The Adoption of Nami (a pseudonym)

[2025] NSWSC 241

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Nami (a pseudonym) [2025] NSWSC 241

Hearing dates:

On the papers

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Equity - Adoptions List

Before:

McGrath J

Decision:

Orders for adoption made, consent of birth parents dispensed with and change of name approved

Catchwords:

CHILD WELFARE — adoption — where proposed adoptive parents are child’s current foster parents —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved

Legislation Cited:

Adoption Act 2000 (NSW), ss 8, 23, 28, 50, 52, 54, 55, 66, 67, 72, 90, 95, 101, 180

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 79, 90

Cases Cited:

A Child Proposed for Adoption [2019] NSWSC 1653

Adoption of RCC and RZA [2015] NSWSC 813

Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241

Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239; [1995] 3 All ER 333

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

Secretary, New South Wales Department of Family and Community Services v MB [2017] NSWSC 1087

Category:

Principal judgment

Parties:

Secretary, New South Wales Department of Communities and Justice (Applicant)

Representation:

Crown Solicitor’s Office (Applicant)

File Number(s):

2024/00354564

Publication restriction:

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

JUDGMENT

INTRODUCTION

1. By amended summons filed 23 January 2025, the Secretary of the New South Wales Department of Communities and Justice (DCJ) seeks an order that the child who I will call “Nami” (not her real name), now 11 years of age, be adopted by the proposed adoptive parents, who I will call “Charlotte Hawkin” (not her real name) and “Rory Hawkin” (not his real name).

2. The Secretary also seeks orders dispensing with the consent of Nami’s birth parents, who I will call “Catarina Newgate” (not her real name) and “Frank Devon-Hancock” (not his real name); an order approving the name “Hawkin” (not her real surname) as the surname for Nami (with “Devon-Hancock” (not her real middle name) to form part of her middle name); and registration of the maternal adoption plan.

3. In this judgment, I will refer to each of the family members and other individuals involved by their first names, for convenience and without intending any disrespect. All persons referred to have been assigned pseudonyms in keeping with s 180 of the Adoption Act 2000 (NSW) (the Act).

The proposed adoptive family

4. Charlotte and Rory, both 48 years of age, have been married since 2008. They have one biological child, who I will call “Brook”, who is 13 years old. Charlotte is a head teacher at the school that Brook and Nami attend. Rory is employed as a senior customer service specialist. I will refer to Charlotte and Rory collectively as the Hawkins.

5. In August 2016, when she was two-and-a-half years old, Nami was placed in the care of the Hawkins for what was originally intended to be a short-term placement and period of respite for Nami’s then foster carers. A month later, it was determined that Nami’s placement with the Hawkins would be long-term, circumstances permitting. Nami has remained in their care ever since.

6. Charlotte, Rory, Brook and Nami currently live together in a township in northern New South Wales, where they have resided since 2020. Prior to this, the Hawkin family lived in the Sydney area.

Nami’s birth parents

7. Catarina and Frank, 29 and 39 years of age respectively, are Nami’s biological parents. Nami is the only known child of that relationship, which appears to have been casual at times and to have waxed and waned over the years. At the present time, Catarina and Frank are not in a relationship, appear not to be in contact, and live in different states.

8. The risks to Nami’s safety arising from intimate partner violence within Nami’s birth parents’ relationship, along with Catarina’s substance abuse, mental health concerns, and associated lack of protective capacity, form the background to Nami’s assumption into (and ongoing placement in) foster care. With the exception of one brief period of restoration to Catarina’s care between May and December 2015, Nami has been in state care from the time she was born.

9. Notice of the present application was personally served on each of Catarina and Frank on 15 October 2024 and 25 October 2024, respectively. Neither Catarina nor Frank have entered an appearance in these proceedings. The proposed adoption is not contested, nor is it formally consented to, by Nami’s birth parents — although Catarina has stated, upon being asked by Nami’s caseworker in November 2024 about her attitude towards the adoption, that she is content for the adoption to proceed. Recent attempts to obtain Frank’s views have been unsuccessful; however, the material before me indicates that he is opposed to the making of the orders sought.

BACKGROUND AND CIRCUMSTANCES OF THIS CASE

Child protection and early care placement history

10. Nami was born on 22 January 2014 in New South Wales. Following a safety assessment conducted by DCJ that same day, which documented intimate partner violence perpetrated by Frank and lack of insight on the part of Catarina and Frank in relation to these patterns of violence, Nami was deemed to be unsafe in her parents’ care and was assumed into the care of the state. Upon discharge from hospital on 24 January 2014, Nami was placed with authorised foster carers.

