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[2026] NSWSC 742
Supreme Court of NSW
2026-06-23
Nixon J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Adoption of Chloe Hayes-King [2026] NSWSC 742
Hearing dates: On the papers
Date of orders: 23 June 2026
Decision date: 23 June 2026
Jurisdiction: Equity - Adoptions List
Before: Nixon J
Decision: Orders for adoption made; consent of father and mother dispensed with; change of name approved
Catchwords: CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother should be dispensed with – whether consent of father should be dispensed with, in circumstances where father cannot, after reasonable inquiries, be found or identified – whether change of name should be approved
Legislation Cited: Adoption Act 2000 (NSW) ss 8, 50, 67, 68, 72, 88, 90, 92
Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 44, 90
Cases Cited: Adoption of BL [2018] NSWSC 391
Adoption of JLK and CRK [2017] NSWSC 7
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
Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087
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 K and the Adoption Act 2000 [2005] NSWSC 858
Re KN and the Adoption Act 2000 [2005] NSWSC 896
Re the Adoption of AJH [2017] NSWSC 1751
Re the Adoption of CCS and FLS [2019] NSWSC 71
The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763
Category: Principal judgment
Parties: Secretary, NSW Department of Communities and Justice (Plaintiff)
Representation: Solicitors:
Crown Solicitor for New South Wales
File Number(s): 2026/134667
Publication restriction: The published version of this judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)
This proceeding concerns the proposed adoption of a child, whom I will call Chloe Hayes-King, who is aged six, by Maria Elizabeth Martin and Jack Peter William Martin (proposed adoptive parents) (not their real names). 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.
By Summons filed 2 April 2026, the Secretary, New South Wales Department of Communities and Justice (DCJ), seeks the following orders:
an order pursuant to s 88(4) of the Adoption Act 2000 (NSW) that the giving of notice of the application to Chloe’s birth father be dispensed with;
an order pursuant to s 67(1) of the Adoption Act that the consent of Chloe’s birth father be dispensed with;
an order pursuant to s 67(1) of the Adoption Act that the consent of Chloe’s birth mother be dispensed with;
an order for the adoption of Chloe in favour of the proposed adoptive parents;
an order approving the name “Martin” as the surname and “Chloe Mia Hayes” as the given names of Chloe; and
an order, pursuant to s 50(1) and (3) of the Adoption Act, that the Maternal Adoption Plan signed by Chloe’s birth mother on 6 March 2026, the proposed adoptive parents on 20 March 2026, and the Secretary on 1 April 2026 be registered.
On 29 August 2019, Chloe was born at X Hospital, New South Wales.
Chloe’s birth mother, as registered on her birth certificate, is Hazel Monica Hayes-King (not her real name), born in November 1995.
There is no birth father registered on Chloe’s birth certificate. The identity of her birth father remains unknown.
On 13 September 2019, Chloe was placed in the home of Maria and Jack and has lived with the proposed adoptive parents continuously since that date.
Maria is aged 55 and Jack is aged 65. Chloe resides with Maria and Jack and four of their biological children:
Leo George Martin (not his real name), who is 21 years old;
Charlie Max Martin (not his real name), who is 19 years old;
Liam Patrick Martin (not his real name), who is 16 years old; and
Samuel Levi Martin (not his real name), who is 12 years old.
Chloe’s placement with Maria and Jack occurred in circumstances where, as outlined below, the DCJ had recorded a history of child protection concerns relating to Hazel since 2014, including mental health concerns and a history of illicit-drug use.
In December 2014, Chloe’s biological sibling, Olivia Ava Lewis, was removed from the care of Hazel and Olivia’s biological father, Greg Lewis, shortly after she was born and placed into Temporary Out of Home Care due to various concerns including reported daily cannabis use by Hazel, domestic violence, and a lack of engagement with antenatal care.
On 19 February 2015, the Secretary assumed care responsibility for Olivia, and, on 9 September 2016, the Children’s Court of New South Wales made final orders pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act), providing for Olivia to be placed under the parental responsibility of the Minister for Families and Communities until she attains the age of 18 years.
