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[2026] NSWSC 1044
Supreme Court of NSW
2026-09-02
Nixon J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Adoption of Sylvia Forester (anonymised) [2026] NSWSC 1044
Hearing dates: On the papers
Date of orders: 2 September 2026
Decision date: 02 September 2026
Jurisdiction: Equity - Adoptions List
Before: Nixon J
Decision: Orders for adoption made; consent of mother dispensed with; change of name approved
Catchwords: CHILD WELFARE – adoption whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother should be dispensed with – whether change of name should be approved
Legislation Cited: Adoption Act 2000 (NSW) ss 8, 23, 24, 28, 45F, 50, 52, 59, 67, 68, 87, 90-92, 101
Children and Young Persons (Care and Protection) Act 1988 (NSW) s 67, Dictionary to the Act
Cases Cited: Adoption of JLK and CRK [2017] NSWSC 7
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of Tiana (a pseudonym) [2024] NSWSC 1561
Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521
Director General Department of Human Services; Re M [2011] NSWSC 369
In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793
Re Adoption of BL [2018] NSWSC 391
Re B (A Minor) [2002] 1 All ER 241; [2001] UKHL 70
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 by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087
The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763
Category: Principal judgment
Parties: The Secretary, New South Wales, Department of Communities and Justice by his delegate, Principal Officer, Adoptions, Barnardos Australia (Plaintiff)
Representation: Counsel:
Solicitors:
File Number(s): 2026/246597
Publication restriction: This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW)
This proceeding concerns the proposed adoption of a child, whom I will call Sylvia Forester, who is aged four, by Brooke Summers and Ash Henry Summers (proposed adoptive parents) (not their real names). For convenience, and without intending any disrespect, I will refer to each of the individuals involved in this matter by his or her first name.
By Summons filed 5 May 2026, the Secretary, NSW Department of Communities and Justice (DCJ), by his delegate, Principal Officer, Adoptions, Barnardos Australia (Delegate), seeks the following orders:
an order, pursuant to s 67(1)(d) of the Adoption Act 2000 (NSW) (Act), dispensing with the consent of Sylvia’s birth mother;
an order, pursuant to s 23 of the Act, for the adoption of Sylvia Forester, in favour of the proposed adoptive parents;
an order, pursuant to s 101(1) of the Act, approving the name “[Summers]” as the surname and “[Sylvia]” as the given names of Sylvia;
an order, pursuant to ss 50(1) and (3) of the Act, that the Maternal Adoption Plan, signed by Sylvia’s birth mother, the proposed adoptive parents and Barnardos’ Principal Officer, be registered; and
an order, pursuant to ss 50(1) and (3) of the Act, that the Paternal Adoption Plan, signed by Sylvia’s birth father, the proposed adoptive parents and Barnardos’ Principal Officer, be registered.
The Delegate also seeks a notation to the orders that the Court is satisfied that the arrangements proposed in each of the Maternal Adoption Plan and the Paternal Adoption Plan are in Sylvia’s best interests and are proper in the circumstances.
On 13 May 2022, Sylvia was born at X Hospital in New South Wales.
Sylvia’s birth parents, as registered on her birth certificate, are Willow Forester and Rowan Steven Rhodes (not their real names).
On 8 June 2024, Sylvia was placed in the home of Brooke and Ash for permanent care with an adoption goal. Sylvia was two years old at the time of placement, and has lived with the proposed adoptive parents since that date.
Brooke is aged 52 and Ash is aged 54. Sylvia resides with Brooke and Ash and their biological daughter, whom I will call Hazel Claire Summers, who is 13 years old.
Sylvia also has one paternal half-sibling, whom I will call Robin Kelly, who is 18 years of age. Robin resides with his birth mother.
