Adoption Act 1994

Western Australia

Adoption Act 1994

Western Australia

Adoption Act 1994

CONTENTS

Part 1 — Preliminary

1. Short title 2

2. Commencement 2

3. Principles 2

4. Interpretation 2

4A. Presumptions of parentage 8

5. Act binds Crown 8

Part 2 — Adoption agencies

Division 1 — Authority to conduct adoption services

6. Adoption services to be conducted by or on behalf of CEO 9

7. Adoption services as to step‑parent adoptions 9

8. Offence 9

Division 2 — Private adoption agencies

9. Private adoption agencies 10

10. Regulations as to private adoption agencies 10

11. Offence of holding out, etc. 11

Division 3 — Adoption applications committee

12. Establishment of adoption applications committee 12

13. Functions of adoption applications committee 12

14. Membership of adoption applications committee 13

15. Procedures etc. of adoption applications committee 13

Part 3 — The adoption process

Division 1 — Preliminary matters

16. Duties of CEO as to birth parents 14

16A. Matters relevant to the adoption process for Aboriginal or Torres Strait Islander children 15

Division 2 — Consent to adoption

17. Persons to give consent 15

18. Effective consent 16

20. Specification of prospective adoptive parent 18

21. Man who may be a prospective adoptee’s father to be notified 18

22. Revocation of consent 20

23. Notice of revocation 20

Division 3 — Court applications as to consents to adoption and notices

24. Orders dispensing with consent 21

25. Orders as to service of notice 22

26. Application for parenting order 23

Division 3A — Court applications for determinations of parentage

26A. Definitions 24

26B. Application of this Division 24

26C. Application for determination of parentage 24

26D. Orders on application for determination of parentage 25

26E. Orders associated with parentage testing orders 26

26F. Orders directed to persons 18 or over 27

26G. Orders directed to children under 18 27

26H. No liability if parent etc. consents 28

26I. Reports of information obtained may be received in evidence28

26J. Revocation of consent 28

Division 4 — Guardianship of prospective adoptees

27. Guardians of children awaiting adoption where all consents accounted for 29

28. Guardianship of children awaiting adoption where not all consents finalised 30

29. Cessation of guardianship of children awaiting adoption 31

30. If not possible or desirable to place a child for adoption 31

31. Care of child pending placement for adoption 32

32. Responsibilities of guardians of children awaiting adoption 32

33. Renunciation and transfer of guardianship by CEO 32

34. Transfer of guardianship to CEO 33

35. Offence 34

Division 5 — Court applications as to guardianship of children awaiting adoption

36. Orders as to guardianship under Division 4 34

Division 6 — Prospective adoptive parents

37. Duty of CEO as to information about adoptive parenthood 35

38. Application to be a prospective adoptive parent 35

39. Criteria for application 36

40. Assessment of applicants for adoptive parenthood 37

41. Adoption applications committee 38

42. Decisions of adoption applications committee 38

43. Reasons for decision 39

44. CEO to keep registers 39

Division 7 — Placement of prospective adoptees

45. Selection of prospective adoptive parents 40

46. Negotiation of adoption plans 41

47. Duty of CEO as to adoption plans 42

48. Placement following adoption plan 42

49. Placement if no adoption plan 43

50. Orders to constitute provisions of adoption plans 43

51. Medical report as to child’s health before placement 44

52. Restrictions on placement 44

53. Placing children who cannot be placed under s. 52 47

54. Supervision of placements 47

Division 8 — Adoptions by step‑parents or carers

55. Adoption plans in adoptions by step‑parents or carers 47

Division 9 — Applications for adoption orders

56. Placement to be for at least 6 months 48

57. Time for applying for adoption order may be shortened 48

58. Notice of intention to apply for adoption order 48

59. Notice where birth parent deceased or cannot be found 49

60. Court applications as to notices 50

61. Report for adoption proceedings 50

62. Application for adoption order 50

63. Intervention by CEO or other persons in applications for adoption orders 51

64. Evidence on application for adoption order 51

Division 10 — Adoption orders

65. Jurisdiction 52

66. Who may be adopted 52

67. Who may adopt 53

68. Adoption orders in relation to children 54

69. Adoption orders in relation to adults 57

70. Court may allow further parties to adoption plans 58

71. Other powers on adoption applications 58

72. Approval and enforcement of adoption plans 58

73. Dispensing with adoption plans 59

74. Name of adoptee 59

75. Effect of adoption orders 60

76. Variation of adoption plans 62

77. Discharge of adoption order 63

78. Court to notify Registrar of adoption order etc. 65

Division 11 — Adoption of a child in Western Australia who is to live in a Convention country

78A. Arrangements for adoption 66

78B. Issue of adoption compliance certificate 67

Part 4 — Adoptions information

Division 1 — Adoption information services

79. Duties of CEO as to adoption information services 68

80. CEO to notify certain persons in event of death 70

Division 2 — Access to adoptions information

81. Interpretation and application of Division 2 70

82. CEO’s authority to allow access to information 71

83. Court orders as to access to information 72

84. Court records 73

85. Registration of birth 74

86. Portion of registration of birth not referring to adoption 74

88. Non‑identifying information held by adoption agencies 75

89. If party to adoption deceased 76

90. If adoptee cannot be found 77

Division 3 — Exchange and preservation of adoptions information

91. Family Court to provide information to CEO 79

92. Registrar to provide information to CEO 79

93. Persons or bodies to provide information to CEO 79

94. Preservation of records as to adoptions information 80

Division 4 — Contact vetoes

99. Register of contact vetoes 81

100. Duration of contact vetoes 81

102. Confirmation, cancellation or variation of vetoes 82

103. Undertakings not to contact person who has lodged contact veto 83

104. Offence to breach undertaking or harass 83

Division 5 — Private contact and mediation licensees

105. Contact and mediation agencies to be licensed 84

106. Licences to conduct contact and mediation services 84

107. Regulations as to contact and mediation agencies 85

108. Contact and mediation agencies bound by contact veto 85

Division 6 — Updating non‑identifying information

109. CEO to attempt to obtain current information 86

Part 5 — Review of decisions and appeals

Division 1 — Review by CEO

110. Review by CEO 88

111. Nature of review by CEO and evidence 88

112. Powers of CEO on review 89

Division 2 — Decisions of the adoption applications committee

113. CEO may direct committee to review its own procedures 89

Division 3 — Appeals to Family Court

114. Matters that may be appealed to the Family Court 90

115. Nature of appeal to Family Court 90

116. Role of CEO in appeals from decisions of committee 91

117. Status of decision pending appeal 91

Division 4 — Appeals to Court of Appeal

118. Appeals from decision of Family Court under Division 3 91

119. Appeals from other decisions of Family Court not affected 92

Part 6 — Offences

120. Interpretation 93

121. Territorial application 93

122. Payments for adoption, adoptions services etc. 93

123. Restriction on advertising 94

124. Restriction on publication of identity of parties 95

125. Undue influence 96

126. Harassment etc. 97

127. Confidentiality 97

128. Authority, and time in which, to prosecute 98

129. Other evidentiary matters 99

Part 7 — Miscellaneous

Division 1 — Delegation and protection

130. Delegation by CEO 100

130A. Delegation by State Central Authority 100

131. Protection from liability etc. 100

132. Distribution of property not affected without notice 101

Division 2 — Proceedings

133. Proceedings to be private 102

134. Representation of children 102

Division 2A — State Central Authority

134A. State Central Authority 103

134B. Functions of the State Central Authority 104

Division 3 — Non‑Western Australian adoptions

135. Arrangements with other States and Territories 104

136. Recognition of other Australian adoptions 104

136A. Recognition in Western Australia of an adoption in a Convention country of a child from that country105

136B. Order of termination of relationship of child and parent in relation to a simple adoption 105

136C. Recognition in Western Australia of an adoption of a child from a Convention country to another Convention country106

136D. Effect of recognition of adoption 107

136E. Recognition of a decision in a Convention country to convert a simple adoption 108

136F. Refusal to recognise an adoption or a decision to convert a simple adoption 109

136G. Evidential value of adoption compliance certificate 110

136H. Report on person who wishes to adopt a child in a Convention country 110

137. Arrangements with other countries 110

138. Recognition of non‑Australian adoptions 111

138A. Recognition in Western Australia of an adoption in an overseas jurisdiction of a child from that jurisdiction113

138B. Effect of recognition of adoption 114

138C. Evidential value of adoption certificate 115

138D. Report on person who wishes to adopt a child in an overseas jurisdiction 115

139. CEO to supervise children adopted outside Australia 116

Division 4 — Financial assistance and payment for services

140. Financial assistance 117

141. Payment for services 117

Division 5 — Rules and regulations

142. Rules 118

143. Regulations 118

Division 6 — Repeal, transitional and savings, consequential amendments and review

144. Repeal of Adoption of Children Act 1896, transitional and savings 120

146. Review 121

Schedule 1 — Effective consent

1. Information and counselling before consent 122

2. Witnesses 123

3. Certificate of witness 124

Schedule 2 — Rights and responsibilities to be balanced in adoption plans

1. Infancy 125

2. Childhood 125

3. Adolescence 126

4. Adulthood 126

Schedule 2A — Aboriginal and Torres Strait Islander children — placement for adoption principle

Schedule 2B — The Hague Convention

Schedule 3 — Transitional and savings

1. Interpretation 143

2. Interpretation Act 1984 not affected 143

3. Further savings 143

4. Application for order of adoption 143

5. Child placed with a view to adoption under repealed Act 143

6. Consent given but child not placed under repealed Act 144

7. Waiting lists under repealed Act of prospective adoptive parents 144

8. Some provisions of this Act to apply to adoptions under repealed Act 144

9. Some provisions of this Act as to access to information not to apply to adoptions under repealed Act145

10. Consent not required if person to consent is deceased 147

11. If adoptee incapable of giving consent 148

12. If adoptive or birth parents incapable of giving consent 148

13. Adoptee under 18 who cannot obtain all required consents148

14. Record of Court proceedings under repealed Act 149

15. Original and re‑registrations of birth under repealed Act 149

Notes

Compilation table 150

Provisions that have not come into operation 152

Western Australia

Adoption Act 1994

An Act to make provision for the adoption of persons and for the parties to adoptions and their relatives to have access to information about the parties, to repeal the Adoption of Children Act 1896, and for related purposes.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Adoption Act 1994 1.

2. Commencement

The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation 1.

3. Principles

(1) The paramount considerations to be taken into account in the administration of this Act are —

(a) the welfare and best interests of a child who is an adoptee or a prospective adoptee;

(b) the principle that adoption is a service for a child who is an adoptee or a prospective adoptee; and

(c) the adoption of a child should occur only in circumstances where there is no other appropriate alternative for the child.

(2) It is acknowledged that adoption is not part of Aboriginal or Torres Strait Island culture and that therefore the adoption of a child who is an Aboriginal person or a Torres Strait Islander should occur only in circumstances where there is no other appropriate alternative for that child.

