The Adoption of Rafael (a pseudonym)

[2025] NSWSC 1026

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Rafael (a pseudonym) [2025] NSWSC 1026

Hearing dates:

On the papers

Date of orders:

9 September 2025

Decision date:

09 September 2025

Jurisdiction:

Equity - Adoptions List

Before:

Nixon J

Decision:

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

Catchwords:

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether birth parents’ consent should be dispensed with – whether adoption order clearly preferable – whether change of name should be approved

Legislation Cited:

Adoption Act 2000 (NSW) ss 8, 23, 50, 52, 54, 61, 67, 68, 72, 88, 90, 92, 101

Cases Cited:

Adoption of BL [2018] NSWSC 391

Adoption of JLK and CRK [2017] NSWSC 7

Adoption of NG (No 2) [2014] NSWSC 680

Adoption of RCC and RZA [2015] NSWSC 813

Adoption of Taylor-Clay [2019] NSWSC 27

Adoption of Tiana (a pseudonym) [2024] NSWSC 1561

Application of A - re D [2006] NSWSC 1056

Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521

Director General Department of Human Services; Re M [2011] NSWSC 369

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

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

Re the Adoption of AJH [2017] NSWSC 1751

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

Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087

The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763

Category:

Principal judgment

Parties:

The Secretary, NSW Department of Communities and Justice by his delegate, Principal Officer, Adoptions, Barnardos Australia (Applicant)

Representation:

Solicitors:
Barnardos Australia (Plaintiff)

File Number(s):

2025/171479

Publication restriction:

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

JUDGMENT

1. This proceeding concerns the proposed adoption of a child, whom I will call Rafael George Merrick-Jones, who is aged three, by Keith Nicholas Declan Ridgway and Tracy Nerissa Ridgway (the proposed adoptive parents). For convenience, and without intending any disrespect, I will refer to each of the individuals involved in this matter by his or her first name.

2. By Summons filed 24 April 2025, the Principal Officer, Adoptions of Barnardos Australia seeks the following orders:

1. orders, pursuant to section 67(1)(d) of the Adoption Act 2000 (NSW) (the Act), dispensing with the consent of the child’s birth mother and birth father;

2. an order, pursuant to section 23 of the Act, for the adoption of Rafael George Merrick-Jones, in favour of the adopting parents, Keith Nicholas Declan Ridgway and Tracy Nerissa Ridgway;

3. an order, pursuant to section 101(1) of the Act, approving the name “Ridgway” as the surname and “Rafael George Merrick-Jones” as the given names of Rafael; and

4. orders, pursuant to sections 50(1) and (3) of the Act, for the registration of:

1. the Paternal Adoption Plan signed by Keith and Tracy Ridgway on 26 November 2024 and by the Principal Officer, Adoptions Barnardos Australia, on 7 April 2024; and

2. the Maternal Adoption Plan signed by Keith and Tracy Ridgway on 2 April 2024 and by the Principal Officer, Adoptions Barnardos Australia, on 7 April 2024.

The circumstances of the case

3. In June 2022, Rafael was born at X Hospital.

4. Rafael’s birth mother, as registered on his birth certificate, is Jessica Grace Merrick, born in August 1987. Rafael’s birth father, as registered on his birth certificate, is Michael Lawrence Jones, born in April 1998. Neither Jessica nor Michael has consented to Rafael’s adoption.

5. On 30 June 2022, Rafael was placed into the home of Keith and Tracy and has lived with the proposed adoptive parents continuously since that date. Rafael was four days old at the time of placement.

6. The placement occurred in circumstances where the Department of Communities and Justice (DCJ) had received eight Risk of Significant Harm (ROSH) reports in relation to Rafael in the six months prior to his birth, listing parental risk factors of domestic abuse as well as substance abuse by each of Jessica and Michael. Three of these were prenatal ROSH reports in relation to mental health risk factors involving Jessica, as well as reported violence between Michael and Jessica. During her pregnancy, Jessica was at times homeless and was scheduled under the Mental Health Act 2007 (NSW). She was admitted to hospital, where she remained for around four weeks, suffering from psychosis. DCJ conducted a risk assessment regarding the unborn child (Rafael) and concluded that it would be unsafe for Rafael to reside with Jessica due to concerns around her mental health and lack of stable accommodation.