On 7 October 2016, Hazel filed an appeal against the final orders of the Children’s Court in respect of Olivia, and on 10 August 2018, the District Court of New South Wales ordered the DCJ to prepare an Amended Care Plan for restoration of Olivia to Hazel’s care.
The Secretary filed an application under s 90 of the Care and Protection Act for the rescission of the District Court’s orders, and on 11 June 2021 the Children’s Court rescinded those orders and made orders allocating parental responsibility for Olivia to the Minister until she attains 18 years of age. Those orders remain in effect.
Olivia has resided continuously with her authorised carers since 15 June 2018.
In July 2019, the DCJ received a report regarding concerns for Hazel’s unborn child.
Shortly before Chloe’s birth, a DCJ caseworker conducted a home visit at Hazel’s home. The caseworker subsequently prepared a prenatal safety assessment in relation to Chloe, around one week before her birth, which resulted in a safety decision of “unsafe” due to concerns regarding illicit-drug use, untreated mental health issues and a lack of engagement with support services.
On 29 August 2019, the DCJ received a report regarding Chloe’s birth, which stated that Hazel had not received antenatal care and had confirmed cannabis use a month prior to Chloe’s birth.
On 3 September 2019, the Secretary assumed care responsibility for Chloe pursuant to s 44 of the Care and Protection Act.
On 10 September 2019, the Children’s Court made interim orders allocating all aspects of parental responsibility in relation to Chloe to the Minister until further order.
On 13 September 2019, Chloe was discharged from the Special Care Nursery and was placed with Maria and Jack at two weeks of age.
On 16 September 2019, a risk assessment report was completed regarding Chloe, which resulted in a final risk assessment of “very high”.
On 17 October 2019, the Children’s Court made further interim orders allocating all aspects of parental responsibility in relation to Chloe to the Minister until further order.
On 11 March 2020, a Care Plan for Chloe was filed in the Children’s Court. The Care Plan recommended that parental responsibility for Chloe be allocated to the Minister, and noted that Olivia’s matter had been in court for several years due to a failed restoration and that Hazel had made minimal changes relating to the child protection concerns.
On 7 May 2020, the Children’s Court made final orders pursuant to the Care and Protection Act, providing for Chloe to be placed under the parental responsibility of the Minister until Chloe attains the age of 18 years. These orders remain in effect.
The Children’s Court also made orders for two reports to be filed pursuant to s 82 of the Care and Protection Act, within six months and eleven months of the orders being made. The first of those reports, filed on 6 November 2020, reported that Chloe had “developed a great bond” with Maria, Jack and their children. The second, filed on 6 April 2021, reported that Chloe’s bond with Maria, Jack and their children was “strong and secure”, and that Maria and Jack were diligent in maintaining Chloe’s wellbeing, welfare and safety.
On 10 June 2025, the Minister’s delegate consented to the adoption of Chloe.
Hazel has not consented to Chloe’s adoption.
On 15 April 2026, Hazel was given notice, pursuant to s 72(1) of the Adoption Act, of the Secretary’s application for an order dispensing with the requirement of their consent to Chloe’s adoption; and notice, pursuant to s 88(1)(a) of the Adoption Act, of the application for the adoption order.
Hazel has not appeared in this proceeding to oppose the orders sought by the Secretary.
The formal requirements necessary to enliven the Court’s jurisdiction to make an adoption order are satisfied. In particular:
the application is made by the Secretary (Adoption Act, s 87(1)(b));
when the application was filed, Chloe was present in New South Wales and was less than 18 years of age (Adoption Act, ss 23(2)(a) and 24(1)(a));
the proposed adoptive parents are resident and domiciled in New South Wales (Adoption Act, ss 23(2)(b) and 28(1)(a)), meet the age requirements for adoption (s 28(2)) and, having regard to the evidence before the Court, are of good repute and fit and proper persons to fulfil the responsibilities of parents (s 28(1)(b));
the proposed adoptive parents have been assessed and determined to be suitable to adopt and have been selected in accordance with the Adoption Act (ss 45F, 90(1)(c));
the birth mother has been provided with a copy of the mandatory written information (Adoption Act, s 59); and
a report concerning the proposed adoption has been provided to the Court by the Independent Assessor (Adoption Act, s 91(1)).
