Adoption Act 1994

 

 

 

Reprinted under the Reprints Act 1984 as

at 1 March 2013

Adoption Act 1994

Contents

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Paramount considerations when administering Act etc.2

4.Terms used2

4A.Presumptions of parentage in Family Court Act 1997, when applicable8

5.Crown bound8

Part 2 — Adoption agencies

Division 1 — Authority to conduct adoption services

6.Adoption services, conduct of by CEO or delegate9

7.Adoption services, conduct of by birth parent to facilitate adoption by step-parent9

8.Unauthorised adoption services, offences as to9

Division 2 — Private adoption agencies

9.Private adoption agencies, licensing of10

10.Regulations as to licensing private adoption agencies10

11.Pretending to be etc. private adoption agency, offence11

Division 3 — Adoption applications committee

12.Appointment of committee12

13.Functions of committee12

14.Membership of committee13

15A.CEO may give committee general directions13

15.Procedure etc. of committee13

Part 3 — The adoption process

Division 1 — Preliminary matters

16.Birth parent wanting to have child adopted, CEO’s duties as to15

16A.Aboriginal or Torres Strait Islander child, CEO’s duties as to prospective adoption of16

Division 2 — Consent to adoption

17.Persons whose effective consent is required16

18.Effective consent, meaning of17

20.Prospective adoptive parent, who can be specified as in consent19

21.Man who may be prospective adoptee’s father to be notified of consent etc.19

22.Revoking consent, time limit for21

23.Revoking consent, formalities for22

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

24.Consent requirement (s. 17), Court may dispense with22

25.Service of notice requirements (s. 21), Court’s powers as to24

26.Parenting order application (s. 21), Court’s powers as to25

Division 3A — Court applications for determinations of parentage

26A.Terms used25

26B.Application of this Division26

26C.Determination of parentage, application for26

26D.Application under s. 26C, Court’s powers as to27

26E.Parentage testing order, ancillary orders for27

26F.Adult contravening parentage testing order, consequences of28

26G.Parentage testing order against child, execution and contravention of29

26H.Person testing child under parentage testing order, liability of29

26I.Report for this Division, receipt of by Court as evidence etc.30

26J.Revoking consent after s. 26C application made30

Division 4 — Parental responsibility for prospective adoptees

27.Who has parental responsibility after consent requirements met30

28.Who has parental responsibility where consent requirements not met etc.31

29.When parental responsibility ceases32

30.CEO having parental responsibility, duties of if not possible or desirable to place child for adoption33

31.CEO having parental responsibility, powers of as to care of child33

32.Person with parental responsibility, duties of34

33.CEO with parental responsibility, when may renounce or transfer responsibility34

34.Corresponding officer with parental responsibility, when CEO may request transfer etc. of responsibility35

35.Removing child from WA without consent, offence36

Division 5 — Court applications as to parental responsibility for children awaiting adoption

36.Parental responsibility etc., Court’s powers as to36

Division 6 — Prospective adoptive parents

37.CEO to inform etc. prospective adoptive parents37

38.Applying to be prospective adoptive parent38

39.Who can apply under s. 38(1)38

40.Assessment report for s. 38(1) applicant, CEO to arrange39

41A.CEO may conduct checks of s. 38(1) applicant41

41.Assessment report to be given to adoption applications committee etc.41

42.Committee may review own decision41

43.Committee’s decision, CEO to advise applicant of etc.42

44.Register of s. 38(1) applicants etc., CEO’s functions as to42

Division 7 — Placement of prospective adoptees

45.Person consenting to child’s adoption, CEO to seek wishes of etc. as to prospective adoptive parents43

46.Adoption plan, negotiation and content of etc.43

47.Adoption plan, CEO’s duties as to45

48.After adoption plan agreed, CEO to place child45

49.Adoption plan not agreed, CEO’s powers in case of46

50.Dispute in negotiating adoption plan, Court’s powers as to46

51.Medical report on child required before placed for adoption47

52.Prerequisites for CEO placing child for adoption47

53.Placing child who cannot be placed under s. 5250

54.Child’s welfare etc. during placement, CEO to arrange supervision of50

Division 8 — Adoptions by step‑parents, relatives or carers

55A.Placement of child with relative or carer, approval of by CEO50

55B.CEO may conduct checks of s. 55A(1) applicant51

55C.When application by relative or carer for adoption order can be made51

55.Adoption plan required for adoption by step‑parent, relative or carer52

Division 9 — Applications for adoption orders

56.When application for adoption order can be made52

57.Court may override s. 5653

58.CEO to be notified of intention to apply for adoption order etc.53

59.Relatives etc. to be notified of intention to apply for adoption order if birth parent deceased or cannot be found53

