The Adoption of Rose Eilis Lacey

[2025] NSWSC 496

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Rose Eilis Lacey [2025] NSWSC 496

Hearing dates:

15 May 2025

Date of orders:

20 May 2025

Decision date:

20 May 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:

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

Re A Child Proposed for Adoption [2019] NSWSC 1653

Re Adoption of RCC and RZA [2015] NSWSC 813

Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 641

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 (Plaintiff)
M Lacey (First Defendant)
T Sheridan (Second Defendant)

Representation:

Crown Solicitor’s Office (Plaintiff)
M Lacey (First Defendant, self-represented)
T Sheridan (Second Defendant, no appearance)

File Number(s):

2024/00356712

Publication restriction:

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

Judgment

INTRODUCTION

1. By further amended summons filed on 31 January 2025, the Secretary of the New South Wales Department of Communities and Justice (DCJ) seeks an order that Rose Eilis Lacey (not her real name), now 7 years of age, be adopted by the proposed adoptive parents, Nancy Farrell (not her real name) and Jack Farrell (not his real name).

2. The Secretary also seeks orders dispensing with the consent of Rose’s birth parents, Mary Lacey (not her real name) and Tony Sheridan (not his real name); an order approving the name “Farrell” (not the real surname) as the surname for Rose (with “Eilis” as the middle name, not the real 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. In this anonymised version of the judgment, all persons referred to have been assigned pseudonyms in keeping with s 180 of the Adoption Act 2000 (NSW) (the Act).

Rose

4. Rose is a confident, outgoing, bright and bubbly girl who enjoys spending time outside engaging in physical activities such as running, kicking balls, swimming in the pool, playing on the trampoline and climbing. Rose is very proud when she learns something new, often lighting up the room with her smile and giggles. Rose attends weekly swimming lessons and enjoys participating in children’s triathlons alongside Jack.

5. Rose has global development delay. Among other things, this means that she has limited spatial awareness, reduced cognitive capacity, is easily overwhelmed and has a reduced capacity for self-regulation. Rose has very low fine motor skills, cognitive skills and language skills. She has a short attention span and is easily distracted. Rose may also have features of Oppositional Defiant Disorder.

6. The indications are that Rose may have significant and ongoing intellectual impairments arising from additional material on her second chromosome. This may be impacting her development, and she will likely require lots of support in the future. Her challenges in life are likely to be extensive.

7. Rose has regularly attended speech pathology sessions, therapy sessions, and consultations with occupational therapists and paediatricians. Rose has made progress in her receptive language skills, speech development skills and self-care skills. Over the years, Rose has struggled regulating her emotions and this continues to be an ongoing challenge for Rose.

8. In 2024, Rose started school at 6 years of age. Rose’s enrolment in school was delayed by one year due to her global developmental delay. Prior to this, Rose attended both an early learning centre to develop her social, emotional and cognitive skills, and pre-school to prepare Rose for school.

9. At school, Rose receives additional support through a teacher’s aide, receiving one-on-one support for literacy and numeracy. Rose’s first semester report in 2024 noted that Rose is excelling in dance lessons and described Rose as a “vivacious and cheerful member of the class” who is well-liked within the classroom setting. Rose enjoys school and when she arrives her friends run up to greet her.

The proposed adoptive family

10. Nancy (50 years of age) and Jack (52 years of age) have been married since 6 September 1997 and live in a town on the Mid North Coast in New South Wales. Nancy is a career coach and Jack is a butcher. I will refer to Nancy and Jack collectively as the Farrells.

11. The Farrells have four children who are very positive about the proposed adoption of Rose: Jim Farrell (26 years of age, biological child, not his real name), Laurence Farrell (21 years of age, biological child, not his real name), Georgina Farrell (19 years of age, biological child, not her real name) and Maurice Farrell (16 years of age, adopted child, not his real name).

12. The Farrells have cared for approximately 40–50 children in foster care since 2008. The Farrells have significant experience in parenting children with high needs, noting that Jim has Autism Spectrum Disorder and Laurence has Down Syndrome. The Farrells are clearly people of extraordinary generosity and care.

13. The Farrells are authorised carers who have had the care and responsibility for Rose under out of home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). Rose has lived with the Farrells continuously since 28 September 2017. Rose was 9 days old when she was placed with the Farrells.