The principles regarding the making of an adoption order are well established. I have adopted the following summary from my decision in The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763.
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]. In that case, Hallen J observed (at [150]) that:
“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.”
When making a decision about the adoption of a child, the paramount consideration to which the Court must have regard is the best interests of the child, both in childhood and later life: s 8(1)(a) of the Adoption 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).”
The Court 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 or her own views on a matter concerning adoption, the child 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 Adoption Act.
The Court must not make an adoption order unless it is satisfied that the best interests of the child will be promoted by the adoption and that, as far as practicable and having regard to the child’s age and understanding, the child’s wishes and feelings have been ascertained and due consideration given to them: subss 90(1)(a)-(b) of the Adoption Act.
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).
In determining the best interests of Chloe, I must have regard to the matters set out in s 8(2) of the Adoption Act including, relevantly:
any wishes expressed by Chloe;
Chloe’s age, maturity and level of understanding;
Chloe’s physical, emotional and educational needs, including her sense of personal, family and cultural identity;
any wishes expressed by Hazel;
the nature of the relationship that Chloe has with Hazel and any siblings or significant other people;
the attitude of Maria and Jack to Chloe and to the responsibilities of parenthood;
the nature of Chloe’s relationship with Maria and Jack;
the suitability and capacity of Maria, Jack, or any other person, to provide for Chloe’s needs, including her emotional and intellectual needs; and
the alternatives to the making of an adoption order and the likely effect on Chloe, in both the short and longer term, of changes in her circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of Chloe.
I may not make an order for adoption unless satisfied that the making of such an order is “clearly preferable” in the best interests of Chloe than any other action that could be taken by law in relation to her care: s 90(3) of the Adoption Act.
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).
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).
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).
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].”
The Independent Assessor has reported that although Chloe does not have the capacity at her age to understand all of the implications of adoption, she engages positively with the proposed adoptive parents and their biological children and they, in turn, engage positively with her. The Independent Assessor further reported that Maria and Jack have started to explain to Chloe that she is adopted, and why she lives in a different home to Olivia.
The Independent Assessor has reported that Chloe is a “social and happy” child who is a “much loved member of the [Martin] family”. The Independent Assessor further observed that Chloe has a “strong” relationship with Maria and Jack, who respond “immediately to [Chloe’s] needs”. Chloe refers to the proposed adoptive parents as her “Mummy” and “Daddy”.
The Delegate of the Minister has also given evidence that Chloe is a “bright and happy six-year-old child who is thriving in the care of the proposed adoptive parents” and that Chloe has been observed to be “settled and comfortable” with Maria, Jack, and their biological children, who Chloe calls her brothers. The Delegate gave evidence that Chloe is a generally healthy young child who has no outstanding health concerns, and that Maria and Jack have facilitated Chloe’s attendance at general GP check-ups and have undertaken recommended actions. They have also facilitated Chloe’s attendance at dental appointments and have ensured that Chloe is up to date with her immunisations.
In 2024, Chloe attended preschool three days per week, where she was described as a “talkative” child who was “quick to offer kind words to those around her”. Chloe was reported to have developed friendships with other children while at preschool and enjoyed “dramatic play” and crafts. In 2025, Chloe attended kindergarten and achieved above grade level for reading and phonics knowledge and at grade level for writing and mathematics. She is described in her school report as an “eager”, “hardworking”, “helpful” and “dependable” student, who has made “excellent progress” and has “formed many new friendships and interacts well with her peers in the playground”.
Chloe also started swimming lessons in 2025, with Maria describing her as “doing brilliantly”. Maria would like to support Chloe to pursue other extracurricular activities as she gets older, including dancing or learning a musical instrument.
