An adoption order can be made in favour of a couple. Since 1 September 2016, same-sex couples can adopt. In special circumstances, an order may be made in favour of one person.
In the case of an adoption order being made in favour of a couple, that couple must:
• be married to or living in a domestic relationship with each other; or
• be in a relationship that is recognised as a traditional marriage 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 order is made.
The court must also be satisfied that the applicants are fit and proper persons to be parents and that the welfare and interests of the child will be promoted by the adoption.
If you wish to adopt a child, enquiries are made to adoption agencies (see “Victorian adoption agencies”). Note that most (but not all) agencies will assist same-sex couples. Applications for infant adoption should be made to Infant Adoption Victoria (see “Contacts”).
Section 20A of the Adoption Act determines that an application to adopt from DHHS or an approved adoption agency cannot be made until applicants have been married or in a de facto situation of at least two years duration.
If DHHS is able to accept your enquiry you will be required to participate in information and education groups to help you understand the implications of adoption and the needs of an adopted child, and also to attend interviews. (Note that adoption of a particular child by a relative or step-parent is usually arranged through a solicitor.)
If as a result of these interviews the application is accepted, the couple will be available for placement of an infant.
If a placement is not made after two years a formal review is held, to ensure the couple remain eligible and suitable to adopt and wish to remain on the approved list. After a placement is made, the agency or DHHS will continue to visit the couple for several months to provide support.
The agency will eventually authorise 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.
The Adoption Rules set out the procedure that has to be followed once consents (if they are necessary) have been obtained or received from the agency. The next steps are as follows.
1 Prepare the following documents:
a summons (form 1, r 6): file two copies with the court registrar;
b notice of identification (to be signed by a solicitor personally) (form 2, r 7(2)): file one copy only;
c affidavit of applicants (form 3, r 9), and exhibits if necessary (e.g. copy of decree absolute): file one only;
d form of adoption order (form 9, r 30(1)): file in duplicate (in triplicate if the child is born interstate); and
e obtain certified copy of entry of birth of child.
2 Having prepared the necessary documents and the applicants having sworn the affidavit, file the above documents with the adoption clerk of the relevant County Court. The prescribed fee is payable on the summons.
3 In accordance with rule 13, serve the following documents on the “guardian” of the child (see (4), below, for the definition of “guardian”):
a a copy of the applicants’ affidavit, with exhibits;
b a certified copy of the entry of the child’s birth;
c a copy of the notice of identification (under r 7(2)); and
d an order dispensing with consent (if required), or a copy of the dispensation application if the order has not yet been granted.
4 Note that “guardian of the child” is defined in sections 4(1) and 46 of the Adoption Act:
a where an approved adoption agency is nominated on the consent form, it is the principal officer of the adoption agency;
b where DHHS is nominated on the consent form, it is the Secretary of DHHS; and
c where a relative is applying for the adoption no guardian is appointed.
5 Prepare and file affidavit of service of the documents described in (3) above. Service may be personal or by pre-paid registered mail (r 13 Adoption Rules). For convenience this affidavit should be filed together with the affidavit of service of summons (see (10), below).
6 The guardian should then investigate the circumstances of the child and the applicant and all other matters relevant to the proposed adoption. The guardian must then file an affidavit of the guardian setting out the result of the investigation, and exhibit to this affidavit the:
a consent document and/or order dispensing with consent, as appropriate;
b certified copy of entry of birth of child.
The guardian’s affidavit is prepared by the solicitor involved and forwarded to the agency involved for ratification and execution, unless the child has been placed under the guardianship of the Secretary of DHHS by the Children’s Court, in which case it is prepared by the agency involved. This affidavit is required to be filed within 30 days of service of documents upon the guardian, or within such time as the judge may otherwise direct (r 23).
7 When the court receives these documents from the guardian, a hearing date is appointed (r 17).
8 The solicitor is sent a copy of the summons setting out the hearing date by the adoption clerk. Requisitions may be sent to the solicitor.
9 Service on the guardian by a solicitor of a sealed copy of the summons notifying date of hearing. This must be served not later than five clear days before the hearing (r 18).
10 Prepare and file 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:
a date of hearing; and
b court number (r 19).
11 Attend court at time and date appointed. Hearings are in closed court and the procedure is quite informal. Counsel do not robe. If the child’s placement was made by DHHS, 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. The court forwards a copy of the order to the office of the registrar of Births, Deaths and Marriages.
13 The registrar 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 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 a copy of any entry marked “adopted” except where:
• ordered to do so by the court; or
• an application is received from the Secretary of DHHS, 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 a person who was not adopted.
The Act also allows Births, Deaths and Marriages Victoria to register the adoption of a child whose adoption was finalised in a country that has signed the Hague Convention (1993) with the State’s Central Authority involvement, and issue a birth certificate in respect of the child when an application is made.
If all parties agree, an adoption order may be made that allows for provision of information about the child and/or access to the child by natural parents and relatives. 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 has regard to the wishes of the child dependent on age and understanding (s 60).