Sylvia’s placement with Brooke and Ash occurred in circumstances where the DCJ had received eleven Risk of Significant Harm (ROSH) reports regarding Sylvia between May 2022 and August 2023. Concerns in these reports related to domestic violence, substance abuse, mental health, psychological harm, neglect, physical abuse and a failure to protect Sylvia from others.
On 29 September 2021, Rowan was arrested and charged with domestic violence offences against Willow, who was pregnant with Sylvia at the time. Rowan was subsequently incarcerated for those offences in 2022.
On 16 May 2022, a high-risk birth alert was issued in respect of Sylvia, due to prenatal concerns pertaining to substance abuse, risk of neglect, parental mental health and exposure to domestic violence.
On 20 July 2023, the DCJ received a ROSH report which raised concerns for Sylvia’s welfare due to alleged medical neglect, parental substance abuse and transience. The report was issued in circumstances where Sylvia had presented to X Hospital to be treated for a significant scabies infestation for a third time. The Delegate gave evidence that the DCJ had sought to work with Willow to address her substance abuse and mental health issues, but that Willow had displayed disregard for the recommendations made by the DCJ.
On 23 August 2023, the DCJ received information that Willow had been arrested for assaulting her mother, Rosaline Forester (not her real name). Rosaline advised that she needed to attend hospital due to her injuries and, as a result of Willow’s arrest, no carer was available for Sylvia. (As at that date, Rowan remained incarcerated for the domestic violence offences committed in 2021.)
On 23 August 2023, the DCJ made the decision to assume Sylvia into the care of the Minister for Families, Communities and Disability Services, pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1988 (NSW) (Care Act).
On 29 August 2023, an interim order was made by the Children**’s** Court of New South Wales allocating parental responsibility for Sylvia to the Minister. During the proceedings, no suitable family members were identified as being able to properly care for Sylvia.
On 22 January 2024, the Secretary filed a Care Plan in relation to Sylvia in the Children’s Court. The Care Plan noted that there was no realistic possibility of Sylvia being restored to either Willow’s or Rowan’s care and recommended that parental responsibility be allocated solely to the Minister.
On 16 May 2024, the Children’s Court made final orders, pursuant to the Care Act, placing Sylvia under the parental responsibility of the Minister until she attains the age of 18 years. These orders remain in effect.
On 8 June 2024, Sylvia was placed with Brooke and Ash.
On 1 April 2025, the Secretary filed a report in the Children’s Court, pursuant to s 82 of the Care Act, which provided an update in relation to Sylvia’s placement with the proposed adoptive parents and her contact with her birth parents. The s 82 report stated that Sylvia’s interactions with Brooke and Ash were noted to be “warm, affectionate and loving”, and that Brooke and Ash had “demonstrated capacity to meet [Sylvia’s] physical, health, educational, emotional and social needs”.
On 24 November 2025, the Delegate consented to the adoption of Sylvia.
On 4 May 2026, Rowan provided his written consent to Sylvia’s adoption.
Willow has not provided written consent to Sylvia’s adoption. On 18 June 2026, Willow was given notice, pursuant to s 88(1)(a) of the Act, of the application for the adoption order in respect of Sylvia; and notice, pursuant to s 72(1) of the Act, of the Plaintiff’s application for an order dispensing with the requirement of her consent to Sylvia’s adoption.
Willow has not appeared in this proceeding to oppose the orders sought.
The formal requirements necessary to enliven the Court’s jurisdiction to make an adoption order under the Act are satisfied. In particular:
the application is made by the Secretary by his delegate, the Principal Officer of Barnardos (s 87(1)(b));
when the application was filed, Sylvia was present in New South Wales and was less than 18 years of age (ss 23(2)(a), 24(1)(a));
the proposed adoptive parents are resident and domiciled in New South Wales (ss 23(2)(b), 28(1)(a)), meet the age requirements for adoption (s 28(3)) and, having regard to the evidence before the Court, are of good repute and fit and proper persons to fulfil the responsibilities of parents (s 28(1)(b));
the proposed adoptive parents have been assessed and determined to be suitable to adopt and have been selected in accordance with the Act (ss 45F, 90(1)(c));
the birth parents have been provided with a copy of the mandatory written information (s 59); and
a report concerning the proposed adoption has been provided to the Court by Sylvia’s current Case Manager at Barnardos (s 91(1)).