11. On 10 February 2014, a further risk assessment was conducted. It recorded, in addition to family violence concerns, Catarina’s history of depression, trauma, and substance abuse, and potential drug use by Frank. The risk assessment also identified that Nami was at a high risk of neglect and abuse.

12. On 8 July 2014, the Children’s Court of New South Wales made final orders placing Nami under the parental responsibility of the Minister of Family and Community Services for a period of 12 months and providing for restoration of parental responsibility to Catarina thereafter, with a 12-month supervision order (July 2014 care orders). The Children’s Court accepted undertakings by Catarina to, among other things, consent to drug and alcohol testing, participate in parenting courses and sexual assault and trauma counselling, attend family mediation with Frank and not permit Frank to attend the home where Nami would reside or allow unsupervised contact between Nami and Frank.

13. From 27 May 2015 to 18 December 2015, Nami was restored to Catarina’s care.

14. On 24 July 2015, a risk assessment was conducted, which identified moderate levels of risk to Nami of both neglect and abuse.

15. Following an unannounced home visit on 15 December 2015, during which the condition of the property and of Nami herself generated concerns for Nami’s welfare, DCJ reviewed Nami’s case. At this time, DCJ also documented concerns regarding Catarina’s ongoing and covert contact with Frank, her disengagement from support services, risks of physical harm to Nami, and Catarina’s mental health and anger management. As a result, on 18 December 2015, Nami was once more assumed into care.

16. On 23 December 2015, the Secretary filed an application in the Children’s Court pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) seeking variation or rescission of the July 2014 care orders. The application was made on the basis of a significant change in circumstances constituted by Nami’s potential exposure to family violence, Catarina’s lack of protective ability, and Catarina’s inability to prioritise Nami’s needs above other personal relationships.

17. On 6 April 2016, the Children’s Court made final orders, including findings that there was no realistic possibility of restoring Nami to either Catarina or Frank, and orders under s 79 of the Care Act allocating all aspects of parental responsibility for Nami to the Minister until she attains the age of 18 years. These orders remain in place.

Placement with the proposed adoptive parents

18. On 4 August 2016, Nami was placed in the care of the Hawkins, who were initially identified as short-term respite carers. Less than a month into the placement, the Hawkins contacted Nami’s caseworker to enquire about the possibility of Nami remaining in their care on a permanent basis, noting that she was bonding with everyone within the family “beautifully”.

19. On 9 September 2016, Charlotte and Rory were approved to care for Nami long-term.

2019 Children’s Court proceedings

20. On 10 October 2019, Catarina’s father (Nami’s maternal grandfather), who I will call “Tony” (not his real name), filed an application in the Children’s Court under s 90 of the Care Act, seeking orders that Nami permanently reside with him. Tony lives in Sydney and no longer lives with his former wife, who I will call “Boa” (not her real name) (Nami’s maternal grandmother), who lives in Geraldton, Western Australia.

21. No evidence was filed with the application. There was no appearance by Tony on the first occasion (25 November 2019). On the second occasion (16 December 2019), the application was withdrawn and dismissed following correspondence from Tony to the court indicating that he did not wish to proceed. Neither Catarina nor Frank were present on that occasion.

Contact with the birth family

22. From the time of Nami’s placement with the Hawkins to date, each of Catarina and Frank have had face-to-face family time contact visits with Nami, either together or separately, and supervised either by the Hawkins or an independent contact supervisor. This contact, facilitated by the Hawkins and/or Nami’s caseworker, has occurred on average between two and four times per year, generally in the school holidays, with certain periods (including 2017 and 2018) in which contact ceased, including when Frank was serving time in prison. These visits take place either in Sydney, where most members of Nami’s maternal and paternal family reside, or in northern New South Wales, where Nami and the Hawkins live.

23. Nami also has contact with her birth parents via telephone calls, the frequency of which has varied over the years depending on the level of engagement by Catarina and Frank and/or their readiness to cultivate a positive relationship with the Hawkins. As will be detailed further below, this readiness to directly engage with the Hawkins has, with few exceptions, been absent on Frank’s part and fluctuates in respect of Catarina. The Hawkins provide twice-yearly written updates on Nami’s life and development (including photographs and school reports) to Catarina and Frank, as well as to Nami’s maternal grandparents.