Rose’s birth parents and half-sibling

14. Mary (32 years of age) and Tony (55 years of age) are Rose’s biological parents. Rose is the only child of their relationship. Mary and Tony reside together in same town on the Mid North Coast in New South Wales as the Farrells, and although Mary and Tony are a couple, they lead separate lives at times.

15. At the time Rose was taken into care, the DCJ indicated that there were risks to Rose’s safety arising from neglect in the context of parental disabilities and Rose’s complicated health issues and developmental delays. The DCJ had concerns over the lack of insight of Tony and Mary into Rose’s day-to-day care needs and their ability to provide adequate care for Rose.

16. Mary filed an appearance on 2 October 2024 and made an affidavit of 18 December 2024 (sworn on 7 February 2025) stating that she does not consent to the proposed adoption order. Mary recognises that Rose is settled with the Farrells, that the Farrells take good care of Rose and Mary supports Rose staying with them but believes that the current orders should continue, meaning that Rose should remain under the parental responsibility of the Minister until she turns 18 years of age. Mary has stated that her biggest fear is that contact with Rose will change after an adoption order is made. Mary has also expressed her concern that if Rose’s surname of “Lacey” is not retained, it will lessen Rose’s connection with Mary and her family. Rose calls Mary “Mummy Mary”.

17. Tony filed an appearance on 27 September 2024 and opposes the making of an adoption order because he believes Rose is too young to understand the effect of the adoption order. Rose calls Tony “Dad”. As foreshadowed at the preliminary hearing, Tony did not appear or participate in the final hearing.

18. Rose has a paternal half-sibling, George Sheridan (27 years of age, not his real name) who was removed from the care of Tony and George’s mother, Diana Bartocci (not her real name), when he was five months old following multiple non-accidental injuries, including fractures and bruising inconsistent with the parents’ explanations. There were further concerns regarding the intellectual disabilities of Tony and Diana, and their resulting capacity to care for George. There were concerns about the limited insight of Tony and Diana into George’s developmental and medical needs and the impact of his non-accidental injuries. On 7 September 1998, George was subject to final orders allocating parental responsibility to the Minister until he reached 18 years of age.

BACKGROUND AND CIRCUMSTANCES OF THIS CASE

Child protection and early care placement history

19. In 2017, the DCJ received multiple pre-natal Risk of Significant Harm (ROSH) reports in relation to Rose, raising concerns about the parenting capacity of Mary and Tony, drug use, the parents’ abusive and violent relationship, their unwillingness to work with community support services and the mother’s intellectual disability and resulting presentation of having limited mental capacity (see ROSH reports on 24 August, 29 August, 4 September and 5 September 2017). The ROSH reports flagged Tony’s previous child protection concerns in relation to George and George’s history of serious previous abuse and neglect.

20. On 18 September 2017, the day prior to Rose’s birth, a field assessment was conducted in relation to Rose, which substantiated risks of psychological harm, physical abuse and inadequate basic care should she be left in her parents’ care.

21. On 19 September 2017, Rose was born prematurely at 35 weeks and 3 days gestation in an ambulance outside a hospital on the Mid North Coast, New South Wales. On 20 September 2017, caseworkers attended a different hospital on the Mid North Coast (where Rose had been taken due to her prematurity) and were informed by hospital staff that Mary and Tony had gone to the Hunter Region of New South Wales for the day for appointments, leaving Rose unattended. Concerns were reported by hospital staff regarding the personal hygiene of Mary and Tony, potential criminal activity of Tony and their lack of interaction with Rose.

22. On the same day, a home visit was conducted at the parents’ residence, which identified significant concerns about the physical state of the home. This included an overwhelming stench of cigarette smoke, rotting food and a general lack of cleanliness.

23. On 21 September 2017, the DCJ conducted a safety assessment, which assessed Rose as unsafe in her parents’ care. The assessment identified that the physical living conditions were hazardous and a threat to Rose’s health and safety. It further noted the parents’ psychological and cognitive functioning (including Tony’s intellectual disabilities and Mary’s mental health) seriously impaired and affected their parenting capacity.

Children’s Court proceedings and placement with the proposed adoptive parents

24. On 22 September 2017, Rose was assumed into care. Rose was 3 days old.

25. On 27 September 2017, the DCJ filed an application in the Children’s Court initiating care proceedings and seeking parental responsibility for Rose to be allocated to the Minister pursuant to s 79 of the Care Act.