The principles regarding the making of an adoption order are well established. I have adopted the following summary of those principles from my decision in The Adoption of Ashleigh (a pseudonym) [2024] NSWSC 763.
As was noted by Sackar J in Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9], the determination of applications for adoption is “arguably the most important work” of the Equity Division of this Court, representing “one of the most profound and important decisions a judge can be called upon to make”.
In Re the Adoption of CCS and FLS [2019] NSWSC 71 at [150], Hallen J described the significant and far-reaching nature of an adoption order as follows:
“An adoption order is status changing. It severs, in law, but not in fact, the existing relationship of blood, and creates an adoptive relationship in place of the natural relationship, which in fact, although not in law, continues, unchanged. New family ties are created which approximate blood ties. The child becomes part of his, or her, adoptive parents’ family, solely through operation of law, and there is no necessity for any actual blood relationship to exist between them. He, or she, thereafter, is regarded, in law, as the child of the adoptive parents, and the adoptive parents are regarded in law as the parents of the adopted child: s 95(2)(c) of the Act. The adopted child also ceases to be regarded, in law, as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child: s 95(2)(d) of the Act. The effect of an adoption order is to extinguish any parental responsibility of the birth parents. They no longer qualify as parents for the purpose of taking part in any future proceedings about the child. Thus, the adoption order directly affects three parties, namely the child, the birth parents and the adoptive parents.”
When making a decision about the adoption of a child, the paramount consideration to which the Court must have regard is the best interests of the child, both in childhood and later life: s 8(1)(a) of the Act.
In Adoption of JLK and CRK [2017] NSWSC 7, Brereton J, at [12], described the key aspects of the paramountcy principle as follows:
“The ‘paramountcy principle’ contained in par (a) means that the inquiry is child and future focused: as the best interests of the children, both in childhood and later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives) so as to ascertain which will best serve the interests of these children now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future).”
The Court must also have regard to the principles that adoption is to be regarded as a service for the child; that no adult has a right to adopt the child; that, if the child is able to form their own views on a matter concerning their adoption, the child must be given an opportunity to express those views freely and such views are to be given due weight; and that the child’s given names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved: ss 8(1)(b)-(e) of the Act.
The Court must not make an adoption order unless it is satisfied that the best interests of the child will be promoted by the adoption and that, as far as practicable and having regard to the child’s age and understanding, their wishes and feelings have been ascertained and due consideration given to them: ss 90(1)(a)-(b) of the Act.
The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion, which will be inherently imprecise, must be reached: Director General Department of Human Services; Re M [2011] NSWSC 369 at [90] (Hallen J), citing Re B (A Minor) [2002] 1 All ER 241; [2001] UKHL 70 at [16] (Lord Nicholls of Birkenhead).
In determining the best interests of Sylvia, I must have regard to the matters set out in s 8(2) of the Act including, relevantly:
(a) any wishes expressed by Sylvia; (b) Sylvia’s age, maturity and level of understanding; (c) Sylvia’s physical, emotional and educational needs, including her sense of personal, family and cultural identity; (d) any wishes expressed by either Willow or Rowan; (e) the nature of the relationship that Sylvia has with Willow, Rowan and any siblings or significant other people; (f) the attitude of Brooke and Ash to Sylvia and to the responsibilities of parenthood; (g) the nature of Sylvia’s relationship with Brooke and Ash; (h) the suitability and capacity of Brooke, Ash, or any other person, to provide for Sylvia’s needs, including her emotional and intellectual needs; and (i) the alternatives to the making of an adoption order and the likely effect on Sylvia, in both the short and longer term, of changes in her circumstances caused by an adoption, so that adoption is determined, among all alternative forms of care, to best meet the needs of Sylvia.
