Review of the Adoption Act 1984: Consultation Paper

3. Current law and practice in Victoria

Introduction

3.1 This chapter gives a general overview of adoption law and practice in Victoria. It sets the scene for the issues discussed and questions raised in the following chapters.

3.2 The chapter only discusses adoption of children born or situated in Victoria through the Victorian legal system. This is the focus of the Commission’s inquiry. Overseas or inter-country adoption is excluded from the Commission’s review.

3.3 The Adoption Act 1984 (Vic) establishes the legal framework which governs adoption in Victoria. This chapter outlines the main features of that framework, and how the adoption process works in practice. The focus of the Commission’s review is possible amendments to adoption law.

3.4 Particular aspects of the law and adoption practice are discussed in detail in later chapters. This chapter indicates what those topics are and where they are discussed in the consultation paper.

3.5 The chapter begins with a broad overview of Victoria’s adoption system.

An overview of adoption

3.6 The adoption process is not widely understood. For many people who go through it, the adoption process is not only a highly personal and emotionally challenging experience; it can also be complicated and unclear. It involves a large amount of paperwork, layers of legal requirements and, ultimately, an application to a court. Adoption is fundamentally a legal process, with a significant legal effect: it changes who a child’s parents are in law.

Main stages

3.7 Broadly speaking, there are three main stages in the adoption process:

1. A child’s parents (or parent) make a decision to have their child adopted (or a court decides that an adoption should proceed without the agreement of the parents or parent).

2. The child is placed, through a government department or adoption agency, with new parents who have been approved to adopt a child.

3. A court makes an order which confirms the adoption.

Legal framework

3.8 Each of these stages is highly regulated, with its own legal requirements, procedures and forms which must be complied with. These are set out, in some detail but not always clearly, in Victoria’s adoption legislation, regulations and court rules:

• the Adoption Act 1984 (Vic)

• the Adoption Regulations 2008 (Vic)

• the Supreme Court (Adoption) Rules 2015 (Vic) (the Adoption Rules).

3.9 The Adoption Act determines the fundamental requirements, such as those surrounding the parents’ decision to have the child adopted and who is allowed to adopt a child. The Adoption Regulations contain procedural details and forms. The Adoption Rules set out the court application process.

The court

3.10 The court which makes adoption orders is the County Court of Victoria.^[1] The County Court made 55 adoption orders in 2014–15.^[2]

The department and approved agencies

3.11 The government department which arranges adoptions is the Department of Health and Human Services (DHHS).^[3] The Secretary of DHHS (the Secretary) also approves non-government organisations to arrange adoptions. These organisations are called ‘approved agencies’. There are four approved agencies.

Secretary and principal officers

3.12 The Secretary and the principal officers of approved agencies have powers and responsibilities under the Adoption Act. For example, the Secretary or a principal officer is the legal guardian of a child who is to be adopted,^[4] and they have the power to approve people as ‘fit and proper persons’ to adopt a child.^[5]

3.13 When carrying out their responsibilities, the Secretary and principal officers must have regard to the principle that adoption is a service for children.^[6]

Adoption teams

3.14 In practice, adoptions are carried out by ‘adoption and permanent care teams’ within DHHS and each approved agency. These are referred to in this chapter as ‘adoption teams’.

3.15 The adoption teams are involved in all aspects of the adoption process. They assist parents who are considering having their child adopted, assess people who want to adopt a child, facilitate and monitor placements of children with the adoptive parents, and provide reports to the County Court when it is deciding whether to make an adoption order. They also run adoption information services which assist adopted people and family members seeking information about past and current adoptions.

Adoption Manual and Adoption Standards

3.16 Two main policy documents guide the work of adoption teams. These are an Adoption and Permanent Care Procedures Manual (2004) and Standards in Adoption (1986). The Adoption Manual and Adoption Standards are publicly available^[7] policy and practice guidelines.^[8] They are part of the decision-making framework.

3.17 Adoption teams must carry out their work in accordance with an overarching principle,^[9] discussed in the next section.

The paramount consideration

3.18 The overarching principle which governs adoption in Victoria is that the ‘welfare and interests of the child’ are the ‘paramount consideration’.^[10] This puts the child’s welfare and interests above the interests of the child’s birth parents, people wanting to adopt and adoptive parents.

3.19 This overarching principle is a focus of the Commission’s inquiry. The terms of reference ask the Commission to consider amendments to ‘ensure that the best interests and rights of the child are the foremost consideration in any decision made under the Adoption Act’.

Decisions under the Adoption Act

3.20 As described in the following sections, a number of decisions are made under the Adoption Act. These include:

• decisions by the Secretary of DHHS to approve an agency to arrange adoptions^[11]

• decisions by the Secretary and principal officers to approve people wanting to adopt as ‘fit and proper persons’ to adopt a child^[12]

• decisions by the Victorian Civil and Administrative Tribunal (VCAT) when reviewing decisions of the Secretary or approved agency^[13]

• decisions by the County Court to make an adoption order^[14]

• decisions by the County Court to discharge an adoption order.^[15]

3.21 These decision makers must have regard to the overarching principle when making decisions under the Adoption Act. The overarching principle is discussed in detail in Chapter 5.

3.22 The following sections explain the legal effect of adoption and how it differs from other types of court orders relating to parental responsibility.

