//
[2025] NSWSC 1178
General information, not legal advice.
Supreme Court of NSW
2025-10-08
McGrath J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Adoption of Richard Henry Winter and Camilla-Alice Papen [2025] NSWSC 1178
Hearing dates: 22 September 2025
Date of orders: 8 October 2025
Decision date: 08 October 2025
Jurisdiction: Equity - Adoptions List
Before: McGrath J
Decision: Orders for adoption made, consent of birth parents dispensed with, change of name approved, change to birth certificate ordered
Catchwords: CHILD WELFARE — Adoption — two children — siblings — where proposed adoptive parents are children’s current foster parents — whether adoption order is in each child’s best interests — whether adoption order clearly preferable to alternatives — whether birth parents’ consent should be dispensed with — where change of name proposed — whether adoption plans are in the best interests of each child and proper in the circumstances — HELD — adoption order is clearly preferable and in each child’s best interests — consent dispense order is in the best interests of each child — change of name approved — adoption plans are in the best interests of each child and proper in the circumstances
CHILD WELFARE — application for order under s 45(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) to correct misspellings and omissions — HELD — correction order made
Legislation Cited: Adoption Act 2000 (NSW), ss 8, 23, 24, 28, 45F, 50, 51, 52, 54, 55, 59, 63, 66, 67, 72, 87, 88, 90, 91, 92, 95, 101, 122, 180
Births, Deaths and Marriages Registration Act 1995 (NSW), s 45
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 90
Cases Cited: A Child Proposed for Adoption [2019] NSWSC 1653
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Director General Department of Human Services; Re M [2011] NSWSC 369
Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 641
Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239
Re the Adoption of AJH [2017] NSWSC 1751
Re the Adoption of CCS and FLS [2019] NSWSC 71
Secretary, New South Wales Department of Family and Community Services v MB [2017] NSWSC 1087
Category: Principal judgment
Parties: Secretary, New South Wales Department of Communities and Justice (Plaintiff)
B Winter (First Defendant)
Representation: Counsel:
N Hailstone, Crown Solicitor’s Office (Plaintiff)
B Winter (First Defendant, self-represented)
N Shepherd (Legal Representative for Richard Henry Winter)
B Turgot as agent for M Voncina (Legal Representative for Camilla-Alice Papen)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
NLS Law (Legal Representative for Richard Henry Winter)
Marina Voncina Solicitors (Legal Representative for Camilla-Alice Papen)
File Number(s): 2025/00156525
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)
This case concerns an application by summons filed 16 April 2025 by the Secretary of the New South Wales Department of Communities and Justice (DCJ) seeking that two siblings, Richard Henry Winter (now 13 years of age) and Camilla-Alice Papen (now 11 years of age), be adopted by the proposed adoptive parents, Lydia Gloria Corcoran and Edmund Charles Macauley, by order of this court pursuant to s 23 of the Adoption Act 2000 (NSW) (Act).
The Secretary also seeks orders:
dispensing with the consent of the birth parents, Lydia Margot Winter and Julian Andrew Papen, in respect of Camilla;
approving the name “Macauley” as the surname for both Richard and Camilla and their respective given names of “Richard Henry Winter” and “Camilla Alice Papen”;
correcting the Registrar of Births, Deaths and Marriages in respect of identified errors and omissions on the original birth certificate for Richard;
approving the maternal adoption plan; and
approving the paternal adoption plan.
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. I note that Camilla prefers to go by the name of Cam and, out of respect for her and that preference, where possible that is the name I will use to refer to her throughout this judgment.
In this published version of the judgment, all persons referred to have been assigned pseudonyms in keeping with s 180 of the Act.
The central issue I am required to decide is whether an adoption order is in the best interests of each of Richard and Cam.
The adoption orders sought in the present case are in favour of their long-term foster parents, Lydia and Edmund, with whom Richard and Cam have been living for a continuous period exceeding nine years.
For the reasons set out below, I have determined to order that each of Richard and Cam be adopted by both Lydia and Edmund; make an order dispensing with the consent of both Barbara and Julian with respect to Cam; approve the proposed change of name for each of Richard and Cam; and approve the maternal and paternal adoption plans. I will also order that the misspelling and omissions on the original birth certificate of Richard be corrected.
Richard was born on 24 March 2012 in New South Wales. Richard is an Australian citizen.
Richard is a curious and thoughtful young man with a very kind heart. He is somewhat more reserved than Cam, and generally prefers his own company, although he does have two close friends at school.
Richard recently started high school and is in Year 7 at a school, which is a short drive from the home he shares with Lydia, Edmund and Cam. Richard’s favourite subjects at school are mathematics and geometry.
Richard has a keen interest in Lego, computers, electronics and enjoys reading manuals. Richard also enjoys riding his bike, eating chocolate, playing on the trampoline and helping Lydia around the home.
Richard can at times struggle with impulse control and has recently started to explore his gender and sexual identity.
Richard has been diagnosed with autism spectrum disorder (ASD) level 2, attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), obsessive compulsive disorder (OCD) and a learning delay. Richard has also reported mild symptoms consistent with separation anxiety, social anxiety and depression. Richard has been prescribed long-acting Ritalin and Clonidine for his ADHD, ODD and emotional dysregulation. Richard also takes Melatonin each night to assist with sleeping.
Richard’s care requirements are partly funded under the National Disability Insurance Scheme (NDIS), and his NDIS Plan is reviewed regularly.
Importantly, in circumstances where Richard consents to his own adoption, Richard’s paediatrician, Dr Dean Abernathy, has certified that these various conditions do not impact Richard’s ability to express his needs and wants and that Richard is “very capable” of advocating for himself.
Richard is otherwise in good physical health and has his health reviewed regularly, including by regular check-ups with Dr Abernathy, his dentist and his optician.
Richard has a close and strong relationship with Cam.
Cam was born on 16 October 2013 in New South Wales. Cam is an Australian citizen.
Cam is in Year 6 at a school, which is a short walk from the home she shares with Lydia, Edmund and Richard.
Cam is a friendly, confident, determined and vibrant young woman. She is full of energy, very social and she makes friends easily.
Cam loves drawing, crafts, music, singing and dancing. In particular, Cam is very fond of both Taylor Swift and Ed Sheeran and will often sing and dance along to her favourite songs.
In her school reports, Cam is described as attaining sound academic achievement across all key learning areas, with a positive attitude towards learning.
Cam can at times struggle with her ability to self-regulate. Like Richard, Cam has also been diagnosed with ASD, ADHD and ODD, and she too takes medication to assist in the management of these conditions, including Clonidine and long-acting Ritalin. Cam is also under the paediatric care of Dr Abernathy. Cam is said to begin each day with a bright smile and is actively working on strategies to help her de-escalate and re-engage with schoolwork when required.
Cam’s care requirements are also partly funded under the NDIS and her NDIS Plan is reviewed regularly.
Cam is also otherwise in good physical health and has her health reviewed regularly, including by regular check-ups with Dr Abernathy, her dentist and her optician.
Cam has a close and strong relationship with Richard.
Lydia was born on 22 February 1972 in New South Wales and is now 53 years old. Lydia resided in New South Wales until she was seven years of age. Lydia then resided in Queensland until she was 14 years of age before returning to New South Wales, where she has resided ever since. Lydia is an Australian citizen.
Lydia is currently a stay-at-home parent and previously worked as a Customer Service Representative. Lydia is trained in telecommunications, customer contact and completed an Associate Diploma of Applied Science in Biological and Chemical Technologies.
Edmund was born on 30 January 1975 in New South Wales and is now 50 years old. Edmund has resided in New South Wales since birth. Edmund is an Australian citizen.
Edmund is employed as a Glass Cutting Operator/Supervisor. Edmund has a son from a previous relationship, Thomas Charles Macauley, who was born on 1 December 1994 and resides independently in New South Wales.
Lydia and Edmund have been in a relationship together since 1994, a period of over 30 years. Lydia and Edmund are practising Christians and are raising both Richard and Cam in that tradition.
Lydia and Edmund are authorised carers who have had the care and responsibility for Richard and Cam under out of home care arrangements pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act) since 11 May 2016. Since that time, Richard and Cam have lived with Lydia and Edmund at their home in New South Wales with their much-loved dogs, Pippa and Kitsey. Richard was four years old and Cam was two years old when they commenced living with Lydia and Edmund.
Overall, Lydia and Edmund are both in good physical health. For the ailments they do have, they receive appropriate treatment and care. Both try to lead a healthy and active lifestyle and no doubt these efforts are assisted by keeping up with the activities of each of Richard and Cam.
Barbara was born on 1 February 1983 and is now 42 years of age. Barbara resides in New South Wales.