The Court may not make an order for adoption unless it is satisfied that the making of such an order is “clearly preferable” in the best interests of the child than any other action that could be taken by law in relation to their care: s 90(3) of the Act. That is, the Court must be satisfied that the making of an adoption order is obviously, plainly or manifestly preferable to any other action that could be taken by law: Adoption of RCC and RZA [2015] NSWSC 813 at [14] (Brereton J).
Consideration of whether adoption would promote the best interests of the child and whether it is clearly preferable to any other order involves the identification of the likely effects of adoption and an examination of the benefits and detriments of each alternative from the perspective of the best interests of the child: Adoption of NG (No 2) [2014] NSWSC 680 at [74] (Brereton J).
The Case Manager has reported that Sylvia “has made positive gains across all domains” whilst in Brooke and Ash’s care; that Brooke and Ash have “tailored their parenting approach, daily routine and the home environment to meet [Sylvia’s] needs”; and that Sylvia has “settled well and already identifies herself as a member of the family”.
The Case Manager also noted that Hazel was pleased that Sylvia’s adoption was progressing, and that Hazel viewed Sylvia as her little sister.
Similarly, the Delegate has given evidence that “[Sylvia] is thriving in the care of [Brooke and Ash] and she identifies with them as being her family”, and that Sylvia has been observed “to display signs of secure attachment to both the proposed adoptive parents, seeking and accepting affection from them both”. The Delegate also gave evidence that Sylvia is in good physical health, and that Brooke and Ash have ensured that her health is reviewed regularly, and that her immunisations are up to date. Further, they have facilitated Sylvia’s attendance, as required, at dental, paediatric and audiology appointments.
On 13 January 2025, Sylvia began attending childcare one day per week. This has since increased to three days per week. She is reported to “enjoy attending” and to have “settled well into the learning environment”. The Case Manager has described Sylvia as a “keen learner” and as a child “who masters new skills and abilities quickly”. The Case Manager has also noted that, other than “small issues that are age appropriate”, Sylvia’s educators have not raised any major developmental concerns and that she was steadily “building her independence”. Sylvia is expected to commence Kindergarten in 2028.
Sylvia has also been involved in several extracurricular activities and is currently enrolled in weekly swimming lessons.
Sylvia has Australian heritage on her paternal side of the family and Italian heritage on her maternal side.
Brooke and Ash have ensured that Sylvia has an awareness and appreciation for her Italian heritage. They have made a conscious effort to involve her in various aspects of Italian culture in age-appropriate ways, including by encouraging Sylvia to explore Italian food, taking Sylvia to local Italian cultural festivals and by showing Sylvia books and films concerning Italian culture. Ash has given evidence that he and Brooke intend for Sylvia to have access to the Duolingo application or website to enable her to learn some common Italian language and phrases.
A Cultural Care Plan has been developed for Sylvia to provide ongoing guidance on how her identity and culture can be supported by the proposed adoptive parents.
The proposed adoptive parents do not intend to raise Sylvia in any religious faith. Willow’s religious beliefs are unknown. Rowan was raised in the Christian faith but is no longer practising.
The Case Manager has reported that although Sylvia is still too young to understand the concept of open adoption, Brooke and Ash are actively encouraging her to learn about her personal history and have demonstrated a commitment to maintaining Sylvia’s connection with her birth parents and family.
Brooke and Ash have developed a Life Story book for Sylvia. The book includes information and photographs about Sylvia’s family and the circumstances surrounding her entry into care. In addition, Brooke and Ash have also placed a trinket box in Sylvia’s bedroom containing memorabilia from key events in her life. Brooke and Ash also display photographs of Sylvia’s family throughout their home.
Brooke and Ash have facilitated face-to-face contact with each of Willow and Rowan on a monthly basis and have provided email updates and photographs of Sylvia to each of them in between those face-to-face visits.