[Section 3 inserted by No. 8 of 2003 s. 4.]

4. Interpretation

(1) In this Act, unless the contrary intention appears —

Aboriginal person means a person who is a descendant of Aboriginal people of Australia;

access, in relation to information, includes the inspection of a document containing the information and the receipt of a document or extract or copy of a document that contains the information;

adoptee means a person who is adopted under an adoption order;

adoption applications committee means the committee appointed under section 12;

adoption authority means a person, body or office in an overseas jurisdiction responsible for approving the adoption of children;

adoption certificate, in relation to an adoption, means a certificate or other document issued by an adoption authority in the overseas jurisdiction in which the child to whom the certificate relates was habitually resident before being adopted, stating that —

(a) the adoption took place in accordance with the laws of that overseas jurisdiction; and

(b) the CEO, or a person or a delegate of a person whose functions in another State or a Territory correspond with those of the CEO under this Act, agreed that the adoption may proceed;

adoption compliance certificate means a certificate that is referred to in Article 23 of the Hague Convention;

adoption order means an order for the adoption of —

(a) a child under section 68(2);

(b) an adult under section 69(1); or

adoption plan has the meaning given by section 46(2), whether the provisions of the plan are agreed between the parties to the plan, determined by the Court or included in the plan under section 70(2) or 76(4);

adoption service means any one of the things referred to in section 8(1);

adoptive parent means a person who adopts, or 2 persons who jointly adopt, another person under an adoption order;

Australian citizen means a person who is an Australian citizen under the Australian Citizenship Act 1948 of the Commonwealth;

birth parent means, in relation to a child or adoptee —

(a) the mother of the child or adoptee; and

(b) the father or parent of the child or adoptee under section 6A of the Artificial Conception Act 1985;

carer means, in relation to a child, a person who has had, or 2 persons who have jointly had, for at least 3 years, the daily care and control of the child and the responsibility for making decisions concerning the daily care and control of the child through a placement arranged or approved by the Department for the care of the child by the person or persons;

Central Authority means an authority designated under Article 6 of the Hague Convention for a Convention country;

CEO means the chief executive officer of the Department;

child means a person who is less than 18 years of age; and in the absence of positive evidence as to age, means a person who is apparently less than 18 years of age;

Commonwealth Central Authority has the same meaning as it has in the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 of the Commonwealth;

competent authority means an authority of a Convention country that has power to issue an adoption compliance certificate and that has been notified to the depository of the Hague Convention under Article 23.2 of the Convention;

contact includes a communication, or attempted communication, by any means including through another person;

contact and mediation licensee means a person who holds a licence provided for by Division 5 of Part 4;

contact veto means a statement that was registered under Part 4 Division 4 before the veto cut off day by which a person forbids another person to contact the first‑mentioned person;

country includes a state, province or other territory that is one of 2 or more such entities that together form a country;

Court means the Family Court of Western Australia;

Department means the department of the Public Service principally assisting the Minister in the administration of this Act;

document includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

effective consent has the meaning given by section 18;

Hague Convention means the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption signed at The Hague on 29 May 1993, a copy of the English text of which is set out in Schedule 2B;

identifying information means any information from which the identity of a person may be ascertained;

lawyer means a certificated practitioner within the meaning of the Legal Practice Act 2003;

lineal relative, in relation to a person, means each of the following people —

(a) the person’s parent or remoter lineal ancestor;

(b) the person’s child or remoter lineal descendant;

whether the relationship is established by, or traced through, marriage, a written law or a natural relationship;

medical practitioner means a person who is registered under the Medical Practitioners Act 2008 and who has a current entitlement to practise under that Act;

mother means, in relation to a child or adoptee, the woman who gave birth to the child or adoptee;

overseas jurisdiction means a country prescribed as an overseas jurisdiction;

parental responsibility means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children;

party to an adoption means —

(a) in relation to a proposed adoption —

(i) the prospective adoptee;

(ii) the prospective adoptee’s birth parents; and

(iii) the prospective adoptive parent;

and

(b) in relation to an adoption —

(i) the adoptee;

(ii) the adoptee’s birth parents; and

(iii) the adoptee’s adoptive parent;

private adoption agency means a body corporate which holds a licence provided for by Division 2 of Part 2;

Registrar means the Registrar of Births, Deaths and Marriages;

relative, in relation to a person, means each of the following people —

(a) the person’s —

(i) spouse or de facto partner;

(ii) parent or other ancestor;

(iii) child or other descendant;

(iv) step‑parent or step‑child;

(v) sibling;

(vi) uncle or aunt,

whether the relationship is of the whole or half blood, established by, or traced through, marriage, a written law or a natural relationship;

(b) in the case of an Aboriginal person, a person regarded under the customary law or tradition of the person’s community as the equivalent of a person mentioned in paragraph (a);

(c) in the case of a Torres Strait Islander, a person regarded under the customary law or tradition of the Torres Strait Islands as the equivalent of a person mentioned in paragraph (a);

representative, in relation to a child means, the child’s representative appointed under section 134(1);

revocation period means the period under section 22, within which a consent to an adoption may be revoked;

State Central Authority means the person appointed under section 134A to be the Central Authority for the State of Western Australia for the purpose of Article 6.2 of the Hague Convention;

step‑parent means, in relation to a person, another person who —

(a) is not a birth parent or adoptive parent of the first‑mentioned person; and

(b) is married to, or the de facto partner of, the first‑mentioned person’s birth parent or adoptive parent;

Torres Strait Islander means a person who is a descendant of the indigenous inhabitants of the Torres Strait Islands;

veto cut off day means the day fixed under section 2(1) of the Adoption Amendment Act (No. 2) 2003 2.

(2) A reference in this Act to a married person is a reference to —

(a) a person who is married; or

[(b) deleted]

(c) an Aboriginal person or a Torres Strait Islander who is regarded by the community in which the person lives as being married in accordance with the customs or rules of the community.

(3) A reference in this Act to a Convention country is, subject to Article 45 of the Hague Convention, a reference to —

(a) a country specified in column 2 in Schedule 2 to the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 of the Commonwealth;

(b) any other country for which the Hague Convention has entered into force, other than —

(i) Australia; and

(ii) a country in respect of which Australia has raised an objection under Article 44 of the Hague Convention.

[Section 4 amended by No. 57 of 1997 s. 17; No. 41 of 1997 s. 4; No. 40 of 1998 s. 6(2); No. 7 of 1999 s. 4 and 8; No. 3 of 2002 s. 6; No. 8 of 2003 s. 5; No. 65 of 2003 s. 12; No. 34 of 2004 s. 251; No. 22 of 2008 s. 162.]

4A. Presumptions of parentage

The presumptions of parentage set out in Part 5 Division 11 Subdivision 3 of the Family Court Act 1997 apply when considering, for the purposes of this Act, who is —

(a) a parent of a person who is a prospective adoptee; or

(b) a birth parent of a person who is an adoptee.

[Section 4A inserted by No. 8 of 2003 s. 6.]

5. Act binds Crown

This Act binds the Crown.

Part 2 — Adoption agencies

Division 1 — Authority to conduct adoption services

6. Adoption services to be conducted by or on behalf of CEO

(1) The CEO is to conduct adoption services and may delegate that function to officers of the Department or such other persons who the CEO thinks are suitable.

(2) An adoption service is conducted by a delegate of the CEO only if the person conducting the adoption service is authorised in writing by the CEO to conduct the adoption service, and the adoption service is —

(a) conducted for the purpose or case that is specified in the authority; and

(b) in accordance with any condition or restriction imposed by the authority.

[Section 6 amended by No. 34 of 2004 s. 251.]

7. Adoption services as to step‑parent adoptions

Adoption services may be conducted by the birth parent of a child who has the responsibility for the long‑term and day‑to‑day care, welfare and development of the child or a person acting on behalf of that birth parent, with a view to the child’s adoption by a step‑parent of the child.

[Section 7 amended by No. 41 of 1997 s. 6.]

8. Offence

(1) A person must not —

(a) make an arrangement for or towards or with a view to the adoption of a child;

(b) conduct negotiations for or towards or with a view to the adoption of a child;

(d) assist in the preparation or mediation of an adoption plan or a variation of an adoption plan.

Penalty: $25 000 and 2 years’ imprisonment.

(2) This section does not apply to —

(a) the CEO or a person authorised under section 6(2);

(b) a person to whom section 7 applies; or

(c) a private adoption agency, where the adoption service is conducted under and in accordance with a licence provided for by Division 2.

[Section 8 amended by No. 34 of 2004 s. 251.]

Division 2 — Private adoption agencies

9. Private adoption agencies

(1) The Minister may grant a licence to a body corporate to conduct adoption services and to perform other functions for the purposes of this Act.

(2) An application for a licence can only be made during a period of time set by the Minister as a period during which applications for licences can be made.

(3) The Minister is to publish the periods of time set under subsection (2) in such manner as the Minister thinks is appropriate.

[Section 9 amended by No. 8 of 2003 s. 7(1) and (2).]

10. Regulations as to private adoption agencies

The following matters in relation to applications under, and licences provided for by, section 9 are to be prescribed by regulations —

(a) the functions that may be performed under a licence;

(b) the qualifications of and requirements to be satisfied by applicants;

(d) the duration, renewal, revocation and suspension of licences;

(e) the effect of revocation or suspension of licences, in relation to records and documents held by the licensee or former licensee;

(f) the conferral of a right to apply to the State Administrative Tribunal for a review of a decision of the Minister as to an application or licence;

(g) the requirements for public notification of applications for licences and the making of submissions in relation to such applications;

(ga) the undertaking by the CEO of reviews of the operations of private adoption agencies;

(h) the provision of information to the CEO by private adoption agencies in relation to the adoption services conducted by them, whether for the purposes of a review of an agency’s operations under regulations made under paragraph (ga), a review under Part 5 Division 1, or otherwise; and

(i) such other matters as are necessary or expedient for giving effect to this Division.

[Section 10 amended by No. 8 of 2003 s. 8; No. 34 of 2004 s. 251; No. 55 of 2004 s. 11.]

11. Offence of holding out, etc.

A person, not being a private adoption agency, is not to hold himself, herself or itself out as being, or pretend to be, or make use of any words or letters or any name, title, abbreviation, or description that implies or tends to encourage the belief that he, she or it is a private adoption agency.

Penalty: $10 000 and 12 months’ imprisonment.

Division 3 — Adoption applications committee

[Heading amended by No. 8 of 2003 s. 9.]

12. Establishment of adoption applications committee

The CEO is to appoint an adoption applications committee in accordance with this Division.

[Section 12 inserted by No. 8 of 2003 s. 10; amended by No. 34 of 2004 s. 251.]