7. In April 2023, the Children’s Court of New South Wales made final orders pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW), providing for Rafael to be placed under the Parental Responsibility of the Minister for Families, Communities & Disability Services until Rafael attains 18 years of age (Final Orders). These orders remain in effect.

8. Rafael resides with Keith and Tracy, and their biological children, whom I will call Connor Joseph Ridgway, Hugh Samuel Ridgway and Eva Tess Ridgway.

9. Rafael has two maternal half-siblings, Timothy Merrick and Jasmine Merrick. Neither Timothy nor Jasmine resides with Jessica. Timothy, who is 15 years old, has been living with her maternal grandmother under guardianship since June 2025, and Jasmine, who is 6 years old, has been living with her father since she was 4 months old.

10. On 11 November 2024, the Minister’s delegate consented to the adoption of Rafael.

11. On 21 and 24 May 2025 respectively, each of Jessica and Michael was given notice, pursuant to s 72(1) of the Act, of the Plaintiff’s application for an order dispensing with the requirement of their consent to Rafael’s adoption; and notice, pursuant to s 88(1)(a) of the Act, of the application for the adoption order.

12. Neither Jessica nor Michael has appeared in this proceeding to oppose the orders sought.

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

13. The principles regarding the making of an adoption order are well established. I have adopted the following summary of those principles from my decision in The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763.

14. The determination of applications for adoption is arguably the most important work of the Equity Division of this Court: Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] (Sackar J). An order for adoption is one of the most significant and far-reaching of all orders the Court has power to make: Re the Adoption of CCS and FLS [2019] NSWSC 71 at [157] (Hallen J).

15. In Re the Adoption of CCS and FLS at [150], Hallen J described the far-reaching nature of an adoption order as follows:

“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)(c) 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.”

16. When making a decision about the adoption of a child, the paramount consideration to which I must have regard is the best interests of the child, both in childhood and later life: s 8(1)(a) of the Act. In Adoption of JLK and CRK [2017] NSWSC 7, Brereton J, at [12], described the key aspects of the paramountcy principle as follows:

"The 'paramountcy principle' contained in par (a) means that the inquiry is child and future focused: as the best interests of the children, both in childhood and later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives) so as to ascertain which will best serve the interests of these children now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future)."

17. I must also have regard to the principles that adoption is to be regarded as a service for the child; that no adult has a right to adopt the child; that, if the child is able to form his own views on a matter concerning his adoption, he must be given an opportunity to express those views freely and such views are to be given due weight; and that the child’s given names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved: subss 8(1)(b)-(e) of the Act.

18. I must not make an adoption order unless I am satisfied that the best interests of Rafael will be promoted by the adoption and that, as far as practicable and having regard to Rafael’s age and understanding, his wishes and feelings have been ascertained and due consideration given to them: subss 90(1)(a)-(b) of the Act.

19. The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached which will be inherently imprecise: Director General Department of Human Services; Re M [2011] NSWSC 369 at [90] per Hallen J, citing Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead).

20. In determining the best interests of Rafael, I must have regard to the matters set out in s 8(2) of the Act including, relevantly:

• any wishes expressed by Rafael;

• Rafael’s age, maturity and level of understanding;

• Rafael’s physical, emotional and educational needs, including his sense of personal, family and cultural identity;

• any wishes expressed by Jessica and Michael;

• the nature of the relationship that Rafael has with Jessica, Michael and any siblings or significant other people;

• the attitude of Keith and Tracy to Rafael and to the responsibilities of parenthood;

• the nature of Rafael’s relationship with Keith and Tracy;

• the suitability and capacity of Keith, Tracy, or any other person, to provide for Rafael’s needs, including his emotional and intellectual needs; and

• the alternatives to the making of an adoption order and the likely effect on Rafael, in both the short and longer term, of changes in his circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of Rafael.

21. The Program Manager for Barnardos Out of Home Care NSW, Adoptions Program has reported that although Rafael is too young to have an awareness or understanding of the proposed adoption or to verbalise his views, he is settled in the Ridgway family and that it is the only family that he has ever known.

