [Kevin’s] best interest.”

49. Robert and Grace have demonstrated their ability to provide a high level of care to Kevin, satisfying his physical, emotional and educational needs in a conscientious manner. The case manager at Barnardos acknowledged that Robert and Grace have provided a safe, nurturing and consistent home environment for Kevin, and they have shown an attentiveness to his individual needs. Kevin demonstrates age-appropriate emotional developments and Robert and Grace assist him in regulating and expressing his emotions. Kevin has recently commenced kindergarten in a Catholic co-education primary school. It is clear that Kevin is thriving in Robert and Grace’s care as an outgoing, sociable and enthusiastic child with a keen interest in activities such as soccer and athletics.

50. In relation to Kevin’s cultural heritage, Robert and Grace are supporting Kevin with his maternal Tamil heritage and his paternal Chilean heritage. A close friend of Robert and Grace’s, who is Chilean and speaks Spanish, was chosen to be Kevin’s Godfather. Kevin participates in culturally significant events for both his Indian and Chilean heritage, including their respective Independence Days. The school that Kevin is attending has a comprehensive Spanish language program which will further facilitate Kevin’s connection with his paternal cultural heritage. An updated Cultural Support Plan has been prepared. A social story has also been developed, titled “All About [Kevin’s] Culture”, with the aim of supporting Kevin in further understanding his cultural background in an age-appropriate manner. The Cultural Support Plan and social story will further assist Robert and Grace to foster Kevin’s cultural identity over time.

51. In relation to religious affiliations, Maria identifies as a Catholic and Kevin’s paternal birth family also identify with Catholicism. Robert and Grace provided evidence that they are engaging Kevin in the Catholic faith. Kevin was baptised in January 2022, and he regularly attends services and other ad hoc church events with Robert and Grace. It is evident that Robert and Grace are committed to supporting Kevin’s development of his spiritual identity.

52. Robert and Grace have demonstrated a positive attitude regarding the responsibilities associated with parenthood and their commitment to Kevin. They have developed a consistent and relaxed routine with Kevin, adopting a nurturing approach to parenting. The case manager at Barnardos observed the relationship between Robert and Grace as “stable and strong”. Kevin also appears to have developed a strong connection with Robert and Grace’s family dog.

43. Kevin has fostered a warm and loving relationship with Robert and Grace. Kevin receives physical affection from both Robert and Grace, with the case manager at Barnardos observing he often requests hugs and engages in play, demonstrating his strong emotional connection to them. Robert and Grace have adopted a child-focused approach to parenting, and they provide Kevin with praise and affection whilst concurrently maintaining appropriate boundaries.

44. I have no doubt in relation to Robert and Grace’s suitability and capacity to provide for Kevin’s needs, both in childhood and later in life. Robert and Grace have expressed a deep affection for Kevin and a desire to parent Kevin as part of their permanent family.

The parents

55. When considering Kevin’s best interests, I must have regard to the relationship that Maria and Garth have with Kevin and any wishes they, as Kevin’s birth parents, have expressed concerning the adoption. ^[20]

    20. Adoption Act, s 8(2)(e)-(f).

56. Kevin has a positive relationship with Maria and Garth, referring to them as “Mummy” and “Daddy” respectively.

57. Since Kevin was taken into care by Robert and Grace in 2021, he has enjoyed family visits with Maria and Garth separately. Robert and Grace have worked closely with Barnardos to support Kevin in positively engaging with these visits. Maria has attended family visits on various occasions, including Kevin’s soccer games, TimeZone and the cinema. Maria was also invited to attend Kevin’s pre-school graduation ceremony with Robert and Grace. The frequency and nature of paternal family time has been impacted by Garth’s living arrangements. Kevin and Garth have had numerous in-person visits and telephone calls, with Garth gifting Kevin books, crayons, pencils and textas.

58. Maria has consistently opposed the adoption application and has sought to restore Kevin to her care. She appeared at the final hearing through counsel.

59. Garth initially opposed the adoption but expressed to the case manager at Barnardos that he was now “favouring adoption” and wanted Kevin’s “safety and protection” to continue under Robert and Grace’s care. He did not appear at the final hearing.