The legal effect of adoption

3.23 An adoption order ends the legal relationship between a child and the child’s parents.^[16] The law no longer recognises the birth parents as being the parents of the child. The adoptive parents assume all the parental rights and responsibilities that belonged to the child’s birth parents before the adoption order was made. The law views the child as the adoptive parents’ child, as if the child had been born to them.^[17]

3.24 This change is reflected in a number of ways. The child’s surname generally changes to the adoptive family’s surname. The child’s given names may also change. A new birth certificate is created which replaces the original birth certificate and indicates that the child was born to the adoptive parents. The child’s inheritance rights change.

3.25 The change is permanent unless it is revoked by another order of the court, which ‘discharges’ the adoption (see [3.116]).

3.26 The effects of an adoption order differ from other types of orders relating to parental responsibility, as discussed below.

Main differences between adoption and other types of parental responsibility

3.27 Adoption is one of a number of ways that parental responsibility is transferred from a child’s parents to other people. Two other main ways are:

• permanent care orders under the Children, Youth and Families Act 2005 (Vic) (the CYF Act)

• parenting orders under the Commonwealth Family Law Act 1976 (Cth).

3.28 Unlike adoption orders, these orders do not extinguish the legal relationship between a child and the child’s parents.

Permanent care orders

3.29 In Victoria, a ‘person or persons’ can be given the permanent care of a child under the CYF Act. These orders are used when a child is in Victoria’s child protection system.^[18] They are made by the Children’s Court of Victoria.^[19]

3.30 Permanent care orders give a person ‘parental responsibility’ for the child ‘to the exclusion of’ every other person, including the child’s parents.^[20] Parental responsibility encompasses ‘all the duties, powers, responsibilities and authority which, by law or custom, parents have in relation to children’.^[21]

3.31 A permanent care order remains in force until the child turns 18 (unless revoked by an order of the Court).^[22] This means that the child’s permanent carer (or carers) has full parental responsibility while the child is under 18, to the exclusion of the child’s parents.

3.32 More permanent care orders are made in Victoria than adoption orders.^[23] In 2014–15, 277 permanent care orders were made, compared with 24 orders for local adoption.^[24] Parents considering adoption of their child are encouraged to consider permanent care orders as an alternative option.^[25]

3.33 Some recent amendments to the CYF Act which affect adoption are explained in Chapter 4.

Parenting orders

3.34 The Family Court of Australia and the Federal Circuit Court of Australia make parenting orders under the Family Law Act.^[26] The Magistrates’ Court of Victoria also has power to make parenting orders.^[27]

3.35 Parenting orders are generally made in favour of a child’s parents when the parents separate. They may also be made in other situations and in favour of other people such as a grandparent, step-parent or ‘any other person concerned with the [child’s] care, welfare or development’.^[28]

3.36 Parenting orders deal with a range of parenting arrangements, such as who the child is to live with and spend time with.^[29] They may confer, allocate and alter parental responsibility for a child.^[30] ‘Parental responsibility’ has a similar meaning here as under the CYF Act. It means ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.^[31] Parenting orders may remain in force until a child turns 18, marries or enters into a de facto relationship.^[32]

3.37 As discussed below at [3.54] and [3.84] and in Chapter 7, parenting orders are generally preferred to adoption when step-parents or relatives of a child want to establish a legal relationship with a child in their care.

Permanent care orders, parenting orders and adoption orders

3.38 Permanent care orders and parenting orders are different from adoption orders in the following ways:

• They do not sever a parent and child’s legal relationship.

• They do not alter a child’s birth record.

• They do not affect the child’s inheritance rights.

• They are not permanent, but expire when the child turns 18.

3.39 A comparison of adoption orders, permanent care orders and parenting orders is in Appendix A.

3.40 The next section discusses the main types of adoption under the Adoption Act that are relevant to the Commission’s review.

Different types of adoption

3.41 The different types of adoption relate to who can be adopted in Victoria. The Adoption Act sets out the general types of adoption but, as explained below, some details are not contained in the legislation.

Who can be adopted?

3.42 Any child under 18 years of age can be adopted.^[33] The Adoption Act refers to children generally, but it contains specific provisions which deal with the adoption of particular groups of children:

• step-children

• children who are related to the people who want to adopt them

• Aboriginal and Torres Strait Islander children

• children who are not Australian citizens.

Adoption of adults

3.43 An adult can also be adopted under the Adoption Act. This can happen where:

• the proposed adopter or adopters ‘brought up, maintained and educated’ the person as if they were their parent or parents,^[34] and

• ‘special circumstances make [the adoption] desirable’.^[35]

3.44 This consultation paper concentrates on adoption of children, but the Commission will consider any issues relating to adult adoption within the terms of reference that are raised in submissions.

Adoption of children

3.45 While the Adoption Act refers to adoption of children under 18 years of age,^[36] in practice most children adopted in Victoria are infants under 12 months of age. These children are adopted through an ‘infant adoption program’.^[37]

Infant adoption

3.46 Infant adoption is the main adoption program in Victoria. About 20 infants are placed for adoption each year.^[38] These children are ‘generally aged between two months and one year’.^[39]

3.47 Infant adoption is available to couples who meet the Adoption Act’s eligibility and suitability criteria (explained below). The couples generally have no pre-existing relationship with the child before the child comes into their care (the adoptions are therefore often called ‘stranger adoptions’).