Sylvia maintains a positive relationship with both of her birth parents, referring to them as “Mummy Willow/Willow” and “Daddy Rowan/Rowan” respectively.
Brooke and Ash have also taken steps to maintain Sylvia’s contact with her extended family. Sylvia is in regular contact with her paternal grandparents, Marigold and Grover Rhodes (not their real names). Rowan has twelve visits per year with Sylvia, all of which he attends, and Marigold and Grover also participate in each of those visits. The Case Manager has reported that “[Sylvia] enjoys spending time with [Rowan] and her grandparents” and that they “shar[e] positive interactions and affection during visits”.
On 30 January 2026, the Case Manager contacted Marigold to obtain her views on adoption. Marigold stated that “she couldn’t ask for better people to have [Sylvia]” and that she and Grover “get along with [Brooke and Ash] like a house on fire”. Marigold has also stated that under Brooke and Ash’s care, “[Sylvia] is coming along in leaps and bounds”. She confirmed that she is happy for the adoption to proceed. Grover has also stated that he was “very happy” and had “no issues” about the adoption.
Brooke and Ash have also maintained contact with Sylvia’s maternal aunt, Sage Forester. Sage attended a family visit with Willow on 14 December 2024 but has since been unable to attend any further face-to-face visits. Brooke and Ash continue to email Sage photos and updates concerning Sylvia on a quarterly basis and invite Sage to attend family visits.
Barnardos has made several attempts between April 2024 and April 2026 to contact Rosaline, Sylvia’s maternal grandmother, to obtain her views on the adoption and to discuss family time visits. These have been unsuccessful.
Having regard to the evidence before the Court, I am satisfied that Sylvia’s emotional, physical, educational and cultural needs are being met by Brooke and Ash.
The alternatives to making an adoption order would appear to be as follows:
to make an order under s 92 of the Act allocating parental responsibility to either Willow or Rowan;
to make no order and to maintain the status quo (namely, that Sylvia is in the parental responsibility of the Minister until she attains the age of 18); or
to make an order under s 92 of the Act allocating parental responsibility to Brooke and Ash.
Neither Willow nor Rowan is seeking the restoration of Sylvia to their care. Rowan has remarked that he is “more than happy” for the adoption to proceed and that he “couldn’t ask for anything better” than for Sylvia to remain in Brooke and Ash’s care. Willow has stated that she is “happy for [Sylvia] to be placed with a loving family”, explaining that: “I want my daughter more than anything, but at the same time I can’t give her the best”.
Sylvia has been in the care of Brooke and Ash for an extended period and she identifies with her adoptive family, such that removing her from their care and their home would likely be a source of significant distress.
Having regard to those matters, I accept that the restoration of Sylvia to the care of either Willow or Rowan would introduce uncertainty and risk factors which are not currently present and is not a realistic option.
If I were to make no order and were to maintain the status quo, Brooke and Ash would be unable to make significant decisions concerning Sylvia, as those decisions would require the approval of the Minister by his delegate.
An order allocating parental responsibility for Sylvia to Brooke and Ash would alleviate some of the disadvantages of maintaining the status quo. However, this would remain a temporary order that would expire when Sylvia attains 18 years of age. It therefore lacks the permanency of an adoption order and would result in Sylvia losing her legal connection to her psychological family when she attains adulthood.
One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters: In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 at [64] (McFarlane LJ, with whom Jackson and Lindblom LJJ agreed). Adoption serves the identity needs of the child in question, in circumstances where the child is emotionally, psychologically and residentially already a member of the proposed adoptive family, by bringing the child’s legal status into conformity with reality, and by perfecting the child’s sense of permanent belonging in the family with which he or she identifies, not only during childhood but for life: Adoption of Taylor-Clay [2019] NSWSC 27 at [58] (Brereton J).