Whether adoption clearly preferable in the best interests of the child

60. I may not make an order for adoption unless I am satisfied that the making of such an order is “clearly preferable” in the best interests of Kevin than any other action that could be taken by law in relation to the care of Kevin. [21] I must therefore be satisfied that there is more than a slight preponderance of considerations in favour of adoption over other alternatives available. [22] I must achieve the degree of conviction in favour of adoption commensurate with the gravity of the decision that is being made. [23]

    21. Adoption Act, s 90(3).

    22. Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J).

    23. Application of A - re D (2006) 36 Fam LR 142; [2006] NSWSC 1056 at [53] (Palmer J).

61. The Plaintiff identified the following alternatives to making an adoption order:

1. no order and maintain the status quo. Kevin is presently placed in the parental responsibility of the Minister until he is 18 years of age;

2. an order allocating parental responsibility to the PAPs in accordance with section 92 of the Adoption Act; or

3. an order allocating parental responsibility to one or both birth parents in accordance with section 92 of the Adoption Act.

62. Alternative (3) is not realistic. The evidence falls well short of supporting such an order.

63. If I were to make no order, the status quo would remain. Kevin would continue as a ward of the State until attaining 18 years of age. Robert and Grace would be unable to make significant decisions concerning Kevin without the approval of the Minister’s delegate, Barnardos. An order allocating parental responsibility for Kevin to Robert and Grace would alleviate some of the disadvantages of taking no steps at all however this would remain a temporary order that would expire when Kevin attains 18 years of age. This would not provide Kevin with the same succession rights as Robert’s biological children. In the meantime, the Minister and the relevant caseworkers would continue to be involved in decision making in relation to Kevin. The Plaintiff submitted that continued intervention in this manner would hinder Kevin’s relationships with Robert and Grace, and his birth family as it would create a degree of artificiality in their interactions.

64. The benefit of making an adoption order, over the alternatives, is that it will achieve a secure, stable, reliable permanent and lifetime placement for the child in the adoptive family. [24] Adoption serves the identity needs of Kevin, in circumstances where he is emotionally, psychologically and residentially already a member of his proposed adoptive family. It brings his legal status into conformity with reality, and by perfecting his sense of permanent belonging in the family with which he identifies as his own, not only during childhood but for life. [25]

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

    25. Adoption of Taylor-Clay [2019] NSWSC 27 at [58] (Brereton J) citing Adoption of JLK and CRK [2017] NSWSC 7 at [76]-[78] (Brereton J).

65. Counsel for Maria submitted that the Secretary’s goal can best be achieved by the making of a guardianship order under section 79A of the Care Act. Counsel for Maria submitted that a guardianship order under section 79A would vest parental responsibility with Kevin’s current carers, Robert and Grace, without cutting off all avenues for restoration to the birth parents in the future, thus providing permanence and security without resorting to an adoption order. Further, Counsel for Maria submitted that a guardianship order would be the clearly preferable order and in Kevin’s best interests.

66. Section 79A of the Care Act provides as follows:

79A    Allocation of parental responsibility by guardianship order

(1)    In this Act –

guardian means a person who has been allocated all aspects of parental responsibility for a child or young person until the child or young person reaches 18 years of age by a guardianship order made under this section.

(2)    An order may be made by the Children’s Court allocating to a suitable person all aspects of parental responsibility for a child or young person who is in statutory out-of-home care or supported out-of home care or who it finds is in need of care and protection until the child or young person reaches 18 years of age (a guardianship order).

(3)    The Children’s Court must not make a guardianship order unless it is satisfied that—

(a)    there is no realistic possibility of restoration of the child or young person to his or her parents, and

(b)   that the prospective guardian will provide a safe, nurturing, stable and secure environment for the child or young person and will continue to do so in the future, and

(c)   if the child or young person is an Aboriginal or Torres Strait Islander child or young person—permanent placement of the child or young person under the guardianship order is in accordance with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles that apply to placement of such a child or young person in statutory out-of-home care under section 13, and

(d)    if the child or young person is 12 or more years of age and capable of giving consent—the consent of the child or young person is given in the form and manner prescribed by the regulations.