Julian was born on 16 March 1980 and is now 45 years of age. Julian resides in Western Australia.
Barbara and Julian separated in or around 2014.
Originally, Julian was not recorded on Richard’s birth certificate and attempts to engage with Julian for the purpose of paternity testing have been unsuccessful.
In 2023, Richard’s birth certificate was amended to identify Julian as his birth father following a DNA test which confirmed that Richard and Cam are full biological siblings.
Richard and Cam were respectively the fourth and fifth children born to Barbara and the third and fourth children respectively born to both Barbara and Julian.
Richard and Cam have three siblings:
Donatella Winter (now 24 years of age), who is a maternal sibling and resides independently in Western Australia with two children of her own;
Kelli Effie Papen (now 22 years of age), who is a full sibling and resides with Barbara; and
Andrew Papen (now 21 years of age), who is a full sibling and resides in New South Wales, together with his long-term carers.
On 9 May 2025, Julian was served with notice of the adoption application for Richard and Cam via email and registered post. Julian did not participate in these proceedings.
On 13 May 2025, Barbara was personally served with notice of the adoption application for Richard and Cam. Barbara is contesting the adoption of each of Richard and Cam and was joined as the first defendant to these proceedings on 4 June 2025.
In circumstances where Barbara did not file any submissions in opposition to the adoption application, Barbara relies upon her affidavit affirmed 3 July 2025, the content of which I summarise as follows:
Foremost, Barbara does not want adoption orders to be made for each of Richard and Cam.
Barbara wants each of Richard and Cam to know that she loves them very much, that she always will, and that she did not give up on them. Barbara hopes that both Richard and Cam will grow up happy, healthy and knowing how loved they are.
Barbara is fearful that Richard and Cam will grow up thinking she abandoned them and that, if adoption orders are made, she will lose her connection and bond to each of them.
Barbara is concerned as to the capacity of Richard and Cam to understand the adoption process and its legal implications, as well as their susceptibility to influence in this regard. Barbara is particularly worried that the assessments undertaken in respect of Richard do not accurately reflect his capacity to consent to his own adoption.
The child protection considerations in this matter are lengthy, sad and complex.
Before considering what has occurred in relation to each of Richard and Cam, it will be necessary to briefly set out some relevant context, including the child protection history of their siblings, Donatella, Kelli and Andrew.
The primary matters which are said to have affected the capacity of each of Barbara and Julian to provide adequate care to each of Richard and Cam are:
Barbara’s drug and alcohol use.
Julian’s drug and alcohol use.
Allegations of child sexual abuse against Julian, made in respect of Donatella, Kelli and their cousin, Alexandra Winter (child sexual abuse allegations). The child sexual abuse allegations were later investigated by the DCJ, who found them to be substantiated. In circumstances more fully dealt with below, Barbara initially dismissed or refused to believe the child sexual abuse allegations to be true and continued to allow Julian to have ongoing and unsupervised contact with Richard prior to his removal from her care. Barbara also concealed her relationship with Julian at this time, which only exacerbated the DCJ’s concerns as to Richard’s welfare.
Relevant context also includes the fact that Julian had previously been convicted of child sexual assault when he himself was a minor, namely two counts of sexual penetration of a child under 13 years said to have been committed on 22 January 1997 (when Julian was 16 years of age). In 2006, during a Children**’**s Court of New South Wales clinic assessment regarding Donatella, Kelli and Andrew, Julian admitted the factual basis of that conviction, being that, when he was around 16 or 17 years of age and living in Western Australia, he sexually assaulted a young boy.
In May 2004, Donatella and Kelli were removed from Barbara’s care following the substantiated disclosures of sexual abuse perpetrated by Julian against Donatella and Kelli as a result of the investigation of the child sexual abuse allegations. At this time, Donatella was 3 years of age and Kelli was 1 year old. Andrew was not yet born. Barbara agreed to a 28-day voluntary shared care arrangement with the DCJ.
In July 2004, Donatella and Kelli were returned to Barbara’s care.
In September 2004, Andrew was born.
In February 2005, the DCJ substantiated the child sexual abuse allegations perpetrated by Julian as against Alexandra.
On 6 April 2006, each of Donatella, Kelli and Andrew were removed from Barbara’s care and placed into foster care. This followed Andrew (then 18 months of age) presenting at hospital with an infected injury consistent with a burn or dermatitis which had become infected.
On 2 September 2011, Barbara telephoned Macarthur Community Services Centre (Macarthur CSC), advised she was three months pregnant and asked what would happen to her baby once born. Among other things, during this call:
Barbara recounted that the DCJ had previously told her that if she was to have another child with Julian, that child would also be removed;
Barbara reported that the child was due to be born in or around March 2012;
Barbara falsely reported that Julian was not the father of the child she was carrying; and
Barbara was informed that, in order for her to maintain custody of the child, her situation would need to be assessed by the DCJ and that she would need to demonstrate that her circumstances (namely, those that led to the removal of each of Donatella, Kelli and Andrew) had changed.
Following this call, a Prenatal Report and Contact Record was completed by Macarthur CSC.
On 16 September 2011, Barbara falsely reported to Macarthur CSC that she had miscarried, and the Prenatal Report was closed.
On 24 March 2012, Richard was born, a matter about which the DCJ were not immediately informed.
Richard first came to the attention of the DCJ some three months after his birth, when the DCJ was advised that Julian was having unsupervised contact with Richard.
In June 2012, the DCJ conducted a safety assessment during a home visit to Barbara’s residence. At the time, Barbara was residing at a caravan park and her parents, Harriet Winter and Theodore Winter (together, Harriet and Theodore), lived in the caravan next door. Having initially denied giving birth at all, Barbara then reported that she did in fact carry a child to term but had “given it away” to a friend to care for the child. Barbara then conceded that Richard remained in her care, but she was concerned that he would be removed. The safety assessment by the DCJ could not be completed at this time as Richard was being cared for by a friend who could not be immediately contacted or located.
Eventually, Richard was located and a safety assessment was completed. Concerns were raised as to Richard’s sleeping arrangements; specifically, Richard had then been sleeping in the caravan of Harriet and Theodore in a bassinet that was sitting atop a dressing table. That caravan was a confined space that smelt heavily of cigarette smoke and was determined to be hazardous. Barbara informed caseworkers that Richard would sleep in her caravan moving forward.
Caseworkers considered Richard to be at risk for reasons including Barbara’s attempt to hinder their investigation and the real possibility that she could leave the caravan park and evade the DCJ.
On 17 April 2013, the DCJ filed an application initiating care proceedings in relation to Richard in the Children’s Court.
On 24 April 2013, the Children’s Court made interim orders allocating parental responsibility for Richard to the Minister, pending further order.
On 30 July 2013, a finding was made by the Children’s Court that Richard was a child in need of care and protection.
On 27 August 2013, the DCJ filed a Care Plan in relation to Richard in the Children’s Court (Richard’s Care Plan). Richard’s Care Plan recommended that contact with Barbara occur a minimum of four times a year. Similar arrangements were recommended for Julian. Contact with Donatella was recommended to be a minimum of four times a year and contact with Kelli and Andrew was recommended to be on a monthly basis.
On 28 August 2014, final orders were made in the Children’s Court, placing Richard under the parental responsibility of the Minister until he attains 18 years of age. These orders remain in effect.
The records of DCJ indicate that Barbara participated in the Children’s Court proceedings in relation to Richard and was represented by a solicitor. There is no record which suggested Julian participated in those proceedings.
On 21 October 2013, the DCJ filed an application initiating care proceedings in relation to Cam in the Children’s Court.
On 24 October 2013, the Children’s Court made interim orders allocating parental responsibility for Cam to the Minister, pending further order.
On 16 January 2014, a finding was made by the Children’s Court that Cam was a child in need of care and protection.
On 18 February 2014, the DCJ filed a Care Plan in relation to Cam in the Children’s Court proceedings (Cam**’**s Care Plan). Cam’s Care Plan noted that each of Barbara and Julian continued to report that they were not in an ongoing relationship despite evidence to the contrary, including multiple daily phone calls to one another throughout the period Cam was in care. Cam’s Care Plan recommended that contact with Barbara occur a minimum of four times a year under supervision. Similar contact arrangements were proposed for Julian.
In or around August 2014, during a Children’s Court Clinic assessment, Barbara reported that child pornography images had been found on Julian’s computer some six months previously. Barbara advised that, upon seeing these images, she now believed the child sexual abuse allegations that had been made against Julian. I will note here that on or around 28 April 2014, two counts of possession of child abuse material and one count of production of child abuse material were laid against Julian. Julian was convicted of these charges sentenced to imprisonment for 13 months, which he served between 6 May 2016 and 5 June 2017. However, on the material before me, it is unclear whether those charges and convictions resulted from the circumstances described in this paragraph.
