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Home | Family Law | Adoption

What is Adoption?

Adoption is the legal process of transferring parental responsibility from a biological parent to an adoptive parent.

Types of Adoption

In Australia the most common forms of adoption including the following:

  • Foster carer adoption;
  • Step parent adoption;
  • International adoption;
  • Inter Family adoptions;
  • Adoptions where a child is born as a result of an altruistic surrogacy arrangement.

Court Proceedings

Adoption proceedings are legislated by individual State Governments, though in cases of step-parent adoptions an order from the Family Court is usually required prior to the commencement of proceedings in the New South Wales Supreme Court. For a party to commence Adoption proceedings in New South Wales the child should be present in the state and the person applying for the Adoption should be a resident of New South Wales.

The court in adoption proceedings is concerned with ensuring that the biological parent has capacity to consent to the adoption or in cases where there is no consent by the biological parent that the adoption is in the best interests of the child. In some circumstances children over the age of 12 years can consent to the adoption themselves.

FAQ

Can same sex couples adopt a child?

Can same sex couples adopt a child?

In New South Wales same sex couples can, and regularly do, adopt children. As the legislation governing adoption varies from state to state this may not be the case in all jurisdictions.

When does a child have the right to consent to an adoption?

When does a child have the right to consent to an adoption?

In New South Wales, in cases where a child is 12 years old and has resided with the prospective adoptive parents for 2 years then they may consent to an adoption.

What happens to the requirement for consent if the biological parent cannot be located?

What happens to the requirement for consent if the biological parent cannot be located?

The Supreme Court has the power to dispense with consent in the event that any of the following can be proven:

  1. The biological parent cannot be located despite the best attempts to find them;
  2. The biological parent does not have the capacity to consent. This may be because of physical or mental incapacity;
  3. That there are serious concern about the welfare of the child such that consent should be overridden;
  4. That it is in the child's welfare for the adoption to occur despite the lack of consent

The Court will not dispense with consent unless it is in the best interests of the child.

Can my new partner adopt my children?

Can my new partner adopt my children?

The answer is yes but it is a difficult and often expensive process. Step-parents who wish to apply to adopt their partners child must first make an application to the Family Court of Australia pursuant to s60G seeking leave to adopt. Once leave is granted an application must be made to the Supreme Court who will then determine whether the adoption should proceed.

If the biological parent is involved in the care of the child, or does not consent to the adoption then both the Family Court and the Supreme Court will need to be convinced as to why the adoption should proceed having regard to the best interests of the child.

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