Review of the Adoption Act 1984: Consultation Paper
Appendix B: Rights to adoption information under the information provisions
1. This appendix summarises people’s rights to adoption information under the information provisions of the Adoption Act 1984 (Vic) discussed in Chapter 8.[1]
Terminology
Adoption information
2. In this appendix, the terms ‘information’ or ‘adoption information’ mean ‘information about an adopted person’, which is the term used in the information provisions. This term means:[2]
information about the adopted person or the natural parents or the relatives[3] of the adopted person which …
(a) is reasonably likely to be true; and
(b) does not unreasonably disclose information relating to the personal affairs
of a natural parent, a relative or any other person.
3. ‘Identifying information’ is information which reveals or may reveal a person’s identity or, in some cases, whereabouts. ‘Non-identifying information’ is general information about a person which does not reveal their identity or whereabouts.
Relevant authority
4. To obtain adoption information, a person requests the information through an adoption information service within the Department of Health and Human Services (DHHS) or an approved agency.[4] The Adoption Act describes the request as ‘an application to a relevant authority’. This appendix uses the term ‘relevant authority’,
as it is used in the information provisions.[5] Relevant authorities include the Secretary of DHHS and approved agencies.[6]
Rights
5. Each person’s rights to adoption information are set out below.
Adopted person
6. An ‘adopted person’ includes a person adopted under the Adoption Act or Victoria’s previous adoption legislation.[7]
7. An adopted person’s access to adoption information differs depending on whether they are an adult or a child.
Adopted adult
8. An adopted adult can access non-identifying and identifying information about
a natural parent or relative.[8]
9. Where an adopted adult seeks to access information that reveals a natural parent
or natural relative’s[9] whereabouts, and the information is not contained in the records of the relevant authority, written consent from the natural parent or natural relative
is required before the information can be disclosed.[10] This consent can be given subject to conditions which the relevant authority must comply with.[11]
Adopted child
10. An adopted child may apply for non-identifying and identifying information ‘from the records of the relevant authority, or, where the application is made to the Secretary, from the records of the Secretary, an agency, another body or a person’.[12]
11. Each adoptive parent[13] of the adopted child must consent in writing to the child accessing non-identifying or identifying information.[14]
12. An adopted child may only have access to information that reveals the identity
of a natural parent with that natural parent’s written consent.[15]
Natural parents
13. A ‘natural parent’ is a person named in the birth registration entry of an adopted person.[16] A man not named in the birth registration is recognised as a natural parent in certain circumstances,[17] including where:
• The Supreme Court has declared the man is the adopted person’s father under the Status of Children Act 1974 (Vic).[18]
• The Family Court of Australia has made a parenting order in his favour.[19]
• The man satisfies the Secretary of DHHS ‘that there is prima facie evidence
that [he] is the father of [the adopted person]’.[20]
14. A natural parent’s access to adoption information differs depending on whether
the adopted person is an adult or a child.
15. Where the adopted person is an adult, natural parents can access:
• non-identifying information about the adopted person and adoptive parents[21]
• information about the whereabouts of the adopted person[22]
• information about the identity of the adoptive parents.[23]
16. Where the adopted person is a child, natural parents can access:
• non-identifying information about the adopted person and the adoptive parents[24]
• information about the identity of the adoptive parents and the whereabouts of the adopted person,[25] with the written consent of each adoptive parent.[26]
17. An adoptive parent can give consent subject to conditions.[27]
18. The relevant authority must consider any wishes expressed by the adopted child.[28]
19. The relevant authority can withhold information to give effect to the adoptive parents’ conditions or the adopted child’s wishes.[29]
Adoptive parents
20. Adoptive parents can access non-identifying information about an adopted person’s natural parent or relative.[30]
21. Adoptive parents can also access identifying information about a natural parent,[31]
but only with that natural parent’s written consent.[32] This consent can be given subject to conditions.[33] The relevant authority can withhold information to give effect to the conditions.[34]
22. Where the adopted person is an adult, the relevant authority must notify the adopted person that it intends to give the identifying information to the adoptive parent or parents.[35]
Natural relatives
23. A ‘natural relative’ of an adopted person is a brother, sister, uncle, aunt and grandparent ‘where the relationship is of the whole blood or half-blood’.[36]
24. A natural relative can access non-identifying information that does not reveal
the identity of the adoptive parents or the adopted person’s whereabouts.[37]
25. Natural relatives can only access information about the identity of adoptive parents
or whereabouts of the adopted person where:
• ‘circumstances exist which make it desirable’ to give the information[38]
• written consent has been given by:
• an adopted person who is an adult,[39] or
• where the adopted person is a child, the adoptive parents.[40]
26. The adopted adult or adoptive parents’ consent can be given subject to conditions.[41]
27. In addition, any wishes expressed by an adopted child must be considered.[42]
28. The relevant authority can withhold information to give effect to any conditions
that attach to the consent or the adopted child’s wishes.[43]
Natural adult children of adopted people
29. A ‘natural child’ of an adopted person is ‘a son or daughter of the adopted person where the relationship is of the whole blood’.[44]
30. A natural adult child of an adopted person can access non-identifying and identifying information about their parent’s adoption, including information that reveals the identity of a natural parent or natural relative of the adopted person.[45]
31. Where the information reveals the identity of a natural parent or natural relative, the relevant authority must notify the adopted person that it intends to give that information to the adopted person’s natural child.[46]
32. Where the information reveals a natural parent or natural relative’s whereabouts, and the information is not contained in the records of the relevant authority, written consent from the natural parent or natural relative is required before the information can be disclosed.[47] This consent can be given subject to conditions which the relevant authority must comply with.[48]
-
Adoption Act 1984 (Vic) pt VI.