24. Most recently, Catarina has been residing in Western Australia with her mother, Boa. On 18 October 2024, Catarina gave birth to a son, who I will call “Jim” (not his real name). Frank is not the father of Jim. The Western Australia Department of Communities and Justice have confirmed that following a home visit they have no concerns for the care of Jim.

25. Nami also has a paternal half-sister, who I will call “Nico” (not her real name), who is 20 years old. Nami and Nico have had informal ongoing electronic communication whenever they wish. When the Hawkins are in Sydney, they arrange for Nami to see Nico.

26. In relation to other members of Nami’s birth family, Nami has overnight visits with her maternal grandparents grandfather four times per year in the school holidays, which are unsupervised. These visits were monthly before the Hawkins relocated to northern New South Wales. Visits are organised directly with Tony. Nami did not meet her paternal grandfather, who I will call “Edward” (not his real name), until December 2023 but has since had a further visit with him.

LEGAL PRINCIPLES AND CONSIDERATION

Adoption orders

27. For the following reasons, I have determined that the formal requirements for adoption prescribed by the Act have been satisfied in the present case.

28. In respect of adoption orders generally, s 90(1) of the Act stipulates that the court must be satisfied as to certain matters, relevantly:

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

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

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

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

…

(h)   in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

29. Section 90(3) of the Act provides that no adoption order should be made unless the court considers that the making of the order would be clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child.

30. In respect of an application for adoption by a couple, s 28 of the Act requires that both members of the couple be:

1. resident or domiciled in New South Wales (s 28(1)(a)), and have lived together continuously for a period of at least two years immediately prior to the adoption application (s 28(4));

2. of good repute and fit and proper persons to fulfil the responsibilities of parents (s 28(1)(b)); and

3. 21 or more years of age and at least 18 years older than the child (s 28(3)).

31. In the present case, the requirements of s 28(1)(a), (3) and (4) of the Act are all met, as is s 28(1)(b) of the Act, for reasons I will give below. The considerations set out in s 90 of the Act are also addressed below.

Adoption orders generally and the “best interests” principles under the Act

32. Determining adoption applications is an important part of the court’s work. ^[1] An order for adoption is one of great magnitude, ^[2] not least because the legal and social consequences that flow from an adoption are far-reaching (for the child themselves, as well as persons connected to the child) and involve a particular degree of finality. ^[3]

    1. Secretary, New South Wales Department of Family and Community Services v MB [2017] NSWSC 1087 at [9] (Sackar J).

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

    3. Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239; [1995] 3 All ER 333 at 251G-H (Sir Thomas Bingham).

33. As has previously been observed by Hallen J:

An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents’ family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect of an adoption order is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents and the adoptive parents. ^[4]

4. Re the Adoption of CCS and FLS (supra) at [150] (Hallen J).

34. I note that the adoption order sought in the present case is one in favour of the child’s long-term foster parents, with whom the child has been living for a continuous period exceeding eight-and-a-half years and who appear to have the child’s birth mother’s full support to permanently assume responsibility for the child’s care.

35. Because of the seriousness and significance of the decision, and in line with s 90(1)(a) and (b) of the Act, I must not make an adoption order unless I am satisfied that the best interests of Nami will be promoted by the adoption; and that, as far as practicable and having regard to Nami’s age and understanding, the wishes and feelings of Nami have been ascertained and duly considered.

36. I must have regard to the best interests of Nami, both in youth and later life, this being the paramount consideration as stated in s 8(1)(a) of the Act. I must also have regard to the principles that adoption is to be regarded as a service for the child (s 8(1)(b) of the Act) and that no adult is entitled as of right to adopt the child (s 8(1)(c) of the Act).

37. In determining the best interests of a child, I must have regard to the matters contained in s 8(2) of the Act, including:

1. any wishes expressed by the child;

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

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

4. any wishes expressed by the parent(s);

5. the nature of the relationship that the child has with their parents and any siblings or significant other people;

6. the attitude of the proposed adoptive parents to the responsibilities of parenthood;

7. the nature of the relationship of the child with each proposed adoptive parent or parents; and

8. the suitability and capacity of the proposed adoptive parent(s) to provide for the needs of the child.

38. The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached. It will, inevitably, be impressionistic and inexact. ^[5]

    5. Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead), cited with approval in Re the Adoption of CCS and FLS (supra) at [164] (Hallen J).