22. The Program Manager has given evidence of Rafael’s loving relationship with Keith, Tracy, Connor, Hugh and Eva, observing “how much [Rafael] has grown and developed under the loving and nurturing care of the [Ridgway] family”. In particular, it has been observed how “[Rafael] is happy to venture away from the proposed adoptive parents to explore his environment, however, he will always circle back to them for comfort and reassurance” and “how excited [Rafael] gets when Mr [Ridgway] or the children come into the home from work and/or school and he will squeal with delight and gesture for them to pick him up for a cuddle, which they do, and he will again squeal with delight”.

23. The Program Manager reports that Rafael has been observed to:

“…progress into a confident toddler and will often seek out the comfort and company of the proposed adoptive parents and their children. He is adventurous and he has a happy disposition that allows him to adapt to changes without too much concern. Mr and Mrs [Ridgway], along with their children provide [Rafael] with a routine that supports growth and security within the home.”

24. The Program Manager has further reported that Rafael “has an equally shared relationship with all members of the [Ridgway] family and will delight in being with any of Mr and Mrs [Ridgways] [sic] three biological children” and that the Ridgways “are all equally delighted to spend time with [Rafael], and they will often tag team with each other, so they get special one on one time with [Rafael] alone”. Tracy has further reported that Rafael is loved by all the household members, and they all love giving cuddles and spending time with him.

25. The Program Manager noted that Keith and Tracy “both have shown great insight into the needs of a child and understand the importance of providing an ongoing secure home that supports the openness of family” and concluded that “the proposed adoptive parents, along with their extended family and friends are committed to supporting [Rafael] with all the love and care he needs, well beyond turning eighteen years of age”.

26. Rafael commenced attending childcare twice per week in 2024. The Program Manager reports that this has assisted Rafael with building relationships with groups of children in a wider social setting, and has extended his learning needs.

27. Rafael is also noted to be meeting all his age-appropriate skills and displaying a “curiosity for learning through dramatic play and his interest in animals”. Rafael has also been observed to have a home environment that “supports [his] inquisitive nature” with “a wide range of indoor and outdoor toys that extend his learning needs”. Rafael is noted to be “provided with stimulating educational toys that are changed…depending on his interests at the time”.

28. The Principal Officer, Adoptions Barnardos Australia gave evidence that Keith and Tracy “have been exposing [Rafael] to different interests to help build his social identity in his local community”. The Program Manager reported that Keith and Tracy have engaged Rafael in many social activities within his local community, including music classes, Little Kickers sports lessons and social visits to local parks. The Principal Officer gave evidence that “[Rafael] is thriving in the care of the proposed adoptive parents and he identifies with them as being his family”.

29. The Principal Officer reported that Rafael has met his growth and development milestones, and that no significant health concerns or recent health issues have been noted. Rafael’s health is well supported by Keith and Tracy, who ensure that Rafael maintains a healthy diet, sleep routine and good dental hygiene. The Program Manager reported that Keith and Tracy have facilitated Rafael’s attendance at all health appointments as age appropriate and have ensured that Rafael is up to date with his immunisations.

30. Rafael’s maternal family is [redacted], and his paternal family is [redacted]. Tracy has [redacted] heritage on her maternal side and Keith is [redacted]. Keith and Tracy are providing Rafael with many experiences that are inclusive of his heritage, including regular exposure to [redacted] food, music, clothing and language. Tracy’s mother, whom I will call Valarie Richard-Smith, is fluent in [redacted], which is spoken by Michael and his family in [redacted]. Valarie is part of Rafael’s daily life and will sing or speak to him in [redacted]. Rafael is further exposed to [redacted] through Tracy incorporating [redacted] words into everyday conversations with Rafael, and by reciting [redacted] nursery rhymes and counting songs. Tracy gave evidence that:

“I am also of [redacted] heritage, so culture comes naturally to our family. I cook traditional [redacted] food regularly; I have also purchased children’s books in [redacted] and use [redacted] words daily.”

31. Jessica has stated that it is “lovely” that Rafael would continue to be linked to his [redacted] culture through Tracy. The Principal Officer further reported that Tracy intends to take Rafael to [redacted] in the future so that he can meet some of his extended family.

32. Both Tracy and Keith gave evidence that they are not rearing Rafael in any religious faith. Tracy further deposed that she seeks to give Rafael “religious freedom and will support whichever faith he chooses later in life”. Neither Jessica nor Michael have indicated a preference for Rafael to be reared in any particular religious faith.

