The Adoption of Eric (a pseudonym)

Category: Principal judgment

Parties: Secretary, NSW Department of Communities and Justice (Plaintiff)

Representation: Self represented

File Number(s): 2025/00139997

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

JUDGMENT

1. This proceeding concerns the proposed adoption of a child, whom I will call Eric Lowe, who is aged 19 months, by the proposed adoptive parents, whom I will call David Samuel Bailey and Emily Jayne Bailey. For convenience, and without intending any disrespect, I will refer to each of the individuals involved in this matter by his or her first name.

2. By Summons filed 4 April 2025, the Secretary, NSW Department of Communities and Justice, seeks the following orders:

3. an order for the adoption of Eric in favour of the proposed adoptive parents; and

4. an order approving the name “Bailey” as the surname and “Eric Michael” as the given names of Eric.

5. Each of Eric’s birth parents consents to the adoption order.

6. The Secretary also seeks a notation to the orders that the Court is satisfied that the arrangements proposed in an adoption plan which has been signed by the proposed adoptive parents and by each of Eric’s birth parents (the Adoption Plan) are in Eric’s best interests and are proper in the circumstances.

The circumstances of the case

5. In November 2023, Eric was born at X Hospital in New South Wales.

6. Eric’s birth mother, as registered on his birth certificate, is Robin Stevens (not her real name), who was aged 22 at the time of Eric’s birth.

7. Eric’s birth father, as registered on his birth certificate, is Luke Green (not his real name), who was aged 25 at the time of Eric’s birth.

8. Robin and Luke entered Australia on temporary visas. They were in a relationship for around six months, which ended after Robin’s family refused to give approval for their marriage. Robin only learned of Eric’s conception after the end of this relationship. She did not inform Luke or her family that she was pregnant, and did not seek any medical assistance or advice in relation to the pregnancy prior to presenting to the hospital for Eric’s birth.

9. At the time of birth, Robin requested adoption for Eric. Consultation between Robin, Open Adoption and Permanency Services and the local Community Services staff resulted in a decision to follow voluntary adoption procedures.

10. Departmental foster carers were identified for Eric, with the foster mother and Robin both spending time with Eric during his hospital stay following birth.

11. While Robin was pregnant, Luke had become engaged to another woman. By the time he was informed of Eric’s birth, he had married and has chosen not to tell any of his family or social networks about Eric.

12. Eric is the only child of either Robin or Luke and therefore does not have any biological siblings.

13. Each of Robin and Luke has consented to Eric’s adoption, having signed the instrument of consent on 28 March 2024 and 10 April 2024 respectively.

14. Robin and Luke selected the proposed adoptive parents from the Register of Approved Adoptive Applicants which is maintained by the Secretary.

15. On 18 May 2024, Eric was placed into the care of David and Emily, who were assessed pursuant to s 45 of the Adoption Act 2000 (NSW) and were determined to be fit and proper persons to adopt. Since that time, Eric has lived continuously with David and Emily.

16. David is aged 39 and Emily is aged 38. They have been married for around nine years.

17. David and Emily have one daughter, Monica Jayne Bailey, who is aged 6, and who was adopted by them in 2020.

18. Eric resides with David, Emily and Monica at their home in New South Wales.

19. Each of David, Emily, Robin and Luke has signed the Adoption Plan, which deals with arrangements for contact between Eric and his birth family, communications about his development, as well as the development of Eric’s cultural identity and his religious upbringing. In the Adoption Plan, David and Emily agree to retain Eric’s given name, and each of Robin and Luke has given permission for David and Emily to choose a middle name for Eric.

Determination

20. Robin and Luke have provided general consent to the adoption of Eric under s 53(1)(a) of the Act, thereby fulling the requirements in s 52 of the Act. Upon the signing of those consents, Eric came under the parental responsibility of the Secretary, pursuant to s 75(1) of the Act.

21. Section 90 of the Act provides relevantly as follows:

(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied—

(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.

(2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.

22. The matters in s 90(1)(b)-(d) are readily addressed.

23. As regards s 90(1)(b), given that Eric is only 19 months old, questions of ascertaining his views regarding the proposed adoption do not arise (although it is apparent on the evidence that, as described more fully below, he has a close relationship with David, Emily and Monica).

24. As regards s 90(1)(c), the proposed adoptive parents have been selected in accordance with the Act.

25. As regards s 90(1)(d), consent to the adoption of Eric has been given by everyone whose consent is required.

26. The critical issues are whether the best interests of Eric will be promoted by the adoption (s 90(1)(a)), and whether the making of the adoption order “would be clearly preferable in the best interests of [Eric] than any other action that could be taken by law in relation to the care of [Eric]” (s 90(3)).

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

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

25. The question of what is in Eric’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).

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

27. his physical, emotional and educational needs;

28. any wishes expressed by the birth parents;

29. the nature of the relationship that Eric has with his birth parents or significant other people;

30. the attitude of the proposed adoptive parents to Eric and to the responsibilities of parenthood;

31. the nature of Eric’s relationship with the proposed adoptive parents;

32. the suitability and capacity of the proposed adoptive parents, or any other person, to provide for Eric’s needs, including his emotional and intellectual needs; and

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

34. In determining whether an adoption order would be “clearly preferable” in the best interests of Eric than any other action that could be taken by law in relation to his care, 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).