Chloe and the proposed adoptive parents share the same Anglo-Australian cultural background.
Both Maria and Jack identify as Christian and attend a local Pentecostal-charismatic church once a week. Hazel has no religious affiliation and has not expressed any wishes for Chloe to be raised in a particular faith. Maria and Jack celebrate Easter and Christmas, and Chloe has begun taking part in Christian scripture classes at school. Jack emphasised that whilst attendance at church services is encouraged by himself and Maria, it is not mandatory, and Chloe and their four sons are “free to sleep in if they prefer”.
The Independent Assessor has reported that Chloe is progressing well in the care of Maria and Jack and that they are attentive to her development, health, social and educational needs. The relationship between Chloe, Maria, Jack and their other children has been described by caseworkers as being “marked by warmth, nurture, love and affection”.
Maria and Jack are supportive of, and have demonstrated a commitment to, maintaining Chloe’s connection with her biological family.
Maria and Jack have recently started to explain the adoption process to Chloe and have been developing a “Life Story” book for Chloe which includes information and photographs of Chloe, Hazel and Olivia.
Maria and Jack have directly facilitated face-to-face contact with Hazel on a monthly basis and send letters to her with updates on Chloe, as well as text messages. They have also maintained regular contact between Chloe and Olivia. Family visits with Chloe and Olivia usually coincide with visits with Hazel, but also occur separately from her.
The Independent Assessor has observed that Maria’s relationship with Hazel is “positive”. Maria gave evidence that she regularly sends photographs of Chloe to Hazel, such as for Chloe’s first day of kindergarten.
Maria and Jack have also taken steps to maintain Chloe’s contact with her extended family, including her maternal grandmother, Ms Alice Hayes (not her real name), and maternal aunt, Ms Tara-Louise Hayes-King (not her real name). However, since 2025, attempts to contact Alice or Tara-Louse via letters or text messages have not been successful. Maria continues to send them updates each month, despite not receiving a response.
Having regard to the evidence before the Court, I am satisfied that Chloe’s emotional, physical, educational and cultural needs are being met by Maria and Jack.
The alternatives to making an adoption order would appear to be as follows:
to make no order and to maintain the status quo (namely, that Chloe is under the parental responsibility of the Minister until she attains the age of 18); or
to make an order under s 92 of the Adoption Act allocating parental responsibility to Hazel; or
to make an order under s 92 allocating parental responsibility to Maria and Jack.
Hazel has not formally sought restoration of Chloe into her care following the orders of the Children’s Court in May 2020. The Independent Assessor has expressed the view that restoration to Hazel would not be in Chloe’s best interests and “would likely cause psychological harm…given her long term established bonds with [Maria, Jack] and their sons”.
Having regard to those matters, I am satisfied that restoration of Chloe to Hazel’s care would introduce uncertainty and risk factors which are not currently present and is not a realistic option.
If I were to make no order and were to maintain the status quo, Maria and Jack would be unable to make significant decisions concerning Chloe, as those decisions would require the approval of the Minister by her delegate.
The Independent Assessor expressed the view that:
“Maintaining the status quo would not be considered in [Chloe’s] best interests as it undermines her sense of stability and belonging within her family and is therefore not considered to be the most preferable option.”
An order allocating parental responsibility for Chloe to Maria and Jack would alleviate some of the disadvantages of maintaining the status quo. However, this would remain a temporary order that would expire when Chloe attains 18 years of age. It therefore lacks the permanency of an adoption order and would result in Chloe losing her legal connection to her psychological family when she attains adulthood.
The Independent Assessor has reported that Maria and Jack are motivated to provide Chloe with a “stable, secure and permanent home”, that “[Chloe] knows [Maria and Jack] to be her parents”, and that Chloe “has the opportunity to be adopted by a loving family who can provide for her emotional, educational, medical, psychological and physical needs until adulthood”. The Independent Assessor has concluded as follows:
“an adoption order is the most appropriate legal order for [Chloe] and such an order will provide her with the psychological and physical security she needs to reach her full potential. An adoption order will provide [Chloe, Maria, Jack and their sons with legal certainty and formal recognition of the relationship that already exists between them.”