On 28 August 2014, final orders were made in the Children’s Court proceedings relating to Cam, placing Cam under the parental responsibility of the Minister until she attains 18 years of age. These orders remain in effect.
The DCJ’s records indicate that Barbara participated in the Children’s Court proceedings relating to Cam and was represented by a solicitor.
On 17 March 2021, Barbara filed in the Children’s Court an application pursuant to s 90 of the Care Act*,* seeking rescission of the final care orders made in respect of each of Richard and Cam, and for parental responsibility for the children to be solely allocated to her.
On 27 May 2021, Barbara sought leave to amend her s 90 application, seeking parental responsibility for contact only. The DCJ opposed any application to change the orders, and the Independent Legal Representative appointed to Richard and Cam supported the DCJ’s position. Barbara was legally represented during the proceedings. Julian did not participate in them.
On 27 May 2021, the leave sought by Barbara was refused and the Children’s Court dismissed Barbara’s s 90 application. The Children’s Court found that Barbara had not addressed the issues that had led to the children’s assumption into care, and that the children’s best interests would not be met by the instability of a change in care.
On 16 April 2025, the Secretary filed the summons seeking adoption orders for Richard and Cam.
On 4 June 2025, I made orders including that:
Barbara be joined as a defendant to these proceedings pursuant to s 118 of the Act;
Richard and Cam each to be appointed a legal representative pursuant to s 122 of the Act; and
the matter be listed for preliminary hearing on 24 July 2025.
On 24 July 2025, a preliminary hearing occurred in these proceedings before me at which the final hearing was listed on 22 September 2025.
On 22 September 2025, the final hearing of these proceedings was held before me. At that hearing, each of Richard and Cam were separately legally represented and Barbara was self-represented. Ms N Hailstone appeared for the Secretary instructed by the Crown Solicitor’s Office, Ms N Shepherd appeared as Richard’s legal representative, and Ms B Turgot as agent for Ms M Voncina appeared as Cam’s legal representative.
No oral evidence was given at the hearing and the legal representatives for the Secretary, Richard and Cam relied on their respective written submissions, together with the affidavit evidence read by the Secretary without objection.
As already mentioned, Barbara was content to rely on her affidavit evidence alone and filed no written submissions and made no oral submissions at the hearing.
At the conclusion of the hearing, I reserved my judgment.
23 Jurisdiction
(1) Subject to this Act, the Court may make an order for the adoption of a child (an adoption order) solely in favour of one person or jointly in favour of a couple.
…
(2) The Court must not make an adoption order unless, when the application for the order is filed—
(a) the child is present in the State, and
(b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State.
Section 24(1) of the Act provides that an adoption order may be made in relation to a child who is less than 18 years of age as at the date of the application; or who is more than 18 years of age on that date but was cared for by the applicant/s prior to attaining that age.
In respect of an application for adoption by a couple, s 28 of the Act requires that both members of the couple be:
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));
of good repute and fit and proper persons to fulfil the responsibilities of parents (s 28(1)(b)); and
21 or more years of age and at least 18 years older than the child (s 28(3)).
Section 90(1)(c) of the Act requires that proposed adoptive parents must also be selected in accordance with the Act. Section 45F of the Act requires proposed adoptive parents to be assessed and determined to be suitable to adopt.
Section 59 of the Act requires the Secretary to ensure that a person whose consent to an adoption is needed is given the “mandatory written information” before that person consents or refuses consent to the adoption.
Section 87 of the Act provides:
87 Application to be consented to by Secretary
(1) The Court may make an adoption order only on application made by—
(a) the prospective adoptive parent or parents with the consent of the Secretary, or
(b) the Secretary or by a principal officer on behalf of the prospective adoptive parent or parents, or
…
(d) a child who is 18 or more years of age for his or her adoption.
(2) Despite subsection (1) (a), the consent of the Secretary to an application for an adoption order is not required—
(a) if the applicant is a step parent or relative of the child, or
(b) if the application relates to an intercountry adoption.
Section 88 of the Act states that this court cannot make an adoption order unless 14 days’ notice of the adoption application has been given to any person whose consent to the adoption is required under the Act.
Section 91 of the Act requires the applicant to provide a written report prepared by the Secretary or an authorised person.
In the present case, all of the formal requirements under the Act are met. Specifically:
The requirements of ss 23(2)(a) and 24(1)(a) of the Act are met. When the application was filed, each of Richard and Cam was present in New South Wales and less than 18 years of age.
The requirements in ss 23(2)(b) and 28(1)(a) of the Act are met. When the application was filed, both Lydia and Edmund resided and were domiciled in New South Wales.
The requirements of ss 28(3) and (4) of the Act are met. Lydia and Edmund have been in a relationship and have been living together continuously, together with Richard and Cam, for over nine years. Lydia and Edmund are over the age of 21 years, and each is 18 years or more older than Richard and Cam.
The requirements in s 28(1)(b) of the Act are met. For reasons more fully explained below, both Lydia and Edmund are of good repute and fit and proper persons to fulfil the responsibilities of parents.
Each of Lydia and Edmund have been assessed and determined to be suitable to adopt and selected to adopt for the purposes of ss 45F and 90(1)(c) of the Act.
The mandatory written information has been provided to each of Barbara, Julian and Richard in accordance with s 59 of the Act.
The requirements in s 87 of the Act are met. The application is made by the Secretary on behalf of the proposed adoptive parents.
The requirements in s 88 of the Act are met. Each of Barbara and Julian has been provided with at least 14 days’ notice of the adoption application.
The requirements in s 91 of the Act are met. A written report prepared by Gaye Loyola Wilson in accordance with s 91 of the Act has been received and read in respect of each of Richard and Cam (s 91 Report). Ms Wilson provided the s 91 Report in her capacity as an “approved assessor” within the meaning of s 91(2A)(a) of the Act. The s 91 Report was filed on 9 March 2025 and was updated by Ms Wilson by way of addendum filed on 1 September 2025.
90 Court to be satisfied as to certain matters
(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.
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.
The Court may not make adoption order should 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.
Note—
Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt.
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].
An order for adoption is one of great magnitude, particularly 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.
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.
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 for each of Richard and Cam unless for each of them I am satisfied that their best interests will be promoted by the adoption; and that, as far as practicable and having regard to their age and understanding, the wishes and feelings of each of Richard and Cam have been ascertained and duly considered.
I must have regard to the best interests of each of Richard and Cam, 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).
In determining the best interests of a child, I must have regard to the matters contained in s 8(2) of the Act, including:
any wishes expressed by the child;
the child’s age, maturity, level of understanding, gender, background and family relationships and any other relevant characteristics of the child;
the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity;
any wishes expressed by either or both of the parents of the child;
the relationship that the child has with his or her parents and any siblings (if any) and any significant other people (including relatives);
the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood;
the nature of the relationship of the child with each proposed adoptive parent;
the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child;
the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour; and
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 the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.
Fundamental considerations in matters of this kind, the presence or absence of which underlie many of the above-listed matters, is a child’s need for a sense of identity, autonomy, security and belonging. These are complex and core psychological needs of humanity and it has been recognised in this court that any perceived absence or precariousness in this regard can have ongoing consequences for a child in care. The notion of providing a child in care with a sense of security as soon as possible to aid their development in the future was well-described in [2017] NSWSC 1751, by Hallen J at [297]–[299] as follows:
[297] 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].
[298] As was written in Re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793, by McFarlane LJ, with agreement of the other two members of the Court of Appeal (Jackson and Lindblom LJJ), at [64]:
“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.”
[299] Also, if the carers who have developed a strong bond of family relationship with the child feels that they are under threat of an application to the Children’s Court, at any time, for vacation of a care order and the consequent removal of the child from them, then they could be subjected to a level of stress and anxiety that must affect the parental relationship with the child who is in their care: Re Peter at [36].
The requirement in s 90(3) of the Act that the making of the order must be clearly preferable in the best interests of the child rather than any other action that could be taken by law in relation to the care of the child “requires something more than a slight preponderance of considerations in favour of adoption over the alternatives”; and “the requirement that the Court consider that an adoption order be “clearly preferable” is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law”: Adoption of RCC and RZA [2015] NSWSC 813, Brereton J at [14].
Consideration of whether adoption would promote the child’s best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others: Adoption of NG (No 2) [2014] NSWSC 680, Brereton J at [74].
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 in Director General Department of Human Services; Re M [2011] NSWSC 369, Hallen J at [90].
Richard has repeatedly expressed that it is his wish to be adopted by Lydia and Edmund (whom he refers to as “mum” and “dad”, respectively) and to become a “Macauley”.