13. Functions of adoption applications committee

(1) The functions of the adoption applications committee are —

(a) to consider whether or not persons who have applied to the CEO under section 38(1) are suitable for adoptive parenthood; and

(b) to approve, either generally or in accordance with subsection (2), or not approve, such persons as prospective adoptive parents.

(2) The adoption applications committee may approve a person as a prospective adoptive parent for adoptive parenthood of children in one or more of the following categories —

(a) children who are of an age, origin or ethnic background specified by the committee;

(b) children who require medical, behavioural or psychological care specified by the committee;

(d) children who do not require medical, behavioural or psychological care specified by the committee.

[Section 13 amended by No. 8 of 2003 s. 11; No. 34 of 2004 s. 251.]

14. Membership of adoption applications committee

(1) The adoption applications committee is to consist of at least 4 members.

(2) The CEO is to select the members from persons who the CEO thinks have relevant expertise or experience but at least one of the members is to be independent of the Department.

[Section 14 amended by No. 8 of 2003 s. 12; No. 34 of 2004 s. 251.]

15. Procedures etc. of adoption applications committee

Subject to section 14, the constitution and procedures of, and other matters relating to, the adoption applications committee —

(a) may be prescribed by regulation; and

(b) if not prescribed by regulation, may be determined by the adoption applications committee in respect of the business conducted by it.

[Section 15 amended by No. 8 of 2003 s. 13.]

Part 3 — The adoption process

Division 1 — Preliminary matters

[Heading inserted by No. 8 of 2003 s. 14.]

16. Duties of CEO as to birth parents

(1) The CEO is to, if requested by a birth parent or prospective birth parent who is thinking about relinquishing her or his child for adoption —

(a) provide the persons known to the CEO as the child’s birth parents with information on the matters, and in the manner, set out in clause 1(a) of Schedule 1;

(b) provide counselling services to the birth parents;

(d) before the revocation period expires, provide the birth parents with such opportunities for access to the child, as the CEO thinks appropriate;

(e) assist in the making of arrangements to obtain information that is, or is likely to become, relevant to the diagnosis, care or treatment of any medical condition of the child; and

(f) give the birth parents an opportunity to provide information that is, or is likely to become, relevant to the placement of the child with a view to the child’s adoption, and the adoption of the child.

(2) The CEO is to commence the provision of a service requested under subsection (1) within 7 days of the request.

[Section 16 amended by No. 34 of 2004 s. 251.]

16A. Matters relevant to the adoption process for Aboriginal or Torres Strait Islander children

(1) The CEO is to ensure that an officer of the department who is an Aboriginal person or a Torres Strait Islander is involved at all relevant times to assist in the adoption process of a child who is an Aboriginal person or a Torres Strait Islander.

(2) The CEO is to consult with an Aboriginal or Torres Strait Islander agency that is approved by the CEO for the purposes of this section, regarding the prospective adoption of a child who is an Aboriginal person or a Torres Strait Islander.

[Section 16A inserted by No. 8 of 2003 s. 15; amended by No. 34 of 2004 s. 251.]

Division 2 — Consent to adoption

17. Persons to give consent

(1) Subject to section 24(2), the following persons’ effective consent to a child’s adoption is required —

(a) where the child has not been adopted before —

(i) the child’s mother; and

(ii) the child’s father or parent under section 6A of the Artificial Conception Act 1985;

(b) where the child has been adopted before —

(i) in this State; or

(ii) elsewhere if under section 136 or 138 the adoption has the same effect as an adoption order,

each adoptive parent of the child; and

(i) each of the child’s guardians; and

(ii) where the child will be 12 or more years of age at the time when the application for an adoption order is filed in the Court, the child.

(2) The person to whom a person referred to in subsection (1) is married, or in a de facto relationship with, is not required to consent to the adoption order being made unless the first‑mentioned person is also a person referred to in subsection (1).

[Section 17 amended by No. 3 of 2002 s. 7.]

18. Effective consent

(1) A consent to a child’s adoption is not effective unless —

(a) the consent is given at least 28 days after the child is born;

(b) the consent is given at least 28 days after the person whose consent is required receives the information and, if requested, the counselling mentioned in clause 1 of Schedule 1;

(d) a separate form of consent is signed by each person whose consent is required, and witnessed in accordance with clause 2 of Schedule 1;

(da) in the case of a proposed adoption by a step‑parent of a child, the CEO has had at least 30 days to comment on the provisions of a proposed adoption plan prepared for the purposes of section 55(1); and

(e) the form of consent is delivered to the CEO or, in the case of a proposed adoption by a step‑parent of the child, to the prospective adoptive parent.

(2) A consent is not effective if it has been revoked during the revocation period.

(3) If the CEO’s consent to a child’s adoption is required because the CEO is a guardian of the child, subsection (1)(b) and clauses 1 and 3 of Schedule 1 do not apply.

(4) A consent to a child’s adoption given in another State or a Territory under the law of the other State or the Territory is an effective consent for the purposes of this Act.

(5) A consent is not effective if —

(a) it is obtained by fraud, duress or material inducement;

(b) a material particular in the form of consent is altered without the authority of the person who signed the form; or

(c) a person purporting to give the consent is not, on the day on which the form of consent is signed, physically or mentally capable of giving consent or understanding the nature of a consent to adoption under this Act.

(6) A consent to a child’s adoption is not rendered ineffective solely by reason of an adoption order not being made on an application to adopt the child.

(7) The consent of a child’s birth parent who has not reached 18 years of age to the child’s adoption is not effective unless —

(a) a parent or guardian of the birth parent; or

(b) in the case where —

(i) the child’s birth parents are lineal relatives; or

(ii) there has been a breakdown in the relationship between the birth parent and his or her parent or guardian,

the CEO,

agrees with the proposed adoption of the child and provides an affidavit by way of evidence of that agreement.

[Section 18 amended by No. 3 of 2002 s. 8; No. 8 of 2003 s. 16; No. 34 of 2004 s. 251.]

[19. Repealed by No. 8 of 2003 s. 17.]

20. Specification of prospective adoptive parent

A person may not be specified as a child’s prospective adoptive parent in a form of consent to the child’s adoption unless the person —

(a) is a —

(i) step‑parent; or

(ii) carer,

of the child; and

(b) wishes to adopt the child.

21. Man who may be a prospective adoptee’s father to be notified

(1) The CEO, or in the case of a proposed adoption by a step‑parent of the child, the prospective adoptive parent, is to notify, in accordance with subsections (2), (2a) and (2b) —

(a) any man who might be presumed to be the child’s father because of a presumption set out in section 188 or 189 of the Family Court Act 1997; and

(b) if applicable, any man (not being a man who could be presumed to be the child’s father because of a presumption set out in Part 5 Division 11 Subdivision 3 of the Family Court Act 1997) who, to the knowledge of the CEO or that prospective adoptive parent, is a person who has been named as or has claimed to be the child’s father.

(2) The notification referred to in subsection (1) is to inform the man —

(a) of the consent or consents to the child’s adoption;

(b) that if, before the proposed adoption proceeds, he wishes to apply under the Family Court Act 1997 or the Family Law Act 1975 of the Commonwealth (as is applicable to the case) for a parenting order in relation to the child then he must do so within 21 days of service of the notice; and

(c) that if, before the proposed adoption proceeds, he wishes to apply under Division 3A for a determination of the matter of the child’s parentage only then he must do so within 21 days of service of the notice,

but nothing in this section requires all the information to be served at the same time.

(2a) The notification referred to in subsection (1) is to be in writing and served on the man personally or by registered post at the man’s last known address.

(2b) The CEO, or in the case of a proposed adoption by a step‑parent of the child, the prospective adoptive parent is to ensure that notification of all the information referred to in subsection (2) is, or has been, served on the man no later than 7 days after the day on which the first completed form of consent to the child’s adoption was received.

(2c) A person who has been named as or has claimed to be a child’s parent under section 6A of the Artificial Conception Act 1985 is to be notified by the relevant person in accordance with subsection (1) and for that purpose, subsections (2), (2a) and (2b) apply to and in respect of that notification as if a reference in those subsections to “man” was a reference to “person”.

(3) Notification under subsection (1) is not required if —

(a) the man has been convicted of an offence and the CEO, or in the case of a proposed adoption by a step‑parent of the child, the prospective adoptive parent, is satisfied on reasonable grounds that the child’s conception resulted from the offence; or

(b) compensation has been awarded to the child’s mother under the Criminal Injuries Compensation Act 2003 in relation to an offence within the meaning of that Act that was committed by the man, and the CEO, or in the case of a proposed adoption by a step‑parent of the child, the prospective adoptive parent, is satisfied on reasonable grounds that the child’s conception resulted from the offence.

(4) Notification under subsection (1)(b) is not required if the man is a lineal relative of the child’s mother.

[Section 21 amended by No. 41 of 1997 s. 7; No. 3 of 2002 s. 9; No. 8 of 2003 s. 18; No. 77 of 2003 s. 73; No. 34 of 2004 s. 251.]

22. Revocation of consent

(1) If only one person is required to consent to a child’s adoption, the person may not revoke her or his consent after 28 days from the day on which the form of consent was delivered under section 18(1)(e).

(2) If 2 or more persons are required to consent to a child’s adoption, the persons who have consented may not revoke their consents after 28 days from the day on which all required forms of consent have either been delivered under section 18(1)(e), or have been dispensed with.

(3) This section is subject to section 26(4) and section 26J.

[Section 22 amended by No. 41 of 1997 s. 8.]

23. Notice of revocation

(1) A revocation of a consent to a child’s adoption is of no effect unless it is —

(a) in writing, in a form that has been approved by the CEO and signed by the person who gave the consent before a person who is authorised by clause 2 of Schedule 1; and

(b) received, by the CEO or the prospective adoptive parent who received the form of consent under section 18(1)(e), before the revocation period expires.

(2) If a person wishes to serve a notice of revocation of his or her consent on the prospective adoptive parent mentioned in subsection (1)(b), but is unable to effect service before the revocation period expires, the CEO may accept service of the notice.

(3) Service on the CEO under subsection (2) is to be taken to be service on the prospective adoptive parent.

[Section 23 amended by No. 8 of 2003 s. 19; No. 34 of 2004 s. 251.]

Division 3 — Court applications as to consents to adoption and notices

24. Orders dispensing with consent

(1) Before an application for an adoption order in relation to a child is filed, an application may be made to the Court by the CEO, a prospective adoptive parent or on behalf of the child for an order to dispense with a requirement under section 17(1) for a person’s consent to the child’s adoption.