Having regard to those matters, I am satisfied that the making of an adoption order would serve the best interests of Chloe now, ensuring she is legally a part of her psychological family, and would also serve her best interests in the future, including after she has attained the age of 18.
Accordingly, I am satisfied that the making of the proposed adoption order would be clearly preferable in the best interests of Chloe than any other action that could be taken by law in relation to her care.
Section 52(a) of the Adoption 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.
Chloe’s birth mother has not consented to the adoption. Further, despite investigations having been undertaken (as described below), the DCJ does not know the identity of Chloe’s birth father.
In these circumstances, the Secretary seeks orders under s 67 of the Adoption Act dispensing with the requirement for consent by each of Chloe’s birth parents. The Secretary has standing to apply for the making of such “consent dispense orders”: s 68(a) of the Adoption Act.
The relevant test for dispensing with consent is set out in s 67 of the Adoption Act, 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.
The proposed adoptive parents are “authorised carers” because they have care and responsibility for Chloe under out-of-home care arrangements made under the Care and Protection Act: s 67(1)(d) and Dictionary to the Adoption Act.
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 Adoption 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.”
Dispensing with the consent of a parent is a grave step, not lightly to be taken: Adoption of RCC and RZA at [17] (Brereton J). In Adoption of BL 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”.
I may not make a consent dispense order unless I am satisfied that, relevantly, Chloe has established a stable relationship with the proposed adoptive parents, Maria and Jack, and that the adoption of Chloe by Maria and Jack will promote her welfare: ss 67(1)(d)(i) and (ii) of the Adoption Act. Before making such an order, I must also be satisfied that to do so will be in the best interests of Chloe: s 67(2) of the Adoption Act.
Hazel has previously stated that she does not want Chloe to be adopted.
On 26 June 2024, Hazel met with a number of caseworkers from the DCJ and Challenge Community Service, and was informed that Maria and Jack wished to adopt Chloe and that Challenge was supportive of this outcome. Hazel stated that she did not “want this to happen at all”. She was advised of her options, including either to consent to, or contest, the adoption, and was also offered (and accepted) a referral to Legal Aid.
Around the same time, Hazel was provided with a copy of the mandatory written information under s 59 of the Adoption Act.
On 13 February 2025, one of the caseworkers who had attended the June 2024 meeting, Ms Smith (not her real name), called Hazel to advise her that she would soon be receiving a draft Maternal Adoption Plan which would outline how Hazel would spend time with Chloe should an adoption order be made. Ms Smith also asked Hazel whether anyone from Legal Aid had contacted Hazel regarding her options, and offered to follow up on the referral.
On 21 May 2025, Ms Smith sent a text message to Hazel requesting to discuss the adoption process in relation to Chloe, and Hazel responded that she was free to speak later that afternoon. However, Ms Smith’s calls later that day and on a subsequent day were not answered.
In a conversation between Hazel and the Independent Assessor in July 2025, Hazel stated that she felt “uncomfortable” about the adoption of Chloe by Maria and Jack, that she felt that she has not been given the opportunity to have Chloe restored to her care, and that she was waiting for Legal Aid to contact her.
On 6 November 2025, Ms Smith called Hazel to discuss the contents of the draft Maternal Adoption Plan. During this discussion, Hazel indicated that she was “happy” that the plan in relation to family time was “pretty much the same as it is now”.
In early December 2025, Ms Smith sent a text message and left a voicemail message for Hazel, asking whether Hazel had contacted Legal Aid and whether she would like any support. On 30 January 2026, Ms Smith sent a further text message to Hazel, who responded that she had an appointment with Legal Aid the following week.
On 6 March 2026, the parties, including Hazel, attended a mediation facilitated by Legal Aid. At this meeting, the parties agreed the terms of the Maternal Adoption Plan, which was signed by Hazel.