As Richard is over the age of 12, he is able to consent to his own adoption in accordance with ss 54(2) and 55 of the Act and indeed did so formally on 11 October 2024, in the circumstances described below.
If an adoption order is to be made in relation to Richard, he has requested his given names to be “Richard Henry Winter” and his surname to be “Macauley”.
Richard considers his sibling bond with Cam to be strong. Richard wishes to be adopted alongside Cam and share the same surname in recognition of that familial bond.
Richard’s wishes were confirmed by the written submissions made on his behalf at the hearing. Those submissions detailed, among other things, Richard’s anxiety as to the adoption proceedings in that he is “worried if it doesn’t go through” and he “really hopes it will”. It was submitted that these words demonstrate not only a mere wish or preference, but a “deep emotional need for permanency”.
Cam has repeatedly said that she wishes to be adopted by Lydia and Edmund (whom she refers as “Mummy” and “Daddy” respectively) and that she wants to have “Macauley” as her surname. Cam identified this to be Edmund’s surname and has stated that, because “Mummy” is going to marry “Daddy” soon, “Macauley” would soon “work for all of them” as a surname.
Cam has clearly expressed that it is her desire to be adopted by Lydia and Edmund and has been telling her friends all about it. Cam has also expressed frustration in relation to the length of time the adoption process has taken.
If an adoption order is to be made in relation to Cam, she has requested her given names to be “Camilla Alice Papen” (removing the hyphen from her first name) and her surname to be “Macauley”.
Cam’s wishes were confirmed by the written submissions made on her behalf at the hearing. Those submissions highlighted Cam’s excitement at the prospect of finally being adopted by Lydia and Edmund such that her “big day” (referring to the adoption) could be coming soon.
Richard is 12 years of age and has an understanding of adoption which is appropriate to his age.
For Richard, adoption means “staying with family”, “having certified parents” on his birth certificate, that he and Cam would no longer be in foster care, and that they would share “Macauley” as their same surname.
Richard is aware that, if he and Cam were adopted, each will receive new birth certificates and that Lydia and Edmund will legally be able to make all of the decisions they already make about their day-to-day lives, as well as “bigger ones”, such as travel.
On 30 September 2024, Richard participated in mandatory counselling completed by a registered counsellor, Melinda Gooley. Following this session, Ms Gooley, issued a report in which she determined that Richard had demonstrated the requisite capacity to understand the legal effect of providing consent to his adoption. During this session, Richard referred to Lydia and Edmund collectively as his “parents” and expressed that he wished to have the same surname of the family that he knows and loves.
Like Ms Gooley, I am satisfied on the evidence before me that Richard has attained a level of maturity and understanding such that he understands the legal effect of consenting to his adoption. As I have mentioned previously, Richard’s treating paediatrician, Dr Abernathy, is of the view that Richard’s ASD, ADHD, ODD and OCD did not impair his intellectual ability and have no bearing on his ability to express his wishes or advocate on his own behalf. I have addressed the many ways in which Lydia and Edmund ensure Richard’s needs are met below.
Richard has expressed a strong and clear view that he wishes to be adopted by Lydia and Edmund, whom he identifies as his parents. As I mentioned previously, on 11 October 2024, Richard executed an instrument of consent to his adoption consistent with his wishes.
Cam is currently 11 years of age and so is unable to consent to her own adoption in accordance with ss 54(2) and 55 of the Act. Consequently, if an adoption order is to be made in relation to Cam, it will be necessary for me to dispense with the consent of each of Barbara and Julian pursuant to s 67(1) of the Act, an issue I have addressed below.
Having said this, I have given particular weight to Cam’s wishes in circumstances where they appear on all the evidence before me to be unequivocal. Additionally, Cam at 11 years of age appears to be more than capable of making her views known and has, at the very least, an understanding of adoption which is commensurate with her age.
Cam has said that adoption to her means that she “will stay forever with her forever family”. Cam has a clear sense of belonging with Lydia and Edmund, identifies them as her “parents” and is very eager to become a “Macauley”. Cam identifies Lydia, Edmund and Richard as the family unit to which she belongs and of which she forms a very important part.
Importantly, Cam recognises and knows that she has other family members – being her birth family – but is firmly of the belief that her “forever family” is Lydia, Edmund and Richard.
Like Richard, Cam has diagnoses of ASD, ADHD and ODD and has complex needs and trauma, which significantly impact her behaviour and ability to self-regulate. I have addressed the many ways in which Lydia and Edmund ensure her needs are met below.
All of the physical, emotional and educational needs of each of Richard and Cam have been met by Lydia and Edmund since they commenced caring for them in May 2016.
In terms of cultural identity, the birth family is of Anglo-Australian heritage and so too are each of Lydia and Edmund. Lydia and Edmund are practising Christians and observe Christian holidays such as Christmas and Easter, as well as other public holidays including Australia Day, ANZAC Day and New Year’s Day. Richard and Cam are being raised in the Christian faith and pray each night with Lydia and Edmund.
As mentioned above, both Richard and Cam are neurodiverse and require additional support in this regard, including with their schooling and day-to-day lives. Where challenges have arisen, Lydia and Edmund have addressed them appropriately, including by seeking treatment from relevantly qualified medical professionals.
With regard to Richard:
Richard is good at taking his medication to manage his ADHD and ODD, which allows him to be more settled at school. Richard’s medication regime and developmental progress is regularly reviewed with Dr Abernathy in close consultation with Lydia. Following Dr Abernathy raising concerns about Richard’s struggles with learning and daily selfcare, notwithstanding use of ADHD medication, arrangements were made for a psychometric assessment of Richard in September and October 2024. Various recommendations were made, including that he receive additional help with his daily living skills and independence through an occupational therapist, and that he commence psychological therapy sessions.
Richard completes fortnightly occupational therapy while at school and recently commenced both speech therapy and psychological intervention services. These services assist Richard with emotional management and regulation, and aid in the development of his social skills, daily living skills and communication skills.
As mentioned earlier, Richard has recently started to explore his gender and sexual identity. Both Lydia and Edmund have supported Richard in this regard, including by recent engagement with a psychologist experienced in gender identity, which is reflective of their broader capacity to provide a safe and affirming environment for Richard.
At school, Richard is presently in a support classroom and has struggled academically, particularly with English and written expression. Richard has a designated support team at school, and an Individualised Education Plan (IEP) is being progressed to ensure that his individual needs are met.
With regard to Cam:
Cam has diagnoses of ASD, ADHD and ODD, as well as complex needs and trauma, all of which significantly impact her behaviour and ability to self-regulate.
As mentioned previously, Barbara has informally consented to the adoption of Richard and Cam by Lydia and Edmund but has not provided formal consent under the Act.
Barbara does want either Richard or Cam to feel abandoned by her and wants each of them to know that she did not “give up on them”. Barbara wanted Richard and Cam restored to her care but appears to have accepted that this cannot occur. Barbara is concerned that an adoption would sever the bond between her and her children. Ultimately, Barbara wishes for Richard and Cam to grow up happy and healthy, and for each of them to know that she loves them and always will. Despite her initial opposition to the adoption, Barbara has expressed commitment to working with both Lydia and Edmund in a constructive manner for the sake of both Richard and Cam.
Julian has not participated in the proceedings and does not formally oppose the adoption. Julian has offered only limited engagement with the children’s casework team. When he has engaged with the casework team, Julian has oscillated between expressions of ambivalence or uncertainty in respect of the proposed adoption and, on the most recent occasion, provided informal consent to the adoption.
Barbara: Both Richard and Cam appear to have a very positive relationship with Barbara, whom they lovingly refer to as “Mummy Barbara”. Cam often tells Lydia that she and “Mummy Barbara” are “the best ones except for God”.
Contact visits with Barbara are referred to by all involved as “family time” and so that is how I will refer to them.
Following Cam’s birth in October 2013, Richard and Cam had family time visits with Barbara multiple times a week, and these interactions were described as positive with limited concerns raised. Since 2014, Richard and Cam have generally had monthly, face-to-face family time visits with Barbara, which are organised by Lydia and Edmund in consultation with Barbara. I note this is much more regularly than provided in Richard’s Care Plan and Cam’s Care Plan, which provided for contact or family time visits with Barbara to occur four times a year.
Family time visits with Barbara have continued to be mostly positive and the present arrangements appear to be mutually suitable with only minor disagreements or frustrations over the years as to their frequency or location (including the frequency of phone calls). While St Saviours have provided contact schedules, the most recent of which provided for visits with Barbara to occur at a minimum of three times a year in the Central Coast region (for Barbara’s convenience), both Lydia and Barbara continue to communicate between themselves as and when changes are necessary. Recent family time activities have included rock climbing, mini-golf, barbeques and trips to the local shopping centre.
