Who can adopt a child?
An adoption order can be made in favour of a couple. Since 1 September 2016, same-sex couples have been able to adopt.
For an adoption order to be made in favour of a couple, that couple must:
- be married to, or living in a A relationship where people live together as a couple or a family. This describes people’s living arrangements, not their marital status. A domestic relationship can be registered in Victoria. with, each other; or
- be in a relationship that is recognised as a traditional A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. by an Aboriginal community or by an Aboriginal group to which they belong,
- for not less than two years before the date on which the adoption order is made.
If special circumstances exist in relation to a child, an adoption order may be made in favour of one person (s 11(3) Adoption A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.). Adoption orders can also be made in favour of the spouse or domestic partner of a child’s parent or adoptive parent (s 11(5)) or a relative of the child (s 12).
The An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. must also be satisfied that the applicants are ‘fit and proper’ persons to adopt the child and that the child’s welfare and interests A document that sets out what a person wants to happen to their money and other property after they die. be promoted by the adoption (s 13; reg 7 Adoption Regulations).
Applying to adopt a child
An application to adopt cannot be made until applicants have been married or in a de facto relationship for at least two years (s 20A Adoption Act).
If you wish to adopt a child, contact Adoption Victoria or an approved agency (see ‘Contacts’ at the end of this chapter). (Note that adoptions by a relative or step-parent are usually arranged through a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister..) Couples applying to adopt can express an interest in either adopting or providing permanent care for a child, or both. Note that most (but not all) agencies will assist same-sex couples.
Couples who contact Adoption Victoria or an approved agency about becoming adoptive parents are required to participate in information and education groups to help them understand the implications of adoption and the needs of an adopted child. Couples should be able to respond to the demands of contemporary adoption – including facilitating a child’s ongoing access to their birth family and managing a child with a complex background. The couples will also be interviewed.
If a child has not been placed with a couple for two years, a formal review is held to ensure the couple remain eligible and suitable to adopt and they wish to remain on the approved list.
After a child is placed with a couple, the approved agency or Adoption Victoria visits the couple for several months to provide support.
Eventually, the approved agency or Adoption Victoria authorises the adoptive parents to apply to the court for an adoption order. Once this authorisation has occurred, arrangements for legalising the child’s placement are made through a legal practitioner chosen by the adoptive parents.
Procedures for legalisation
The Adoption Rules set out the procedure that has to be followed once consents (if they are necessary) have been obtained or received from Adoption Victoria or the approved agency.
The procedure for legalising an adoption is:
1 Prepare the following documents:
- a A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ. (form 1, rule 6 Adoption Rules): three copies;
- a notice of identification (to be signed by a solicitor) (form 2, rule 7(2)): one copy;
- an A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. of applicants (form 3, rule 9) and exhibits if necessary (e.g. a copy of a The final order in divorce proceedings, made by the Federal Circuit Court. The order states that the marriage has been terminated. Both parties are now free to remarry. See also decree nisi; decree of nullity;marriage.): one copy;
- a form of adoption order (form 9, rule 30(1)): three copies;
- a memorandum of an adoption order (form 17, rule 30(2)): two copies;
- a certified copy of the entry of the child’s birth: one copy.
2 File the above documents with the adoption The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. of the County Court. The prescribed fee is payable on the summons.
3 In accordance with rule 13 of the Adoption Rules, serve the following documents on the child’s ‘guardian’ (see point 4, below, for the definition of ‘guardian’):
- a copy of the applicants’ affidavit, with exhibits;
- a certified copy of the entry of the child’s birth;
- a copy of the notice of identification (under rule 7(2));
- an order dispensing with To agree to something being done, to approve an action or arrangement. See also informed consent. (if required) or a copy of the dispensation application if the order has not yet been granted.
4 ‘Someone who is legally responsible for taking care of another person or their property. of the child’ is defined in sections 4(1) and 46 of the Adoption Act:
- where an approved agency is nominated on the consent form, the guardian is the principal officer of the agency;
- the guardian will otherwise be the Secretary of the DHHS;
- where a relative or a spouse/domestic partner of a child’s parent is applying for adoption, no guardian is appointed.
5 Prepare and file the affidavit of Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. of the documents described in point 3 above. Service may be personal or by pre-paid registered mail (rule 13). For convenience, this affidavit should be filed with the affidavit of service of summons (see point 10, below).
6 The guardian then investigates the circumstances of the child and the applicant and all other matters relevant to the proposed adoption (rule 23). The guardian must then file a ‘guardian’s affidavit’ setting out the result of their investigation, and A document or thing that is provided as evidence in a court case or referred to in a sworn statement. For example, a gun might be produced as an exhibit in a criminal case, and a bank statement might be produced in a civil case. this affidavit with:
- a consent document or an order dispensing with consent, as appropriate;
- a certified copy of the entry of the child’s birth.
The guardian’s affidavit is prepared by a solicitor and sent to the approved agency for ratification and execution, unless the child has been placed under the guardianship of the Secretary of the DHHS by the Children’s Court. In this case, the guardian’s affidavit is prepared by the approved agency. This affidavit must be filed within 30 days of service of the documents on the guardian, or within such time as the judge may otherwise direct (rule 23).