3.48 As discussed below (in [3.82]) and in Chapter 7, infant adoption is currently not available to single people.

Children over 12 months old and children with ‘special needs’

3.49 Children older than 12 months of age can also be adopted. This occurs through a ‘special needs’ adoption program.^[40]

3.50 Special needs adoption is not referred to in the Adoption Act, which makes no distinction between children who are older or younger than 12 months of age.

3.51 Other children also come within the special needs adoption program. They are children with complex needs, such as children with a disability and children who come from difficult backgrounds and may have experienced abuse or neglect.^[41] Again, the Adoption Act does not specifically refer to children in these circumstances.

3.52 Children with special needs are not placed through the infant adoption program but through a ‘permanent care’ program.^[42] Couples and single people can adopt children with special needs.

Particular adoptions

3.53 Particular provisions apply to adoption of:

• step-children and children who are related to their proposed adopters

• Aboriginal and Torres Strait Islander children

• children who are non-citizens.

Step-children and children related to adopters (‘known-child adoptions’)

3.54 Adoption of step-children and children who are related to their adopters are called ‘known-child adoptions’. This is because they are adoptions by people who have an existing relationship with the child.^[43]

3.55 The Adoption Act allows known-child adoptions, but only in limited circumstances. They are generally discouraged, because they can alter and distort family relationships.^[44] This  is discussed in further detail in Chapter 7.

3.56 Known-child adoptions are less common in Victoria than infant adoption.^[45] There were five known-child adoptions in Victoria in 2014–15. This represented 3.3 per cent of total known-child adoptions in Australia.^[46] Adoption by relatives occurs rarely.^[47]

Aboriginal and Torres Strait Islander children

3.57 Specific principles and requirements apply to the adoption of Aboriginal and Torres Strait Islander children. These are discussed in Chapter 6.

3.58 Aboriginal and Torres Strait Islander children are rarely adopted, in Victoria and elsewhere in Australia. Only one child who identified as Aboriginal or Torres Strait Islander was adopted in Australia in 2014–15.^[48]

Children who are non-citizens

3.59 Special requirements also apply to the adoption of children who are ‘non-citizens’ in Victoria. Broadly speaking, these are children who enter Australia, are not Australian citizens and not under the care of a parent or relative over the age of 21 or a person who intends to adopt the child.^[49] The Commonwealth Minister for Immigration and Border Protection is the guardian of these children.^[50]

3.60 Adoption of non-citizen children requires the minister’s consent.^[51] The Adoption Act sets out when this consent can be given^[52] and when the County Court can make adoption orders for non-citizen children.^[53]

The adoption process

3.61 This section outlines the main aspects of the adoption process, including:

• when a child can be adopted

• who is eligible to adopt a child

• the assessment and approval of people who want to adopt a child

• the selection of the adoptive parents

• placement of the child with the adoptive parents

• finalising the adoption through the County Court.

When can a child be adopted?

3.62 A child can only be adopted if:

• the child’s parents give free and informed consent to their child being adopted,^[54] or

• the County Court decides to dispense with the need for the consent of one or both parents.

3.63 Chapter 5 sets out the circumstances in which the Court can make this decision. They include situations where a parent cannot be found ‘after reasonable inquiry’ or where  a child has been ‘abandoned’ or ‘persistently neglected or ill-treated’.^[55]

3.64 The following section focuses on the parents’ decision to have their child adopted.

The parents’ decision to have their child adopted

3.65 The consent of the child’s parents is the fundamental legal requirement in the adoption process.

3.66 Deciding to have a child adopted is a significant decision, with lifelong consequences for all involved. Strict legal procedures surround the decision, to ensure that the parents’ consent is informed and freely given.^[56] The procedures are discussed in full in Chapter 5.

3.67 A parent or parents considering having their child adopted approach an adoption team.^[57] This may happen during pregnancy or after the child is born.^[58] An approved counsellor provides information and counselling about the effects of adoption and alternative options, such as permanent care orders and parenting orders.^[59]

3.68 If the parent or parents decide to proceed with adoption, they must give consent in the manner required by the Adoption Act. This includes signing legal forms in the presence of approved witnesses such as court officials.^[60] The witnesses must be satisfied that the parents understand the effect of adoption.^[61] (See Chapter 5 for more information.)

3.69 Once consent is given, it can be revoked within a period of generally 28 days.^[62] After that, the consent becomes final and cannot be withdrawn.

The effect of consent

Guardianship of the child

3.70 When consent is given, the Secretary or principal officer of the approved agency becomes the child’s guardian. The Secretary or principal officer has day-to-day responsibility for the child, to the exclusion of all other people including the child’s parents.^[63] The parents may ‘visit the child during the period [in] which consent may be revoked’.^[64]

3.71 The Secretary or principal officer remains the child’s guardian until the adoption order  is made.^[65] At that point the adoptive parents become the child’s parents.^[66]

General consent

3.72 A parent’s consent to their child being adopted is a ‘general consent’ to the adoption  of the child.^[67] This means the parent consents to the child being adopted by any person who is able to adopt a child under the Adoption Act.^[68]

Who can adopt?

