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[2025] NSWSC 1334
General information, not legal advice.
Supreme Court of NSW
2025-11-27
Brereton J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Adoption of Freya (a pseudonym) [2025] NSWSC 1334
Hearing dates: On the papers
Date of orders: To be made
Decision date: 27 November 2025
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision: Orders to be made for adoption, change of name and leave to provide Adoption Plan to birth parents
Catchwords: CHILD WELFARE – adoption – whether adoption order is clearly preferable in the best interests of the child – where birth parents reside in Australia on temporary visas – where child is not a non-citizen child or a citizen child under the Adoption Act – where Secretary has parental responsibility for the child – where child is a permanent resident of Australia – where child will become an Australian citizen upon the making of adoption orders – where birth parents consent to the adoption orders sought – change of name to be approved – leave to be granted for Adoption Plan to be provided to the birth parents – adoption orders to be made
Legislation Cited: Adoption Act 2000 (NSW)
Australian Citizenship Act 2007 (Cth)
Immigration (Guardianship of Children) Act 1946 (Cth)
Interpretation Act 1987 (NSW)
Migration Act 1958 (Cth)
Cases Cited: N.A.
Texts Cited: N.A.
Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities and Justice (plaintiff)
No other appearances
Representation: Solicitors:
Crown Solicitor’s Office (plaintiff)
File Number(s): 2025/288788
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).
These reasons concern an application for the adoption of a child who I will call “Freya”, aged 1 year and 7 months, by the proposed adoptive parents, who I will call “Jerry” and “Ariana”. [1]
By summons filed on 25 July 2025, the Secretary of the New South Wales Department of Communities and Justice ('Secretary’) seeks the following orders:
pursuant to s 23 of the Adoption Act 2000 (NSW) (‘the Adoption Act’), an order be made for the adoption of Freya in favour of Jerry and Ariana; and
pursuant to s 101(1) of the Adoption Act, an order be made to change the middle name and surname of the child.
Both of Freya’s birth parents have consented to the orders sought in the summons.
The Secretary seeks a notation to the orders that the Court is satisfied that the arrangements proposed in the adoption plan, signed by Freya’s birth parents and the proposed adoptive parents (‘the Adoption Plan’), are in Freya’s best interests and are proper in the circumstances. A delegate of the Secretary also signed the Adoption Plan.
The Secretary seeks an additional order pursuant to s 194(2) of the Adoption Act for leave to be granted to provide a copy of the Adoption Plan to Freya’s birth parents.
I am satisfied that the proposed orders should be made.
Freya was born in Sydney in April 2024.
Freya’s birth mother is “Lily”, aged 46. Freya’s birth father is “Alex”, aged 47. The birth parents married in 2002 in India, and they have two older sons, “Aaron”, aged 22, and “Nick”, aged 17. Aaron and Nick reside with the birth parents.
Freya’s birth family migrated from India to Australia temporarily on subclass 500 student visas. The family’s current visas permit them to reside in Australia until 2027.
On 1 May 2024, the birth parents signed a voluntary short-term care agreement in relation to Freya’s care. On the same date, Freya was discharged from hospital and placed in a voluntary short-term care placement.
One of the reasons the birth parents decided to relinquish care for Freya was due to the perceived societal shame they would encounter upon returning to India. This perceived shame stems from the birth of a child with such a significant age gap to her older siblings and the age at which Freya’s birth mother became pregnant. The birth parents believe that the circumstances in which Freya was born would not be culturally acceptable and that a female child would receive greater educational opportunities in Australia. Freya’s extended birth family members, most of whom reside in India, are unaware of her existence.
In May 2024, a further voluntary short-term care agreement was signed by the birth parents in relation to Freya’s care.
In July 2024, the birth father and birth mother each signed an Instrument of Consent to Freya’s adoption by the proposed adoptive parents.
The birth mother’s instrument was re-signed by the birth mother in August 2024 due to an error identified in the previous document. There is no evidence or suggestion that the birth father or birth mother have revoked their consent to Freya’s adoption.
In September 2024, Freya transitioned into Jerry and Ariana’s care and has been in their full-time care since October 2024. Jerry was born in India and he is 43. Ariana was also born in India and she is 42.
Jerry and Ariana married in July 2009, and they presently reside in New South Wales. Both Jerry and Ariana were granted Australian citizenship in May 2023. They have no other children.