7 When the court receives these documents from the guardian, a The time and place at which a court or tribunal hears the parties argue their case and makes a decision. date is set (rule 17).
8 The County Court adoption registrar sends the solicitor a copy of the summons setting out the hearing date.
9 The guardian is served (by a solicitor) with a sealed copy of the summons notifying them of the hearing date. This must be served no later than five clear days before the hearing (rule 18).
10 Prepare and file the affidavit of service of summons at the court before the hearing of the application. The affidavit of service must be endorsed on the outside with the date of hearing and the court number (rules 18, 19).
11 Attend court at the time and date appointed. Hearings are in closed court and the procedure is usually quite informal (e.g. lawyers do not wear robes). If the child’s placement was made by Adoption Victoria, their representative will be present. If it was made by an approved agency, their representative will attend.
12 The adoption order is made by the court and the applicants’ details are entered into the adoption register maintained by the court. The court sends a copy of the order and the memorandum of adoption to the office of the registrar of Births, Deaths and Marriages Victoria (BDM (Vic)).
13 The registrar of BDM (Vic) registers the adoption by endorsing on the order an official number, and placing it in the Register of Adoptions, and by making an entry in the Adopted Children Register of particulars ascertained from the order.
Upon registration, the registrar of BDM (Vic) marks the original entry in the Register of Births with the word ‘adopted’. The registrar is not permitted to open for inspection, or issue an extract from, or copy any entry marked ‘adopted’ except where:
- ordered to do so by the court; or
- an application is received from the DHHS Secretary, following receipt of an application from an adopted person; or
- an application is received from a natural parent of the adopted person.
All birth certificates issued to adopted people since 17 November 1987 are the same as those issued to people who were not adopted.
The Adoption Act also allows BDM (Vic) to register the adoption of a child whose adoption was finalised in a country that has signed the Hague Convention (1993), with the involvement of the State’s Central Authority, and issue a birth certificate for the child, when applied for.
Adoption by a spouse or relative
Section 11 of the Adoption Act lists the people in whose favour adoption orders can be made. Section 11(5) deals specifically with spousal adoptions and states that:
[The] spouse or domestic partner of a parent or of an adoptive parent of a child may make an application to the court under this Act for an order for the adoption of the child by that spouse or domestic partner.
A person’s ‘domestic partner’ is someone who is in a domestic relationship (registered or otherwise) with the person.
A ‘domestic relationship’ is defined as being two people living together as a couple on a genuine domestic basis (irrespective of sex or gender) and who are neither married to each other nor in a registered domestic relationship with each other.
Relative adoptions are when certain family members seek to adopt a child. In relation to a child, the term ‘relative’ is defined as a grandparent, brother, sister, uncle or aunt of the child. The relationship can be of whole or half-blood, or by affinity.
Section 12 of the Adoption Act makes provision for the additional matters the court must be satisfied of to make an adoption order in favour of a relative. These mirror the requirements for spousal adoptions established by section 11(6).
As a consequence of these provisions, in proposed adoptions by a relative or step-parent, the court will only grant an adoption order if all of the following can be demonstrated:
- The welfare and interests of the child would not be adequately provided for by an order in relation to the guardianship and Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. of the child under the FL Act;
- There are exceptional circumstances that justify an adoption order being made rather than other orders; and
- Adoption makes better provision for the welfare and interests of the child. Natural parents are not able (or required) to adopt their own child.
The Adoption Act does not define what constitutes ‘exceptional circumstances’.
Adoption applications by relatives or step-parents are usually initiated through a solicitor.
For spousal adoptions, leave to proceed with an adoption application must be sought under section 60G of the FL Act – although, this is not specifically reflected in the Adoption Act. Without this leave, a natural parent’s parental responsibility is not extinguished when an adoption order is made. Also, without this leave, a child continues to be recognised as the birth parents’ child. A possible consequence of this is that the The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. to hear and determine applications by a child’s birth parents remains with the Family Court or Federal Circuit Court.
In the case of spousal or relative adoptions, an applicant is required to engage with Adoption Victoria or an approved agency.
The adoption process includes:
- Adoption Victoria or the approved agency ensures the applicant satisfies the requirements to be approved as a fit and proper person to adopt a child under section 13 of the Adoption Act.
- Adoption Victoria or the approved agency arranges counselling for the child’s birth parents and arranges the execution of their consent to the adoption before a proscribed court official.
- The child meets with a social worker who also assesses the family’s circumstances. The social worker prepares a report for the court (as required by section 15 of the Adoption Act) about whether or not it is in the child’s best interests that the adoption order be granted.
According to the DJCS website, adoptions by step-parents are rare in Victoria.
Adoption orders are rarely granted to a relative or step-parent. It is now generally recognised that the preferred alternative is to apply for a A court order for the care of children when their separated or divorced parents cannot reach agreement on a parenting plan. The order covers matters such as where the child will live, contact with the parents and financial support. under the FL Act (see ‘Parenting orders’, above).