26. On 28 September 2017, Rose was placed with the Farrells.

27. On 5 October 2017, the Children’s Court made interim orders allocating parental responsibility for Rose to the Minister until further order.

28. On 22 October 2018, the DCJ filed a Care Plan for Rose. Prior to assuming Rose into care, the DCJ attempted to work with Mary and Tony to improve their parenting capacity, but engagement was limited. The Care Plan indicated that Rose’s parents were unable to care for her, and restoration to them is not recommended due to concerns about their ability to meet her needs, their unhygienic home, and domestic violence issues. The Care Plan emphasised that the proposed adoptive parents are experienced, and that the placement will provide Rose with long-term security and a sense of belonging.

29. On 4 December 2018, the Children’s Court made final orders allocating parental responsibility for Rose to the Minister until she is 18 years of age. These orders remain in effect.

30. On 5 May 2019, a report prepared in accordance with s 82 of the Care Act was filed regarding the suitability of Rose’s care and protection arrangements. The report confirmed that Rose’s placement with the proposed adoptive parents was stable, secure, supportive, and that Rose was meeting all developmental milestones and thriving. It also highlighted that Rose had positive, regular and supervised contact with her parents, which was well supported by the proposed adoptive parents.

Contact with the birth family

31. Mary and Tony: Rose has face-to-face contact with Mary and Tony at least four times a year, with additional informal meet-ups. Visits typically occur for one hour due to Rose’s limited attention span and the parents’ health and mobility issues. The Farrells have built a warm, reciprocal relationship with Mary and Tony, and the family visits are organised easily. Nancy and Mary have regular phone contact, usually weekly, to provide updates on Rose and share details of their weeks. Due to Rose’s age and developmental level, there is currently no telephone or written communication between Rose and her parents. Mary and Tony receive updates on Rose’s progress every three months, including photos, written updates and Rose’s artworks. Importantly, the Farrells recognise the importance of Rose having ongoing contact with Mary and Tony so that she knows her background, her story and understands how she came to be in their care. The Farrells also understand that it is essential that Rose sees Mary and Tony getting along, respecting each other and that they all form part of a big loving family. The Farrells want Rose to see that she has a village raising her, she never has to pick between two sets of parents and that they all have the same love for her.

32. George: In 2020, there was an initial exchange of letters and photos between Rose and George facilitated by caseworkers to help build rapport with the possibility of scheduling face-to-face visits in the future. These visits did not occur in 2020 due to the COVID-19 pandemic. The Farrells have also sent letters and some of Rose’s artwork to George. George has indicated that he would like to have contact with Rose and the Farrell family, and contact details were exchanged for when George is ready to connect with the Farrells. George has not yet connected or reached out to the Farrells.

33. Other family members: Rose’s maternal aunt, Diana Fortini (not her real name), has contacted the DCJ requesting the opportunity for Rose to build a connection with her cousins. This has not yet occurred, partly because Diana and her children reside in Queensland. The Farrells also attempted to build a relationship with Rose’s maternal uncle, Frank Lacey (not his real name). On 13 August 2024, Nancy sent an email to Frank inviting him to build a relationship and offering open communication around Rose’s progress, attaching photographs. Frank did not respond to Nancy’s email, which Mary considers may be explained by his recent incarceration.

LEGAL PRINCIPLES AND CONSIDERATION

Adoption orders

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

35. 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.

36. 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.

37. 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)).

38. 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

39. Determining adoption applications is an important part of the court’s work: Secretary, New South Wales Department of Family and Community Services v MB [2017] NSWSC 1087, Sackar J at [9].

40. An order for adoption is one of great magnitude, 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: Re the Adoption of CCS and FLS [2019] NSWSC 71, Hallen J at [157] citing Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, Sir Thomas Bingham at 251G-H.

41. As observed by Hallen J in Re the Adoption of CCS and FLS, at [150]:

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.

42. I note that the adoption order sought in the present case is one in favour of Rose’s long-term foster parents, the Farrells, with whom Rose has been living for a continuous period exceeding 7 years.

43. 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 Rose will be promoted by the adoption; and that, as far as practicable and having regard to Rose’s age and understanding, the wishes and feelings of Rose have been ascertained and duly considered.