3.73 A person can adopt a child if they are:

• eligible under the Adoption Act, and

• considered suitable to adopt according to criteria in the Adoption Regulations.

3.74 The Adoption Act defines when a couple or person can adopt a child. It states that  the County Court can make an adoption order in favour of either:^[69]

• two people jointly

• one person.

3.75 Two people who are not in a relationship cannot adopt a child together.

Adoption by two people (couples)

3.76 Two people can adopt a child jointly if they are a couple in a relationship specified  in the Adoption Act:^[70]

• marriages^[71]

• ‘traditional Aboriginal marriages’

• registered domestic relationships

• domestic relationships.

3.77 A traditional Aboriginal marriage is a marriage recognised by the Aboriginal community the couple belong to.^[72] A registered domestic relationship is a relationship registered under the Relationships Act 2008 (Vic).^[73] A domestic relationship is a relationship between two people who are not married or in a registered relationship but ‘who are living together as a couple on a genuine basis (irrespective or sex or gender)’.^[74]

3.78 Couples in these relationships are eligible to adopt if they have been in their particular relationship, or a combination of the specified relationships, for at least two years.^[75]

3.79 Couples in domestic relationships must also show that they live together.^[76] This does  not apply to the other types of couple. Chapter 7 discusses this issue further.

Adoption by one person (sole applicants)

3.80 The Adoption Act contemplates three situations where one person may seek to adopt  a child:

• the person is not in a relationship (ie is single)^[77]

• the person is in a relationship but is applying as a sole applicant rather than jointly with their partner^[78]

• the person is technically married or in a registered relationship but separated and living apart from their partner.^[79]

3.81 The Adoption Act limits when these people can adopt a child. In each case, the person is only permitted to adopt a child if there are ‘special circumstances in relation to the child’ which make the adoption ‘desirable’.^[80] The Adoption Act does not define ‘special circumstances’.

3.82 In practice, ‘infant adoption’ is not available to single people, but single people can  adopt children with special needs.^[81] This issue is discussed in Chapter 7. There were

no adoptions by single people in Australia in 2014–15.^[82]

3.83 Generally, where one person in a couple is seeking to adopt, the other partner must agree to the adoption.^[83]

Step-parents and relatives

3.84 Step-parents and relatives of a child may only adopt a child if:^[84]

• a parenting order under the Family Law Act ‘would not make adequate provision  for the welfare and interests of the child’

• exceptional circumstances exist which warrant making an adoption order

• an adoption order would make better provision for the welfare and interests

of the child than a parenting order.

3.85 These ‘known-child adoptions’ are discussed further in Chapter 7.

Suitability

3.86 The court can only allow a person to adopt a child if it is satisfied that the person meets the suitability criteria in the Adoption Regulations.^[85] These criteria aim to ensure that adoptive parents are able to raise a child in a stable and positive environment and understand the unique aspects of parenting an adopted child.

3.87 The full suitability criteria are set out in Chapter 7. They include factors such as a person’s:

• health

• age

• character

• life experience

• financial circumstances.^[86]

Fit and proper person test

3.88 The court must also be satisfied that applicants other than relatives of a child have been approved as ‘fit and proper persons’ to adopt a child.^[87] This approval is given by the Secretary or a principal officer.^[88] They give approval if applicants satisfy the suitability criteria mentioned above.^[89]

3.89 The adoption teams assess whether applicants satisfy the suitability criteria and provide a report to the court.^[90] This assessment is discussed in Chapter 7. It is one part of the process couples undergo to adopt an infant, as discussed in the following section.

Becoming adoptive parents

3.90 Becoming adoptive parents involves a number of steps, set out below.

Information and training

3.91 Before they can apply for approval, couples must:

• attend a two-hour information session

• participate in two days of group training.^[91]

3.92 Adoption teams run a number of sessions each year. Couples must register with

an adoption team and are invited to attend when places become available.

Assessment

3.93 After the information and training stage, couples may apply to an adoption team

for approval as ‘fit and proper persons’ to adopt.^[92]

3.94 The formal assessment is thorough and time-consuming. Couples complete a large amount of paperwork, give extensive details about their personal and financial circumstances and are interviewed a number of times.^[93]

Approval

3.95 An ‘applicant assessment committee’ decides whether to approve a couple as suitable.^[94] If approval is given, the couple is added to a statewide register of people approved to adopt.^[95] Approval is valid for two years.^[96]

3.96 If approval is not given, the couple can apply to VCAT for a review of the decision.^[97]

3.97 The process from the information session through to approval can take from 12 to 18 months or longer.^[98] At the end of the process, there is no guarantee that the couple will adopt a child.

Selection of adoptive parents

3.98 The Adoption Act does not specify how a couple is selected from the register to adopt  a child.

3.99 As the child’s legal guardian,^[99] the Secretary or a principal officer makes the decision. While the paramount consideration is the child’s welfare and interests,^[100] the Secretary

or principal officer must consider the birth parents’ wishes regarding:

• the adoptive parents’ religion, race and ethnic background

• having contact with, or receiving information, about the child.^[101]

3.100 The child’s parents (or parent) can have a say in which couple is chosen. If the parents wish to be involved, the adoption team selects a small number of suitable couples, based as much as possible on the parents’ wishes. The parents are given de-identified profiles  of these couples and are invited to select one to adopt the child.^[102]

3.101 If the parents prefer not to be involved in the selection process, the Secretary or principal officer makes the decision.^[103]

3.102 The selection process is considered in more detail in Chapter 7.

Placement of child with adoptive parents

3.103 After the long application process, and weeks, months or even years waiting on the adoption register, placement of the child happens in a matter of days once the adoptive couple is chosen.