33. Having regard to the evidence before the Court, I am satisfied that Rafael’s emotional, physical, educational and cultural needs are being met by Keith and Tracy.

Is adoption clearly preferable in the best interests of Rafael?

34. I may not make an order for adoption unless I am satisfied that the making of such an order would be “clearly preferable” in the best interests of Rafael than any other action that could be taken by law in relation to his care: s 90(3) of the Act.

35. I must be satisfied that there is more than a slight preponderance of considerations in favour of 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: Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J). I must feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision: Application of A - re D [2006] NSWSC 1056 at [53] (Palmer J); Adoption of BL [2018] NSWSC 391 at [13] (Sackar J).

36. Consideration of whether adoption would promote the best interests of the child and whether it is clearly preferable to any other order involves the identification of the likely effects of adoption and examining the benefits and detriments of each alternative from the perspective of the best interests of the child: Adoption of NG (No 2) [2014] NSWSC 680 at [74] (Brereton J).

37. The alternatives to making an adoption order would appear to be as follows:

1. to make no order and to maintain the status quo (namely, that Rafael is in the parental responsibility of the Minister until he attains the age of 18);

2. to make an order under s 92 of the Act allocating parental responsibility to Keith and Tracy;

3. to make an order under s 92 of the Act allocating parental responsibility to Jessica; or

4. to make an order under s 92 of the Act allocating parental responsibility to Michael.

38. As set out more fully below, Jessica has previously indicated an intention to have Rafael returned to her care and has expressed a desire for the adoption not to proceed. However, she has never formally sought the restoration of Rafael to her care, has not taken any active steps to oppose the adoption, and has not appeared in this proceeding to oppose the orders sought.

39. Michael has previously indicated that he would like Rafael to be in his care, but has never sought the restoration of Rafael to his care. More recently, Michael has indicated that he agrees with the adoption and expressed that “I think it is best for Rafael”.

40. The Program Manager has expressed the view that restoration of Rafael to Jessica or Michael is not viable and not in Rafael’s best interests. Rafael has never been in the care of Jessica or Michael. The Program Manager is of the view that neither Jessica nor Michael has made meaningful changes to address the child protection concerns that gave rise to Rafael’s placement immediately after his birth. Further, Rafael has been in the care of Keith and Tracy since he was four days old and removing him from their care and their home would likely be distressing for Rafael and cause significant psychological harm to him.

38. Having regard to those matters, I accept that restoration of Rafael to Jessica or Michael would introduce uncertainty and risk factors into Rafael’s life which are not currently present and is not a realistic option.

39. If I were to make no order and were to maintain the status quo, Keith and Tracy would be unable to make significant decisions concerning Rafael, as those decisions would require the approval of the Minister by his delegate. An order allocating parental responsibility for Rafael to Keith and Tracy would alleviate some of the disadvantages of maintaining the status quo. However, this would remain a temporary order that would expire when Rafael attains 18 years of age. It therefore lacks the permanency of an adoption order and would result in Rafael losing his legal connection to his psychological family when he attains adulthood.

40. One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters: 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). Adoption serves the identity needs of the child in question, in circumstances where the child is emotionally, psychologically and residentially already a member of the proposed adoptive family, by bringing the child’s legal status into conformity with reality, and by perfecting the child’s sense of permanent belonging in the family with which he or she identifies, not only during childhood but for life: Adoption of Taylor-Clay [2019] NSWSC 27 at [58] (Brereton J).

41. In Re the Adoption of AJH [2017] NSWSC 1751 at [297], Hallen J said that:

“It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see Re Peter [2009] NSWSC 697, per Palmer J, at [35].”

45. The Program Manager has recommended that an adoption order be made, based on the fact that an adoption order “will afford [Rafael] the long-term security of being part of [the Ridgway’s] family forever” and the fact that Rafael has lived with Keith and Tracy since he was four days old and “sees them as his parents as this is the only family he has ever known”. The Program Manager notes that “adoption is the only way that [Rafael] will feel he legally belongs and will not have the ongoing involvement of an agency or DCJ”. Rafael identifies the Ridgway family as his family, and Keith and Tracy have demonstrated an ongoing ability to meet Rafael’s needs. The Program Manager has concluded that “adoption is the preferred order for [Rafael], as it will provide him with a sense of being a full legal member of the [Ridgway] family, providing security, permanency and legal ties beyond eighteen years of age” and that “it will allow [Rafael] to grow and develop to his fullest potential”.