42. I must have regard to the best interests of Rose, 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).

43. 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.

46. 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: Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 641, Nicholls LJ (with whom Mackay, Hoffmann, Millett and Rodger LLJ agreed) at [16], cited with approval by Hallen J in Director General Department of Human Services; Re M [2011] NSWSC 369 at [90].

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

1. Due to Rose’s young age, intellectual impairment and developmental delay, her wishes regarding the adoption have not been ascertained. However, it is evident that Rose has a deep, stable and loving relationship with the Farrells who support and encourage her to grow in a loving and safe environment. Rose is comfortable in her “forever home” and the entire Farrell family supports Rose in building her self-esteem, identity, passions and wishes. Rose is valued and has a seminal place within the cohesive Farrell family. Rose has a close relationship with her foster siblings. Rose often sneaks off to Georgina’s bedroom to hang out and watch movies and spends time with Jim building Lego and collectables from Woolworths. Rose also spends meaningful time with the Farrells’ extended family, including spending time with Nancy’s mother twice a week.

2. The s 91 report of Ms Haskins, filed 24 September 2024, notes that it is difficult to know what degree of understanding of adoption Rose has, or will ever have, given her global developmental delays. Rose knows that she has two families and identifies the Farrells as one of her two sets of parents. Rose refers to Nancy as “Mum” or “Mummy Nancy”, Jack as “Dad”, Mary as “Mum” or “Mummy Mary” and Tony as “Dad”. Rose has regular contact and communication with Mary and Tony and may in the future have a relationship with George.

3. Due to her global developmental delay, Rose experiences difficulty with managing her emotions and self-regulating. The Farrells are attentive to these ongoing challenges and Rose’s specific and evolving needs. The Farrells are effective at managing Rose’s dysregulation and oppositional behaviour through set routines and visual reminders of family rules. They also seek treatment from external service providers, practitioners and professionals where necessary.

4. Rose is currently in the first grade and loves school. She fits in well socially and displays leadership skills. Rose’s emotional regulation is generally stable at school with minor outbursts. Rose is supported with visual aids to help Rose’s difficulty blending sounds. Rose receives additional support through a teacher’s aide, receiving one-on-one support for literacy and numeracy. Rose is supported by the Farrells to meet these and other learning challenges. Rose is known as “Rose Farrell” at school and sporting events.

5. In terms of Rose’s cultural identity, Rose’s maternal family are Polish, and her paternal family is a mix of German and Scottish heritage. The Farrells are Australian. A genogram prepared by Link-Up was unable to confirm Aboriginal heritage for Rose, noting that Tony stated his biological mother was Aboriginal. Rose participates in family celebrations such as Christmas, Easter, birthdays and Mother’s Day and Father’s Day with both her families. The Farrells support Rose in connecting with her Polish heritage by providing her with age-appropriate books, dolls, toys, cooking traditional Polish cuisine, and participating in community events. They also have extensive experience in providing Rose with opportunities to connect with her Polish heritage as their adopted son, Maurice, is also Polish. Maurice’s grandmother is Polish and is a key source of cultural knowledge for the Farrells. Mary is not in a position to support Rose’s connection with her Polish heritage as she was not given any such support herself when she was in foster care.

6. In terms of Rose’s religious identity, Rose is being raised in the Catholic religion. She is not yet baptised but the Farrells anticipate this will occur if an adoption order is made. The Farrells and Rose attend church on special holy occasions such as family weddings, baptisms, communions and liturgies for Easter and Christmas. Rose is also exposed to the religion at her Catholic school.

7. Mary has indicated that she does not consent to the adoption of Rose by the Farrells. Mary recognises that Rose is settled and happy with the Farrells, she does not want to disrupt Rose’s placement and accepts that the Farrells take good care of Rose. Mary supports Rose staying with the Farrells but wishes the current orders should continue, meaning that Rose would remain under the parental responsibility of the Minister until she is 18 years of age. Mary is concerned that her contact with Rose will stop and that Rose’s attitude towards her will change after an adoption order is made.