(4)    A guardianship order may allocate parental responsibility jointly to more than one person.

(5)   The Children’s Court must not make a guardianship order with respect to a child or young person if the order would be inconsistent with—

(a)    any order made with respect to the child or young person by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children, or

(b)    a guardianship order with respect to the young person made by the Guardianship Tribunal.

(6) A guardianship order remains in force (unless sooner varied or rescinded under section 90) until the child or young person concerned reaches 18 years of age.

(7)    A guardianship order may only be made as a final order.

67. Under section 79B(1) of the Care Act, an application for a guardianship order may only be made by the Secretary, or with the Secretary’s written consent, the agency responsible for supervising the child’s placement or a person who is seeking to be allocated all aspects of parental responsibility regarding the child. Counsel for the Plaintiff has informed me that the Secretary is not presently minded to apply to the Children’s Court for a guardianship order.

68. I do not accept the contention that a guardianship order would be the clearly preferable order and in Kevin’s best interests.

69. First, I am not asked to make such an order. Jurisdiction to make an order under section 79A of the Care Act rests with the Children’s Court. This Court could make an order akin to a guardianship order, or one that would seek to mimic a guardianship order, in the exercise of its parens patriae jurisdiction or under section 92 of the Adoptions Act. [26] A guardianship order would require a fresh application to the Children’s Court.

    26. Adoption of IEK [2019] NSWSC 171 at [115] (Robb J).

70. Secondly, an application for a guardianship order in the Children’s Court could only be made on application by the Secretary (or with the Secretary’s consent) and I am informed that the Secretary is not presently minded to pursue a guardianship order. I do not think that this Court should seek to interfere with the exercise of the Secretary’s discretion. All I could do is decline to make an adoption order, which will not provide any comfort to anyone that a guardianship order will be made.

71. Thirdly, the reason that Maria contends that a guardianship order is superior to an adoption order is that a guardianship order will not cut off all avenues for restoration to the birth parents in the future. However, the Children’s Court cannot make a guardianship order unless there is no realistic possibility of restoration of the child or young person to his or her parents. Thus, the very thing that Maria seeks by a guardianship order is incompatible with the making of such an order. The Secretary could not seek a guardianship order on the grounds that it will preserve the possibility of restoration to the birth parents.

72. Fourthly, and most importantly, I am satisfied that an adoption order is clearly preferable in the best interests of Kevin compared with a guardianship order. A guardianship order does not bring with it the benefits of permanence that come with an adoption order – see [64] above.

73. Counsel for Maria also submitted that a benefit of a guardianship order or an adoption order is that under the former, Robert and Grace would receive a weekly guardianship allowance from the New South Wales Government as well as an ongoing financial plan aimed at assisting Kevin with medical and educational needs until he turns 18. I do not regard these matters as sufficient to outweigh the significant benefits that will come to Kevin under an adoption order. Robert and Grace have sufficient financial resources to care properly for Kevin.

74. Although an adoption order will have the legal effect of severing Kevin’s legal ties to his maternal siblings, Ethan and Cameron, I am satisfied that this is unlikely to impact on their relationship in the future. In the context of open adoption, the personal relationships between siblings can be fostered in the absence of a legal relationship, and an adoption plan can play an important role in maximising the opportunity for such relationships to remain intact. [27] Contact with Ethan and Cameron has been factored into the Further Amended Maternal Adoption Plan which will be discussed further below.

    27. Re Adoption of JLK and CRK [2017] NSWSC 7 at [92] (Brereton J).

75. I am satisfied that, upon considering the available alternatives, an adoption order is firmly in Kevin’s best interests, both in relation to his childhood and later in life.

Dispensing with the consent of the birth parents

76. Before making an adoption order, I must deal with the consent requirements stipulated under the Adoption Act.

77. On 14 November 2022, the Principal Officer of Adoptions at Barnardos signed written consent in their capacity as the delegate of the Secretary, to the making of the adoption order for Kevin.

