Who can adopt?


Introduction

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 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 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 Act). 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 court must also be satisfied that the applicants are “fit and proper” persons to adopt the child and that the child’s welfare and interests will be promoted by the adoption (s 13; reg 7).

If you wish to adopt a child, contact DHHS or an approved adoption agency (seeVictorian approved adoption agencies”). Note that most (but not all) agencies will assist same-sex couples. If you wish to adopt an infant, apply to Infant Adoption Victoria (see “Contacts”).


NOTE

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 relationship for at least two years.


Couples who contact DHHS or an adoption 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. The couples will also be interviewed. (Note that adoptions by a relative or step-parent are usually arranged through a solicitor.)

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 agency or DHHS visits the couple for several months to provide support.

Eventually, the agency or DHHS 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 DHHS or the approved adoption agency.

The procedure for legalising an adoption is:

1 Prepare the following documents:

a a summons (form 1, rule 6 Adoption Rules): two copies;

b a notice of identification (to be signed by a solicitor) (form 2, rule 7(2)): one copy;

c an affidavit of applicants (form 3, rule 9) and exhibits if necessary (e.g. a copy of a decree absolute): one copy;

d a form of adoption order (form 9, rule 30(1)): two copies (or three copies if the child was born interstate);

e a memorandum of an adoption order (form 17, rule 30(2)): one copy;

f a certified copy of the entry of the child’s birth: one copy.

2 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 of the Adoption Rules, serve the following documents on the child’s “guardian” (see point 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 rule 7(2));

d an order dispensing with consent (if required) or a copy of the dispensation application if the order has not yet been granted.

4 “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, the guardian is the principal officer of the adoption agency;

b where DHHS is nominated on the consent form, the guardian is the Secretary of the DHHS;

c where a relative is applying for adoption, no guardian is appointed.

5 Prepare and file the affidavit of service 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 exhibit this affidavit with:

a a consent document or an order dispensing with consent, as appropriate;

b a certified copy of the entry of the child’s birth.

The guardian’s affidavit is prepared by a solicitor and sent to the adoption 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 which case the guardian’s affidavit is prepared by the adoption 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 hearing date is set (rule 17).

8 The County Court adoption clerk sends the solicitor a copy of the summons setting out the hearing date.

9 The guardian is served (by a solicitor) 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:

a the date of hearing; and

b the court number (rules 18, 19).

11 Attend court at the time and date appointed. Hearings are in closed court and the procedure is quite informal (e.g. lawyers do not wear robes). 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 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 Secretary of the 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 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.

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).

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:

1 The welfare and interests of the child would not be adequately provided for by an order in relation to the guardianship and custody of the child under the FL Act;

2 There are exceptional circumstances that justify an adoption order being made rather than other orders; and

3 Adoption makes better provision for the welfare and interests of the child. Natural parents are not able (or required) to adopt their own child.

See Family Court orders”.

The Adoption Act does not define what constitutes “exceptional circumstances”. However, guidance can be taken from the Adoption and Permanent Care Procedures Manual (2004), which lists 134 factors that might fulfill these grounds.


NOTE

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 jurisdiction 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 DHHS or an approved adoption agency.

The adoption process includes:

DHHS or the approved adoption 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.

DHHS or the approved adoption 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.

In relation to spousal and relative adoptions, DHHS and approved adoption agencies are guided by policies such as those in the Adoption and Permanent Care Procedures Manual (2004). This manual states (at 30) that:

Adoption was more appropriately used in situations where children were not related to the adoptive parents. More specifically, concerns expressed regarding adoption in relative and step-parent situations include the following:

Adoption permanently severs the legal relationship between the child and relatives who are significant to the child.

Adoption could be used as a means of excluding the child’s extended family, who would no longer have a legal relationship with the child.

Adoption may inhibit the ability of the family members to clarify their legal relationships and it may also inhibit the ability of the child to clarify his/her biological background.

In relation to children adopted by relatives, genealogical confusion could arise as the child’s mother may become the legal “sister” or “cousin”.

Adult adoptions

In Victoria, it is possible to apply to adopt a “child” even if they are aged 18 years or older. A person may be adopted when they are an adult, provided they have been brought up, maintained and educated by the applicant, as the child of the applicant, as if the applicant was the child’s parent (s 10 Adoption Act).

Under section 15(2) of the Adoption Act, an applicant seeking to adopt an adult does not have to be approved as a fit and proper person to adopt. Also, the Secretary of the DHHS, or the approved adoption agency, does not have to complete the usual reporting procedures. However, the court must still be satisfied that special circumstances make it desirable that the person who is the subject of the application be adopted.

The court may require that concerned third-parties (e.g. a birth parent) be notified of the adoption application. However, this is not mandatory (s 16).