-
Ibid s 91.
-
A ‘relative’ is ‘a grandparent, brother, sister, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood
or by affinity, and notwithstanding that the relationship depends upon the adoption of any person’: Ibid s 4 (definition of ‘relative’). -
See Ibid ss 102–103.
-
Chapter 8 uses the term ‘adoption information service’ for simplicity. The Commission understands that, in practical terms, the two terms are interchangeable.
-
Ibid s 82 (definition of ‘relevant authority’).
-
Ibid s 82 (definition of ‘adopted person’).
-
Ibid s 93(1).
-
‘Natural relative’ is ‘a grandparent, brother, sister, uncle or aunt of the adopted person where the relationship is of the whole blood
or half-blood’: ibid s 97(1). -
Ibid s 93(2)(a)–(c). Consent is not required if the person whose whereabouts would be disclosed has died or cannot be found after
the relevant authority has made all reasonable enquiries: s 93(3). -
Ibid s 93(2)(d).
-
Ibid s 94(1)(a)–(b).
-
Or guardian if the child’s guardian is not an adoptive parent.
-
Adoption Act 1984 (Vic) s 94(2). Consent is not required if the adoptive parents have died and the relevant authority has evidence of the adoptive parents’ death.
-
Ibid s 94(3). Consent is not required if the natural parent has died and the relevant authority has evidence of the natural parent’s death. It appears from the wording of section 94(1) that identifying information about a natural relative can be given without that person’s consent.
-
Ibid s 82 (definition of ‘natural parent’).
-
Ibid.
-
Status of Children Act 1974 (Vic) ss 9–10.
-
See Chapter 3 for information about parenting orders.
-
Adoption Act 1984 (Vic) s 82. This applies to sections 95, 96 and 103 of the Adoption Act.
-
Ibid s 96(1)(a).
-
Ibid s 96(1)(b).
-
Ibid.
-
Ibid s 95(1)(a).
-
Ibid s 95(1)(b).
-
Ibid s 95(2)(a)(ii). Or guardian if the child’s guardian is not an adoptive parent. An adoptive parent or guardian’s consent is not required where the person has died and the relevant authority has evidence of the person’s death.
-
Ibid s 95(2)(a)(ii).
-
Ibid s 95(2)(a)(i).
-
Ibid s 95(2)(b).
-
Ibid ss 98(1)(a), 91.
-
Ibid s 98(1)(b).
-
Ibid s 98(2)(a). Unless the natural parent has died and the relevant authority has evidence of the person’s death.
-
Ibid.
-
Ibid s 98(2)(b).
-
Ibid s 98(2)(aa). Unless the adopted person has died and the relevant authority has evidence of the person’s death.
-
Ibid s 97(1).
-
Ibid s 97(2)(a).
-
Ibid s 97(3)(a)(i).
-
Ibid s 97(3)(a)(ii). Unless the adopted person has died and the relevant authority has evidence of the person’s death.
-
Ibid s 97(3)(a)(iii)(B). Or the guardian’s consent, if the guardian is not an adoptive parent. An adoptive parent or guardian’s consent
is not required where the person has died and the relevant authority has evidence of the person’s death. -
Ibid ss 97(3)(a)(ii), (iii)(B).
-
Ibid s 97(3)(a)(iii)(A). Unless the adopted child has died and the relevant authority has evidence of the child’s death.
-
Ibid s 97(3)(b).
-
Ibid s 96A(1).
-
Ibid s 96A(2).
-
Ibid s 96A(3).
-
Ibid s 96A(4)(a)–(c). Consent is not required if the person has died or cannot be found after the relevant authority has made all reasonable enquiries.
-
Ibid s 96A(4)(d).