39. Taking into account to the factors listed above, I put particular weight on the evidence before me that demonstrates the following:

1. Although Nami is below the age fixed by the Act to give sole consent to her own adoption, ^[6] she has repeatedly communicated her desire to be adopted by the Hawkins since the prospect was first in contemplation and necessary steps were taken to set the process in motion (around mid-2018). She refers to Charlotte and Rory as “Mum” and “Dad” respectively, as though they have that status. Brook, in every relevant respect, is her older brother, with whom she plays, quarrels (and reconciles), and shares formative experiences in the course of their upbringing together. Nami is both eager and anxious for the adoption to occur and has described it as her “destiny”.

   6. s 55(1) of the Act.

2. Nami has a strong sense of personal and family identity, views herself as part of the Hawkin family, and wants others to perceive her in the same way. Beginning in January 2024, Nami has been known by the name “Nami Hawkin” at school, which fulfilled her long-time wish of being able to use the same surname as Brook and Charlotte within the school setting. This has been particularly significant for her, in light of recent instances where she has fielded questions from classmates about why she and her brother do not share a last name. Nami has repeatedly expressed a desire to “be a Hawkin” along with Charlotte, Rory and Brook, and that the adoption will make her feel “complete” and “normal”.

1. There is no real question as to the capacity of the Hawkins to meet Nami’s physical, emotional, developmental and educational needs. From the time Nami was placed in their care, they have made every effort to support her growth, physical, psychological and emotional well-being, and to develop an age-appropriate level of independence, as well as supporting her to pursue her various passions and interests (such as competitive dance, netball, arts and crafts, anime, and, more recently, surfing).

2. At times, Nami experiences challenges relating to her mood, anxiety, body image, and attention-deficit/hyperactivity disorder (ADHD) — for which she takes medication and attends fortnightly psychology sessions — and with managing difficult emotions and self-regulating, mainly in the home environment. Nami also has a previous diagnosis of separation anxiety disorder. The Hawkins are attentive to these ongoing challenges and Nami’s specific and evolving needs. They implement strategies to promote healthy (and discourage harmful and/or maladaptive and disruptive) behaviours. They have consistently demonstrated their commitment to supporting Nami within the home (for example, assisting her to engage in self-soothing techniques and setting firm boundaries) and seeking treatment from external service providers, practitioners and professionals where necessary.

3. Nami is currently in the fifth grade and performing well at school. While her ADHD makes concentrating in the classroom difficult at times, she is well-supported by the Hawkins to meet these and other learning challenges. Moreover, the Hawkins are active members of the school community and make themselves available to assist Nami with her homework.

4. In terms of Nami’s cultural identity, Charlotte is Anglo-Australian and Rory is English, having been born in England and later granted Australian citizenship. Nami is actively encouraged by the Hawkins to connect with her maternal (Lebanese) and paternal (Māori and Cook Islander) cultural heritage in a meaningful way. The Hawkins are committed to supporting Nami to maintain her cultural identity. They have made themselves aware of Lebanese and Cook Islander culture and practise Islamic traditions in a way which is age appropriate to Nami. The Hawkins have arranged for Nami to:

1. attend Arabic language lessons;

2. participate in Hawaiian and Tahitian dance lessons (which are purportedly similar in form to those practised by those with Cook Islander heritage);

3. cook and eat traditional Lebanese and Cook Islander food;

4. acquire traditional dress and headwear;

5. observe Eid al-Fitr and the breaking of the fast, and spend that time in Sydney with Tony;

6. learn the pillars of Islam and how to write traditional Islamic words;

7. celebrate Cook Island Constitution Day;

8. travel to New Zealand, which is Frank’s place of birth; and

9. the Hawkins plan to utilise Nami’s maternal family to support their knowledge of Lebanese traditional practices and Nami’s paternal family to support their knowledge of Cook Islander traditional practices.

7. The Hawkins are Christian and regularly attend church. Nami’s maternal family identify with the Muslim faith, although Catarina is non-practising and previously identified herself as Christian. Nami’s paternal family are Seventh Day Adventist. Following the expression of concerns from Tony and Catarina that Nami is not being raised to know and follow certain customs, the Hawkins have sought to address these concerns by ensuring that Nami is invited and encouraged to partake in religious practices in line with her birth family’s wishes and develop her own sense of faith/religious identification.

8. The adoption has the potential to reinforce Nami’s present feelings of stability and safety, and of being loved, cared for and supported by Charlotte, Rory and Brook, and to assuage her concerns around the impermanence of her placement with the Hawkins. The adoption also presents an opportunity to bring a lasting sense of cohesion to Nami’s personal and family identity through formal legal recognition.