Julian: Neither Richard nor Cam have any contact with Julian. The last face-to-face contact between Julian and the children occurred on 17 November 2015, which is also the date he was arrested for child-related offences in front of the children. Their last contact with Julian was in 2016. Each of Richard and Cam have advised that they do not want family time with Julian. There are currently no contact arrangements with Julian.
Donatella, Kelli and Andrew: The children have a positive relationship with Donatella, Andrew and Kelli. Where possible, either or both of Kelli and Andrew join family time visits with Barbara. Contact with Donatella is sporadic, mostly owing to her residing in Western Australia. Donatella also has a fractured relationship with Barbara and, while she has indicated a willingness to engage with Richard and Cam, that willingness has not yet led to any meaningful, regular contact with them. However, Donatella and Lydia recently spoke via telephone for 30 minutes in what may prove to be a positive step toward more regular contact. Lydia and Edmund are committed to assisting Richard and Cam maintain a positive relationship and communication with their siblings.
Other family members: Lydia has regular contact with both the extended maternal and paternal families of Richard and Cam, providing photographs and updates via email. Lydia does not receive a response to these emails. As to specific members of the extended birth family:
Lydia and Edmund are the central adult figures in the lives of both Richard and Cam. Each of Richard and Cam understand that Lydia and Edmund are not their parents yet (at least so far as the law is concerned), but they also understand that, no matter what, they will always be a family.
Importantly, both Lydia and Edmund are committed to providing each of Richard and Cam with a sense of stability and security in life as their adoptive parents, while also ensuring that each of them know, and maintain their connection to, their birth family.
In the s 91 Report, Ms Wilson describes the parenting style of Lydia and Edmund as “consistent”, “inclusive” and “very supportive”, showing each of Richard and Cam love and affection. Importantly, Lydia and Edmund are dedicated to the children’s wellbeing, they seek appropriate support where required and they advocate strongly on the children’s behalf with the available support services to ensure their respective needs are met.
Lydia and Edmund describe themselves as “very hands-on and caring parents” who will always love and care for each of Richard and Cam. That love is evident as both Richard and Cam have demonstrated a strong attachment to them and a sense of security with them. Each of Richard and Cam appear to have very little doubt about how immensely they are loved by each of Lydia and Edmund.
Each of Lydia and Edmund have been assessed and determined to be suitable to adopt each of Richard and Cam in accordance with s 45F of the Act, with each being deemed as being a fit and proper person to adopt in accordance with s 28(1)(b) of the Act.
The referees for Lydia and Edmund have observed that they are “united”, supportive of each other and share a good sense of humour. In respect of Richard and Cam, both Lydia and Edmund are said to be “great parents” who are “very involved” with the children.
In their relationship with Richard and Cam, Lydia is said to be “very caring”, solution-orientated and dedicated to helping each of them navigate their adolescence and respective neurodiversity. Edmund is described as being more quiet, patient and jovial. He is said to have a “calming effect” on each of Richard and Cam. All of their referees agree that Lydia and Edmund are a great team and have the capacity to raise both Richard and Cam. There is nothing in any of the material before me which has caused me to have any doubt about that.
Lydia, in particular, is very attentive to the children’s needs and has observed that each of Richard and Cam thrive upon the clear boundaries and routine she has put in place for each of them. Edmund follows Lydia’s lead in this respect, whom he distinguishes as being far more organised than he, and he agrees that Lydia is primarily responsible for managing the children’s needs and the structure of their home life.
Additionally, Lydia and Edmund’s proactive engagement with a broad array of support services, together with the responsive and evolving care plans in respect of each of Richard and Cam, demonstrate their commitment to meeting the emotional and intellectual needs of each of Richard and Cam and reinforces their suitability as adoptive parents.
Each of Lydia and Edmund continually engage with the children’s many therapeutic and medical specialists and openly communicate with each of Richard and Cam about their respective challenges and progress.
It is obvious to me that each of Lydia and Edmund are both suitable and capable to provide for the needs of Richard and Cam.
In my assessment, Richard and Cam do need to be protected from potential physical, sexual and psychological harm which may be caused by Julian.
As I have outlined above, Barbara has previously concealed from the DCJ both her relationship with Julian and his unsupervised contact with Richard. Barbara also dismissed both the child sexual abuse allegations (which were substantiated) and Julian’s conviction for the sexual penetration of a child (being a young boy aged under 13 years). When Richard was assumed into care, he was suffering substantial neglect and took a number of years to achieve developmental milestones. Each of these matters weigh heavily against Barbara’s capacity to be impartial in respect of Julian as well as her capacity to care for and protect each of Richard and Cam from physical or psychological harm.
In summary, Julian’s criminal history combined with the protection history of each of Richard, Cam and their siblings, raise significant concerns as to the capacity of either Barbara or Julian to protect the children from physical harm, psychological harm or abuse. Richard and Cam are best protected by the adoption under which they will remain in the care of Lydia and Edmund and continue to engage in meaningful contact and family time with Barbara.
I may not make an adoption order in respect of each of Richard and Cam unless satisfied that such an order is “clearly preferable” in the best interests of each of Richard and Cam, compared with any other legal measure that could be taken in relation to their care: s 90(3) of the Act.
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: Adoption of RCC and RZA, Brereton J at [14]; Adoption of NG (No 2), Brereton J at [74].
The alternatives to making an adoption order in respect of Richard and Cam in the present case are:
Make no order and maintain the status quo, which is that each of Richard and Cam remain under the parental responsibility of the Minister until each of them is 18 years old.
An order allocating parental responsibility to Lydia and Edmund pursuant to s 92 of the Act (also known as a guardianship order).
An order allocating parental responsibility to either or both of Barbara and Julian pursuant to s 92 of the Act.
The Secretary submits that restoration to either or both of Barbara and Julian is not a “realistic option” and I agree with that assessment. Julian does not seek restoration. While Barbara initially sought – or continues to seek – restoration and has done previously by way of another s 90 application, I am of the view that after nine years living with Lydia and Edmund, restoration would have a significant adverse impact on each of Richard and Cam who have clearly expressed their desire to remain where they are and be adopted.
Making no order and maintaining the status quo of Richard and Cam remaining under the parental responsibility of the Minister until they are each 18 years old would be highly detrimental to Richard and Cam. It would cause the ongoing stress of instability, insecurity and uncertainty to remain with each of them in circumstances where they have already endured the stress of these and prior proceedings regarding parental responsibility for them. Additionally, maintaining the status quo would also mean that the children would remain wards of the state until they attain the age of 18 years and that Lydia and Edmund would be unable to make significant decisions in regard to them without the approval of the Minister’s delegate.
I am particularly minded that each of Richard and Cam have recently reported symptoms consistent with anxiety in respect of the outcome of these very proceedings and that they hope their adoption will go ahead. The prospect of ongoing litigation, including the potential for further applications being made to vary the orders made by the Children’s Court by Barbara, presents a risk of psychological harm to Richard and Cam. I am of the view that any further litigation would only serve to undermine their growing sense of stability and security under the care of Lydia and Edmund.
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.
Pursuant to s 52 of the Act, 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.
The birth parents’ consent to an adoption order is required pursuant to s 52 of the Act unless consent has been dispensed with or the child has provided sole consent to their own adoption: ss 54(1)(b) and (c) of the Act.
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.
Section 67 of the Act sets out the circumstances in which a consent dispense order may be made, providing:
67 When can Court dispense with consent of person other than the child?
(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.
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 Barbara and Julian have been served with the requisite documents and are each on notice of the application to make a consent dispense order.
Dispensing with the consent of a parent is a serious step and not to be done lightly: Adoption of RCC and RZA, Brereton J at [17].
As I have addressed above:
Initially, Barbara strongly opposed the adoption of Richard and Cam by Lydia and Edmund. Most recently, Barbara provided informal consent to the adoption (not the formal consent required under the Act). Julian has most recently expressed only informal consent to the adoption of Richard and Cam by Lydia and Edmund. The result is that neither birth parent has formally consented to the adoption of either Richard or Cam.
Richard has consented to his own adoption in accordance with s 54 of the Act, and so it is not necessary for me dispense with the consent of either Barbara or Julian in respect of Richard.
Cam is currently 11 years old; she cannot consent to her own adoption as Richard has done. Consequently, if an adoption order is to be made in relation to Cam, it will be necessary for me to dispense with the consent of each of Barbara and Julian.