8. On 15 February 2023, Tony expressed that he is in favour of the adoption “as long as [Rose] stays in [town on the Mid North Coast]” and recognises that adoption is “for [Rose’s] own good” and that “it’s amazing that [the Farrells] can look after someone else’s child”. On 9 April 2024, Tony stated that he does not consent to Rose’s adoption. However, he is able to empathise with Rose’s experience and spoke of how his own experience of being cared for by his father’s former employer was a positive outcome for him and that he had changed his surname to his carer’s name when he turned 17 years of age as he felt connected to him. Tony has also stated that “Nancy and Jack are like another mother and father to me”.

9. There is no real question as to the capacity of the Farrells to meet Rose’s physical, emotional, developmental and educational needs. From the time Rose was placed in their care, they have made every effort to support her growth, physical, psychological and emotional well-being. The Farrells are fully committed to supporting Rose’s relationship and contact with Mary and Tony. The Farrells are well-equipped to address Rose’s needs, drawing on their extensive experience in raising Maurice, who is adopted and maintains a connection with his birth mother, as well as Jim, who has Autism Spectrum Disorder, and Laurence, who has Down Syndrome. Additionally, they have cared for approximately 40–50 children in foster care since 2008. Their experience with adopted children, blended families, and children with complex disabilities makes them very capable of supporting Rose in every aspect of her life.

Is adoption clearly preferable in the best interests of Rose?

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

49. 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.

50. In the present case, adoption serves the identity needs of Rose in circumstances where she is deeply integrated into the Farrell family, which provides her with a stable and loving environment. Although Rose’s developmental delays prevent her from fully understanding the concept of adoption, she has a strong emotional connection with the Farrells, who support her in navigating her complex identity. Rose’s relationships with her foster siblings and extended family further reinforces her sense of belonging. The Farrells are attentive to her developmental and emotional needs, providing structured routines and external support to address her challenges. Additionally, the Farrells encourage Rose’s cultural heritage, fostering connections with her Polish background, and are committed to supporting her religious upbringing. Through adoption, Rose would gain the permanence and security she needs to flourish, while maintaining meaningful relationships with Mary and Tony. The Farrells are highly capable of meeting Rose’s physical, emotional, and educational needs, ensuring her continued growth and wellbeing.

51. I note that if I were to maintain the status quo and make no order, Rose would remain, at law, the child of Mary and Tony, and in the care of the Minister. This would mean that, notwithstanding the assumption of the role of parents by the Farrells and the provision of care in kind by each of them to Rose from the time she was 9 days old, and Rose’s perception of the Farrells as her parents and her primary caregivers, they would not be legally recognised as Rose’s parents. It would also place additional pressures on the placement, owing to the need for the Farrells to seek consents and approvals regarding decisions about Rose on an ongoing basis. An adoption order has the advantages of certainty and permanency, where making no order risks that Rose 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 Farrells, rather than their “daughter” (like the Farrells’ other children are their sons and daughters), so far as the law is concerned.

52. I note also that other alternatives — a guardianship order or an order allocating long-term parental responsibility for Rose to the Farrells — 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 Rose to the Farrells would not allow Rose to have automatic inheritance rights on an equal basis with the Farrells’ four other children. A parental responsibility order, insofar as it would expire when Rose 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 in Re A Child Proposed for Adoption [2019] NSWSC 1653, at [165] 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.

53. I am mindful, moreover, that maintaining the status quo or making a parental responsibility order in lieu of an adoption order would mean depriving Rose 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.

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

Dispensing with parental consent

55. 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 Rose is currently 7 years old, she is not able to consent to her own adoption in accordance with s 54 of the Act.

56. Mary does not consent to the adoption of Rose by the Farrells, although she acknowledges that Rose is happy and well looked after in their care. Mary supports Rose remaining with the Farrells but seeks to retain the current orders, which would keep Rose under the Minister’s parental responsibility until Rose is 18 years of age. Mary is concerned that her relationship with Rose may change after an adoption order is granted.

57. Tony initially expressed support for the adoption, provided that Rose remains in the Mid North Coast, but later withdrew his consent. He empathises with Rose’s situation and views the Farrells as additional parental figures, citing his own positive experience of being cared for by another family.

58. 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.

59. 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.

60. 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 Mary and Tony have been personally served with the requisite documents and are each on notice of the application to make a consent dispense order.

61. Dispensing with the consent of a parent is a serious step and not to be done lightly: Re Adoption of RCC and RZA [2015] NSWSC 813, Brereton J at [17].