(2) On an application under subsection (1) the Court may, by order, dispense with the requirement for the person’s consent to the child’s adoption if the Court is satisfied that —

(a) after enquiries which the Court thinks are sufficient, the person cannot be found or contacted;

(b) during a period of not less than one year immediately before the application, steps have been taken to establish or re‑establish a parent and child relationship between the person and the child but —

(i) the person has seriously ill‑treated or persistently neglected the child; or

(ii) on the report of a person who the Court thinks is suitably qualified, the first‑mentioned person has failed to establish or maintain an acceptable relationship with the child;

(c) the child is 16 or more years of age and consents to being adopted by a prospective adoptive parent who is a step‑parent or carer of the child;

(d) the person’s mental condition is such that he or she is incapable of giving an effective consent to the child’s adoption and is not likely to be capable of doing so within the time required for the proposed adoption proceedings;

(e) where the person is the child’s father —

(i) the person has been convicted of an offence and the Court is satisfied that the child’s conception resulted from the offence;

(ii) compensation has been awarded to the child’s mother under the Criminal Injuries Compensation Act 2003 in relation to an offence within the meaning of that Act committed by the person and the Court is satisfied that the child’s conception resulted from the offence; or

(iii) the person is a lineal relative of the child’s mother;

(f) except in the case of a proposed adoption by a step‑parent, the person is a birth parent of the child but has neither the responsibility for the day‑to‑day care of the child nor a parent and child relationship with the child, and is unreasonably withholding his or her consent to the child’s adoption; or

(g) special circumstances exist in which it is proper to dispense with the requirement for the person’s consent.

[Section 24 inserted by No. 41 of 1997 s. 9; amended by No. 8 of 2003 s. 20; No. 77 of 2003 s. 73; No. 34 of 2004 s. 251.]

25. Orders as to service of notice

(a) dispensing with a requirement to serve notice under section 21(2a); or

(b) extending the period referred to in section 21(2b) for service of notice.

(2) On an application under subsection (1)(a), the Court may make an order dispensing with a requirement to serve notice under section 21(2a) if it is satisfied that exceptional circumstances exist in which it is proper to dispense with service of notice.

(3) On an application under subsection (1)(b), the Court may make an order to extend the period referred to in section 21(2b) for service of notice if it is satisfied that it would be proper to do so.

[Section 25 amended by No. 41 of 1997 s. 10; No. 34 of 2004 s. 251.]

26. Application for parenting order

(1) On an application mentioned in section 21(2)(b) for a parenting order in relation to a prospective adoptee (an application), the Court —

(a) may make an interim parenting order in relation to the child; and

(b) is to have regard to the principle that an application and the final orders arising from the application should be determined expeditiously.

(2) Notice of an application is to be served on —

(a) a person whose consent to the adoption is required and has not been dispensed with; and

(b) any other person who is a party to the proposed adoption,

and the person may be joined as a party in the proceedings.

(3) The Court may extend the period of time allowed by section 21(2)(b) for filing an application.

(4) If an application is made, a person who has consented to the child’s adoption may revoke her or his consent, even though the revocation period has expired; but the person may not revoke her or his consent after 14 days from the day on which the final court order arising from the application is made.

[Section 26 inserted by No. 41 of 1997 s. 11.]

Division 3A — Court applications for determinations of parentage

[Heading inserted by No. 41 of 1997 s. 12.]

26A. Definitions

In this Division —

application means an application made under section 26C;

parentage testing order means an order of the kind mentioned in section 26D(1)(c).

[Section 26A inserted by No. 41 of 1997 s. 12.]

26B. Application of this Division

This Division applies where a person makes an application for a determination of the matter of a child’s parentage only and does not apply where a person applies for an order under the Family Court Act 1997 or the Family Law Act 1975 of the Commonwealth.

[Section 26B inserted by No. 41 of 1997 s. 12.]

26C. Application for determination of parentage

(1) Before an application for an adoption order in relation to a child is filed, an application may be made to the Court —

(a) by any man who might be presumed to be the child’s father because of a presumption set out in Part 5 Division 11 Subdivision 3 of the Family Court Act 1997;

(aa) by any person who might be a parent of the child under the Artificial Conception Act 1985;

(b) by a person who has received a notice under section 21(1);

(d) in the case of a proposed adoption by a step‑parent of the child, by the prospective adoptive parent; or

(e) on behalf of the child,

for the determination of the matter of the child’s parentage.

(2) Notice of an application is to be served on —

(a) a person whose consent to the adoption is required and has not been dispensed with; and

(b) any other person who is a party to the proposed adoption.

[Section 26C inserted by No. 41 of 1997 s. 12; amended by No. 3 of 2002 s. 10; No. 8 of 2003 s. 21; No. 34 of 2004 s. 251.]

26D. Orders on application for determination of parentage

(1) On an application the Court —

(a) may extend the period of time allowed by section 21(2)(c) for filing the application;

(b) may make an order requiring any person to give such evidence as is material to the question; or

(c) may make an order requiring a parentage testing procedure to be conducted in relation to a person mentioned in subsection (2) for the purpose of obtaining information to assist in determining the parentage of the child.

(2) A parentage testing order may be made in relation to —

(a) the child;

(b) a person known to be the mother of the child; or

(c) any other person, if the Court is of the opinion that, if the parentage testing procedure were to be conducted in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

(3) A parentage testing order may be made subject to terms and conditions.

[Section 26D inserted by No. 41 of 1997 s. 12.]

26E. Orders associated with parentage testing orders

(1) If the Court makes a parentage testing order, it may also make orders under subsection (2) or (4).

(2) The Court may make such orders as it considers necessary or desirable —

(a) to enable the parentage testing procedure to be conducted; or

(b) to make the parentage testing procedure more effective or reliable.

(3) Some examples of the kinds of orders the Court may make under subsection (2) are as follows —

(a) an order requiring a person to submit to a medical procedure;

(b) an order requiring a person to provide a bodily sample;

(4) The Court may make such orders as it considers just in relation to costs incurred in relation to —

(a) conducting the parentage testing procedure or other orders made by the Court in relation to the parentage testing procedure; or

(b) the preparation of reports relating to the information obtained as a result of conducting the parentage testing procedure.

[Section 26E inserted by No. 41 of 1997 s. 12.]

26F. Orders directed to persons 18 or over

(1) If a person who is 18 or more years of age contravenes a parentage testing order or an order under section 26E, the person is not liable to any penalty in relation to the contravention.

(2) The Court may draw such inferences from the contravention as appear just in the circumstances.

(3) Nothing in subsection (1) prevents an order made under section 26E(4) in relation to costs from being enforced and such order may be enforced as if it were an order made by the Court under the Family Court Act 1997.

[Section 26F inserted by No. 41 of 1997 s. 12.]

26G. Orders directed to children under 18

(1) This section applies if a parentage testing order, or an order under section 26E, requires a medical procedure or other act to be carried out in relation to a child who is under 18 years of age.

(2) The procedure or act must not be carried out in relation to the child under the order without the consent of —

(a) a guardian of the child; or

(b) a person who is responsible for the child’s long‑term welfare and development.

(3) The Court may draw such inferences from a failure or refusal to consent as mentioned in subsection (2) as appear just in the circumstances.

[Section 26G inserted by No. 41 of 1997 s. 12.]

26H. No liability if parent etc. consents

(1) A person who conducts, or who assists in conducting, a medical procedure or other act in relation to a child under a parentage testing order is not liable to any civil action in relation to the proper conducting of the procedure or act if it is done with the consent of —

(a) a guardian of the child; or

(b) a person who is responsible for the child’s long‑term welfare and development.

(2) Subsection (1) does not affect any liability of a person for an act done negligently, or negligently omitted to be done, in relation to conducting the medical procedure or act.

[Section 26H inserted by No. 41 of 1997 s. 12.]

26I. Reports of information obtained may be received in evidence

(1) A report made for the purposes of this Division in accordance with regulations may be received in evidence in any proceedings under this Act.

(2) If, under subsection (1), a report is received in evidence in proceedings under this Act, the Court may make an order requiring the person who made the report, or any person whose evidence may be relevant in relation to the report, to appear before the Court and give evidence in relation to the report.

[Section 26I inserted by No. 41 of 1997 s. 12.]

26J. Revocation of consent

If an application is made, a person who has consented to the child’s adoption may revoke her or his consent, even though the revocation period has expired; but the person may not revoke her or his consent after 14 days from the day on which the Court determines the matter of the child’s parentage.

[Section 26J inserted by No. 41 of 1997 s. 12.]

Division 4 — Guardianship of prospective adoptees

27. Guardians of children awaiting adoption where all consents accounted for

(1) When all consents to a child’s adoption required by section 17(1) have been either —

(a) delivered under section 18(1)(e); or

(b) dispensed with under section 24(2),

the child’s guardian or guardians are to be as provided by this section, to the exclusion of all other persons.

(2) Where the child’s step‑parent who is married to, or in a de facto relationship with, the birth parent who has the responsibility for the long‑term and day‑to‑day care, welfare and development of the child has been specified in the forms of consent as the prospective adoptive parent, that birth parent and the step‑parent are to be joint guardians.

(3) Where a carer of the child has been specified in the forms of consent as the prospective adoptive parent, that person is to be the guardian.

(4) Where carers of the child have been specified in the forms of consent as the prospective adoptive parents, those persons are to be joint guardians.

(5) Where a prospective adoptive parent has not been specified in the forms of consent or the Court has dispensed with all consents required by section 17(1), the CEO is to be the guardian.

(6) Subsections (2), (3), (4) and (5) do not apply where the child —

(a) the child is the subject of a protection order (time‑limited) or protection order (until 18) under the Children and Community Services Act 2004; or

(b) is under the guardianship of a person by operation of the law of another State or a Territory corresponding to the provisions of Part 4 of the Children and Community Services Act 2004,

in which case the child’s guardian continues to be the child’s guardian for the purposes of this Division.

[Section 27 amended by No. 41 of 1997 s. 13; No. 3 of 2002 s. 11; No. 34 of 2004 s. 251.]

28. Guardianship of children awaiting adoption where not all consents finalised

(1) This section applies to a child if the child —

(a) has been relinquished for adoption but where not all the consents to the child’s adoption required by section 17(1) have been —

(i) delivered under section 18(1)(e); or

(ii) dispensed with under section 24(2);

(b) is in the care and control of a birth parent who has consented to the child’s adoption and then revoked the consent for such number of times as to jeopardise, or be likely to jeopardise, the child’s welfare.

(2) The CEO may make a protection application under the Children and Community Services Act 2004 for a protection order (time‑limited) or protection order (until 18) in respect of a child to whom this section applies.

(3) For the purposes of Part 4 of the Children and Community Services Act 2004, but without limiting section 28(2) of that Act, a child is in need of protection if the child is a child to whom this section applies.

[Section 28 inserted by No. 34 of 2004 s. 251.]

29. Cessation of guardianship of children awaiting adoption

(1) Guardianship under this Division ceases —

(a) if a consent to the child’s adoption is revoked, in which case the person who was the child’s guardian immediately before the commencement of guardianship under this Division is to be the child’s guardian again;

(b) if a court makes further provision for the child’s guardianship;

(i) if notice is given under section 30; or

(ii) if the guardianship is renounced under section 33(1);

(d) when an adoption order is made in relation to the child.