9. Neither Catarina nor Frank have given formal consent to Nami’s adoption. In November 2024, Catarina indicated that she does not intend to contest the adoption and is content for the adoption to proceed. The evidence suggests that Frank is opposed to the making of an adoption order.

10. The aptitude and commitment of the Hawkins to parenting Nami has been amply demonstrated. Friends of the couple have frequently witnessed and attested to the exceptional parenting skills of Charlotte and Rory, individually and separately.

Is adoption clearly preferable in the best interests of Nami?

40. I may not make an adoption order unless satisfied that such an order is “clearly preferable” in the best interests of Nami, compared with any other legal measure that could be taken in relation to Nami’s care: s 90(3) of the Act.

41. I must therefore be satisfied that the balance weighs more than slightly in favour of the proposed adoption over other alternatives. The making of an adoption order must be obviously, plainly or manifestly preferable to any other action that could be taken by law. I must reach the degree of conviction in favour of the adoption commensurate with the gravity of the decision.

42. In the present case, adoption serves the identity needs of Nami, in circumstances where she is emotionally, psychologically and residentially already a member of the proposed adoptive family. Adoption would bring Nami’s legal status into conformity with reality, and perfect her sense of permanent belonging in the family with which she identifies as her own, not only during childhood but for life. I consider that this purpose has real relevance and should be duly weighed in respect of Nami’s proposed adoption by Charlotte and Rory.

43. I note that if I were to maintain the status quo and make no order, Nami would remain, at law, the child of Catarina and Frank, and in the care of the Minister. This would mean that notwithstanding the assumption of the role of parents by the Hawkins and the provision of care in kind by each of them to Nami from the time she was two-and-a-half years old, and Nami’s perception of the Hawkins as her parents, they would not be legally recognised as Nami’s parents. It would also place additional pressures on the placement, owing to the need for the Hawkins to seek consents and approvals regarding decisions about Nami on an ongoing basis. An adoption order has the advantages of certainty and permanency, where making no order risks that Nami may experience insecurity and stigma, or at least internal disquiet, arising, for instance, from the fact she would continue to be the foster-daughter of the Hawkins, rather than their “daughter” (like Brook is their son), so far as the law is concerned.

44. I note also that other alternatives — a guardianship order or an order allocating long-term parental responsibility for Nami to the Hawkins — while achieving some of the functional aims served by an adoption order, lack the symbolic and expressive value of a formal adoption order. An order allocating parental responsibility for Nami to the Hawkins, furthermore, would not allow Nami to have automatic inheritance rights on an equal basis with Brook. A parental responsibility order, insofar as it would expire when Nami attains 18 years of age, lacks the permanence and sense of ongoing belonging afforded by an adoption order. Such shortcomings have been remarked upon by Slattery J as follows:

An order allocating parental responsibility to the proposed adoptive parents would address some deficiencies arising with the alternative of maintaining the status quo. An order allocating parental responsibility to the proposed adoptive parents would allow them to make significant decisions about the child. But it still lacks the permanency of an adoption order: Adoption of NG (No 2) [2014] NSWSC 680, (at [75]-[82]). And a major disadvantage of this alternative is that when the child reaches 18 years of age [they] would lose [their] legal connection to the proposed adoptive parents and their children, despite the reality that the proposed adoptive parents have been acting in the role of [their] parents almost since [their] birth. ^[7]

7. A Child Proposed for Adoption [2019] NSWSC 1653 at [165] (Slattery J).

45. I am mindful, moreover, that maintaining the status quo or making a parental responsibility order in lieu of an adoption order would mean depriving Nami of the freedom to grow and develop as an individual outside of the care system and exposing her to the precarity — in terms of a risk of future placement instability and the looming possibility of a s 90 application being brought — that attends that status.

46. For these reasons, I am persuaded that Nami’s best interests (including her mental health and emotional need for security) are best served by an adoption order in favour of the Hawkins, and that this course is clearly preferable to the alternatives to adoption.

Dispensing with parental consent

47. If a child is 18 or more years of age, parental consent is not required for an adoption order: s 54(1)(d) of the Act. If a child is 12 or more years of age and of sufficient maturity to understand the effect of giving consent, he or she may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least two years: s 54(2) of the Act. As Nami is currently 11 years old, she is not able to consent to her own adoption in accordance with s 54 of the Act.