46. Having regard to those matters, I am satisfied that the making of an adoption order would serve the best interests of Rafael now, ensuring he is legally a part of his psychological family; and would also serve his best interests in the future, including after he has attained the age of 18.

47. Accordingly, I am satisfied that the making of the proposed adoption order would be clearly preferable in the best interests of Rafael than any other action that could be taken by law in relation to his care.

Application for consent dispense orders

48. Neither Jessica nor Michael has consented to Rafael’s adoption. In these circumstances, the Plaintiff seeks orders under s 67 of the Act dispensing with the requirement for consent by each of Rafael’s birth parents.

49. The Plaintiff, as the Principal Officer of the accredited adoption service provider concerned with the adoption, has standing to apply for the making of such “consent dispense orders”: s 68(b) of the Act.

Relevant Principles

50. Section 52(a) of the Act relevantly provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each of the child’s parents. Consent may be dispensed with by the Court pursuant to s 54(1)(a) of the Act.

51. Section 67 of the Act provides as follows:

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

(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.

(3)   In this section—

guardian has the same meaning as in section 79A (1) of the Children and Young Persons (Care and Protection) Act 1998.

52. The proposed adoptive parents are "authorised carers" because they have care and responsibility for Rafael under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act: Dictionary to the Act.

53. As Meek J noted in Adoption of Tiana (a pseudonym) [2024] NSWSC 1561 at [52], there is a difference in focus between, on the one hand, s 67(1)(a)-(c) and, on the other, s 67(1)(d) of the Act. The difference was explained by Slattery J in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 at [58]-[59] as follows:

“Each of Adoption Act, s 67(1)(a), (b), (c) and (d) is a gateway for the exercise of the s 67(1) discretion to make a consent dispense order. But there is a difference in focus between Adoption Act, s 67(1)(a), (b) and (c) and Adoption Act, s 67(1)(d). The difference is that s 67(1)(a), (b), (c) are each concerned with the situation of the birth parent or other person whose consent to an adoption order would otherwise be required under Adoption Act, s 52. These provisions deal with the inability of a person to provide consent, either because he or she cannot be found or because of incapacity or because issues concerning the welfare of the child displace the wishes of the parent or person with parental responsibility. All of these matters are concerned with the quality or the relative value of the consent of the parent or person with parental responsibility.

But Adoption Act, s 67(1)(d) has a different focal point. On its face it says nothing about the capacity or quality of the consent of the parent or person with parental responsibility. Rather, it looks to the child’s present situation. The threshold for the court’s exercise of Adoption Act, s 67(1)(d) discretion is that the authorised carers of the child have applied for the child’s adoption, that the child has established a stable relationship with those carers, and that the adoption of the child by those carers will promote the child’s welfare. Those matters are all well established here. Section 67(1)(d) does not expressly place a requirement on the exercise of the court’s s 67(1)(d) discretion that the court make a judgment about the quality or value of the consent of birth parent or other person with parental responsibility. But as Brereton J explained in Director General, Department of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762, parental consent is always a consideration; ‘Although the interest of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents as is evident from the requirement for their consent’. Adoption Act, Chapter 4, Part 2, emphasizes the principle that an informed consent should be given by parents or persons with parental responsibility before an adoption order can be made. But when it applies, as has been stated, Adoption Act, s 67(1)(d) provides a different emphasis.”

54. Dispensing with the consent of a parent is a grave step, not lightly to be taken: Adoption of RCC and RZA [2015] NSWSC 813 at [17] (Brereton J). In Adoption of BL [2018] NSWSC 391 at [20], Sackar J noted that the “severance of the legal relationship will of course never sever the biological relationship nor will it detract from the potential for developing a meaningful relationship through ongoing contact.”