(2) Guardianship under this Division is not affected by any provision of, and cannot be changed by, any will, deed, or agreement.

[Section 29 amended by No. 34 of 2004 s. 251.]

30. If not possible or desirable to place a child for adoption

Where the CEO is the guardian of a child under this Division and is of the opinion that it is not possible or desirable to place the child with a view to the child’s adoption, the CEO is to cause notice of that opinion to be given to each person who he or she believes is a birth parent of the child or was a guardian of the child before the commencement of guardianship under this Division, in which case —

(a) the person who was the child’s guardian before the commencement of guardianship under this Division becomes the child’s guardian again; and

(b) any consents to the child’s adoption cease to be of effect from the day on which the notice is given.

[Section 30 amended by No. 34 of 2004 s. 251.]

31. Care of child pending placement for adoption

Where the CEO is the guardian of a child under this Division, the CEO may, pending placement of the child with a view to the child’s adoption, place the child with a person who the CEO thinks is suitable and who has agreed to look after the child.

[Section 31 amended by No. 34 of 2004 s. 251.]

32. Responsibilities of guardians of children awaiting adoption

Within 12 months of the commencement of guardianship under this Division or such further time as the Court allows, the guardian is to —

(a) arrange for an application for an adoption order in relation to the child to be filed in the Court; or

(b) apply to the Court for an order to make further provision for the child’s guardianship.

33. Renunciation and transfer of guardianship by CEO

(1) Where the CEO is the guardian of a child under this Division, and receives from a corresponding officer —

(a) a notice that an application for the adoption of the child is to be made in the other State or the Territory under the law of the other State or the Territory; and

(b) a request that the CEO renounce guardianship of the child,

the CEO may by an instrument in writing, renounce the guardianship.

(2) The CEO is not to renounce guardianship under subsection (1) unless —

(a) the revocation period has expired;

(b) the CEO has had regard to any current adoption plan in relation to the child; and

(c) under the law of the other State or the Territory, the corresponding officer will become the child’s guardian when the CEO signs an instrument renouncing guardianship.

(3) The CEO ceases to be the guardian under this Division when an instrument renouncing the guardianship is signed by the CEO.

(4) The CEO is to cause an instrument under subsection (3) to be sent by registered post to the corresponding officer.

(5) In this section a corresponding officer means a person whose functions in another State or a Territory correspond to those of the CEO under this Act in relation to the guardianship of children awaiting adoption.

[Section 33 amended by No. 41 of 1997 s. 28; No. 34 of 2004 s. 251.]

34. Transfer of guardianship to CEO

(1) If an application for a child’s adoption is to be made under this Act and the child is under the guardianship of a corresponding officer, the CEO may —

(a) notify the corresponding officer of the application; and

(b) request the corresponding officer to renounce guardianship of the child and forward to the CEO for use in the proceedings, the forms of consents executed in the other State or the Territory in relation to the child.

(2) The CEO is not to request the renunciation of guardianship under subsection (1) unless —

(a) the CEO is satisfied that the child is in this State;

(b) consents that have been given to the child’s adoption cannot be lawfully revoked;

(c) the CEO has had regard to any current adoption plan or arrangements under a corresponding law of the other State or the Territory in relation to the child; and

(d) under the law of the other State or the Territory, if the corresponding officer signs an instrument renouncing guardianship, the corresponding officer ceases to be the child’s guardian.

(3) The CEO becomes the child’s guardian under this Division when the corresponding officer signs an instrument of renunciation of guardianship.

(4) In this section corresponding officer has the meaning given by section 33(5).

[Section 34 amended by No. 34 of 2004 s. 251.]

35. Offence

A person must not remove from the State a child who has a guardian under this Division, without the written consent of each guardian.

Penalty: $10 000 and 12 months’ imprisonment.

Division 5 — Court applications as to guardianship of children awaiting adoption

36. Orders as to guardianship under Division 4

(1) Before an adoption order is made in relation to a child, an application may be made to the Court by or on behalf of the child’s guardian under Division 4 for an order to make further provision for the child’s guardianship.

(2) On an application under this section, the Court may —

(a) if further time is required to place the child with a view to the child’s adoption, extend the period of guardianship under Division 4 for not more than a further 12 months on each application;

(b) order that a suitable person other than the child’s existing guardian is to be the child’s guardian for purposes of Division 4; or

(c) if the Court finds that the child is in need of protection as defined in section 28(2) of the Children and Community Services Act 2004, make a protection order (time‑limited) or protection order (until 18) under that Act in respect of the child.

(3) If the Court makes an order referred to in subsection (2)(c), the Court has, in relation to that order, the powers conferred on the Children’s Court by the Children and Community Services Act 2004.

[Section 36 amended by No. 34 of 2004 s. 251.]

Division 6 — Prospective adoptive parents

37. Duty of CEO as to information about adoptive parenthood

(1) The CEO is to provide persons contemplating adoptive parenthood with oral and written information about, and counselling in relation to, adoption.

(2) Subsection (1) does not apply to a step‑parent or carer of a child who is thinking about adopting the child, but if requested, the CEO is to provide such a person with oral and written information about, and counselling in relation to, adoption.

(3) Despite subsection (1), the CEO does not have to provide a person who is already an adoptive parent and who is contemplating adoptive parenthood for a second or subsequent time with oral information about, and counselling in relation to, adoption unless the person chooses to be provided with such information and counselling.

[Section 37 amended by No. 8 of 2003 s. 22; No. 34 of 2004 s. 251.]

38. Application to be a prospective adoptive parent

(1) A person who wishes to adopt a child under this Act, in a Convention country or in an overseas jurisdiction is to apply to the CEO to be assessed for suitability for adoptive parenthood.

(2) An application under subsection (1) may be made by one person, or by 2 persons jointly.

(3) An application under subsection (1) is to be in a form that is approved by the CEO and made at a time and in a manner prescribed by regulation.

(4) This section does not apply to a step‑parent or carer of a child who wishes to adopt the child.

[Section 38 amended by No. 7 of 1999 s. 5 and 9; No. 34 of 2004 s. 251.]

39. Criteria for application

(1) A person cannot apply under section 38(1) unless at the time of the application, he or she —

(a) subject to subsection (2), is an Australian citizen;

(b) is 18 or more years of age;

(c) is resident or domiciled in this State or, if applying to adopt a child in a Convention country, is habitually resident in this State;

(d) if married to, or in a de facto relationship with, another person, applies as a joint applicant with that person; and

(e) if applying as a joint applicant —

(i) has been married to, or in a de facto relationship with, the other applicant for at least 3 years; and

(ii) is not married to, or in a de facto relationship with, any other person.

(2) Two persons cannot apply jointly under section 38(1) unless at the time of the application —

(a) both persons are Australian citizens; or

(b) one of the persons is an Australian citizen and the other is a citizen of a country that, in the opinion of the CEO, gives rights to adopted persons that are not inferior to the rights of non‑adopted persons in relation to entry into, residence, education and medical care in that country.

(3) For the purposes of subsection (1)(e)(i) if the joint applicants are married and before the marriage were living as de facto partners, the period of living as de facto partners may be included when calculating the period mentioned in subsection (1)(e)(i).

[Section 39 amended by No. 7 of 1999 s. 10; No. 3 of 2002 s. 12; No. 8 of 2003 s. 23; No. 34 of 2004 s. 251.]

40. Assessment of applicants for adoptive parenthood

(1) Where the CEO receives an application under section 38(1), the CEO is to appoint a person who the CEO thinks is suitably qualified, to assess the application and prepare a report (the assessment report) on the applicant or joint applicants.

(2) For purposes of the assessment report, each applicant is to provide information as to the applicant’s suitability for adoptive parenthood as required by the person so appointed, including evidence that the applicant —

(a) is, and continues to be, a person to whom section 39(1) applies;

(b) is physically and mentally able to care for and support a child until the child attains 18 years of age;

(d) if applying jointly, has a stable marriage or de facto relationship with the other applicant;

(da) shows a desire and ability to provide a suitable family environment for the child;

(e) has not been found guilty —

(i) in the 5 years before the date of the assessment, of an offence punishable at the time of the finding by imprisonment;

(ii) at any time, of an offence punishable at the time of the finding by life imprisonment or imprisonment for 20 years or more; or

(iii) at any time, of any other offence involving an assault or sexual offence against a child, committed when the applicant was 18 or more years of age;

and

(f) satisfies other criteria as prescribed by regulation.

[Section 40 amended by No. 3 of 2002 s. 13; No. 34 of 2004 s. 251; No. 29 of 2008 s. 23.]

41. Adoption applications committee

(1) The person who prepares the assessment report under section 40(1) is to provide the report to the adoption applications committee.

(2) In performing its functions under section 13, the adoption applications committee is to have regard to the information and recommendations in the assessment report and any other relevant information.

[Section 41 amended by No. 8 of 2003 s. 24.]

42. Decisions of adoption applications committee

(1) The adoption applications committee may review its decision if it is of the opinion that there is new evidence that it should consider.

(2) If, under section 113(2) the Director‑General directs the adoption applications committee to review a procedure by which it made a decision, the committee may, after complying with that direction, review its decision.

(3) Subject to subsections (1) and (2) and section 114(2), the decision of the adoption applications committee cannot be reviewed, questioned or affected except by way of judicial review.

[Section 42 amended by No. 8 of 2003 s. 25.]

43. Reasons for decision

The CEO is to give to the applicant —

(a) written advice of the adoption applications committee’s decision; and

(b) after the decision is made —

(i) written reasons for the decision; and

(ii) a copy of the assessment report,

if requested by the applicant.

[Section 43 amended by No. 34 of 2004 s. 251.]

44. CEO to keep registers

(1) The CEO is to establish and maintain —

(a) a register of the names of persons who apply under section 38(1); and

(b) a register of the names of persons who are approved by the adoption applications committee.

(2) The CEO may delete, in accordance with regulations, the name of a person or the names of persons entered in a register.

(3) Where the name of any person has been deleted under subsection (2) from a register, the CEO is to notify the person in a manner prescribed by regulation.

(4) Where the name of any person has been deleted under subsection (2) from a register, the person may, in the manner prescribed by regulation, apply to the CEO to have his or her name re‑entered in the register.

(5) The CEO may, on a ground prescribed by regulation, re‑enter in the register, the name of a person who applies under subsection (4).

[Section 44 amended by No. 8 of 2003 s. 26; No. 34 of 2004 s. 251.]

Division 7 — Placement of prospective adoptees

45. Selection of prospective adoptive parents

Where a person signs a form of consent to a child’s adoption (not being an adoption by a step‑parent or carer of the child) then after the form of consent is signed and not more than 14 days after the revocation period expires —

(a) the CEO is to give to the person the opportunity of —

(i) expressing to the CEO, the person’s wishes in relation to the child’s upbringing and the preferred attributes of the adoptive family; and

(ii) studying information provided under paragraph (b)(ii), and selecting a prospective adoptive parent;

and

(b) the CEO is to —

(i) record the wishes expressed under paragraph (a)(i); and

(ii) provide to the person information on a selection of prospective adoptive parents for the child, whose names are entered in a register under section 44(1)(b) so that, if practicable, the selection is consistent with the wishes expressed under paragraph (a)(i).