78. Maria and Garth’s consent is also required to the proposed adoption of Kevin unless their consent is dispensed with, or the child has provided sole consent to their own adoption. [28] As has been discussed above, Kevin is too young to consent to his own adoption.

    28. Adoption Act, ss 52, 54.

79. Maria has consistently opposed the adoption in these proceedings. Although Garth initially opposed the adoption, he subsequently communicated to Barnardos that he was “favouring adoption”. To err on the side of caution, I will approach the dispensing of consent as applying to both Maria and Garth as Garth’s consent was orally communicated to the case manager at Barnardos. Concerns were also voiced regarding Garth’s decisiveness in his remarks. Accordingly, the Plaintiff seeks orders to dispense with Maria and Garth’s consent pursuant to section 67(1)(d) of the Adoption Act.

80. I may not make a consent dispense order under section 67(1) of the Adoption Act unless I am satisfied that, relevantly, Kevin has established a stable relationship with his authorised carers, Robert and Grace, and that the adoption by Robert and Grace will promote Kevin’s welfare. [29] I must also be satisfied that to do so will be in the best interests of Kevin, [30] aligning with the paramountcy principle.

    29. Adoption Act, ss 67(1)(d).

    30. Adoption Act, s 67(2).

81. Dispensing with the consent of parents to the adoption of their child by the PAPs is a grave step and it is not to be taken lightly. [31]

    31. Adoption of RCC and RZA [2015] NSWSC 813 at [17] (Brereton J).

82. I am satisfied that I should dispense with the requirement for both Maria and Garth’s consent in relation to Kevin’s adoption in these proceedings. Kevin has established a stable relationship with Robert and Grace and his adoption will promote his welfare in both the short-term and the long-term. The making of consent dispense orders is in the best interests of Kevin.

The Adoption Plans

83. The Plaintiff has prepared adoption plans pursuant to section 46 of the Adoption Act that include provisions for the means and nature of contact between Kevin and his birth family. Despite Maria, and initially Garth, opposing the adoption of Kevin, the Plaintiff has given them, as far as possible, the opportunity to participate in the development of, and agree to, maternal and paternal adoption plans. ^[32]

    32. Adoption Act, s 46(2A).

84. The question before me is whether the proposed adoption plans are in Kevin’s best interests and proper in the circumstances, and, if so, whether those adoption plans should be approved and registered. [33]

    33. Adoption Act, s 90(2).

Further Amended Maternal Adoption Plan

85. The Further Amended Maternal Adoption Plan (‘Maternal Adoption Plan’) was signed by the Plaintiff, Robert and Grace in January 2025 and it is reflective of the updated contact agreement ascertained during the Children’s Court proceedings. Maria has not signed the Maternal Adoption Plan to date. I understand that she has not done so because she did not want in any way to convey that she is in favour of the adoption. Once adoption orders are made, she may change her mind about signing the Maternal Adoption Plan, which would give her rights to enforce the plan.

86. The Maternal Adoption Plan provides for contact between Kevin and Maria at a minimum of twelve times per year, with one visit occurring within a month of Kevin’s birthday and one visit occurring within a month of Christmas. Out of these visits, at least eight must be for a minimum of 90 minutes and up to two hours in duration, unless otherwise agreed between Robert, Grace and Maria, and these visits may be extended based on Kevin’s needs. The eight visits must occur at a venue that is mutually agreed between Robert, Grace and Maria, taking Kevin’s needs and wishes into account. In addition, a minimum of four of these visits may occur at existing activities or events that Kevin is involved in.

87. In addition, the Maternal Adoption Plan also provides for contact between Ethan, Cameron and Kevin, mandating that this must occur at a minimum of four times per year. The contact in this regard will occur via either telephone or video due to Ethan and Cameron’s physical distance from Kevin at present. Moreover, the Maternal Adoption Plan also provides for Kevin’s maternal aunt to attend contact visits with Maria, however this is at Maria’s discretion and advance notice must be provided to Robert and Grace.