48. Neither Catarina nor Frank have signed a formal instrument of consent, although Catarina has indicated her consent to the adoption of Nami by Charlotte and Rory in principle.

49. Pursuant to s 52, in conjunction with s 90(1)(d), of the Act, the consent to the proposed adoption of each of a child’s birth parents and any person who has parental responsibility for the child is generally required. However, parental consent may be dispensed with if the court so orders: s 66 of the Act. If consent is dispensed with by the court, consent is not required under s 52 of the Act: s 54(1)(a) of the Act.

50. Section 67 of the Act sets out the circumstances in which a consent dispense order may be made, providing:

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

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

(b)   the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c)   if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

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

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

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

(iii)   in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

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

51. Under s 72(1) of the Act, the court must not make a consent dispense order unless the person whose consent is sought to be dispensed with has received at least 14 days’ notice of that application. I am satisfied that both Catarina and Frank have been personally served with the requisite documents and are each on notice of the application to make a consent dispense order.

52. Dispensing with the consent of a parent is a serious step and not to be done lightly. ^[8] Section 67(1)(d)(i) and (ii) of the Act make clear that I may not make a consent dispense order unless satisfied that Nami has established a stable relationship with the Hawkins as her authorised carers, and that adoption by the Hawkins will promote Nami’s welfare.

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

53. For the reasons outlined above, I am satisfied as to these matters. Nami has lived with the Hawkins for the vast majority of her life. She is secure and comfortable in her home environment and has strong, secure and positive bonds with the Hawkins. Nami has a loving connection with both Charlotte and Rory. The Hawkins have good and open communication with Nami, and she appears jovial and confident in their presence.

54. It is plain to me that the adoption will promote Nami’s welfare, not least because she is well-settled and is receiving due care and attention in the care of the Hawkins. The Hawkins have consistently demonstrated the capacity to meet Nami’s health, developmental, educational and social needs. This includes the high commitment of the Hawkins to provide Nami with ongoing assistance to navigate her behavioural and emotional dysregulation and mental health challenges. Under the care of the Hawkins, Nami is succeeding in her educational and developmental progress at school. The Hawkins are committed to supporting Nami to develop a positive sense of family identity and relationships with her family. They are also completely supportive of her contact with her maternal family and paternal family as detailed in the adoption plans set out below.

55. I am comfortably satisfied that dispensing with the consent of Catarina and Frank so as to allow for the making of the adoption order in favour of Charlotte and Rory is in Nami’s best interests.

Change of name

56. An order is sought approving the name “Hawkin” (not the real surname) as the surname and “Nami Robin Devon-Hancock” (not the real given names) as the given names of Nami.

57. The effect of s 101(2) of the Act is that I cannot change Nami’s name without first considering her express wishes and any factors (such as Nami’s maturity and understanding) that I consider are relevant to the weight to be given to her wishes.

58. The evidence from caseworkers and program managers involved in supervising Nami’s care placement, and from the Hawkins, is that Nami began going by the name “Nami Hawkin” at school in January 2024, and has been very happy with this development.

59. It is clear to me that the proposed name change is in Nami’s best interests. Taking the Hawkins’ surname will reflect her internally-felt, and now legally confirmed, reality of membership of her adoptive family, and increase her sense of belonging and self-determination. She will now also share the surname of her sibling, Brook, which she has expressed is important to her.

60. A further factor in my consideration is that the proposed change adds to Nami’s names rather than displaces her existing names and so reflects her blended and diverse family connections and identity. Nami will retain her father’s surname as part of her legal name while also sharing the same surname as the Hawkins. The proposed name change will allow Nami to feel the connection to her birth family, her life story and her identity, while also connect her to the Hawkins in a definitive way.

Adoption plans

61. Annexed to the proposed minutes of order sought by the Secretary is the maternal adoption plan, which provides for contact arrangements between Nami, her birth parents and extended family; the maintenance of her cultural heritage; and arrangements for her religious upbringing. The maternal adoption plan has been signed by the Secretary, Nami and the Hawkins. The maternal adoption plan has not been signed by Catarina, but she has expressed her wish that it be registered.

62. The Secretary, Nami and the Hawkins have also signed the paternal adoption plan. The paternal adoption plan has not been signed by Frank.

63. Since April 2024, Nami has stated that she does not feel comfortable having contact with Frank without Catarina or the Hawkins present. The Hawkins have explained to Nami that Frank does not wish to have direct communication with the Hawkins and that Catarina can no longer support Nami’s family time with Frank since her move to Western Australia.