3.104 The Adoption Act is silent about this stage of the adoption process. The child is placed with the adoptive couple for about 12 months before the adoption is finalised through the court. This time enables bonding and attachment to develop between the child and adoptive couple.

3.105 During this period the adoption team monitors the placement and gives the couple assistance and support.^[104] In some cases there is contact between the child’s parents  and the adoptive family during this time.

3.106 If the placement goes well, the adoption is finalised through the court process.

Finalising the adoption

3.107 To finalise the adoption, the adoptive couple applies to the County Court for the adoption order.^[105] The adoptive couple is called the ‘applicants’.

3.108 The Secretary or principal officer provides a report to the Court about the proposed adoption, including the adoptive couple’s suitability and any wishes expressed by a child’s parent.^[106]

3.109 The child must receive counselling and the child’s wishes must be ascertained (depending on the child’s age and level of understanding) before the Court decides whether to make an adoption order.^[107] This is discussed further in Chapter 5.

3.110 A judge decides whether to make the adoption order at a hearing. The hearing is closed to the public.^[108] The adoptive couple attends with the child and their lawyer, if they have one. In some circumstances the child may need their own lawyer. These circumstances  are discussed in Chapter 5.

3.111 The Court makes the adoption order if satisfied of the following matters:

• the child’s wishes have been ascertained and given due consideration^[109]

• the applicants satisfy the suitability requirements^[110]

• the applicants have been approved as ‘fit and proper people’ to adopt (this does not apply to relative adoptions)^[111]

• the Secretary or principal officer has considered:

• any wishes expressed by a parent about the ‘religion, race or ethnic background’ of the people who adopt the child,^[112] or about contact with, or receiving information about, the child^[113]

• any arrangements agreed between a parent and the applicants about contact with or information about the child^[114]

• the adoption will promote the ‘welfare and interests of the child’.^[115]

The adoption order

3.112 The adoption order cements the adoption. The order states the child’s name, which must be approved by the Court.^[116] The child’s surname generally changes to the adoptive family’s surname.^[117] The child’s given names may also change (see Chapter 8). The adoption order may contain conditions allowing the child’s parents or relatives to have contact with, or receive information about, the child^[118] (see Chapter 5).

Records of the adoption

3.113 The County Court issues a certificate of adoption.^[119] The Court also sends a record of the adoption order, called a memorandum of adoption, to the Registrar of Births, Deaths and Marriages (BDM).^[120] The Registrar registers the adoption order and records details of the adoption in the BDM register.^[121] A new birth certificate is created with this information (see Chapter 8).

After the adoption order

3.114 People may require support after an adoption is finalised. Adoptive parents may need assistance with the particular challenges of bringing up an adopted child, including managing contact with the child’s family of origin.^[122] Chapter 9 discusses issues relating

to post-adoption support.

3.115 After the adoption, people involved in or affected by the adoption may wish to seek information. The Adoption Act gives certain people rights to information about an adoption (see Chapter 8).

Discharge of adoption order

3.116 An adoption order can be revoked by making an application to the County Court to have the order discharged. An adopted person or adoptive parent (or other person)^[123] can apply to the Court in the event that their relationship has broken down irreparably.^[124]

3.117 An application can be made for other reasons, including that the adoption order was obtained by fraud, duress or improper means, or that special circumstances justify having it discharged.^[125]

3.118 The Court can require the Secretary to investigate ‘the circumstances under which the application is made’ and provide a report to the court.^[126] The Court can make a discharge order if, after considering the report, it is satisfied that the adoption order should be discharged and this would promote the ‘welfare and interests of the child’.^[127]

Interaction of adoption law with other laws

3.119 Other laws are relevant to adoption in Victoria. These include:

• the CYF Act (discussed at [3.29])

• the Family Law Act (discussed at [3.34])

• the Charter of Human Rights and Responsibilities 2006 (Vic)

• the Births, Deaths and Marriages Act 1996 (Vic)

• the Child Wellbeing and Safety Act 2005 (Vic)

• the Status of Children Act 1974 (Vic).

3.120 The next chapter discusses how the CYF Act intersects with the Adoption Act.

3.121 The relevance of the Family Law Act is discussed further in Chapter 7.

3.122 Relevant rights in the Charter of Human Rights and Responsibilities are mentioned

in a number of chapters.

3.123 The Births, Deaths and Marriages Act is relevant to the birth certificates of adopted people, which are discussed in Chapter 8.

Other bodies involved in adoption

3.124 This chapter has referred to agencies involved in adoption that have responsibilities under the Adoption Act:

• DHHS

• approved agencies

• the County Court

• VCAT

• BDM.

3.125 A number of other organisations are involved in adoption in Victoria. They provide post-adoption support, assist people affected by adoption and advocate on their behalf (see Chapter 9). The Commission is aware of these organisations’ strong interest in the Commission’s review. It looks forward to their input during the submission and consultation processes.