As noted above, Hazel has not appeared in this proceeding to take any step to oppose the orders sought.
For the reasons given above when considering the proposed adoption order, and having regard to the evidence of the proposed adoptive parents, the Independent Assessor and the Delegate, I am satisfied that Chloe has a stable and loving relationship with Maria and Jack and that they will continue to promote her welfare and continued development. The Independent Assessor has reported that the caseworker files consistently show that Maria and Jack engage positively with Chloe and that she appeared happy in their home. For example:
“[Maria and Jack’s] Carer Reviews from 2023 and 2024 describe them as being ‘extremely supportive’ of [Chloe], sharing a close and loving bond, with them having a ‘supportive’ and a ‘family-oriented commitment’ to her and providing a high quality of care for her. In 2024, [Maria and Jack] were described as being independent from the agency with appointments, family time and parenting, and them being ‘fantastic’ communicators who ‘seek support, information and help when needed’. [Chloe’s] Case Plan, dated 30 June 2025, reiterated [Maria and Jack’s positive relationships, noting Maria and Jack as describing Chloe as a ‘happy little girl who brings a lot of joy to those around’ her.”
The Court has the power to make a consent dispense order in circumstances where the person whose consent is required “cannot, after reasonable inquiry, be found or identified”: s 67(1)(a) of the Adoption Act.
Generally, the Court “must not make a consent dispense order on the application of any person unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made”: s 72(1) of the Adoption Act. However, this requirement does not apply if “the person cannot, after reasonable inquiry, be found or identified”: s 72(2). Further, the Court has the power to dispense with the giving of such notice: s 88(4).
Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made: Re K and the Adoption Act 2000 [2005] NSWSC 858 at [22] (White J). The Court is, in effect, deciding whether it has a sufficient basis for action presented to it, notwithstanding that the natural parents have not consented. The seriousness of the action in question, involving as it does a severing of one set of parental ties and the creation of another, needs to be taken into account in that exercise: Re KN and the Adoption Act 2000 [2005] NSWSC 896 at [14] (Campbell J).
The Crown Solicitor submits that the DCJ has made “reasonable inquiries” within the meaning of s 72 of the Adoption Act and that, as a result of those inquiries, it has not been able to identify Chloe’s birth father.
The Delegate’s evidence establishes that, since Chloe’s birth, the DCJ and Challenge have undertaken investigations for the purpose of identifying Chloe’s birth father. Genetic testing has excluded Hazel’s partner at the time of Chloe’s birth and another man who was identified by Hazel as possibly being Chloe’s biological father. Since the results of those tests were received, Hazel has declined to provide any further information which would assist the DCJ in pursuing this matter, despite a number of follow-up enquiries. Challenge has also made a request under Chapter 16A of the Care and Protection Act to NSW Police and health agencies for any potential male associates of Hazel. However, these enquiries have not revealed any relevant information.
Having regard to the Delegate’s evidence, I am satisfied that Chloe’s birth father is a person who cannot, after reasonable inquiry, be found or identified.
Further, for reasons already set out above, I am satisfied that the requirements of s 67(1)(d) of the Adoption Act are satisfied, namely, Chloe has established a stable relationship with Maria and Jack, and her adoption by them would promote her welfare.
Accordingly, I will make an order dispensing with the requirement for notice of a consent dispense order to be served on Chloe’s birth father and also an order dispensing with the requirement for her birth father’s consent to the adoption.
The Maternal Adoption Plan was signed by Hazel on 6 March 2026, by Maria and Jack on 20 March 2026, and by the Secretary on 1 April 2026.
The Maternal Adoption Plan makes provision for face-to-face visits with Hazel to occur at a minimum of twelve times per year, to be scheduled such that a visit will occur close to each of Easter, Christmas and Chloe’s birthday. Provision is made in the Maternal Adoption Plan for some of these visits to be held jointly with Olivia, whilst others are to occur at different times to Hazel’s visits with Olivia. The Maternal Adoption Plan also provides for twelve face-to-face visits to occur with Olivia each year, the timing of which is to be agreed between Maria, Jack, and Olivia’s authorised carers.