While I am not required to make a consent dispense order in relation to Richard in circumstances where he has provided sole consent to his adoption, I have included him here in my consideration. I have done this for two reasons. First, to remove him from my consideration, despite his integral part in this family and in the bond shared between Richard and Cam, would be an exercise in abstraction which does not accurately reflect the stability and security enjoyed by Cam. Secondly, in circumstances where Barbara has expressed doubts as to the quality of Richard’s consent, I wish to make plain that the outcome of these proceedings would have been no different if I were required to make a consent dispense order in relation to Richard as well.
Sections 67(1)(d)(i) and (ii) of the Act make clear that I may not make a consent dispense order unless satisfied that Cam has established a stable relationship with Lydia and Edmund as her authorised carers, and that adoption by Lydia and Edmund will promote the welfare of Cam.
For the reasons outlined above, I am satisfied as to these matters. Richard and Cam have been living in the home of Lydia and Edmund since 11 May 2016, which is more than nine years. Cam has lived with Lydia and Edmund since she was two years old so that period represents the vast majority of her life. Richard and Cam are both secure and comfortable in the home environment they have with Lydia and Edmund and each of them has strong, positive and loving bonds. Richard and Cam view Lydia and Edmund as their parents and view themselves as part of the family of Lydia and Edmund.
Cam in particular describes this as her “forever family” and says of Lydia and Edmund that she loves how “Mummy and Daddy” give her a hug and kiss before she goes to bed each night.
Lydia and Edmund are the central adult figures in the lives of each of Richard and Cam. Both Richard and Cam display a strong and secure attachment to each of Lydia and Edmund with that sense of security rendered precarious only by reason of these proceedings.
… both Richard and Camilla have a very strong bond with us and we with them. [Lydia] and I love them and are raising them as we would our own, and after 9 years we are a family. We have been called mum and dad by them since toddlers and we always promised them we would look after them no matter what, and we will always love them no matter what. We are the only family that they have memories of living with and have created a home with.
Both Richard and Cam are well-settled with Lydia and Edmund, receiving all of the love, care and support they require to meet their respective needs. Lydia and Edmund are completely supportive of the contact or “family time” that will continue to nurture the relationships between Richard, Cam and their birth family, as detailed in the maternal adoption plan and the paternal adoption plan set out below.
I am comfortably satisfied that dispensing with the consent of each of Barbara and Julian in relation to Cam to allow for the making of adoption orders in favour of Lydia and Edmund is in the best interests of Cam.
101 Names of adopted children
(1) On the making of an adoption order—
(a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and
(b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.
(2) Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.
(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.
(4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.
(5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child.
The effect of s 101(2) of the Act is that I cannot change the name of either Richard or Cam without first considering their express wishes and any factors (such as their respective maturity and understanding) that I consider relevant to the weight to be given to their wishes.
The effect of s 101(4) of the Act is that I cannot change the name of Richard (being a child over the age of 12 years who has given sole consent to his adoption) unless he has also, in a consent given under s 55 of the Act, consented to the name change.
The effect of s 101(5) of the Act is that I cannot change the name of either Richard or Cam unless I am satisfied that the name change is in their respective best interests.
Approval is sought for the name “Richard Henry Winter Macauley” for Richard and the name “Camilla Alice Papen Macauley” for Cam.
Richard and Cam currently have different surnames, with Richard sharing the surname of Barbara and Cam sharing the surname of Julian.
Barbara wishes for the children to retain their current surnames.
The change of name proposed for each of Richard and Cam retains their original given names and their current surnames as an additional given name.
The only material change to their given names is the removal of the hyphen from Cam’s first name in accordance with her wishes and the fact that Cam identifies “Camilla” as her first name and “Alice” as her middle name.
Richard has formally requested his proposed name change alongside providing his consent to his adoption.
Each of Richard and Cam have repeatedly emphasised that they wish to have Edmund’s surname of “Macauley” and that they wish to share the same surname. Cam, in particular, is starting high school next year and would like to use her “new name” and no longer have to explain why her surname is different to that of her brother.
I am satisfied that the proposed name changes in respect of each of Richard and Cam are in their respective best interests. The proposed changes give effect to their repeatedly expressed and unambiguous wishes and will serve to formally recognise their connection not only to Lydia and Edmund but also to each other as siblings. The importance of this connection for each of Richard and Cam was emphasised by Ms Wilson in the s 91 Report, with Ms Wilson recommending that Richard and Cam share the same surname moving forward.
The proposed name changes give legal recognition to the reality that is the “Macauley” family unit, and serve to unite in law siblings who, having overcome significant adversity and uncertainty, have now found their “forever home”.
Taking all of these matters into account, I am satisfied that I should approve the name “Richard Henry Winter Macauley” for Richard and the name “Camilla Alice Papen Macauley” for Cam.
The maternal adoption plan was signed by the delegate of the Secretary on 12 March 2025, by Lydia, Edmund, Richard and Cam on 10 March 2025 and by Barbara on 3 March 2025. An addendum to the maternal adoption plan was signed by Lydia, Edmund, Richard and Cam on 4 September 2025 (September 2025 addendum).
In summary, the maternal adoption plan provides as follows:
The purpose of the plan is to support each of Richard and Cam with the development of their identity as well as maintaining their connection to, and building upon their knowledge of, their maternal family.
Richard and Cam will have supervised face-to-face contact visits or “family time” 12 times a year, with each visit to be for a minimum of two hours in duration. A minimum of two, and up to three, visits a year will take place on the Central Coast. Contact will not occur if Lydia and Edmund form the view that the presentation of Barbara on the day of contact presents any safety concerns for Richard and Cam. If face-to-face family time does not occur, Lydia and Edmund agree to provide updates to Barbara for that missed contact visit, up to 12 times a year.
Lydia and Edmund will support the children making phone contact with Barbara on special occasions, including but not limited to birthdays, Christmas and Easter. Should Richard and Cam wish to make additional telephone contact with Barbara, Lydia and Edmund will facilitate, stay with and support each of Richard and Cam during such calls before transitioning to independent texts and calls at an age-appropriate time.
Lydia and Edmund are supportive of Richard and Cam having supervised face-to-face contact visits or “family time” 12 times a year, with each of Kelli and Andrew in conjunction with Barbara’s visits. Kelli and Andrew may also contact Lydia and Edmund if they would like to arrange extra visits, up to four times a year subject to the children’s wishes. Contact will not occur if Lydia and Edmund form the view that the presentation of either Kelli or Andrew on the day of contact presents any safety concerns for Richard and Cam.
Lydia and Edmund are supportive of Richard and Cam having supervised face-to-face contact visits or “family time” 12 times a year with Donatella whenever she is able to travel. The specific details of these visits will be arranged as between Lydia, Edmund and Donatella, when required. Contact will not occur if Lydia and Edmund form the view that the presentation of Donatella on the day of contact presents any safety concerns for Richard and Cam.
Richard and Cam do not presently have any other phone, email or social media contact with Barbara or their maternal family (other than that outlined above). Lydia and Edmund will monitor any such contact, should it occur, before eventually support the children’s transition to independent calls and texts at an age-appropriate time.
Barbara seeks that the maternal adoption plan be registered.
The Secretary does not seek registration of the plan and that is submitted to be for two reasons:
It is not in the children’s best interests for there to be regimented visits. The children require flexibility and for visits to be guided by them as the move through their teenage years.
As Barbara has signed the maternal adoption plan, and that plan reflects already-in-place arrangements for contact, Barbara’s interests are protected by the right of review she has under s 51 of the Act.
It is further submitted that registration of the maternal adoption plan would offer no clear pathway to enforcement and certainly no added benefit to that which is already available to Barbara under s 51 of the Act.
Relevantly, s 51 of the Act provides that the court may review an adoption plan upon the application of any one or more parties to the plan. Following that review, the court can then make any changes it considers appropriate, revoke the plan or confirm the plan.
I am of the view that each of Richard and Cam will benefit from the flexibility proposed by the Secretary.
The transition into high school is likely to present new challenges and demands on the time of any child (together with their parents). Each of Richard and Cam are navigating their adolescence, in addition to their respective neurodiversity, and there may be days or weeks which prove harder to manage than others. That is certainly what the evidence of each of Lydia and Edmund suggests to be the case presently and that evidence is consistent with the observations of Ms Wilson in the s 91 Report.
Additionally, each of Richard and Cam engage with an evolving variety of support services (which inherently require some flexibility) and I am particularly mindful that there is evidence before me in respect of Richard which suggests there has been a need this year to shift some of those appointments outside of school hours so as not to impact his high school education. With Cam starting high school next year, both children (as well as Lydia and Edmund) may need to occupy more of their nights and weekends getting the support they need to develop and thrive.
