Background
Chloe Hayes-King (a pseudonym) was born in August 2019 in New South Wales. Her birth mother, Hazel, had a documented history of child protection concerns dating to 2014, including illicit drug use and untreated mental health issues. A prenatal safety assessment conducted shortly before Chloe’s birth returned a result of “unsafe,” and the NSW Department of Communities and Justice (DCJ) assumed care responsibility for Chloe within days of her birth. No birth father was registered on Chloe’s birth certificate, and despite reasonable inquiries, his identity remained unknown. Hazel had previously lost long-term custody of an older child, Olivia, following a failed restoration attempt.
At two weeks of age, Chloe was placed with Maria and Jack Martin (pseudonyms), a married couple in their fifties and sixties who had four biological sons. She has lived with them continuously since September 2019. In May 2020, the Children’s Court made final orders allocating parental responsibility for Chloe to the Minister until she turns 18. By June 2025, the Minister’s delegate consented to adoption. Hazel, while not consenting to the adoption and expressing discomfort with it, signed a Maternal Adoption Plan in March 2026 following mediation facilitated by Legal Aid, and did not appear in the Supreme Court proceedings to oppose the orders sought.
The Secretary of DCJ filed a Summons in April 2026 seeking: an adoption order in favour of Maria and Jack; orders dispensing with the consent of both birth parents; approval of a change of name; and registration of the Maternal Adoption Plan. The matter was determined on the papers by Nixon J.
The Court’s Holding
Nixon J granted all orders sought. Applying the paramountcy principle under s 8(1)(a) of the Adoption Act 2000 (NSW), the Court found that adoption was clearly preferable to all alternatives in Chloe’s best interests, both in childhood and later life. The alternatives considered — maintaining the status quo under ministerial parental responsibility, restoration to Hazel, or a parental responsibility order in favour of Maria and Jack under s 92 — were each found to be inferior. Restoration was assessed as potentially harmful given Chloe’s long-established bonds with the Martin family. An order allocating parental responsibility to Maria and Jack, while alleviating some disadvantages of the status quo, would expire at age 18 and would not confer the permanent legal family membership that adoption provides.
On consent, the Court dispensed with the birth father’s consent under s 67(1)(a) of the Adoption Act on the ground that he could not, after reasonable inquiry, be found or identified. The Court dispensed with Hazel’s consent under s 67(1)(d), being satisfied that Chloe had established a stable relationship with her authorised carers and that adoption by them would promote her welfare. Although Hazel had not formally withdrawn her opposition, she did not appear in the proceedings to contest the orders, and the evidence from the Independent Assessor and the Minister’s delegate uniformly supported the conclusion that adoption served Chloe’s welfare. The Maternal Adoption Plan, which preserves face-to-face and indirect contact between Chloe and Hazel, was registered.
On name, the Court approved the surname “Martin” and given names “Chloe Mia Hayes,” the retention of “Hayes” reflecting a deliberate preservation of Chloe’s connection to her birth family identity. The Court was satisfied on all formal jurisdictional requirements, including the suitability of the proposed adoptive parents and the receipt of the Independent Assessor’s report.
Key Takeaways
- An adoption order may be “clearly preferable” under s 90(3) of the Adoption Act 2000 (NSW) even where the birth mother withholds consent and has not formally sought restoration, provided the evidence establishes that alternatives lack the permanency that serves the child’s long-term best interests.
- Consent of an unknown birth father may be dispensed with under s 67(1)(a) where DCJ has made reasonable but unsuccessful inquiries to find or identify him; no notice of the application need be given in such circumstances.
- A Maternal Adoption Plan preserving ongoing contact with the birth mother and sibling can form part of an adoption order, and the court will register such a plan under s 50 of the Adoption Act.
- Parental responsibility orders under s 92, while less disruptive than adoption, are insufficient when they would expire at age 18 and leave the child without a lifelong legal family relationship — a meaningful detriment when the child already psychologically belongs to the adoptive family.
Why It Matters
This decision illustrates the NSW Supreme Court’s approach where a child has spent effectively her entire life with foster carers who seek to adopt her. The judgment reaffirms that the “clearly preferable” standard in s 90(3) is not a formalistic hurdle but a substantive inquiry focused on the child’s full lifespan: a temporary parental responsibility order that dissolves at adulthood is a legally and practically inferior outcome when the child’s psychological family is already the proposed adoptive family. Practitioners advising birth parents should note that non-participation in proceedings — even after signing a contact plan — does not prevent the court from dispensing with consent on welfare grounds.
The case also underscores that preservation of identity and ongoing contact need not be sacrificed to achieve permanency. The approved given names deliberately retain the birth surname “Hayes,” and the registered Maternal Adoption Plan maintains monthly face-to-face contact with Hazel and regular contact with Chloe’s biological sibling, Olivia. This balanced outcome — legal permanency combined with structured openness — reflects the contemporary NSW approach to adoption from care.