Maria and Jack have also agreed to provide Hazel with photographs and school reports, and to facilitate telephone and electronic communication between Hazel and Chloe at least twice per year, one being close to Easter and another close to Mother’s Day.
The Maternal Adoption Plan also makes provision, in the event that Chloe’s birth father is identified, for contact to occur with Chloe as negotiated and agreed by Maria and Jack.
The Delegate expressed the opinion that the arrangements proposed in the Maternal Adoption Plan are:
“proper in the circumstances in that it preserves the status quo that family time continue to occur, and provides [Chloe] with the opportunity to build stronger relationships with [Hazel], [Olivia], and [Chloe’s] maternal family.”
Maria, with the support of Jack, has been facilitating and supervising family visits with Hazel and Olivia independently since August 2022 and does not need additional support to enact the Maternal Adoption Plan following finalisation of Chloe’s adoption.
Having regard to those matters, I am satisfied that the arrangements proposed in the Maternal Adoption Plan are in Chloe’s best interests and are proper in the circumstances.
The Secretary seeks an order approving the name “[Martin]” as the surname and “[Chloe Mia Hayes]” as the given names of Chloe. This name comprises Chloe’s existing first name; a middle name (“[Mia]”) selected by Hazel because it shares a connection with Olivia’s middle name; part of Hazel’s surname (“[Hayes]”); and Maria and Jack’s surname (“[Martin]”).
Before changing the names of the child, I must consider any wishes expressed by the child and any factors relevant to the weight that should be given to those wishes: s 101(2) of the Adoption Act.
In December 2024, Hazel indicated a preference to the Independent Assessor that she wanted to drop the “[King]” part from Chloe’s surname (“[Hayes-King]”) as Hazel had never wanted to include this name as part of Hazel’s surname. When the Independent Assessor subsequently discussed this preference with Maria and Jack in January 2025, they expressed that they would be happy for “[Chloe Mia Hayes Martin]” to be Chloe’s name following her adoption. During this discussion, Chloe was present and expressed some reservations about the inclusion of “[Hayes]” as part of her name, however “could not express her reservations in words”.
Maria and Jack have stated that they feel the inclusion of “[Hayes]” in Chloe’s name is in her best interests, because it “maintains a connection to her birth origin, even as she grows older and forms a greater understanding of her upbringing”, and also because it “respects the wishes” of Hazel.
The Delegate has deposed that the proposed name change is in Chloe’s best interests because it “maintains her connection to her maternal family whilst recognising her sense of belonging to the family with which she has lived her whole life”. The Independent Assessor has expressed the view that the proposed name “includes the wishes of [Maria, Jack, Hazel and Chloe]”, and that taking on the surname “[Martin]” will “ensure [Chloe] feels a part of and connected to the family in which she resides”.
Having regard to those matters, I am satisfied that the name “[Martin]” should be adopted as Chloe’s surname, and “[Chloe Mia Hayes]” as the given names of Chloe.
For the reasons given above, I make the following orders:
an order pursuant to s 88(4) of the Adoption Act 2000 (NSW) that the giving of notice of the application to Chloe’s birth father be dispensed with;
an order pursuant to s 67(1) of the Adoption Act 2000 (NSW) that the consent of Chloe’s birth father be dispensed with;
an order pursuant to s 67(1) of the Adoption Act 2000 (NSW) that the consent of Chloe’s birth mother be dispensed with;
an order for the adoption of Chloe in favour of the proposed adoptive parents;
an order approving the name “[Martin]” as the surname and “[Chloe Mia Hayes]” as the given names of Chloe; and
an order, pursuant to s 50(1) and (3) of the Adoption Act 2000 (NSW), that the Maternal Adoption Plan signed by Chloe’s birth mother on 6 March 2026, the proposed adoptive parents on 20 March 2026, and the Secretary on 1 April 2026 be registered.
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