In Re the Adoption of AJH [2017] NSWSC 1751 at [297], Hallen J said that:
“It is often referred to in the literature that a child placed with foster carers has an abiding need for a sense of security and identity and that she, or he, will feel most secure when she, or he, is assured that no one can take her, or him, away from the family of which she, or he, is a legal member. It is recognised that the sooner a child can feel this sense of security, the better for her, or his, development in the future: see Re Peter [2009] NSWSC 697, per Palmer J, at [35].”
The Delegate has expressed the view that an order allocating care and parental responsibility to Brooke and Ash “is not sufficient to achieve optimum outcomes”, given it “cannot offer [Sylvia] the same sense of legal belonging to a family nor the security of a lifelong connection”; and that it would be in Sylvia’s “best interests to be legally a part of the proposed adoptive parents’ family”, as adoption would provide “legal confirmation of the relationship that already exists” between Sylvia and Brooke, Ash and Hazel.
Similarly, the Case Manager has reported that:
“an adoption order is the only order that provides permanency beyond the age of eighteen years … the proposed adoptive parents will be recognised as [Sylvia’s] legal parents, be responsible for decision making and all aspects of her care. [Sylvia] will become a full member of the [Summers] family network.”
Having regard to those matters, I am satisfied that the making of an adoption order would serve the best interests of Sylvia at present, ensuring that she is legally a part of her psychological family, and would also serve her best interests in the future, including after she has attained the age of 18.
Accordingly, I am satisfied that the making of the proposed adoption order would be clearly preferable in the best interests of Sylvia than any other action that could be taken by law in relation to her care.
Section 52(a) of the Act provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each of the child’s parents.
Rowan has provided written consent to Sylvia’s adoption, but Willow has not. In these circumstances, the Plaintiff seeks orders under s 67 of the Act dispensing with the requirement for Willow’s consent to the adoption.
On 26 July 2024, Willow was informed that Sylvia had been settled in an adoption placement. The case worker’s file note of this discussion records that although Willow was “grateful to the carers for taking care of [Sylvia]”, she was “upset that [Sylvia] is in an adoption placement” and “plan[ned] to contest the adoption”.
On 23 October 2024, a case manager at Barnardos called Willow to seek her view regarding the proposed open adoption. A file note recording the conversation noted that Willow intended to “seek more visits” and that she planned to file an application under s 90 of the Care Act in the following year.
On 3 April 2025, a case manager at Barnardos attended Willow’s home to further discuss Sylvia’s proposed adoption. When questioned if she still planned to contest the adoption, Willow stated that she was “up in the air at the moment” and that she was “not where I thought I would be”. She explained that she wanted “what is best for [Sylvia]” and that if the adoption was to proceed, “I want [Brooke and Ash] to be her parents”. At the conclusion of this interaction, the case manager provided Willow with the contact details for Legal Aid and a copy of the Mandatory Written Information on Adoption.
On 4 September 2025, Willow was informed that approval had been granted to commence Sylvia’s adoption process. The file note from this meeting noted that Willow had advised that she was “ok with [the adoption]”, that she was “not going to contest it” and that she was “happy for [Sylvia] to be placed with a loving family”. She also stated that she had been in contact with the early intervention team at Legal Aid, that she was “aware of her rights” and that she “would be happy to” give consent to open adoption.
From January to March 2026, Barnardos made a number of attempts to contact Willow, both in-person and via phone, in order to obtain her views on the proposed adoption of Sylvia. Willow was either not present at the property or did not answer the incoming call or text message.
On 7 April 2026, the Case Manager and the Program Manager for Adoptions at Barnardos attended Willow’s home and were able to speak to her on this occasion. Willow stated that she was not in a position to take Sylvia and that she would consider consenting to the adoption. During this visit, Willow also signed the Maternal Adoption Plan.