1. The Supreme Court of Victoria also has jurisdiction to make adoption orders under s 6 of the Adoption Act 1984 (Vic) but in practice adoption matters are heard and determined by the County Court of Victoria.

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2. County Court of Victoria, County Court of Victoria 2014–2015 Annual Report, 7 <https://www.countycourt.vic.gov.au/annual-report>. The annual report does not identify how many adoption orders were for local adoptions and how many for inter-country adoptions. In 2013–14 the Court made 39 adoption orders.

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3. DHHS was established on 1 January 2015. The Department of Human Services (DHS) preceded DHHS. Many of the Victorian government documents about adoption referred to in this paper were produced by DHS and are available on its website.

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4. Adoption Act 1984 (Vic) s 46. See [3.70] for more information.

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5. Ibid s 13. See [3.86]–[3.95] for more information.

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6. Ibid s 32. See also Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 2.

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7. They are available on the DHS website at <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

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8. There have been efforts to achieve national harmonisation of adoption policy and practice. Chapter 2 discusses the development and implementation of model legislation in all Australian states and territories during the 1960s. In 1993, the Community and Disability Services Ministers Conference (CDSMC) ratified the National Principles in Adoption. These were reviewed in 1997 to incorporate Australia’s obligations under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. On 23 July 2008, the CDSMC agreed to establish the Enhancing Adoption as a Service for Children Working Group to review the National Principles and agree on a set of principles to guide adoption practice and a more consistent approach across jurisdictions. The Commission understands that a revised draft of the National Principles was circulated out of session to the CDSMC in April 2012 and that all jurisdictions except the Commonwealth provided endorsement through this process. The CDSMC has since been disbanded as part of streamlining the Council of Australian Governments system. It is unclear whether there has been further work on this issue. The 1997 National Principles in Adoption are available on the DHS website at <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications/national-principles-in-adoption-1997>. See also Department of Human Services, Government of Victoria, Adoption and Permanent Care Learning Guide (Part 1 ‘Introduction’) 15; (Part 2 ‘Infant Adoption’) 6 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

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9. Adoption Act 1984 (Vic) s 9.

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10. Ibid s 9.

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11. Ibid s 22.

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12. Ibid s 13(3). See [3.88].

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13. Ibid s 129A. See [3.96].

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14. Ibid s 15. See the section beginning at [3.107].

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15. Ibid s 19. See [3.116].

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16. Ibid s 53(1)(b).

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17. Ibid s 53(1)(a).

    ↑

18. The circumstances when the Children’s Court can make a permanent care order are set out in section 319 of the Children,
    Youth and Families Act 2005 (Vic).

    ↑

19. Children, Youth and Families Act 2005 (Vic) s 3 (definition of ‘Court’).

    ↑

20. Ibid s 321(1)(a).

    ↑

21. Ibid s 3 (definition of ‘parental responsibility’).

    ↑

22. Or when the child marries, if that happens first: Children, Youth and Families Act 2005 (Vic) s 321(1)(c).

    ↑

23. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 47–8. The numbers have fluctuated but increased since permanent care orders were introduced in 1992. The Children’s Court has made 3963 permanent care orders since 1992.

    ↑

24. Ibid 23, 27, 48. ‘Local adoption’ here means adoption of children in Victoria ‘who were born or permanently residing in Australia before the adoption’ and generally ‘had no previous contact or relationship with the adoptive parent(s)’: Ibid 4.

    ↑

25. Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report No 12 (2007) 104. See also Nicola Ross and Judy Cashmore, ‘Adoption Reforms New South Wales Style: A Comparative Look’ (2016) 30 Australian Journal of Family Law 51, 55–6; Department of Human Services, Government of Victoria, Adoption and Permanent Care Learning Guide (Part 1 ‘Introduction’) 12

    <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

26. Family Law Act 1975 (Cth) s 65D.

    ↑

27. Ibid ss 69J, 69N.

    ↑

28. Ibid ss 64C, 65C.

    ↑

29. Ibid s 64B.

    ↑

30. Ibid ss 61D, 64B(2)(c). Parenting orders may deal with the allocation of responsibility for making decisions about major long-term issues relating to a child: s 64B(3).

    ↑

31. Ibid s 61B. Adoption ends a person’s parental responsibility: s 61E. However, a person’s parental responsibility does not end if the

    adoption is by a ‘prescribed adopting parent’ and the court did not give leave for the adoption proceedings to be commenced under

    s 60G. A ‘prescribed adopting parent’ includes a spouse of, or person in a de facto relationship with, a parent of the child: s 4 (definition

    of ‘prescribed adopting parent’).

    ↑

32. Ibid s 65H(2). A parenting order stops being in force when a child is adopted, unless the adoption is by a ‘prescribed adopting parent’ and the court did not give leave for the adoption proceedings to be commenced under s 60G: s 65J. A ‘prescribed adopting parent’ includes

    a spouse of, or person in a de facto relationship with, a parent of the child: s 4 (definition of ‘prescribed adopting parent’).

