Adoptions

Each State and Territory has laws about the adoption of children. The Australian Capital Territory and New South Wales have separate adoption systems, but they share many common features.

Adoption may arise in a range of circumstances, including where stepparents adopt children they are helping to raise, foster parents adopt children they have cared for, or couples adopt children from overseas through the intercountry adoption system. Intercountry adoption is governed by the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.

The legislation in the ACT and in NSW also provides for the adoption of adults in appropriate cases. [1]

In our experience, assisting applicants and representing them in their application to the Court is normally a positive, rewarding experience.  The final hearing is generally less formal than many other court proceedings and is often treated as a celebration shared with the judge.

Safeguards and Assessment Requirements

In the ACT, prospective applicants must first register their interest with Child and Youth Protection Services.[2]  They are usually required to attend a half-day information session, complete a two-day education seminar and participate in an interview so that they understand the legal and practical implications of adoption.

If the applicant proceeds, they may begin an assessment process to determine their suitability. If assessed as suitable, they may be placed on the suitable people register and considered for a future adoption.

The applicant must then file an application with the Supreme Court of the ACT.

NSW has similar safeguards. Applicant(s) must undergo an assessment by an expert from an accredited agency, who will then write a report for the Court.

Eligibility

Applicant(s) must reside in the Territory or State in which the adoption application is made.

The Court will also consider a range of other criteria before deciding whether to grant an adoption order, including whether the applicant is of good character and capable of parenting the child.

Consent and the Child’s participation

The biological parents of the child must generally consent to the adoption. In some cases, an application must be made to the Court to dispense with the consent of the biological parents if appropriate. [3]

The child is also entitled to express his/her views regarding the proposed adoption. 

The Supreme Court of New South Wales recently introduced a requirement placing greater emphasis on the child’s participation in the adoption proceedings including through the appointment of a lawyer to represent them. [4]

Family law “custody” orders as an Alternative

An alternative to adopting a child is to obtain family law orders under the Family Law Act, 1975 (Cth) for “custody”[5] of the child and to have parental responsibility for the child. 

For example, a stepparent may apply for orders that the child live with them, most likely alongside one biological parent, and that they share parental responsibility for the child.

If a family law application is disputed, the Court may order that the children and adults be interviewed by a qualified expert, who will then prepare a report and make recommendations to the Court.

Leave to Apply for Adoption

Before an applicant may apply to adopt a child, the Federal Circuit and Family Court of Australia must first grant leave under section 60G of the Family Law Act 1975 (Cth). In his article, 12 points in getting leave to adopt Page Provan states:

…. “Section 60G is an obscure provision of the Family Law Act. Most family lawyers, from my discussions, have never made an application under this section.”[6]

We have previously sought leave under the section. In that matter, the judge who granted leave commented on the awkward and costly additional step of obtaining permission from one court before commencing the adoption process in another.

However, the requirement for leave to be obtained under section 60G has an important role. In Brooks & Sloan [2009][7], Justice Sloan stated:

“Should leave be granted pursuant to s.60G of the Act for adoption proceedings to be commenced in respect of the child, the child will cease to be a child of the marriage between the mother and father (s.60F(4)(a)).”

If leave is granted under section 60G, it will extinguish the rights which biological parents have over the child under the Family Law Act, 1975 (Cth).

Ongoing Relationships with Biological Parents

The adoption of a child does not necessarily end the child’s relationship with his/her biological parents. ACT and the NSW legislation require the Court to approve an “adoption plan” which sets out what arrangements will be put in place for the child to continue to have access and contact with his/her biological parents. [8] 

Immigration and Adoption

An adoption order will not be made by the Court if the Court concludes that its purpose is to avoid or frustrate immigration requirements.

Costs and Fees

There are various steps relating to the adoption process and in some of these steps the applicant will incur costs including, for example, in the initial interview, the assessment process, the court’s filing fees.

Prospective applicants should make enquiries about the costs involved before commencing the adoption process.

[1] Section 10 of the Adoption Act, 1993 (ACT) and section 24(b) of the Adoption Act, 2000 (NSW).

[2] Contact details: Phone 02 6207 1069 and Email adoptions@act.gov.au

[3] Part 3 Division 3.3. of the Adoption Act, 1993 (ACT) and Part 5 of the Adaptions Act 2000 (NSW)

[4] [4] The power to appoint a lawyer to represent the child is under section 122 of the Adaptions Act 2000 (NSW). See article The appointment of lawyers for children at:  https://lsj.com.au/articles/a-change-in-adoption-practice-the-appointment-of-lawyers-for-children/

[5] Such terms as “custody” of a child or “access” to a child”  do not appear in the legislation and instead such terms as “live with” and “spend time with” are included.

[6] https://pageprovan.com.au/12-points-in-getting-leave-to-adopt/

[7] See at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2009/880.html; See also Iliescu & Kubo [2024] FedCFamC1F 852

[8] Section 39D(a) to (d) of the Adoption Act, 1993 (ACT) and Part 4 of the Adaptions Act 2000 (NSW)