62. Section 67(1)(d)(i) and (ii) of the Act make clear that I may not make a consent dispense order unless satisfied that Rose has established a stable relationship with the Farrells as her authorised carers, and that adoption by the Farrells will promote Rose’s welfare.

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

64. It is plain to me that the adoption will promote Rose’s welfare, not least because she is well-settled and is receiving due care and attention in the care of the Farrells. The Farrells have consistently demonstrated the capacity to meet Rose’s health, developmental, educational and social needs. This includes the high commitment of the Farrells to provide Rose with ongoing assistance to navigate her behavioural and emotional dysregulation and other challenges arising from her global developmental delay. Under the care of the Farrells, Rose is succeeding in her educational and developmental progress at school. The Farrells are committed to supporting Rose to develop a positive sense of 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.

65. I am comfortably satisfied that dispensing with the consent of Mary and Tony so as to allow for the making of the adoption order in favour of Nancy and Jack is in Rose’s best interests.

Change of name

66. An order is sought approving the name “Farrell” as the surname and “Rose Eilis” as the given names of Rose, so that her full name will be “Rose Eilis Farrell”.

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

68. The evidence from caseworkers and program managers involved in supervising Rose’s care placement, and from the Farrells, is that Rose has stated that her name is “Rose Farrell”, that she is part of the “Farrell family” and she is known as “Rose Farrell” at school.

69. The Farrells have made the decision, given Rose’s developmental delays, to keep her name as simple as possible so that she may be able to say and write her name in the future. The Farrells say that this decision is not based on a desire to not include “Lacey” in her adopted name. Mary wishes for Rose to retain “Lacey” as a second middle name to keep Rose’s connection to her and her family and to ensure that this part of Rose’s identity is not lost.

70. The proposed name change is in Rose’s best interests. Taking the Farrells’ 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 four siblings, which will help Rose feel a sense of belonging and cohesion within the Farrell family.

71. The name change removes her current surname of “Lacey” from Rose’s full name, which may not adequately reflect her blended family and diverse familial connections. However, in light of Rose’s developmental delay, which impacts her maturity and understanding of her blended family, it is in her best interests to adopt a name that is as simple as possible and one that she will be able to easily say and write in the future.

66. Rose will retain her middle name “Eilis” while also sharing the same name as the Farrells. This decision honours Mary and Tony as her parents, ensuring that Rose retains the given names they chose for her (“Rose Eilis”), while taking the Farrells’ surname to reflect her permanent place within their family unit.

67. Mary’s concern about losing connection with Rose once “Lacey” is removed from Rose’s full name is considerably lessened because Mary’s own full name (including “Lacey”) and Tony’s full name will both clearly appear on Rose’s integrated birth certificate as her parents at birth when it is issued. At the hearing, Mary accepted that her concern was addressed by this step.

68. Taking all of these matters into account, I am satisfied that I should approve the name “Rose Eilis Farrell”.

Adoption plans

75. Annexed to the proposed minutes of order sought by the Secretary is the maternal adoption plan and the paternal adoption plan, which provide for contact arrangements between Tony, Mary, Rose and George. The maternal adoption plan was signed by Mary on 29 April 2024 and by the Secretary and the Farrells on 1 May 2025. Mary wishes for the maternal adoption plan to be registered. The paternal adoption plan has not been signed by Tony.

76. The maternal adoption plan makes provision for the following contact between Rose and Mary:

1. Visits are to occur at least five times a year, in each of the school terms or in the holiday period following that term with an additional visit in the extended Christmas school holidays or in Term 4. Visits are to occur for a minimum of one hour and can include both Mary and Tony. The Farrells will transport Rose to and from the visits. During December each year, the Farrells will propose in writing the times, dates and locations of the five face-to-face visits for the following calendar year.

2. The Farrells and Mary are to arrange an alternate date for a face-to-face visit if a visit is cancelled by the Farrells due to Rose being ill. The Farrells and Mary agree there is flexibility and goodwill in arranging and changing visits.

3. The Farrells agree to support and facilitate family time between Rose and any siblings born following the making of an adoption order.