[Section 45 amended by No. 8 of 2003 s. 27; No. 34 of 2004 s. 251.]

46. Negotiation of adoption plans

(1) After the revocation period in relation to a child’s proposed adoption expires, an adoption plan is to be negotiated, if possible, between —

(a) the birth parents of the child who have signed a form of consent to the child’s adoption;

(b) the person or persons selected under section 45(a)(ii) to be the prospective adoptive parent of the child; and

(2) The following matters may be provided for in an adoption plan —

(a) the exchange of information between the parties to the plan in relation to the child’s —

(i) medical background or condition; or

(ii) development and important events in the child’s life;

(b) subject to subsection (6), the means and nature of contact between the parties to the plan and the child; or

but the provisions of the plan may be to the effect that there will not be any exchange of information or contact.

(3) If an adoption plan has not been agreed within 21 days after the day on which the negotiations commenced, then within a further 21 days —

(a) the CEO is to give the person who made the selection of the prospective adoptive parent under section 45(a)(ii) the opportunity of selecting another person or persons to be the prospective adoptive parent of the child; and

(b) an adoption plan is to be negotiated, if possible, between the persons referred to in subsection (1)(a) and (c) and the newly selected prospective adoptive parent.

(4) The selection of, and the negotiation of an adoption plan with, a prospective adoptive parent, under this section, is not to occur more than twice.

(5) Persons who negotiate an adoption plan under this Division are to have regard to the rights and responsibilities mentioned in Schedule 2.

(6) A provision in an adoption plan that purports to prevent, restrict or make conditional, the movement (whether within or out of Australia) of a party to the adoption, is of no effect.

[Section 46 amended by No. 8 of 2003 s. 28; No. 34 of 2004 s. 251.]

47. Duty of CEO as to adoption plans

(1) The CEO is to provide assistance and mediation services to persons in the process of negotiating an adoption plan under section 46(1) or (3)(b) or a variation to an adoption plan so negotiated.

(2) If requested, the CEO is to provide assistance and mediation services to persons in the process of negotiating an adoption plan under section 55 or a variation to an adoption plan so negotiated.

[Section 47 amended by No. 34 of 2004 s. 251.]

48. Placement following adoption plan

(1) If an adoption plan is agreed under section 46(1) or (3)(b), the CEO is to place the child with the prospective adoptive parent selected under section 45(a)(ii) or section 46(3)(a), as the case may be, with a view to the child’s adoption by the prospective adoptive parent.

(2) This section is subject to sections 51 and 52(1).

[Section 48 amended by No. 41 of 1997 s. 15; No. 34 of 2004 s. 251.]

49. Placement if no adoption plan

If the CEO is of the opinion that it is not possible to place a child under section 48(1), the CEO may —

(a) if further time is required to select an adoptive parent, extend the period set out in section 45;

(b) if further time is required to negotiate an adoption plan, extend the period set out in section 46(3);

(c) if a provision of an adoption plan cannot be agreed, apply to the Court under section 50(1) for an order in relation to the disputed matter;

(d) place the child (subject to any Court order) with the person who —

(i) the CEO thinks is the most suitable prospective adoptive parent for the child; and

(ii) agrees to the placement,

with a view to the child’s adoption by the person; or

(e) where the CEO is the child’s guardian under Division 4, cause notice to be given under section 30.

[Section 49 amended by No. 34 of 2004 s. 251.]

50. Orders to constitute provisions of adoption plans

(1) Before an adoption order is made in relation to a child, the CEO or any of the parties to the proposed adoption plan in relation to the child may apply to the Court for an order in relation to a disputed matter in the negotiation of the plan.

(2) On an application under subsection (1) the Court may make an order as to the matter which is disputed, and where it does so, the terms of the order are to be treated as the provision of the adoption plan in relation to that matter.

(3) On an application under subsection (1) the Court is to have regard to —

(a) the rights and responsibilities mentioned in Schedule 2; and

(b) the wishes of the parties to the proposed adoption.

(4) This section does not apply if the prospective adoptive parent of a child is the step‑parent or carer of the child.

[Section 50 amended by No. 34 of 2004 s. 251.]

51. Medical report as to child’s health before placement

The CEO is not to place a child with a view to the child’s adoption unless the CEO possesses a report of a medical practitioner who has examined the child, to the effect that —

(a) the child has undergone a serology test within 21 days before the date of the report and the medical practitioner has been informed of the results of the test; and

(b) the child is in good health or has, or is likely to develop, such physical or mental conditions (whether genetic or otherwise) as are specified in the report.

[Section 51 amended by No. 34 of 2004 s. 251.]

52. Restrictions on placement

(1) The CEO is not to place a child with a view to the child’s adoption unless —

(a) the prospective adoptive parent —

(i) is named in a register under section 44(1)(b);

(ii) meets, as far as is practicable, the wishes expressed under section 45(a)(i);

(iii) is not more than 45 years older than the child in the case where the prospective adoptive parent is the younger of prospective joint adoptive parents who, as a couple, have not adopted a child before;

(iiia) is not more than 50 years older than the child in the case where the prospective adoptive parent is the older of prospective joint adoptive parents who, as a couple, have not adopted a child before;

(iiib) is not more than 50 years older than the child in the case where the prospective adoptive parent is the younger of prospective joint adoptive parents who, as a couple, have adopted a child before;

(iiic) is not more than 55 years older than the child in the case where the prospective adoptive parent is the older of prospective joint adoptive parents who, as a couple, have adopted a child before;

(iiid) is not more than 45 years older than the child in the case where the prospective adoptive parent is a prospective sole adoptive parent and has not adopted a child before (whether as a joint or sole adoptive parent); or

(iiie) is not more than 50 years older than the child in the case where the prospective adoptive parent is a prospective sole adoptive parent and has adopted a child before (whether as a joint or sole adoptive parent);

(iv) if married or in a de facto relationship, can show that the marriage or de facto relationship is stable;

(v) meets, if relevant, the child’s wishes;

(va) recognises the value of, and need for, cultural and ethnic continuity for the child;

(vb) shows a desire and ability to continue the child’s established cultural, ethnic, religious or educational arrangements; and

(vi) if female, is not pregnant at the time of the proposed placement, evidenced by means prescribed by regulation;

(aa) where the adoption applications committee has approved the prospective adoptive parent in accordance with section 13(2), the child belongs to a category of children in respect of whom the prospective adoptive parent has been approved for prospective adoptive parenthood;

(ab) where the child is an Aboriginal person or a Torres Strait Islander, the placement is in accordance with the Aboriginal or Torres Strait Islander children — placement for adoption principle as set out in Schedule 2A;

(b) where the child is 2 or more years of age, the child has had the nature and implications of his or her adoption explained in a manner appropriate to the child’s age and level of understanding;

(i) the prospective adoptee is to be the youngest child in the prospective adoptive family;

(ii) the second youngest child in the family is 12 or more months older than the prospective adoptee; and

(iii) each of the other children has been in the family for at least 2 years;

(d) where siblings are relinquished for adoption at the same time, all reasonable steps have been taken to place them with the same prospective adoptive parent; and

(e) where the child has a sibling who is already adopted or placed for adoption, all reasonable steps have been taken to place the child with the sibling’s adoptive or prospective adoptive parent.

(2) The requirements of subsection (1) are not affected by any provision of, and cannot be changed, by any provision of an adoption plan.

[Section 52 amended by No. 3 of 2002 s. 14; No. 8 of 2003 s. 29; No. 34 of 2004 s. 251.]

53. Placing children who cannot be placed under s. 52

The CEO may place a child with a prospective adoptive parent with a view to the child’s adoption even though the placement does not fulfil some of the requirements of section 52(1) if —

(a) the child is a sibling of an adoptee who is resident in the State; or

(b) the child cannot otherwise be placed.

[Section 53 inserted by No. 8 of 2003 s. 30; amended by No. 34 of 2004 s. 251.]

54. Supervision of placements

Where the CEO has placed a child with a view to the child’s adoption, the CEO is to appoint a person who the CEO thinks is suitably qualified, to supervise the welfare and interests of the child during the period of placement.

[Section 54 amended by No. 34 of 2004 s. 251.]

Division 8 — Adoptions by step‑parents or carers

55. Adoption plans in adoptions by step‑parents or carers

(1) An application for an order for a child to be adopted by a step‑parent or carer of the child is not to be filed unless, before the revocation period expires, an adoption plan has been agreed between —

(a) the birth parents of the child who have signed a form of consent to the child’s adoption;

(b) the person or persons specified in the forms of consent to the child’s adoption as a prospective adoptive parent of the child; and

and a written memorandum of the provisions of the adoption plan has been signed by or on behalf of the parties to the plan.

(2) Persons who negotiate an adoption plan under this section are to have regard to the rights and responsibilities mentioned in Schedule 2.

[Section 55 amended by No. 34 of 2004 s. 251.]

Division 9 — Applications for adoption orders

56. Placement to be for at least 6 months

If a child is placed by the CEO with a view to the child’s adoption, a person is not to file an application for an adoption order in relation to the child before the expiration of 6 months after the day on which the child was so placed.

[Section 56 amended by No. 34 of 2004 s. 251.]

57. Time for applying for adoption order may be shortened

A person may apply to the Court for leave to file an application for an adoption order, before the expiration of the period provided for in section 56 and the Court may grant leave accordingly.

58. Notice of intention to apply for adoption order

(1) A person is not to file an application for an adoption order in relation to a child unless, at least 60 days before the application is filed, the person has notified the CEO, by written notice delivered to the CEO, of the person’s intention to so apply.

(2) A person who gives notice under subsection (1) is to provide the CEO with such information as the CEO may request for the purpose of preparing a report under section 61.

[Section 58 amended by No. 41 of 1997 s. 28; No. 8 of 2003 s. 31; No. 34 of 2004 s. 251.]

59. Notice where birth parent deceased or cannot be found

(1) Where —

(a) a child’s birth parent —

(i) has died without signing a form of consent to the child’s adoption; or

(ii) has died after signing a form of consent to the child’s adoption and before an adoption order is made in relation to the child;

(b) the requirement for a birth parent’s consent to his or her child’s adoption has been dispensed with on the ground that the birth parent cannot be found or contacted,

a person is not to file an application for an adoption order in relation to the child unless at least 30 days before the application is filed, the person gives the notice required by subsection (2).