64. The maternal adoption plan makes provision for the following contact:

1. Between Nami and Catarina: Visits are to occur twice per year, with one visit held in Western Australia and the other in Sydney or northern New South Wales. The visits are to occur over multiple occasions across a minimum of 2 to 3 days. The duration of each occasion will be determined between the Hawkins and Catarina, but is expected to be a minimum of two hours. In light of the birth of Jim, contact between Nami and Catarina will likely only occur only once per year in Western Australia for the next year or two as flying to Sydney or northern New South Wales is not currently feasible for Catarina. Catarina may also have additional contact with Nami, supervised by Tony, during Nami’s contact visits with Tony and his family should Catarina be visiting Sydney. This additional contact may be the entire duration of Nami’s contact with Tony and his family if it is agreed by all parties. In addition, the maternal adoption plan also provides for telephone and electronic communication to occur four times per year between Catarina and Nami and a written update be provided to Catarina on Nami’s health and well-being twice per year. Catarina has confirmed she is happy for Charlotte to supervise her visits with Nami.

2. Between Nami and Jim: Jim will attend all visits between Catarina and Nami. At an age appropriate time, the Hawkins welcome information exchange between Jim and Nami as well as updates on Jim from Catarina and will share those updates with Nami.

3. Between Nami, Tony and his family: There will be face-to-face contact twice per year between Tony, his wife (the maternal step-grandmother) and their children (the maternal uncles and aunt) in Sydney for an overnight visit, subject to Nami’s wishes. This also allows for additional visits, should Tony and his family travel to northern New South Wales. Electronic communication can occur between Tony and his family on four occasions per year (at a minimum) and will typically occur on special occasions. An update on Nami will be provided twice a year to Tony and his family.

4. Between Nami and Boa: There will be face-to-face contact with Boa once per year in Western Australia. The visits will occur when the Hawkins and Nami are travelling to Western Australia to see Catarina. Additional visits will be supported if Boa wishes to travel to northern New South Wales. Boa’s contact with Nami may occur at the same time as Catarina’s contact if agreed by all parties. Should Catarina relocate back to Sydney, visits between Nami and Boa will take place when Boa visits Sydney instead of Nami travelling to Western Australia. Telephone and electronic communication is to occur on a minimum of four occasions per year, mostly on special occasions. An update on Nami will be provided twice per year to Boa.

65. The paternal adoption plan makes provision for the following contact:

1. Between Nami and Frank: The Hawkins are supportive of and willing to facilitate contact between Nami and Frank if Nami and Frank request it and both wish to participate. Nami does not currently wish to have face-to-face contact with Frank without Catarina also present or, alternatively, the Hawkins present. Catarina is no longer able to attend visits with Frank as she has relocated out of Sydney and Frank is not supportive of the Hawkins facilitating family time. The Hawkins are willing to provide written updates to Frank by email, text or registered post, likely through the paternal grandfather, Edward. The Hawkins have agreed to ask Nami twice a year if she wishes to have face-to-face contact with Frank. Should Nami’s views and wishes regarding contact with Frank change, the Hawkins are willing to facilitate contact between Nami and Frank a minimum of twice per year, with one visit to be held Sydney and the other in northern New South Wales, for a minimum of two hours. The Hawkins have agreed to ensure that an independent contact supervisor is present at any face-to-face contact visits between Nami and Frank, to the exclusion of themselves, as per Frank’s wishes. Telephone contact is to occur a minimum of four times per year between Nami and Frank, mostly on special occasions, should Frank request it. An update will be provided to Frank twice per year, likely through Edward.

1. Between Nami and Nico: The Hawkins are supportive of and willing to facilitate contact between Nami and Nico. Contact arrangements will take into account Nami’s age, development and expressed wishes. The Hawkins will facilitate contact between Nami and Nico twice per year in Sydney, subject Nami’s wishes. The Hawkins will coordinate these visits directly with Nico and provide supervision. The Hawkins are willing to supervise additional contact visits with Nico should Nico visit northern New South Wales and/or while Charlotte, Rory and Nami are visiting Sydney. Subject to Nami’s age, development and wishes, contact between Nami and Nico could be unsupervised in the future. Informal telephone and electronic communications between Nico and Nami can occur whenever Nami or Nico wish to talk to the other. Charlotte will also remain directly in contact with Nico to provide updates on Nami and help foster their sibling relationship. Nico will be provided with an update on Nami twice per year.