Between 9 April 2026 and 17 April 2026, multiple attempts were made by Barnardos to contact Willow regarding her consent to Sylvia’s adoption and to obtain her views in relation to Sylvia’s proposed name change. Willow did not respond to these communications.
As noted above, Willow has not appeared in these proceedings to oppose the orders sought.
The Delegate, as the Principal Officer of the accredited adoption service provider concerned with the adoption, has standing to apply for the making of a “consent dispense order”: s 68(b) of the Act.
The relevant test for dispensing with consent is set out in s 67 of the Act, which provides as follows:
(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that—
(a) the person cannot, after reasonable inquiry, be found or identified, or
(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or
(c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or
(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child—
(i) the child has established a stable relationship with those carers or guardians, and
(ii) the adoption of the child by those carers or guardians will promote the child’s welfare, and
(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.
(2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.
(3) In this section—
Guardian has the same meaning as in section 79A (1) of the Children and Young Persons (Care and Protection) Act 1998.
The proposed adoptive parents are “authorised carers” because they have care and responsibility for Sylvia under out-of-home care arrangements made under the Care Act: s 67(1)(d) and Dictionary to the Act.
As Meek J noted in Adoption of Tiana (a pseudonym) [2024] NSWSC 1561 at [52], there is a difference in focus between, on the one hand, s 67(1)(a)-(c) and, on the other, s 67(1)(d) of the Act. The difference was explained by Slattery J in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521 at [58]-[59] as follows:
“Each of Adoption Act, s 67(1)(a), (b), (c) and (d) is a gateway for the exercise of the s 67(1) discretion to make a consent dispense order. But there is a difference in focus between Adoption Act, s 67(1)(a), (b) and (c) and Adoption Act, s 67(1)(d). The difference is that s 67(1)(a), (b), (c) are each concerned with the situation of the birth parent or other person whose consent to an adoption order would otherwise be required under Adoption Act, s 52. These provisions deal with the inability of a person to provide consent, either because he or she cannot be found or because of incapacity or because issues concerning the welfare of the child displace the wishes of the parent or person with parental responsibility. All of these matters are concerned with the quality or the relative value of the consent of the parent or person with parental responsibility.
But Adoption Act, s 67(1)(d) has a different focal point. On its face it says nothing about the capacity or quality of the consent of the parent or person with parental responsibility. Rather, it looks to the child’s present situation. The threshold for the court’s exercise of Adoption Act, s 67(1)(d) discretion is that the authorised carers of the child have applied for the child’s adoption, that the child has established a stable relationship with those carers, and that the adoption of the child by those carers will promote the child’s welfare. Those matters are all well established here. Section 67(1)(d) does not expressly place a requirement on the exercise of the court’s s 67(1)(d) discretion that the court make a judgment about the quality or value of the consent of birth parent or other person with parental responsibility. But as Brereton J explained in Director General, Department of Community Services v D (2007) 37 Fam LR 595; [2007] NSWSC 762, parental consent is always a consideration; ‘Although the interest of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents as is evident from the requirement for their consent’. Adoption Act, Chapter 4, Part 2, emphasizes the principle that an informed consent should be given by parents or persons with parental responsibility before an adoption order can be made. But when it applies, as has been stated, Adoption Act, s 67(1)(d) provides a different emphasis.”
Dispensing with the consent of a parent is a grave step, not lightly to be taken: Adoption of RCC and RZA at [17] (Brereton J). In Re Adoption of BL [2018] NSWSC 391 at [20], Sackar J noted that the “severance of the legal relationship will of course never sever the biological relationship nor will it detract from the potential for developing a meaningful relationship through ongoing contact”.
I may not make a consent dispense order unless satisfied that, relevantly, Sylvia has established a stable relationship with her proposed adoptive parents, Brooke and Ash, and that the adoption of Sylvia by Brooke and Ash will promote her welfare: ss 67(1)(d)(i) and (ii) of the Act. I must also be satisfied that the making of a consent dispense order will be in Sylvia’s best interests: s 67(2) of the Act.