Determination

55. Between May 2023 and September 2024, the Program Manager either met or spoke by telephone with Jessica on around fifteen occasions. Over this period, Jessica has indicated, on a number of occasions, that she opposed, and intended to contest, the adoption. However, she has also stated that the proposed adoptive parents were an amazing family and that she was very pleased that Rafael was in their care; that she has a good relationship with the proposed adoptive parents and that she would like for Rafael to be adopted by them if he cannot be placed in her care; and that it would be unfair on Rafael to contest the adoption, as she trusted the proposed adoptive parents and he was very settled with them.

56. On 2 September 2024, Jessica indicated that it was still her intention to oppose the adoption and that she was seeking the advice of a solicitor. She advised that she would be seeking to have Rafael moved to Queensland to be closer to her so that she did not have to travel, and that the proposed adoptive parents should bring him to her each month for a family visit. On 10 February 2025, Barnardos, the proposed adoptive parents, Jessica and Jessica’s Legal Aid representative participated in a pre-filing mediation, facilitated by the Legal Aid Early Intervention Unit. Following the mediation, amendments were made to the maternal adoption plan.

57. On 21 May 2025, Jessica was served with notice of the application for the adoption order and for an order dispensing with the requirement for her consent.

58. She has not subsequently taken any step in this proceeding, and has not signed the maternal adoption plan.

59. Between June 2023 and September 2024, the Program Manager either met or spoke by telephone with Michael on around six occasions. The views which he has expressed have generally been in favour of Rafael remaining with the proposed adoptive parents:

1. in June 2023, Michael stated that he wanted the best for Rafael and agreed with Jessica that the proposed adoptive parents could offer Rafael the best life;

2. in September 2023, he stated that he did not agree with Jessica that Rafael should be placed with Jessica’s mother, and that Rafael should stay with the proposed adoptive parents;

3. in February 2024, he stated that he would like Rafael to be with him but indicated that he did not think that he would contest the adoption; and

4. in September 2024, he stated: “I agree with adoption, I think it is best for Rafael”. He indicated that Rafael needs to be happy and that he believes that this is best facilitated with the proposed adoptive parents.

60. On 24 May 2025, Michael was served with notice of the application for the adoption order and for an order dispensing with the requirement for his consent. He has not taken any step in the proceeding.

61. I may not make a consent dispense order unless I am satisfied that, relevantly, Rafael has established a stable relationship with his authorised carers, Keith and Tracy, and that the adoption of Rafael by Keith and Tracy will promote his welfare: ss 67(1)(d)(i) and (ii) of the Act. Before making such an order, I must also be satisfied that to do so will be in the best interests of Rafael: s 67(2) of the Act.

62. For the reasons given above when considering the proposed adoption order, I am comfortably satisfied about these matters. Having regard to the evidence of the proposed adoptive parents, the Program Manager and the Principal Officer, I am satisfied that Rafael has a stable and loving relationship with Keith and Tracy and that they will continue to promote his welfare and continued development. Rafael’s relationship with Keith, Tracy, Connor, Hugh and Eva is the only close family relationship that he knows, having regard to the very young age at which he was placed in the care of his proposed adoptive parents. The making of a consent dispense order, so as to allow the making of the adoption order, is in the best interests of Rafael so as to allow his close bond with his psychological family to be reflected in his legal status.

The Adoption Plans

63. The proposed adoptive parents and the Principal Officer have agreed to a maternal adoption plan and a paternal adoption plan, and they have each been signed by the proposed adoptive parents and the Principal Officer.

The maternal adoption plan

64. The maternal adoption plan has been served upon Jessica but has not been signed by her.

65. As noted at paragraph [56] above, amendments were made to the proposed maternal adoption plan following a mediation on 10 February 2025.

66. On 14 February 2025, a copy of the revised maternal adoption plan was provided to Jessica’s Legal Aid representative. On 11 March 2025, the Legal Aid representative indicated that she had spoken to Jessica and would revert to Barnardos about the maternal adoption plan. It does not appear that she subsequently provided any comments on the maternal adoption plan.

67. The maternal adoption plan includes provision for face-to-face family time to occur between Rafael and Jessica six times per year in addition to twelve video calls annually. Provision is also made for Rafael to have face-to-face contact with his maternal grandmother, Ms Diana Jensen, and Timothy once per year, with the option that Ms Jensen and Timothy may also participate in Jessica’s video calls with Rafael. The maternal adoption plan further provides for Rafael to have visits and/or video calls with Jasmine on an ad hoc basis when possible.