88. I am satisfied that the Maternal Adoption Plan is in Kevin’s best interests and is proper in the circumstances.

Amended Paternal Adoption Plan

89. There is an Amended Paternal Adoption Plan (‘Paternal Adoption Plan’) which relates to Kevin, Garth and Kevin’s paternal grandmother. The Paternal Adoption Plan provides for a minimum of four visits per year on dates and venues to be agreed between Robert, Grace and Garth, in consultation with Kevin when he is old enough to participate. Each of these visits will last for a duration of up to two hours, with the option to be extended by mutual agreement if this aligns with Kevin’s wishes and needs. Additional visits can be arranged however these must be subject to Kevin’s wishes and needs.

90. There is also provision for contact with Kevin’s paternal grandmother in the Paternal Adoption Plan, allowing visits to occur in conjunction with Garth’s visits. If Garth is unable to attend a scheduled visit, or if he is overseas, the visits can still proceed with Kevin and his paternal grandmother. Additional visits can also be arranged between the parties, but again, these must be subject to Kevin’s wishes and needs.

91. Overall, I am satisfied that the Paternal Adoption Plan is in Kevin’s best interests and is proper in the circumstances.

Conclusion as to Adoption Plans

92. Having regard to Kevin’s relationship with his birth family, [34] in conjunction with his emotional needs and sense of personal, familial and cultural identity, [35] I am satisfied that the Maternal Adoption Plan and the Paternal Adoption Plan are in Kevin’s best interests and proper in the circumstances. Both adoption plans position Kevin’s needs as paramount, addressing his culture, identity and religion. They also provide for Kevin’s continued contact with his birth family.

    34. Adoption Act, ss 8(2)(f)-(h).

    35. Adoption Act, s 8(2)(c).

93. I am confident that Robert and Grace will encourage positive contact with Kevin’s birth family as they have demonstrated a strong understanding of the importance that these relationships have on Kevin’s wellbeing and sense of identity.

94. If the adoption plans are registered, they have the effect, on the making of an adoption order, as if the adoption plans were part of the order. [36] Thus, a party to an adoption plan, once registered, can seek to enforce it as an order of the Court.

    36. Adoption Act, s 50(4).

95. The Court can review an adoption plan on the application of one or more parties to the plan and make such changes, if any, to the provisions of the adoption plans as it considers appropriate. [37]

    37. Adoption Act, ss 51(1), 51(3).

Proposed name change

96. In the event that an adoption order was made, the Plaintiff sought an order that Kevin is to have the same surname as Robert and Grace. The Plaintiff submitted that this would provide Kevin with security and legal acceptance.

97. Before altering the name of Kevin, I must consider any wishes expressed by him and any factors relevant to the weight that should be given to those wishes. [38] Kevin has not expressed any clear wishes in relation to his name on the evidence before me.

    38. Adoption Act, s 101(2).

96. Garth communicated at the preliminary hearing that he wishes for Kevin’s first name to be his middle name. Garth has referred to Kevin by his middle name on various occasions. The Plaintiff opposed this proposal as Kevin has been known as “[Kevin]” since birth. Further, the Plaintiff submitted that to alter Kevin’s name now would be confusing to his sense of identity and contradict his baptised name. Maria’s evidence did not address the proposed change of name for Kevin.

97. I do not think that there should be any change to Kevin’s first name. A change at this time would be likely to be confusing and upsetting to him.

98. I am satisfied that the proposed surname change is in Kevin’s best interests. [39] The proposed surname change will reflect Kevin’s legal membership to his adoptive family, enhancing his sense of belonging and security with Robert and Grace. Kevin will retain his given name at birth. This will preserve and honour Kevin’s ongoing connection to his birth family which can never be erased regardless of whether adoption orders are made.

    39. Adoption Act, s 101(5).

Conclusion

101. The adoption orders sought by the Plaintiff are in Kevin’s best interests.

102. Once the orders are made, an Integrated Birth Certificate will be created which will include details of Kevin’s birth parents, Maria and Garth. It will form an important part of Kevin’s life story.

**********

Endnotes

Decision last updated: 26 March 2025