    ↑

33. Adoption Act 1984 (Vic) s 10(1)(a).

    ↑

34. Ibid s 10(1)(b).

    ↑

35. Ibid s 15(2).

    ↑

36. Ibid s 10(1)(a) and s 4 (definition of ‘child’).

    ↑

37. Department of Human Services, Government of Victoria, Pathways for Children into Adoption & Permanent Care (A&PC) (nd)

    <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

38. Department of Human Services, Government of Victoria, Infant Adoption (March 2007) <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

39. Ibid.

    ↑

40. The Commission has obtained this information through preliminary consultations with DHHS and some approved agencies.

    ↑

41. Department of Human Services, Government of Victoria, Other Forms of Adoption (3 July 2013) <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-in-victoria/other-forms-of-adoption>.

    ↑

42. Ibid; Pathways for Children into Adoption & Permanent Care (A&PC) <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>; Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report No 12 (2007) 104.

    ↑

43. Another difference between step-child adoption and infant adoption is that step-children tend to be older than other adopted children: Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 28.

    ↑

44. Department of Human Services, Government of Victoria, Other Forms of Adoption (3 July 2013) <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-in-victoria/other-forms-of-adoption>; Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report No 12 (2007) 104.

    ↑

45. Known-child adoptions were the largest proportion of adoptions nationally in 2015: Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 13–4. This report states that ‘While adoption numbers overall have declined over time, “known child” adoptions by carers are increasing’: vi. This is attributable to the number of adoptions by carers in New South Wales: 13–14.

    ↑

46. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 27. This report defines ‘known child adoption’ as follows: ‘an adoption of a child/children who were born or permanently residing in Australia before the adoption, who have a pre-existing relationship with the adoptive parent(s) and who are generally not able to be adopted by anyone other than the adoptive parent(s). These types of adoptions are broken down into the following categories, depending on the child’s relationship to the adoptive parent(s): step-parent, relative(s), care and other’: 101.

    ↑

47. Department of Human Services, Government of Victoria, Other Forms of Adoption (3 July 2013) <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-in-victoria/other-forms-of-adoption>.

    ↑

48. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 46–7.

    ↑

49. Immigration (Guardianship of Children) Act 1946 (Cth) s 4AAA. The terms ‘relative’ and ‘intending adoptive parent’ are defined in s 4.

    ↑

50. Ibid s 6. The Minister may delegate powers under s 5.

    ↑

51. Adoption Act 1984 (Vic) s 33(6). The Secretary of DHHS or a principal officer of an approved agency may apply to the County Court for an order that the Secretary be the guardian of the child, where the Secretary or an approved agency is ‘authorized to make arrangements with a view to adoption of the child’: Adoption Act 1984 (Vic) s 47.

    ↑

52. Ibid s 36.

    ↑

53. Ibid s 51.

    ↑

54. The Adoption Act specifies whose consent is required: s 33. This is discussed in Chapter 5.

    ↑

55. Adoption Act 1984 (Vic) s 43.

    ↑

56. Ibid s 42.

    ↑

57. Department of Human Services, Government of Victoria, Information for parents considering adoption of their child (2008) 8

    <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>. This document states: ‘Sometimes adoption agencies are approached by both parents and at other times it is the mother only who attends for counselling’: 9. Another DHS document explains: ‘Not all birth fathers choose to be involved in planning for their children or desire to become involved in decision making to the same extent as the birth mother’: Department of Human Services, Government of Victoria, Adoption and Permanent Care Learning Guide (Part 2 ‘Infant Adoption’) 41 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

58. Department of Human Services, Government of Victoria, Information for parents considering adoption of their child (2008) 8

    <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>. A parent cannot give valid consent within 14 days after the child’s birth, unless the court orders that this period be shortened ‘in the best interests of the child’: Adoption Act 1984 (Vic) s 42(2)–(3).

    ↑

59. Adoption Act 1984 (Vic) ss 34–35; Adoption Regulations 2008 (Vic) regs 16–17, sch 6; Department of Human Services, Government of Victoria, Information for parents considering adoption of their child (2008) 8 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>; Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report No 12 (2007) 104.

    ↑

60. Adoption Act 1984 (Vic) ss 35; Adoption Regulations 2008 (Vic) regs 22–23.

    ↑

61. Adoption Regulations 2008 (Vic) reg 23.

    ↑

62. Adoption Act 1984 (Vic) s 41. The timeframe for revoking consent can be extended by 14 days.

    ↑

63. Ibid s 46(1). This does not apply where a step-parent or relative is adopting a child: s 46(3). See also Department of Human Services, Government of Victoria, Information for Parents Considering Adoption of their Child (2008) 12–23; Adoption and Permanent Care Learning Guide (Part 2 ‘Infant Adoption’) 6: both documents at <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

64. Ibid s 48.

    ↑

65. Or until other circumstances set out in section 46(1)(b)–(f) occur.

    ↑

66. Adoption Act 1984 (Vic) s 53. See [3.23].

    ↑

67. Ibid s 39.

    ↑

68. This does not apply where the child is being adopted by a relative or step-parent or domestic partner of a parent of the child. In these situations, the consent is to adoption by that particular person: Adoption Act 1984 (Vic) s 39(2), as amended by Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 10.

    ↑

69. Adoption Act 1984 (Vic) s 11, as amended by Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 7.

    ↑

70. Adoption Act 1984 (Vic) s 11(1), as amended by Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 7.

    ↑

71. Nearly 95% of local adoptions in Australian in 2014–15 were by married couples: Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 24.