Lydia and Edmund have been very accommodating toward Barbara and there is nothing on the evidence before me that suggests that this positive relationship will not continue. Underpinning my confidence in that regard is the fact that both Lydia and Edmund have expressed (by their words and actions) an unwavering commitment to support Richard and Cam in maintaining their connection to their birth family in what are plainly very challenging circumstances. In her own affidavit, Barbara expressed the wish that she, Lydia and Edmund build a stronger relationship and communication for the sake of each of Richard and Cam. I have no doubt that Lydia and Edmund will do everything they can do to facilitate that wish.
The paternal adoption plan has been signed by the delegate of the Secretary on 8 May 2025, and by Lydia, Edmund, Richard and Cam on 5 May 2025.
In summary, the paternal adoption plan provides as follows:
The purpose of the plan is to support each of Richard and Cam with the development of their identity as well as maintaining their connection to, and building upon their knowledge of, their paternal family.
Face-to-face contact with Julian is not currently occurring due to his various criminal offences and the child sexual abuse allegations made against him. Julian has not requested face-to-face contact and is unwilling to travel from Western Australia to New South Wales in any event. Should the children request face-to-face contact with Julian when they are older, Lydia and Edmund are supportive of facilitating this, provided Julian travels to New South Wales. Any such visits will be supervised and occur for a minimum of twice a year with a minimum duration of one hour. Edmund and Lydia would first meet with Julian to introduce themselves and discuss the children’s needs and any behavioural expectations required for face-to-face contact to occur.
Should any contact occur, it is recommended such contact commence indirectly, by Julian writing letters of introduction which can be passed onto the children via his mother, Charlotte Dufresnes, or via Lydia and Edmund. Letters could progress to phone calls or video calls which would be closely supervised given Julian’s criminal history and the child sexual abuse allegations.
Lydia and Edmund are supportive of exploring supervised telephone or electronic communication occurring between Richard, Cam, Julian and their paternal grandmother, Charlotte, in the future, should Richard and Cam request this. Any such communication will be closely monitored.
Due to Julian’s criminal history, including in relation to child-related offences, it is not recommended that Richard and Cam have any contact with Julian via social media. This will ensure that Julian does not have access to photographs of the children.
Lydia and Edmund are supportive of exploring information exchange occurring between Richard, Cam and Julian in the future, should Richard and Cam request this.
Lydia and Edmund have agreed to provide Julian, and their paternal grandmother, Charlotte, email updates about Richard and Cam four times a year.
Neither Richard nor Cam currently wish to have any contact with Julian, and I respect those wishes.
The Secretary submitted that the arrangements proposed in the paternal adoption plan will ensure the children’s safety and are in the children’s best interests. I agree.
In accordance with s 90(2) of the Act, I consider that the arrangements proposed in the paternal adoption plan are in the best interests of each of Richard and Cam and are proper in the circumstances.
As a final matter, the Secretary seeks an ancillary order pursuant to s 45(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW), by which this court orders the Registrar of Births, Deaths and Marriages to correct the Register in respect of the following identified misspelling and omissions on Richard’s original birth certificate:
“Osbore Park” be corrected to “Osborne Park”; and
under the heading “Previous Children of Relationship”, include “Kelli Effie 9” and “Andrew Dixon 7”.
Section 45 of the Births, Deaths and Marriages Registration Act 1995 (NSW) relevantly provides:
45 Correction of Register
…
(2) The Registrar must, if required by a court, correct the Register.
(3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
The Secretary submits it is appropriate that I make such an order to ensure that Richard’s original birth certificate is accurate for his own sense of identity and to ensure that, upon the issue of any integrated birth certificate is respect of Richard, it too is accurate.
I am satisfied that the two matters identified by the Secretary are the result of a misspelling and omissions and that they ought to be corrected for the reasons identified by the Secretary.
For the reasons given above, I propose to make the following orders and notations in relation to Richard:
Pursuant to s 23 of the Adoption Act 2000 (NSW), order for the adoption of the child, Richard Henry Winter, in favour of the adopting parents, Lydia Gloria Corcoran and Edmund Charles Macauley.
Pursuant to s 101(1) of the Adoption Act 2000 (NSW), order the approval of the name “Macauley” as the surname and “Richard Henry Winter” as the given names of the child.
Pursuant to s 45(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW), order the Registrar of Births, Deaths and Marriages to correct the Register in respect of the following identified misspellings and omissions on the original birth certificate of Richard Henry Winter (to be renamed Richard Henry Winter Macauley in accordance with Order 2):
(a) “Osbore Park” be corrected to “Osborne Park”; and (b) under the heading “Previous Children of Relationship”, include “Kelli Effie 9” and “Andrew Dixon 7”.
It is noted that the court is satisfied that the arrangements proposed in the Maternal Adoption Plan signed in March 2025 and the addendum to the Maternal Adoption Plan signed in September 2025, copies of which will be annexed to the orders and marked “A”, are in the child’s best interests and are proper in the circumstances.
It is noted that the court is satisfied that the arrangements proposed in the Paternal Adoption Plan signed in May 2025, copies of which will be annexed to the orders and marked “B”, are in the child’s best interests and are proper in the circumstances.
For the reasons given above, I propose to make the following orders and notations in relation to Cam:
Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the requirement for the consent of the child’s birth mother, Barbara Margot Winter, is dispensed with.
Pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW), the requirement for the consent of the child’s birth father, Julian Andrew Papen, is dispensed with.
Pursuant to s 23 of the Adoption Act 2000 (NSW), order for the adoption of the child, Camilla-Alice Papen, in favour of the adopting parents, Lydia Gloria Corcoran and Edmund Charles Macauley.
Pursuant to s 101(1) of the Adoption Act 2000 (NSW), order the approval of the name “Macauley” as the surname and “Camilla Alice Papen” as the given names of the child.
It is noted that the court is satisfied that the arrangements proposed in the Maternal Adoption Plan signed in March 2025 and the addendum to the Maternal Adoption Plan signed in September 2025, copies of which will be annexed to the orders and marked “A”, are in the child’s best interests and are proper in the circumstances.
It is noted that the court is satisfied that the arrangements proposed in the Paternal Adoption Plan signed in May 2025, copies of which will be annexed to the orders and marked “B”, are in the child’s best interests and are proper in the circumstances.
**********
Barbara acknowledges the efforts made by each of Lydia and Edmund in raising her children so far and hopes that they can continue to communicate with each other, grow together, and build a stronger relationship with one another for the sake of both Richard and Cam.
Shortly before the hearing in this matter, Barbara communicated that she would informally consent (or no longer oppose) the adoption of each of Richard and Cam provided certain amendments were made to the maternal adoption plan and that the plan be registered. The maternal adoption plan and the content of those amendments are addressed below.
On 10 April 2006, an Emergency Care and Protection Order (ECPO) application concerning each of Donatella and Kelli was dismissed by the Children’s Court. Thereafter, Donatella and Kelli were returned to Barbara’s care. Andrew remained in foster care throughout this time.
On 19 April 2006, Donatella and Kelli were permanently removed from Barbara’s care after the DCJ discovered that Julian was frequenting Barbara’s residence daily and residing nearby. At this time, Barbara continued to dispute the child sexual abuse allegations and the DCJ held concerns that Barbara would not protect Donatella and Kelli from further sexual abuse. The DCJ were also concerned that Barbara could move to another state, together with her children if they were restored to her care, to evade the DCJ and avoid further child protection concerns being raised or acted upon.
Care Plans filed in the Children’s Court proceedings conducted in respect of Donatella, Kelli and Andrew detail a sad history of neglect, poor hygiene and exposure to domestic violence.
On 6 February 2007, the Children’s Court made final orders in respect of Donatella, Kelli and Andrew, allocating parental responsibility for each of them to the Minister for Families and Communities until they attained the age of 18 years.
For completeness, I will note here that in October 2020, Kelli exited out-of-home care having attained the age of 18 years and, following this, Kelli began residing with Barbara with whom she continues to reside today.
In August 2012, Barbara and Richard were referred to a residential service, to which they both were admitted on 21 January 2013 for a period of five days. Throughout their admission, staff observed that Barbara interacted minimally with Richard, spoke to him in an inappropriate manner and required support to meet his basic physical and emotional needs.
On 10 April 2013, DCJ caseworkers received a report that Barbara had abruptly vacated her caravan without notice and with outstanding rent and electricity bills. At this time, DCJ caseworkers were also informed that Julian was residing in the same caravan park, in the caravan next door to the caravan occupied by Barbara and Richard.
On 12 April 2013, Barbara had a meeting with Campbelltown Community Services Centre (Campbelltown CSC) regarding Richard’s family time with his siblings, Donatella, Kelli and Andrew. At this meeting, caseworkers asked Barbara if she would consent to Richard undergoing a DNA test for paternity. Barbara agreed and reiterated that Julian was not Richard’s father.