(2) Notice of the intention to file an application for an adoption order in relation to the child is to be given to a person who is the first in order of priority of the following relatives of the child’s birth parent to whom subsection (1) applies (the birth parent) and who has attained the age of 18 years and is reasonably available at the relevant time —

(a) a birth parent of the birth parent or, if the birth parent’s birth parent was an adoptee, an adoptive parent of the birth parent;

(b) a brother or sister of the birth parent whether of the whole or half blood; or

in a written notice delivered personally or by registered post to that relative’s last known address.

[Section 59 amended by No. 41 of 1997 s. 28; No. 8 of 2003 s. 32.]

60. Court applications as to notices

(1) A person intending to file an application for an adoption order in relation to a child may apply to the Court for orders in relation to a requirement to give notice under section 58(1) or 59(2).

(2) On an application under subsection (1) the Court may, on such terms and conditions as it thinks fit —

(a) vary the time for giving the notice;

(b) dispense wholly or partly with a requirement to give the notice; or

61. Report for adoption proceedings

(1) On receipt of a notice under section 58(1) and on payment of the prescribed fee, if applicable, the CEO is to appoint a person who the CEO thinks is suitably qualified, to prepare a written report for the Court’s use in proceedings for an adoption order in relation to the child.

(2) A report under this section is to contain information on —

(a) such of the matters to which the Court is to have regard under section 68(1) and (2) or section 78A(2) as are relevant to the child and the prospective adoptive parent; and

(b) any other matter or opinion that the person who prepares the report thinks is relevant to an application for the child’s adoption.

[Section 61 amended by No. 7 of 1999 s. 11; No. 8 of 2003 s. 33; No. 34 of 2004 s. 251.]

62. Application for adoption order

(1) An application for an adoption order is to be in the form prescribed by rule.

(2) An application for an adoption order in relation to a child is to be filed in the Court together with a written memorandum of the provisions of the adoption plan in relation to the child that is signed by or on behalf of the parties to the plan.

(3) The requirement in subsection (2) to file a memorandum of the provisions of the adoption plan does not apply where an application will be made for the Court to dispense with the requirement for an adoption plan.

63. Intervention by CEO or other persons in applications for adoption orders

(1) In proceedings for an application for an adoption order, any person may apply for leave to intervene in the proceedings and the Court may make an order entitling the person to intervene in the proceedings.

(2) The CEO may intervene in the proceedings for an application for an adoption order in relation to a child.

(3) A person who, under subsection (1) or (2), intervenes in proceedings, is to be treated as a party to the proceedings with all the rights, duties and liabilities of a party, unless the Court otherwise orders.

[Section 63 amended by No. 34 of 2004 s. 251.]

64. Evidence on application for adoption order

On an application for an adoption order, the Court may —

(a) order the attendance of any witness, and for that purpose may direct the issue and service upon the witness of a summons in the prescribed form; and

(b) take oral evidence upon oath or evidence by affidavit on any matter relevant to the proceedings before the Court.

Division 10 — Adoption orders

65. Jurisdiction

(1) An adoption order in relation to a person is not to be made unless, at the time when the application for the order is filed —

(a) either —

(i) the person is present in the State and is permitted under a law of the Commonwealth to remain permanently in Australia; or

(ii) the person, having been born in the State, is present in the State;

and

(b) each prospective adoptive parent resides, or is domiciled, in the State.

(2) For the purposes of subsection (1), if in the proceedings for the application the Court is satisfied that the person was present in, or that each prospective adoptive parent was resident or domiciled in the State, on a day within 21 days before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that the person was present in, or that each prospective adoptive parent was resident or domiciled in, the State at the time when the application was filed.

(3) The Court has jurisdiction under this section to make an adoption order despite any rule of private international law to the contrary.

[Section 65 amended by No. 8 of 2003 s. 34(1).]

66. Who may be adopted

(1) Subject to subsection (2), a person may be adopted if he or she —

(a) is a child; and

(b) is not, and has not been, married or in a de facto relationship,

but not otherwise.

(2) A person who is 18 or more years of age may be adopted by a person who was a carer or step‑parent of the first‑mentioned person immediately before the first‑mentioned person attained 18 years of age.

(3) A person cannot be adopted by a relative of the person, other than a step‑parent.

[Section 66 amended by No. 3 of 2002 s. 15; No. 8 of 2003 s. 35.]

67. Who may adopt

(1) A person may, subject to this Act, adopt a child if he or she —

(a) is a step‑parent of the child and has been married to, or in a de facto relationship with, a parent of the child for at least 3 years;

(b) is a carer of the child; or

(2) Persons referred to in subsection (1)(b) and (c) and carers referred to in section 66(2) may, subject to this Act, jointly adopt another person if the first‑mentioned persons or carers are married to, or in a de facto relationship with, each other and have been so for at least 3 years, but not otherwise.

(3) A child is not to adopt another child.

(4) For the purposes of subsection (1)(a) if the step‑parent is married to a parent of the child and before the marriage those persons were living as de facto partners, the period of living as de facto partners may be included when calculating the period referred to in subsection (1)(a).

(5) For the purposes of subsection (2) if the persons referred to in subsection (1)(b) and (c) or the carers referred to in section 66(2) are married and before the marriage those persons or carers were living as de facto partners, the period of living as de facto partners may be included when calculating the period referred to in subsection (2).

[Section 67 amended by No. 3 of 2002 s. 16; No. 8 of 2003 s. 36.]

68. Adoption orders in relation to children

(1) Subject to section 78A, an adoption order in relation to a child is not to be made unless the Court is satisfied that —

(a) each person whose consent to the child’s adoption is required has given an effective consent, or the requirement to consent has been dispensed with under section 24(2);

(b) any notice that is required by section 21(1) has been given or the application is in accordance with an order under section 25(2);

(d) where the child was placed under section 53, the child was otherwise unable to be placed;

(e) if section 56 applied to the child, the placement has been for the required period or the application is in accordance with an order under section 57;

(f) notices required by sections 58(1) and 59(2) have been given or the application is in accordance with an order under section 60(2);

(fa) if a step‑parent of a child wishes to adopt the child, the Court has determined that the child’s adoption by the step‑parent is preferable to any of the following orders being made under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997, as is relevant to the case —

(i) a parenting order in respect of the child;

(ii) an order in respect of the welfare of the child; or

(iii) an order in respect of the appointment or removal of a guardian of the child;

and

(g) if the child is habitually resident in a Convention country —

(i) the arrangements for the adoption of the child have been made in accordance with the requirements of the Hague Convention;

(ii) the arrangements for the adoption of the child are in accordance with the laws of the Convention country;

(iii) the Central Authority of the Convention country has agreed to the adoption of the child; and

(iv) the State Central Authority has agreed to the adoption of the child.

(2) The Court may make an adoption order in relation to a child if, after having regard to the report under section 61, the wishes of the parties to the proposed adoption, the wishes of the parties to the proceedings and any other evidence before the Court, the Court is satisfied that —

(a) where the prospective adoptive parent is a step‑parent of the child —

(i) a parent and child relationship exists between the step‑parent and the child, and the child is treated as a member of the family formed by the marriage, or de facto relationship, of the step‑parent and the child’s parent;

(ii) the marriage, or de facto relationship, of the step‑parent and the child’s parent is stable; and

(iii) the step‑parent is a fit and proper person to adopt the child;

(b) where the prospective adoptive parent has had the child placed in his or her care with a view to the child’s adoption or is a carer of the child —

(i) the prospective adoptive parent is of good repute and is a fit and proper person to fulfil the responsibilities of adoptive parenthood;

(ii) the prospective adoptive parent is a suitable person to adopt the child having regard to all relevant matters including —

(I) the ages of the child and the prospective adoptive parent;

(II) the states of health of the child and the prospective adoptive parent;

(III) the ability of the prospective adoptive parent to satisfy the child’s educational or future educational requirements; and

(IV) the size and stability of the prospective adoptive family;

(c) if 2 prospective adoptive parents are applying to adopt the child jointly, their marriage, or de facto relationship, is stable; and

(d) in every case, the adoption plan —

(i) adequately balances the rights and responsibilities mentioned in Schedule 2;

(ii) is reasonable in the circumstances; and

(iii) promotes the child’s long‑term welfare.

[Section 68 amended by No. 41 of 1997 s. 16; No. 7 of 1999 s. 12; No. 3 of 2002 s. 17; No. 8 of 2003 s. 37.]

69. Adoption orders in relation to adults

(1) The Court may make an adoption order in relation to a person who is 18 or more years of age if it is satisfied that —

(a) the prospective adoptee and each prospective adoptive parent —

(i) have received the information and, if requested, the counselling mentioned in clause 1 of Schedule 1 on the matters relevant to those parties; and

(ii) consent to the proposed adoption;

(b) the welfare and interest of the prospective adoptee will be promoted by the proposed adoption; and

(c) notices required by subsection (4) have been given or the application is in accordance with an order under subsection (6).

(2) The Court may request from the CEO a written report in relation to the proposed adoption.

(3) On receipt of a request under subsection (2), the CEO is to appoint a person who the CEO thinks is suitably qualified, to prepare the report.

(4) A person is not to file an application for an adoption order in relation to an adult unless at least 30 days before the application is filed, the person gives notice of the intention to file the application to each of the prospective adoptee’s birth parents in a written notice delivered personally or by registered post to the respective birth parent’s last known address.

(5) A person intending to file an application for an adoption order in relation to an adult may apply to the Court for orders in relation to a requirement to give notice under subsection (4).

(6) On an application under subsection (5) the Court may, on such terms and conditions as it thinks fit —

(a) vary the time for giving the notice; or

(b) dispense wholly or partly with a requirement to give the notice.

[Section 69 amended by No. 8 of 2003 s. 38; No. 34 of 2004 s. 251.]

70. Court may allow further parties to adoption plans

(1) On an application for an adoption order in relation to a child, the Court may allow a person notified under section 59(2) or a person who is a party to the proceedings although not a party to the proposed adoption, to become a party to the adoption plan in relation to the child.

(2) Where a person becomes a party to an adoption plan under subsection (1), the Court may order the provisions of the plan to be varied if the proposed variation adequately balances the rights and responsibilities of the parties mentioned in Schedule 2.

71. Other powers on adoption applications

On an application for an adoption order in relation to a child, the Court may, in addition to its powers under the Family Court Act 1997, and whether or not it makes an adoption order, make orders as if an application had been made under section 24(1), 25(1), 26D, 26E, 36(1), 50(1), 57, or 60(1).

[Section 71 amended by No. 41 of 1997 s. 17.]

72. Approval and enforcement of adoption plans

(1) Subject to section 73, an adoption order in relation to a child cannot be made unless the Court approves the adoption plan in relation to the child, whether the provisions of the plan have been agreed by the parties to the plan, determined by an order under section 50(2), or affected by an order under section 70(2) or 71.