The formal requirements of the Adoption Act have been satisfied, namely:
Freya was present in New South Wales when these proceedings were commenced; [2]
Jerry and Ariana were resident and domiciled in New South Wales when these proceedings were commenced; [3]
Jerry and Ariana are of good repute and are fit and proper persons to fulfil the responsibilities of parents; [4]
Jerry and Ariana have been selected in accordance with the Adoption Act; [5]
Jerry and Ariana satisfy the requirements of age and length of relationship; [6]
a report concerning Freya’s proposed adoption has been provided to the Court by an “approved assessor”; [7]
the birth parents were provided with a copy of the mandatory written information before they provided their consent to the adoption; [8] and
the consent of the Secretary is not required as parental responsibility for Freya is presently held by the Secretary. [9]
In reaching a decision about the adoption of Freya, I must have regard, as far as is practicable or appropriate, to the principles that adoption must be regarded as a service for the child, [10] and that no adult has a right to adopt a child. [11]
In considering Freya’s best interests, I have had regard to the matters outlined in the Adoption Act, including:
Freya’s age, maturity, level of understanding, gender, background, family relationships and any other characteristics that I considered relevant; [12]
Freya’s physical, emotional and educational needs, including her sense of personal, familial and cultural identity; [13]
Jerry and Ariana’s attitude towards Freya and the responsibilities that are associated with parenthood; [14]
the nature of the relationship that Freya has developed with both Jerry and Ariana since being placed in their care; [15] and
the suitability and capacity of both Jerry and Ariana to provide for Freya’s needs, including her emotional and intellectual needs. [16]
Freya, although still very young, has formed a strong connection with Jerry and Ariana. Jerry and Ariana have proven their ability to provide a high level of care to Freya, satisfying her emotional, physical and educational needs in a conscientious manner. They have expressed a deep affection for Freya and a clear desire to parent her as part of their permanent family. I am confident that Jerry and Ariana will assist Freya in understanding her birth family history and what open adoption means.
I am also satisfied that Jerry and Ariana are committed to and supportive of ongoing contact between Freya and her birth parents. Since Freya transitioned into the full-time care of the proposed adoptive parents, the birth parents and Jerry and Ariana have managed their relationship independently. For example, the proposed adoptive parents have attended the birth parents’ home with Freya and this visit went “exceptionally well”, lasting a total of 8 hours. Jerry and Ariana’s commitment to fostering positive relations between Freya and her birth family is also demonstrated by their signing of the proposed Adoption Plan in May 2025.
Freya’s birth family will be required to return to India in 2027 due to the expiry of their visas. I understand that this will complicate the present contact arrangements with Freya. Nevertheless, I am confident that Jerry and Ariana understand the importance of Freya maintaining positive contact with her birth family.
I am satisfied that, upon consideration of the available alternatives, an adoption order in favour of Jerry and Ariana is firmly in Freya’s best interests, both in childhood and later in life. [17]
As I have noted, Freya’s birth parents are Indian citizens and entered Australia on subclass 500 student visas. This particular visa class permits them to reside in Australia until 2027.
At the time of her birth, Freya was granted a subclass 500 student visa. This arose pursuant to s 78(2) of the Migration Act 1958 (Cth), which states:
If:
(a) a child born in Australia is a non-citizen when born; and
(b) at the time of the birth, each of the child's parents holds a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.
(1) A person born in Australia is an Australian citizen if and only if:
(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
Neither of Freya’s birth parents were Australian citizens or permanent residents at the time of her birth, and neither had been ordinarily resident in Australia throughout the period of 10 years beginning on the day she was born. It follows that Freya is not an Australian citizen. Thus, she was a “non-citizen” when born within the meaning of the Migration Act.
In November 2024, the Department of Communities and Justice applied for a child subclass 802 visa on Freya’s behalf. In March 2025, Freya was granted that visa, which allows her to reside indefinitely in Australia.
The Secretary submitted that Freya is a permanent resident pursuant to s 5(1) of the Australian Citizenship Act which states:
For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a) the person is present in Australia at that time and holds a permanent visa at that time; or
(b) both:
(i) the person is not present in Australia at that time and holds a permanent visa at that time; and
(ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or…
Freya clearly satisfies the definition of a permanent resident in Australia as she is present in Australia and holds a permanent visa.
The Secretary submitted that Freya’s application does not fall into the category of the adoption of a “non-citizen child” within the meaning of s 31 of the Adoption Act. If she was a “non-citizen child” within the meaning of the Adoption Act, various requirements would have to be satisfied before the Court could make an adoption order.
The term “non-citizen child” is defined in the Adoption Act as having the same meaning as in the Immigration (Guardianship of Children) Act 1946 (Cth). In that Act, s 4AAA(1) states:
Subject to subsections (2) and (3), a person (the child) is a non‑citizen child if the child:
(a) has not turned 18; and
(b) enters Australia as a non‑citizen; and
(c) intends, or is intended, to become a permanent resident of Australia.