On 15 April 2013, Barbara contacted Campbelltown CSC caseworkers and asked what the consequences would be if Julian refused to undergo a DNA test as Barbara said she could not contact Julian. Caseworkers advised that Julian was not required for DNA testing, as they could test Richard’s DNA against that of his siblings to determine paternity.
On 17 April 2013, during a home visit, Barbara provided a handwritten letter to caseworkers confirming that Julian was in fact Richard’s father and also the father of her unborn child, Cam. At this time, Barbara stated to caseworkers that she did not believe the child sexual abuse allegations made against Julian and that Julian’s sexual assault conviction as a juvenile “did not count” because he was only an adolescent at the time.
On 17 April 2013, Richard was removed from Barbara’s care following receipt of two Risk of Significant Harm (ROSH) reports in relation to Richard having unsupervised contact with Julian and that Richard was therefore at risk of sexual harm or injury.
Richard was initially placed in a short-term emergency placement.
On 22 April 2013, caseworkers contacted a caravan park, employees of which advised that Julian had been a resident for approximately three years and that they believed Barbara and Julian were in a relationship.
On 30 April 2013, Richard was placed with foster carers Frank and Celia Morrow, residing together with them and their two children.
On 16 October 2013, Cam was born.
On 18 October 2013, Cam was removed from Barbara’s care at just two days old. Cam was also placed with Frank and Celia, in what was then regarded as a potential long-term placement option for both Richard and Cam.
On 28 August 2014, final orders were made in the Children’s Court, placing each of Richard and Cam under the parental responsibility of the Minister until they attain 18 years of age.
On 9 February 2015, case management for Richard and Cam was transferred to St Saviours, a member of Anglicare Australia. St Saviours have responsibility for assessment, case planning, implementation, monitoring, review, placement transition and case closure as well as full financial responsibility for placement costs and supports. The DCJ and St Saviours have joint responsibility for decisions to seek to change court orders and providing after-care assistance. The caseworker with day-to-day responsibility for Richard and Cam is Jade Annetts.
Both Richard and Cam remained with Frank and Celia until the breakdown of that couple’s relationship in May 2016.
On 11 May 2016, both Richard and Cam were placed with Lydia and Edmund, in whose care they have remained ever since.
Cam has demonstrated significant progress in self-regulation at school, supported by sensory strategies such as access to a designated “calm corner”.
Despite this, Cam can still struggle at times with emotion regulation in the home with outbursts including both physical and verbal aggression towards members of her family, including Richard. Cam is always apologetic after such incidents, and these behaviours have been attributed to both normal hormonal changes during puberty and complex trauma. Cam continues to engage with occupational therapy to assist her in this regard, including by developing strategies such as breathing exercises and using her bedroom as a calm space.
While Cam is currently meeting expectations in personal development, she still requires monitoring and support for hygiene routines, such as showering and brushing her teeth.
At school, Cam is putting increasing effort into her schoolwork and has demonstrated significant improvement in her writing skills. Cam has the benefit of being more socially engaged than Richard such that she is more likely to manage in a mainstream classroom setting. Cam is also supported by an IEP, with adjustments including one-on-one learning support and access to the calm corner.
Cam currently receives weekly speech therapy, fortnightly occupational therapy, and attends a fortnightly social skills group at school.
The Secretary submitted that, as both Richard and Cam have complex needs, it is in their best interests to be parented by the two people that know them best in Lydia and Edmund. I agree.
Lydia and Edmund are ensuring Richard and Cam receive an education which is tailored to their specific physical, emotional and educational needs. Both Lydia and Edmund have demonstrated commitment to engage with their respective schools, as well as additional services where required. Additionally, each of Richard and Cam rely heavily upon the tailored routine and structure Lydia has carefully put in place for each of them.
In terms of personal, family and cultural identity, each of Richard and Cam are securely attached to both Lydia and Edmund. I have little doubt the import of that sense of security will only grow as each of Richard and Cam navigate adolescence and the unique challenges of “growing up” which are ahead of them. Both Richard and Cam identify Lydia and Edmund as their “parents” and their adoptive family is simply their “family” or, in the words of Cam, their “forever family”.
While Harriet and Theodore have expressed a desire to attend family time visits, this has been difficult to arrange due to the fact they reside in New South Wales, a considerable distance from where Richard and Cam live.
Members of the extended maternal family, including the maternal aunts and cousins of Richard and Cam, attend family time visits with Barbara when they are able to do so.
Lydia is very supportive of both Richard and Cam attending birthdays and other gatherings held by their birth family.
Richard and Cam also remain in contact with their previous carer, Celia, with whom they have a strong connection and to whom they refer as “Aunty Celia”. Richard and Cam occasionally stay overnight with Celia every couple of months and play with Celia’s three grandchildren.
Evidently, the birth family dynamic is complex, likely far more than each of Richard and Cam presently understand, and one day this may be a challenge for them to navigate. I have no doubt that each of Lydia and Edmund will support them when that time comes.
If I were to maintain the status quo and make no order, this would mean that, notwithstanding the assumption of the role of parents by Lydia and Edmund and the provision of care in kind by each of them to Richard and Cam for the past nine years, and the perception of Lydia and Edmund as their parents and their primary caregivers, they would not be legally recognised as the parents of Richard and Cam. It would also place additional pressures on the placement, owing to the need for Lydia and Edmund to seek consents and approvals regarding decisions about Richard and Cam on an ongoing basis. An adoption order has the advantages of certainty and permanency. Making no order risks that Richard and Cam may experience insecurity, uncertainty and ongoing trauma, or at least internal disquiet, arising, for instance, from the fact that they would each continue to be the foster-children of Lydia and Edmund, rather than their son and daughter respectively, at least so far as the law is concerned. Richard and Cam are deserving of a more certain outcome.
The same can be said for an order allocating parental responsibility to Lydia and Edmund. An order allocating long-term parental responsibility for Richard and Cam to Lydia and Edmund (a guardianship order) – while achieving some of the functional aims served by an adoption order, lacks the symbolic and expressive value of a formal adoption order. A parental responsibility order, insofar as it would expire when each of Richard and Cam attains 18 years of age, lacks the permanence and sense of ongoing belonging afforded by an adoption order. Such shortcomings have been remarked upon in A Child Proposed for Adoption [2019] NSWSC 1653, by Slattery J at [165] as follows:
In the s 91 Report, based on her observations, Ms Wilson highlighted the length of time that each of Richard and Cam had been in the care of Lydia and Edmund and emphasised a strong sense of love, trust, belonging and family shared among the four of them. This sentiment is perhaps best expressed in the evidence before me by Edmund where, in his written evidence he states the following:
Lydia and Edmund agree to contact Barbara directly or, if they cannot reach Barbara, via the DCJ Adoption Information Unit in the event of Richard and Cam sustaining a serious illness, injury or in the event of death.
At their family time visits, Richard, Cam and Barbara will exchange gifts, and cards, as well as any items that they would like to share with Barbara. Similarly, gifts, cards and any other items of interest will be exchanged at the contact visits between Richard, Cam, Donatella, Kelli and Andrew.
If Barbara would wish to send additional gifts, cards and letters outside of face-to-face family time visits, Barbara can send these to the DCJ Post Adoption Information Unit who will forward them on to the children (this being the subject of the September 2025 addendum).
As mentioned previously, prior to the hearing, Barbara, Lydia and Edmund reached agreement as to the maintenance of a PO Box so that gifts, cards and letters can be exchanged outside of face-to-face family time visits. Barbara’s parents have agreed to fund that PO Box and each of Lydia and Edmund have indicated that they are content to utilise it on that basis. No amendment to the maternal adoption plan was proposed in this respect.
Family time visits with Barbara are generally positive. Everyone appears to get along and enjoy each other’s company, particularly Richard and Cam. Lydia and Edmund have been generous in their time with the proposed arrangements, as the distance and travel can be challenging for the children to manage. Barbara often arrives late or finishes family time visits early and Barbara typically chooses the venue or activity for those visits. Lydia and Edmund do all they can to accommodate Barbara’s time with each of Richard and Cam and support the children maintaining a connection with Barbara and their broader maternal family.
In accordance with s 90(2) of the Act, I consider that the arrangements proposed in the maternal adoption plan are in the best interests of each of Richard and Cam and are proper in the circumstances.
If any issue should later arise with the arrangements in the maternal adoption plan (which largely reflect longstanding contact arrangements), Barbara maintains her right of review in accordance with s 51 of the Act.
For these reasons, I do not propose to order that the maternal adoption plan be registered.