68. The maternal adoption plan provides for variations to the arrangements for contact to meet Rafael’s changing needs as he gets older, whilst also accounting for his current age and stage of development. The maternal adoption plan seeks to provide Rafael with contact at a frequency that will enable him to develop an understanding of his background, biological identity, and cultural heritage.

The paternal adoption plan

69. The paternal adoption plan has been served upon Michael, but has not been signed by him. Michael has not provided his views in relation to the contents of the plan.

70. The paternal adoption plan includes provision for face-to-face family time to occur between Rafael and Michael four times per year in addition to twelve video calls annually, if requested. Provision is also made for Rafael to have face-to-face contact with his paternal grandmother, whom I will call Ms Brittany Jones, when she is visiting Australia.

71. The paternal adoption plan provides for variations to the arrangements for contact to meet Rafael’s changing needs as he gets older, while also accounting for his current age and stage of development. The paternal adoption plan seeks to provide Rafael with contact at a frequency that will enable him to develop an understanding of his background, biological identity, and cultural heritage.

Consideration of maternal adoption plan and paternal adoption plan

72. The Principal Officer reported that the proposed adoptive parents have demonstrated a willingness to be flexible in their approach to family time visits with Jessica and have done what they can to support contact with Jessica, provided it is in the best interests of Rafael.

73. Keith and Tracy have also been observed to demonstrate flexibility and understanding, and have been child focused in their approach to family time with Jessica and Michael.

74. Keith and Tracy are already facilitating and supervising family visits independently and do not need additional agency support to enact the maternal adoption plan or the paternal adoption plan following finalisation of the adoption.

75. I am satisfied that the arrangements proposed in the maternal adoption plan and the paternal adoption plan are in Rafael’s best interests and are proper in the circumstances.

Proposed name change

76. The Plaintiff seeks an order approving the name “Ridgway” as the surname and “Rafael George Merrick-Jones” as the given names of Rafael.

77. “Ridgway” is the surname of Keith and Tracy. “Rafael George Merrick-Jones” is comprised of part of Rafael’s existing name (Rafael), a name that had been chosen by Jessica that has been given to males in her family for generations (George), and the surnames of Jessica and Michael (Merrick-Jones).

78. Each of Jessica and Michael has indicated opposition to the proposed name change for Rafael.

79. Keith and Tracy have indicated their desire to change Rafael’s name to Rafael George Merrick-Jones Ridgway to support Rafael’s identity and connection with his birth family and his adoptive family. Tracy has stated that she wants Rafael to feel connected to both his birth family and his adoptive family, and that is why she wants Rafael’s name to be changed.

80. The proposed name maintains the full name that Rafael was given at birth and includes the adoptive parents’ surname as his new surname to honour the parent-child relationship if an adoption order is made.

81. Having regard to those matters, I am satisfied that the proposed name change for Rafael will establish a sense of belonging and connection to Rafael’s adoptive family, while maintaining a connection to his birth family. I will accordingly make the order that is sought in respect of his name.

Conclusion

82. For the reasons given above, I make the following orders:

1. an order pursuant to section 67(1)(d) of the Adoption Act 2000 (NSW) (the Act), that the consent of the child’s birth father be dispensed with;

2. an order pursuant to section 67(1)(d) of the Act, that the consent of the child’s birth mother be dispensed with;

3. that pursuant to sections 50(1) and (3) of the Act, the Paternal Adoption Plan signed by Keith and Tracy Ridgway on 26 November 2024 and signed by Principal Officer, Adoptions Barnardos Australia on 7 April 2024, be registered;

4. that pursuant to sections 50(1) and (3) of the Act, the Maternal Adoption Plan signed by Keith and Tracy Ridgway on 2 April 2024 and signed by Principal Officer, Adoptions Barnardos Australia on 7 April 2024, be registered;

5. an order pursuant to section 23 of the Act for the adoption of Rafael George Merrick-Jones, in favour of the adopting parents, Keith Nicholas Declan Ridgway and Tracy Nerissa Ridgway; and

6. an order pursuant to section 101(1) of the Act approving the name “Ridgway” as the surname and “Rafael George Merrick-Jones” as the given names of Rafael.

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Decision last updated: 09 September 2025