For the reasons given above when considering the proposed adoption order, I am comfortably satisfied that Sylvia has established a stable and loving relationship with Brooke and Ash and that they will continue to promote her wellbeing and development.
The making of a consent dispense order, so as to allow the making of the adoption order, is in the best interests of Sylvia in order to permit her close bond with her psychological family to be reflected in her legal status.
The Maternal Adoption Plan has been signed by Willow, the proposed adoptive parents and the Delegate.
The Maternal Adoption Plan makes provision for face-to-face visits with Willow to occur twelve times per year on dates to be agreed between Brooke, Ash and Willow at the commencement of each year.
Provision is also made in the Maternal Adoption Plan for face-to-face visits with Rosaline and Sage. These visits are to occur twice and three times a year respectively on dates to be agreed between them and the proposed adoptive parents.
Each of the above visits is required to last for a minimum of two hours, unless varied by mutual agreement according to Sylvia’s needs and wishes.
Brooke and Ash have also agreed to provide Willow with news about Sylvia at each contact visit and to provide Willow with photographs of Sylvia at least four times a year.
The Maternal Adoption Plan also permits Sylvia, according to her needs and wishes, to telephone or electronically communicate with Willow or other members of her maternal family on significant occasions, such as birthdays, Easter, Christmas and Mother’s Day.
The Paternal Adoption Plan has been signed by Rowan, the proposed adoptive parents and the Delegate.
The Paternal Adoption Plan makes provision for twelve face-to-face visits per year, on the same terms as the Maternal Adoption Plan. The Paternal Adoption Plan provides that Sylvia’s paternal grandparents, Marigold and Grover, and her half-brother, Robin, are permitted to attend all of Rowan’s visits with Sylvia.
Brooke and Ash have also agreed to provide Rowan with news about Sylvia at each contact visit and to provide Rowan with photographs of Sylvia at least four times a year.
The Paternal Adoption Plan also permits Sylvia, according to her needs and wishes, to telephone or electronically communicate with Rowan or other members of her paternal family on significant occasions, such as birthdays, Easter, Christmas and Father’s Day.
The Delegate has expressed the opinion that the contact proposed within the Maternal Adoption Plan and the Paternal Adoption Plan will “enable [Sylvia] to develop an understanding of her background, biological identity, and cultural heritage”.
Brooke and Ash have been independently facilitating and supervising family visits with Willow and Rowan, as well as other members of Sylvia’s biological family since September 2024. Ash has given evidence that:
“Allowing [Sylvia] to understand her background and to know her family members, knowing that they are doing okay may help reduce worry or uncertainty. I believe this can also strengthen trust between [Sylvia] and us as adoptive parents by normalising the openness of the relationship with birth and adoptive families”.
The Delegate seeks an order approving the name “[Summers]” as the surname and “[Sylvia]” as the given names of Sylvia.
“Summers” is the surname of Brooke and Ash.
The Case Manager has reported that the proposed name change has been discussed with Rowan on several occasions and that he has indicated “no concerns”.
As set out at paragraph [74] above, Barnardos have been unable to obtain Willow’s opinion on Sylvia’s proposed name change, despite having made several attempts to do so between 9 April 2026 and 17 April 2026.
Brooke and Ash have indicated that their desire to change Sylvia’s name to “[Sylvia Summers]” is to ensure that she feels fully connected to her adoptive family and to provide her with a sense of emotional stability. Brooke has given evidence that “when [Sylvia] becomes ‘[Sylvia Summers]’ she will know she is a permanent part of the [Summers] family and she will always have love, care and support through her entire life”.
Having regard to those matters, and in circumstances where maintaining Sylvia’s first name maintains a connection to Willow and Rowan, I am satisfied that the name “[Summers]” should be adopted as Sylvia’s surname.
The Court orders that:
The Court notes that:
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Amendment to a name