Freya did not “enter” Australia as a non-citizen as she was born here. I accept that Freya is not a “non-citizen child” under the Adoption Act.
A person is an Australian citizen if the person is:
(a) adopted under a law in force in a State or Territory; and
(b) adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and
(c) present in Australia as a permanent resident at that time.
The Secretary contends that he has parental responsibility over Freya under s 75 of the Adoption Act. The heading to that section is “Parental responsibility for citizen child awaiting adoption”. The heading suggests s 75 only applies in the case of a child who is an Australian citizen. That would raise a question about how the Secretary could have parental responsibility over Freya, who is not an Australian citizen.
I am satisfied that the Secretary has parental responsibility for Freya. The heading to s 75 is not part of the Adoption Act: see s 35(2) of the Interpretation Act 1987 (NSW). The term “citizen child” is not defined or used anywhere in the Adoption Act. Section 75 is not expressed to apply only where a child is an Australian citizen. Section 77, however, concerns parental responsibility where the child is a “non-citizen child”. It provides that, in those circumstances, s 75 has a more limited operation. That is, even in the case of a non-citizen child, s 75 can apply, but in the manner confined by s 77. This indicates that it is wrong to think that s 75 only applies where the child is an Australian citizen.
It is proposed that, on the making of the adoption orders, Freya is to have the same surname as Jerry and Ariana. It is also proposed to alter Freya’s middle name.
Before changing Freya’s name, I must consider any wishes expressed by Freya and any factors relevant to the weight that should be given to those wishes. [18] I must also consider the principle that the child’s given name is to be preserved as far as possible. [19]
I am satisfied that the proposed surname change is in Freya’s best interests. [20] The proposed surname change will reflect Freya’s legal membership to her adoptive family, enhancing her sense of belonging and security with Jerry and Ariana. Freya will retain her first name given at birth to preserve her ongoing connection to her birth family which can never be erased, regardless of whether an adoption order is made.
The Secretary was initially opposed to altering Freya’s middle name (as requested by the proposed adoptive parents). The Secretary’s position changed once the birth parents gave consent to and supported the change.
Freya’s birth father has indicated the name change is essential to maintain his anonymity, which has been his request from the beginning. The birth parents confirmed to the Department of Communities and Justice that they had come to the decision about the name change after a “careful thought process”.
The Secretary noted Freya’s developmental age and her minimal understanding and connection to the middle name given to her at birth. As Freya is only 1 year old, she is too young to express her wishes. I am satisfied that the chosen middle name holds significant meaning to Freya’s proposed adoptive parents.
I am satisfied that the proposed change to Freya’s middle name is in her best interests. [21]
The adoption orders sought by the Secretary are in Freya’s best interests.
In accordance with Jerry and Ariana’s wishes, the Court will make arrangements to fix a convenient hearing date at which orders can be made in the presence of Freya, Jerry, Ariana and their chosen family and friends.
On that date, the Court will make the following orders:
pursuant to s 23 of the Adoption Act*,* an order be made for the adoption of Freya in favour of Jerry and Ariana;
pursuant to s 101(1) of the Adoption Act, an order be made for the approval of the proposed names for Freya; and
pursuant to s 194(2) of the Adoption Act, leave is granted to provide a copy of the Adoption Plan, which the Court has found to be in the child’s best interests, to Lily and Alex.
The Court will also note that it is satisfied that the arrangements proposed in the Adoption Plan, signed by Lily and Alex, Jerry and Ariana and the delegate of the Secretary, New South Wales Department of Communities and Justice on, are in the child’s best interests and are proper in the circumstances.
Once the orders are made, an Integrated Birth Certificate will be created which will include details of Freya’s birth parents, Lily and Alex, as well as Jerry and Ariana. This will form an important part of Freya’s life story.
**********
In this judgment, all names are pseudonyms so that the persons affected by the adoption application are not identified – see s 180 of the Adoption Act. This version of the judgment may be published.
Adoption Act, s 23(2)(a).
Adoption Act, s 28(1)(a).
Adoption Act, s 28(1)(b).
Adoption Act, ss 45 and 90(1)(c).
Adoption Act, s 28(3)-(4).
Adoption Act, s 91(1)-(2A)(a).
Adoption Act, s 59.
Adoption Act, s 75(1).
Adoption Act, s 8(1)(b).
Adoption Act, s 8(1)(c).
Adoption Act, s 8(2)(b).
Adoption Act, s 8(2)(c).
Adoption Act, s 8(2)(g).
Adoption Act, s 8(2)(h).
Adoption Act, s 8(2)(i).
Adoption Act, s 8(1)(a).
Adoption Act, s 101(2).
Adoption Act, s 8(1)(e).
Adoption Act, s 101(5).
Adoption Act, s 101(5).