    ↑

72. Adoption Act 1984 (Vic) s 11(1)(b). The language used in this sub-section in full is ‘[relationship] recognized as a traditional marriage

    by an Aboriginal community or an Aboriginal group to which [the two people] belong’.

    ↑

73. Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 4(1) (definition of ‘registered domestic relationship’); Relationships Act 2008 (Vic) s 3 (definition of ‘registered domestic relationship’).

    ↑

74. Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 4(1) (definition of ‘domestic relationship’).

    ↑

75. Adoption Act 1984 (Vic) ss 11(1), 10A(a), 20A, as amended by Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic)

    ss 6–7, 9.

    ↑

76. This is because of the definition of ‘domestic relationship’. See [3.77] and Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 4(1) (definition of ‘domestic relationship’).

    ↑

77. Adoption Act 1984 (Vic) s 11(3).

    ↑

78. Adoption Act 1984 (Vic) s 11(4), as amended by Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 7(5).

    ↑

79. Ibid.

    ↑

80. Ibid s 11(3).

    ↑

81. Department of Human Services, Government of Victoria, Infant Adoption (March 2007) <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

82. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 24.

    ↑

83. Adoption Act 1984 (Vic) s 11(4), as amended by Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 7(5). See Chapter 7 for more information.

    ↑

84. Adoption Act 1984 (Vic) ss 11(5)–(7), 12, as amended by Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) ss 7–8.

    ↑

85. Adoption Act 1984 (Vic) s 15(1)(a); Adoption Regulations 2008 (Vic) reg 35.

    ↑

86. Adoption Regulations 2008 (Vic) reg 35.

    ↑

87. Adoption Act 1984 (Vic) s 15(1)(a).

    ↑

88. Ibid s 13.

    ↑

89. Ibid s 13(3); Adoption Regulations 2008 (Vic) reg 37.

    ↑

90. Supreme Court (Adoption) Rules 2015 (Vic) r 23(1)(c).

    ↑

91. Department of Human Services, Government of Victoria, Adoption Information and Training <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-in-victoria/adoption-information-and-training>; Adoption and Permanent Care Procedures Manual (2004) 42 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

92. Adoption Act 1984 (Vic) s 13.

    ↑

93. Department of Human Services, Government of Victoria, Adoption and Permanent Care Learning Guide (Part 2 ‘Infant Adoption’) 8, 10, 14 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

94. Ibid 8; Adoption and Permanent Care Procedures Manual (2004) 49, 67–68 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

95. Adoption Act 1984 (Vic) s 13A.

    ↑

96. This is a policy and practice matter, not a legal requirement. See Department of Human Services, Government of Victoria, Adoption and Permanent Care Procedures Manual (2004) 69–70 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

97. Adoption Act 1984 (Vic) s 129A.

    ↑

98. The Commission obtained this information from attending an information session for couples considering applying for infant adoption.

    ↑

99. Adoption Act 1984 (Vic) s 46. See [3.70].

    ↑

100. Adoption Act 1984 (Vic) s 9. See [3.18].

     ↑

101. Adoption Act 1984 (Vic) s 15(1)(b)–(c); Adoption Regulations 2008 (Vic) reg 18.

     ↑

102. Department of Human Services, Government of Victoria, Information for parents considering adoption of their child (2008) 11, 15

     <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>. See further references in Chapter 7.

     ↑

103. Ibid.

     ↑

104. Ibid.

     ↑

105. Supreme Court (Adoption) Rules 2015 (Vic) rr 6(2), 9.

     ↑

106. Ibid r 23.

     ↑

107. Adoption Act 1984 (Vic) s 14(1)(a). Counselling must occur at least 28 days before the adoption order is made.

     ↑

108. Ibid s 107.

     ↑

109. Ibid s 14(1)(b).

     ↑

110. Ibid s 15(1)(a).

     ↑

111. Ibid.

     ↑

112. Ibid s 15(1)(b).

     ↑

113. Ibid s 15(1)(c).

     ↑

114. Ibid.

     ↑

115. Ibid s 15(1)(d).

     ↑

116. Ibid s 56.

     ↑

117. Department of Human Services, Government of Victoria, Information for Parents Considering Adoption of their Child (2008) 16

     <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

     ↑

118. Ibid ss 59, 59A.

     ↑

119. Ibid s 52.

     ↑

120. Ibid s 70.

     ↑

121. Ibid. BDM registered 73 adoption orders in 2014–15: Births, Deaths and Marriages Victoria, Data (14 April 2016) <http://www.bdm.vic.gov.au/utility/about+bdm/about+us/data/>. This figure is not broken down into adoption orders relating to local adoptions and adoption orders relating to inter-country adoptions. BDM registered 109 adoption orders in 2013–14, 55 adoption orders in 2012–13, 73 adoption orders in 2011–12, 89 adoption orders in 2010–11 and 80 adoption orders in 2009–10.

     ↑

122. Department of Human Services, Government of Victoria, Information for Parents Considering Adoption of their Child (2008) 19

     <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

     ↑

123. An application can also be made by the Secretary, principal officer of the agency that arranged the adoption or a birth parent: s 19(2)(a).

     ↑

124. Adoption Act 1984 (Vic) ss 19(1)(b), (2).

     ↑

125. Ibid s 19(1)(a).

     ↑

126. Ibid ss 19(3)–(4).

     ↑

127. Ibid ss 19(5)–(5A).

     ↑