Adoption is legally regulated in Victoria. The primary objective of adoption is to provide a safe, loving family for a child who cannot be cared for by their birth family. Another permanent arrangement for the care of a non-biological child is a permanent care order made by the Children’s Court.

Contributor

Ben Sayer

Partner, Sayer Jones

Adoption, permanent care and parenting orders

Last updated

1 July 2020

Adoption orders

The effect of an adoption order made by a court under the Adoption Act is that the adopted child shall be treated in law as a child of the adoptive parent(s). Also, the adoptive parent(s) shall be treated in law as the parent(s) of the child, as if the child had been born to them.

In Victoria, while the Supreme Court has jurisdiction to make adoption orders (s 6 Adoption Act), most adoption hearings are heard in the County Court.

Conditional adoption orders

If all parties agree, an adoption order may be made that allows the child’s birth parents and relatives to be provided with information about the child and/or have access to the child. These conditions may be revoked or varied by the court (ss 59, 59A, 60 Adoption Act). At a later date, access and information exchange conditions may be added if there is agreement between the birth parent(s) and the adoptive parents, and the court is satisfied that it is in the child’s best interests. The court can consider the child’s wishes, depending on their age and understanding (s 60).

Permanent care orders

In practice, most of the children placed with carers by Adoption Victoria or an approved agency have their placement legalised by a permanent care order, rather than an adoption order. The permanent care orders in the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’) recognise these arrangements.

Many of the children who need care outside their birth family have special needs (e.g. intellectual or physical disabilities or emotional difficulties) or they have experienced abuse or neglect and cannot safely remain in the long-term care of their birth families. These children are likely to be placed in a permanent care placement, rather than adoptive placement.

Parenting orders

The Family Law Act 1975 (Cth) (‘FL Act’) provides for the granting of parenting orders. Parenting orders can give people the duties, powers, responsibilities and authority that a parent has at law, but they cannot change the legal status of a child’s carer to that of a parent.

Victoria has given power to the Commonwealth Govern­ment to make orders in relation to ex-nuptial children. This, and the FL Act, allows people other than a child’s parents to apply for parenting orders from the Family Court or Federal Circuit Court if they are concerned with the care, welfare and development of a child.

These orders are usually made with the involvement of the child’s natural parents. Such orders from the Family Court may take into account of the wishes of the child and may include provision for the child to spend time/communicate with their legal parents or other people.

The court may require the parties to attend counselling and may require the parties to obtain an expert report to ensure that any arrangements proposed for the care of a child are in the child’s best interests.

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