4. Due to Rose’s developmental capacity, meaningful telephone or video conversations between Mary and Rose are not currently feasible or in Rose’s best interests. However, Nancy will regularly provide news and updates to Mary via text and phone calls until Rose is developmentally able to manage such communication with Mary independently of the Farrells, and subject to Rose’s wishes and best interests. The Farrells agree to support Rose in sending a video message to Mary on Mary’s birthday, Rose’s birthday, Mother’s Day and Christmas Day.

5. The Farrells agree to contact Mary directly in the event of Rose sustaining a serious illness, injury or in the event of death. Once a year, the Farrells will provide Mary with a school report and a letter detailing Rose’s progress, interests and health, attaching a photograph.

6. The Farrells and Mary are to negotiate the exchange of gifts on birthdays, Christmas and other significant dates.

7. The Farrells agree to support Rose’s understanding of her Polish culture, including by providing information about Polish food, history, geography and its flag. The Farrells agree to work with Rose on her life story and to share all information about her identity and family background.

8. Mary is supportive of Rose being raised in the Catholic religion as the Farrells are members of the local Catholic parish.

77. The paternal adoption plan makes provision for the following contact between Rose and Tony:

1. Visits will occur at least five times a year, in each of the school holidays and with an extra visit in the extended Christmas school holidays. Visits will last at least one hour and can include both Tony and Mary.

2. The Farrells agree to support and facilitate family time between Rose and any siblings born following the making of an adoption order.

3. The Farrells agree to provide Tony updates on Rose’s achievements, activities and health if Tony wishes to have direct communication with the Farrells. If Tony requests telephone or electronic communication with Rose, the Farrells will consider the request, having regard to Rose’s wishes and developmental capacity at the time.

4. The Farrells agree to contact Mary directly in the event of Rose sustaining a serious illness, injury or in the event of death. Once a year, the Farrells will provide Tony with a school report and a letter detailing Rose’s progress, interests and health, attaching a photograph.

5. The Farrells and Tony are to negotiate the exchange of gifts on birthdays, Christmas and other significant dates.

6. The Farrells agree to work with Rose on her life story and to share all information about her identity and family background.

7. Tony is supportive of Rose being raised in the Catholic religion.

78. The paternal adoption plan makes provision for the following contact between Rose and George:

1. The Farrells agree to Rose having knowledge and information about George. There has been limited communication between the Farrells and George’s support worker. The Farrells agree to provide any response from George if and when he feels ready to engage.

2. The Farrells are open to written communication with George and/or his support worker. If Rose has a positive experience with written correspondence and George actively engages with letters and photographs, the Farrells will consider face-to-face visits subject to Rose’s wishes and best interests.

3. The Farrells will provide opportunities for Rose and George to exchange gifts, photographs and letters for each birthday, Christmas and Easter if they wish and if George is actively engaging in a relationship with Rose. The Farrells will provide any letters sent by George to Rose if it is in her best interests.

ORDERS AND NOTATIONS

79. For the reasons given above, I propose to make the following orders and notations:

1. Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the requirement for the consent of the child’s birth mother, Mary Lacey (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, Tony Sheridan (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, Rose Eilis Lacey (not her real name), in favour of the adopting parents, Nancy Farrell and Jack Farrell (not their real names).

4. Pursuant to s 101(1) of the Adoption Act 2000 (NSW), order the approval of the name “Farrell” as the surname and “Rose Eilis” as the given names of the child (not the real names).

5. Pursuant to s 50(1) and (3) of the Adoption Act 2000 (NSW), the Maternal Adoption Plan signed by Mary Lacey (not her real name) on 29 April 2025 and by Nancy Farrell (not her real name), Jack Farrell (not his real name) and Sally-Anne Rogers (Delegate of the Secretary, New South Wales Department of Communities and Justice) on 1 May 2025, be registered.

6. It is noted that the court is satisfied that the arrangements proposed in the Maternal Adoption Plan, signed by Mary Lacey (not her real name) on 29 April 2025 and signed by Nancy Farrell (not her real name), Jack Farrell (not his real name) and Sally-Anne Rogers (Delegate of the Secretary, New South Wales Department of Communities and Justice) on 1 May 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 Nancy Farrell (not her real name) and Jack Farrell (not his real name) on 22 January 2025, and by Sally-Anne Rogers (Delegate of the Secretary, New South Wales Department of Communities and Justice) on 23 January 2025, are in the child’s best interests and are proper in the circumstances.

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Decision last updated: 20 May 2025