35. Consideration of whether adoption would promote the best interests of Eric 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 Eric: Adoption of NG (No 2) [2014] NSWSC 680 at [74] (Brereton J).

36. 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).

37. 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].”

31. In compliance with s 91 of the Act, a report has been provided to the Court by an Independent Assessor.

32. The Independent Assessor reports that, since his placement with David and Emily, Eric has not experienced any health or medical issues of concern, he is meeting all expected development milestones, and his immunisations are all up to date.

33. The Independent Assessor also reports that Eric has developed a strong relationship with each of David, Emily and Monica. During home visits by the departmental caseworker and assessor, it has been observed that Eric turns to David and Emily for comfort and safety, preferencing their attention over that of the visitor, and that he has an obvious awareness of Monica as a significant person in his life, and enjoys and responds to her company.

34. The Independent Assessor states that during the time that Eric has been with David and Emily, “he has thrived”, and it is evident that “he is well cared for and that he is very much loved and accepted within the wider family network”. She also states that David and Emily are delighted to have Eric as their son and display a great sense of pride in getting to know him, his birth mother and paying attention to his appropriate care and cultural needs.

35. The Independent Assessor notes that, as is the case with Monica, Eric will always know he is adopted, who his birth mother is, and the cultural background of his parents. David and Emily have demonstrated their commitment to family time with Robin, recognising that she is an essential part of Eric’s family network. They have also demonstrated a commitment to “facilitating Eric’s cultural identity as an [redacted] child in the Australian context”, which “will impact positively on the development of his self-identity”.

36. This commitment is reflected in the Adoption Plan. Robin has requested, and David and Emily have agreed, that face-to-face meetings occur a minimum of four times annually while she is living in Australia. Such meetings have been arranged by David and Emily to date, independently of the Department. Luke has not requested any face-to-face meetings with Eric, but is aware that he may make this request at any time in the future. If he does so, David and Emily agree to negotiate and facilitate arrangements as appropriate for Eric’s needs and interests at that time. David and Emily will also communicate with Robin, as they have in the past, including providing regular updates and photographs of Eric. Luke is not requesting any form of communication, but is aware that David and Emily will prepare annual updates with photos to be held on Eric’s departmental case file in case Luke decides in the future to request them.

37. David and Emily are of [redacted] heritage and Monica is of [redacted] heritage. David and Emily recognise that supporting the development of Eric’s understanding of his [redacted] heritage will require a significant commitment of time, energy and resources (such as they have previously expended in assisting Monica to understand her [redacted] heritage). They are committed to developing appropriate networks and providing opportunities to support the development of Eric’s cultural identify, including by encouraging Robin’s active participation in teaching Eric about his cultural heritage, visiting [redacted] in the future, attending [redacted] cultural events, and developing relationships with [redacted] people in the community. Robin and Luke are of [redacted] faith. Luke has made no requests regarding Eric’s religious upbringing, and Robin is content for David and Emily, who are Catholic, to provide Eric with a Christian upbringing.

38. The Independent Assessor expresses the view that the making of an adoption order with respect to Eric would secure his relationship with Monica as lifelong siblings who share similar adoption stories. She notes that each of Robin and Luke identified this as relevant in their decision-making when selecting David and Emily as the prospective adoptive parents. As the Independent Assessor notes, the making of an adoption order for Eric would result in equity of legal status of the two children.

39. The Independent Assessor concludes as follows:

“[Eric] was placed with Mr and Mrs [Bailey] for the purpose of adoption, to secure his future within the family and to provide him with stability. Consent to [Eric’s] adoption has been given by both birth parents in accordance with legislative requirements and they were both involved in the selection of prospective adoptive parents for [Eric]. It is my understanding that [Robin] and [Luke] have both expressed their satisfaction with the arrangements proposed for [Eric’s] future in the care of Mr and Mrs [Bailey]. An adoption order is the most appropriate legal order under the circumstances, to meet [Eric’s] needs.”

40. Having regard to the evidence summarised above, I am satisfied that the best interests of Eric will be promoted by the adoption, and that the making of the adoption order is clearly preferable to any other action that could be taken by law in relation to the care of Eric.

41. Accordingly, I will make an order for the adoption of Eric by David and Emily.

42. David and Emily have agreed to retain Eric’s given name. Each of Robin and Luke has given permission for David and Emily to choose a middle name for Eric, and they have chosen the middle name that I will refer to as “Michael”. Accordingly, I will make an order approving the name “Bailey” as the surname and “Eric Michael” as the given names of Eric.

43. Finally, for the reasons given above, I am satisfied that the arrangements proposed in the Adoption Plan are in Eric’s best interests and are proper in the circumstances. The orders will include a notation to this effect.

orders

44. Accordingly, I make the following orders.

45. An order for the adoption of the child Eric Lowe in favour of the adopting parents Emily Bailey and David Bailey.

46. An order approving the name “Bailey” as the surname and “Eric Michael” as the given names of the child.

Notation:

1. Note that the Court is satisfied that the arrangements proposed in the adoption plan are in the child’s best interests and are proper in the circumstances.

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