(2) Where an adoption plan has been approved by the Court —

(a) in the case of a breach or potential breach of any provision of the plan, the Court may —

(i) order the parties to the plan to participate in a mediation process; or

(ii) exercise its powers under the Family Court Act 1997 as it thinks fit, to enforce a provision of the plan, as if the provision were an order made by the Court under that Act;

and

(b) in the case of a breach of any provision of the plan, the Court may deal with the matter as if the person who breached the provision had contravened an order made by the Court under the Family Court Act 1997 or had been in contempt of the Court.

[Section 72 amended by No. 41 of 1997 s. 18.]

73. Dispensing with adoption plans

The Court may dispense with the requirement for an adoption plan or that a particular birth parent be a party to the plan —

(a) if a birth parent is —

(i) unable or unwilling to participate, or incapable of participating, in a plan; or

(ii) cannot be found or contacted after enquiries which the Court thinks are sufficient;

(b) in special circumstances.

[Section 73 inserted by No. 8 of 2003 s. 39.]

74. Name of adoptee

(1) If an adoption order is made, the Court is to, by the same order, declare the name by which the adoptee is to be known.

(2) Before making an order changing an adoptee’s name, the Court is to have regard to —

(aa) the principle that a child’s first name should not be changed at the time of adoption except in special circumstances;

(a) section 34(3) of the Births, Deaths and Marriages Registration Act 1998;

(b) the wishes expressed by the adoptee on the subject; and

(3) The Court is not to change the name of an adoptee who is 12 or more years of age unless the adoptee —

(a) consents to the change; or

(b) is incapable by reason of mental disability of consenting.

(4) An order under this section does not prevent a subsequent change of name under a law of the State or the Commonwealth.

[Section 74 amended by No. 40 of 1998 s. 6(3); No. 8 of 2003 s. 40.]

75. Effect of adoption orders

(1) Where an adoption order is made, for the purposes of the law of this State —

(a) the relationship between the adoptee and the adoptive parent is to be treated as being that of child and parent;

(b) the relationship between the adoptee and —

(i) the adoptee’s birth parents; or

(ii) if the adoptee was previously adopted, the previous adoptive parent,

is to be treated as not being that of child and parent;

(c) if the adoptee had been previously adopted, whether under the law of this State or otherwise, the previous adoption ceases to have effect; and

(d) the relationships of all persons to the adoptee, the adoptive parent and the birth parent or previous adoptive parent are to be determined in accordance with this section.

(2) Subsection (1)(b)(i) does not apply to the adoptee’s birth parent who is married to, or in a de facto relationship with, the adoptive parent who adopts the adoptee in the capacity of step‑parent.

(3) Subsection (1)(b)(ii) and (c) do not apply to a previous adoptive parent who is married to, or in a de facto relationship with, the adoptive parent who adopts the adoptee in the capacity of step‑parent.

(4) If an adoption order is made in relation to an adoptee, an appointment, in a deed or will existing at the time the adoption order is made, of a person as the guardian of the adoptee, ceases to have effect.

(5) Despite subsections (1) to (4), for the purposes of the law of this State relating to sexual offences, being law for the purposes of which the relationship between persons is relevant, an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the adoption order, or the discharging order (as the case may be) had not been made, and any such relationship is to be treated as existing in addition to any relationship that exists by virtue of the application of this section in relation to the adoption order or by virtue of the discharge of an adoption order.

[(6) repealed]

(7) In this section a reference to child includes a reference to a person who is 18 or more years of age.

[Section 75 amended by No. 41 of 1997 s. 19; No. 3 of 2002 s. 18.]

76. Variation of adoption plans

(1) Where an adoption order is made in relation to a child —

(a) a person who is a party to the adoption plan made in relation to the child that has been approved by the Court; or

(b) a person who is a party to the adoption, even though —

(i) the requirement for the person’s consent was dispensed with; or

(ii) the person was not a party to the adoption plan made in relation to the child that has been approved by the Court,

subject to subsection (2), may apply to the Court at any time before the child attains 18 years of age, to vary the adoption plan.

(2) An application may not be made under subsection (1) unless —

(a) the person referred to in that subsection and the parties to the adoption plan have participated in a mediation process conducted by the CEO; and

(b) the CEO has certified that the mediation process has been completed.

(3) Subsection (2) does not apply in relation to an adoption by a step‑parent or carer.

(4) On an application under subsection (1), if the Court, after having regard to the wishes of the parties, is satisfied that —

(a) there has been a change of circumstances since the adoption plan was approved by the Court; and

(b) the proposed variation adequately balances the rights and responsibilities of the parties mentioned in Schedule 2,

the Court may allow the provisions of the plan to be varied or a party to be added to the adoption plan, as the case may be.

(5) An adoption plan that is varied under this section may be enforced in the manner provided for by section 72(2).

[Section 76 amended by No. 34 of 2004 s. 251.]

77. Discharge of adoption order

(1) The following persons may apply to the Court for an order to discharge an adoption order —

(a) the Attorney General;

(b) the CEO;

(2) On an application under subsection (1), the Court may make an order to discharge an adoption order if it is satisfied that —

(a) the adoption order was obtained by fraud, duress or other improper means;

(b) a consent relied on for the making of the adoption order was not an effective consent because it was obtained by fraud, duress or material inducement; or

(3) The Court is not to make an order under subsection (2) —

(a) if to do so would not be for the welfare and in the best interests of the adoptee; and

(b) unless the Court is satisfied that reasonable efforts have been made to notify all the parties to the adoption of the application.

(3a) Any person may apply for leave to intervene in an application under subsection (1) and the Court may make an order entitling the person to intervene in the application.

(3b) A person who, under subsection (3a), intervenes in an application under subsection (1), is to be treated as a party to the application with all the rights, duties and liabilities of a party, unless the Court orders otherwise.

(4) Where an order is made under subsection (2) in relation to an adoption in which the adoptive parent was not specified in the forms of consent to the adoption, the consents to the adoption continue to have effect unless the Court orders otherwise.

(5) Where an order is made under subsection (2), the Court may make such consequential or ancillary orders as it thinks fit in the interests of justice or the welfare and best interests of the adoptee, including orders relating to —

(a) the name of the adoptee;

(b) the ownership or possession of property;

(c) guardianship of the adoptee or any other matter affecting the adoptee in relation to the duties, powers, responsibilities and authority which, by law, parents have in relation to children; or

(d) the domicile of the adoptee.

(6) Where an order is made under subsection (2), the rights, duties, liabilities and relationships of persons under the law of the State are to be as if the adoption order had not been made.

(7) Subsection (6) —

(a) is subject to orders made under subsection (5) and to section 75(5); and

(b) does not otherwise affect —

(i) anything lawfully done;

(ii) the consequences of anything lawfully done; or

(iii) any proprietary right or interest that became vested in any person while the adoption order was in force.

(8) An adoption order cannot be appealed against, reviewed, called in question or affected by any court on any account, except —

(a) under this section; or

(b) under section 211(3) of the Family Court Act 1997.

[Section 77 amended by No. 41 of 1997 s. 20; No. 8 of 2003 s. 41; No. 34 of 2004 s. 251.]

78. Court to notify Registrar of adoption order etc.

(1) If the Court —

(a) makes; or

(b) under section 77(2) makes an order discharging,

an adoption order, the registrar of the Court is to give the Registrar written notice of the particulars.

(2) If the adoptee’s birth is not registered in this State under the Births, Deaths and Marriages Registration Act 1998 then in addition to the notice referred to in subsection (1), the registrar of the Court is to give the Registrar a copy of the original registration of the adoptee’s birth, if available.

(3) In this section —

particulars means —

(a) the date of the order;

(b) the full name, address and occupation of the adoptive parent;

(d) the terms of consequential or ancillary orders under section 77(5);

(e) if available, details of the date and place of the adoptee’s birth and name and address of the adoptee’s birth parents; and

(f) if available, such other information required by the Registrar in relation to the registration of the adoptee’s birth under the Births, Deaths and Marriages Registration Act 1998.

[Section 78 inserted by No. 40 of 1998 s. 6(4).]

Division 11 — Adoption of a child in Western Australia who is to live in a Convention country

[Heading inserted by No. 7 of 1999 s. 13.]

78A. Arrangements for adoption

(1) Despite section 39(1)(a) and (c) and (2), a person who is habitually resident in a Convention country who wishes to adopt a child who is habitually resident in Western Australia may make an application to the Court for an adoption order.

(2) Despite any other provision in this Part to the contrary, the Court may make an adoption order on an application under subsection (1) if the Court is satisfied that —

(a) the child is in Western Australia;

(b) the child is not prevented from leaving Australia —

(i) under a law of the Commonwealth, a State or a Territory; or

(ii) because of an order of a court of the Commonwealth, a State or a Territory;

(d) the Central Authority of the Convention country has agreed to the adoption of the child;

(e) the State Central Authority has agreed to the adoption of the child; and

(f) the application for the adoption complies with such of the provisions of section 68(1) or (2) as are relevant to the circumstances of or the arrangements for the adoption.

[Section 78A inserted by No. 7 of 1999 s. 13.]

78B. Issue of adoption compliance certificate

If the Court has made an adoption order in relation to a child under section 78A(2), the State Central Authority may, in relation to the child, issue an adoption compliance certificate for the purpose of Article 23 of the Hague Convention.

[Section 78B inserted by No. 7 of 1999 s. 13.]

Part 4 — Adoptions information

Division 1 — Adoption information services

79. Duties of CEO as to adoption information services

(1) The CEO is to establish and maintain services to —

(a) facilitate the exchange of identifying and non‑identifying information between the parties to an adoption and their relatives in accordance with this Act;

(b) obtain and preserve information about the parties to an adoption, including medical information in accordance with this Act;

(c) provide information and counselling to persons who are parties to an adoption plan and to parties to adoptions and their relatives in relation to their rights and responsibilities under this Act;

(d) provide mediation in —

(i) matters arising between persons who are parties to an adoption or an adoption plan; or

(ii) negotiations of parties to an adoption as to those parties’ wishes in relation to contact between them;

(e) assist parties to an adoption to identify or contact the other parties to the adoption in accordance with this Act;

(f) provide the means for the parties to an adoption to leave messages for each other, subject to —

(i) the provisions of any contact veto in relation to the party for whom the message is intended; and

(ii) the regulations;

(g) coordinate the collation, preservation and access requirements of this Part as to information and documents held by the CEO, private adoption agencies, other adoption organisations, the Court and the Registrar;

(h) develop and supervise the implementation of codes of practice in relation to —

(i) the release of identifying or non‑identifying information under this Act;

(ii) contacting a party to an adoption on behalf of another person; or

(iii) the mediation of disputes between the parties to an adoption or an adoption plan, or negotiations of parties to an adoption as to those parties’ wishes in relation to contact between them;

(i) conduct training courses for contact and mediation licensees; and

(j) inform the public, by way of notices or advertisements, of the CEO’s functions under this Act.

(2) The CEO is to ensure that the services as to information, counselling and mediation mentioned in subsection (1) are available on the request of parties to adoptions or their relatives —

(