2. Between Nami and any other paternal siblings: Should Nami have any paternal siblings born following the making of an adoption order, the Hawkins agree to support and facilitate contact between them.

3. Between Nami and Edward: Face-to-face contact with Edward will occur twice per year in Sydney, as requested by Edward, with additional visits to northern New South Wales should Edward travel. The Hawkins are also willing to facilitate telephone and electronic communication between Edward and Nami a minimum of four times per year, mostly on special occasions, should either of them request it. Edward will be provided with an update on Nami twice per year.

66. I may not make an adoption order if the parties to the adoption have agreed to an adoption plan, unless I am satisfied that the arrangements proposed in the plan are in the best interests of Nami and are proper in the circumstances: s 90(2) of the Act.

67. The contact proposed in the maternal adoption plan largely reflects the current contact arrangements in place and enables Nami to continue to foster and support her connection with Catarina, her extended maternal family, and her maternal cultural heritage, without compromising her safety or well-being.

68. I am also satisfied that the level and nature of contact proposed, and the proposed connection of Nami with her paternal cultural heritage in the paternal adoption plan is appropriate in all the circumstances.

69. The steps already taken by the Hawkins to connect Nami with her cultural heritage and their ongoing commitment to engage Nami in various activities to keep her connected to it through language classes, dance, cooking, travel, community events and information provided by grandparents as expressed in the maternal adoption plan and the paternal adoption plan will only enhance and support her cultural development.

70. The maternal adoption plan and the paternal adoption plan also deal with Nami’s religious upbringing. As the Hawkins are practising Christians and engaged with the Anglican church, Nami is being raised as a Christian with an understanding of her maternal family’s Muslim religion and her paternal family’s Seventh Day Adventist religion. The Hawkins are open with Nami in discussing all religions and are non-judgemental. They agree to support Nami in developing her own views about religion and its place in her life as she grows and matures.

71. Accordingly, I consider that the arrangements proposed in each of the maternal adoption plan and the paternal adoption plan are in the best interests of Nami and are proper in all the circumstances. However, in circumstances where the paternal adoption plan has not been developed in consultation with Frank, primarily due to his disengagement with both DCJ and the Hawkins, the Secretary does not seek to register the paternal adoption plan. The orders that I will make will include a notation to this effect as well as the registration of the maternal adoption plan.

ORDERS AND NOTATIONS

72. For the reasons given above, I make the following orders and notation:

1. Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the requirement for the consent of the child’s birth mother, Catarina Newgate (not her real name), is dispensed with.

2. Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the requirement for the consent of the child’s birth father, Frank Devon-Hancock (not his real name), is dispensed with.

3. Pursuant to s 23 of the Adoption Act 2000 (NSW), order for the adoption of the child, Nami Robin Devon-Hancock (not her real name), in favour of the adopting parents, Charlotte Hawkin (not her real name) and Rory Hawkin (not his real name).

4. Pursuant to s 101(1) of the Adoption Act 2000 (NSW), order the approval of the name “Hawkin” (not her real surname) as the surname and “Nami Robin Devon-Hancock” (not her real given names) as the given names of the child.

5. Pursuant to s 50(1) and (3) of the Adoption Act 2000 (NSW), the Maternal Adoption Plan signed by Nami Robin Devon-Hancock (not her real name), Charlotte Hawkin (not her real name) and Rory Hawkin (not his real name) on 22 January 2025, and by Richard Monte (Delegate of the Secretary, New South Wales Department of Communities and Justice) on 21 January 2025, be registered.

6. It is noted that the court is satisfied that the arrangements proposed in the Maternal Adoption Plan, signed by Nami Robin Devon-Hancock (not her real name), Charlotte Hawkin (not her real name) and Rory Hawkin (not his real name) on 22 January 2025, and by Richard Monte (Delegate of the Secretary, New South Wales Department of Communities and Justice) on 21 January 2025, are in the child’s best interests and are proper in the circumstances.

7. It is noted that the court is satisfied that the arrangements proposed in the Paternal Adoption Plan, signed by Nami Robin Devon-Hancock (not her real name), Charlotte Hawkin (not her real name) and Rory Hawkin (not his real name) on 22 January 2025, and by Richard Monte (Delegate of the Secretary, New South Wales Department of Communities and Justice) on 21 January 2025, are in the child’s best interests and are proper in the circumstances.

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Endnotes

Decision last updated: 21 March 2025