60.Court may vary or override s. 58(1) or 59(2)55

61.Report for Court, CEO to arrange after receipt of s. 58(1) notice55

62.Application for adoption order, filing formalities for56

63.Intervention by CEO or others in adoption order proceedings56

64.Evidence on application for adoption order56

Division 10 — Adoption orders

65.Residential etc. prerequisites to making adoption order57

66.Who may be adopted57

67.Who may adopt58

68.Adoption order for child, preconditions for making etc.59

69.Adoption order for adult, preconditions for making etc.62

70.Adoption plan, Court may allow added parties to63

71.Court’s other powers on adoption applications64

72.Adoption plan, Court approval of required; enforcement of64

73.Adoption plan, Court may dispense with requirement for65

74.Name of adoptee, Court to declare65

75.Effect of adoption order66

76.Adoption plan, varying67

77.Discharge of adoption order69

78.Court to notify Registrar of adoption order etc.71

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

78A.Adoption order for WA resident child by Convention country person, prerequisites for making etc.72

78B.Adoption compliance certificate for s. 78A order, issue of for Hague Convention73

Part 4 — Adoptions information

Division 1 — Adoption information services

79.CEO’s duties as to adoption information services74

80.Death of party to adoption etc., CEO to notify certain persons76

Division 2 — Access to adoptions information

81.Terms used and application of Division 277

82.Access to certain information, application for and grant by CEO of77

83.Court may prevent CEO granting access under s. 82(2) etc.78

84.Court records of adoption proceedings, who has right of access to79

85.Registration of adoptee’s birth, who has right of access to80

86.Portion of registration of birth not referring to adoption, Registrar may issue copy of81

88.Non‑identifying information held by adoption agency, who has right of access to82

89.Death of party to adoption, who has right of access to information in case of82

90.If adoptee cannot be found, who has right of access to information in case of84

Division 3 — Exchange and preservation of adoptions information

91.Court to give CEO information85

92.Registrar to give CEO information85

93.Persons conducting etc. adoption services, CEO may direct to give CEO information86

94.Records of adoptions etc., preservation of86

Division 4 — Contact vetoes

99.Register of contact vetoes, CEO to maintain87

100.Duration of contact vetoes88

102.Confirming, cancelling and varying veto89

103.Undertaking not to contact person who has lodged contact veto required before access to information granted89

Division 5 — Private contact and mediation licensees

105.Contact and mediation agencies to be licensed90

106.Licence to conduct contact and mediation services, grant of90

107.Regulations as to contact and mediation agencies91

108.Contact and mediation agencies bound by contact veto91

Division 6 — Updating non‑identifying information

109.CEO, on request, to attempt to obtain current information92

Part 5 — Review of decisions and appeals

Division 1 — Review by CEO

110.Review by CEO of certain decisions, application for94

111.Nature of review by CEO and evidence94

112.CEO’s powers on review95

Division 2 — Review by State Administrative Tribunal

113.Review by SAT of CEO’s decision under s. 112(1)(a) or (b)95

Part 6 — Offences

120.Terms used97

121.Territorial application of s. 122 to 12598

122.Making or receiving payment for adoption, adoption service etc.98

123.Advertising child for adoption etc.99

124.Publishing identity of party to adoption etc.100

125.Threat against person to induce consent etc.101

126.Harassing etc. party to adoption etc.102

127A.False etc. information in application etc.102

127B.Party to proposed adoption etc. to notify CEO of certain information etc.102

127.Disclosure etc. of information restricted103

128.Prosecutions, who can commence and time limit for104

129.Evidentiary matters105

Part 7 — Miscellaneous

Division 1 — Delegation and protection

130.Delegation by CEO106

130A.Delegation by State Central Authority106

131.Protection from personal liability106

132.Distribution of property by trustee etc. without notice of adoption order107

Division 2 — Proceedings

133.Court etc. proceedings to be in private108

134.Child, representation of108

Division 2A — State Central Authority

134A.Minister is Central Authority for WA for Hague Convention etc.109

134B.Functions of the State Central Authority110

Division 3 — Non‑Western Australian adoptions

135.Arrangements with other States and Territories, Minister may make110

136.Recognition of other Australian adoptions110

136A.Recognition in WA of adoption in Convention country of child resident in that country by Australian resident111

136B.Court may terminate relationship of child and parent of certain adopted children111

136C.Recognition in WA of adoption of child resident in Convention country by person resident in another such country112

136D.Recognition under s. 136A, effect of113

136E.Recognition in WA of decision in Convention country to convert adoption under Hague Convention Art. 27114

136F.Court may declare recognition under s. 136A or 136C of no effect in WA115

136G.Adoption compliance certificate, evidential value of116

136H.Person wishing to adopt child in Convention country, State Central Authority to report on116

137.Arrangements with other countries, Minister may make116

138.Recognition in WA of foreign country adoptions117

138A.Recognition in WA of adoption in overseas jurisdiction of child resident in that jurisdiction by Australian resident119

138B.Recognition under s. 138A, effect of120

138C.Adoption certificate, evidential value of122

138D.Person wishing to adopt child in overseas jurisdiction, CEO may report on122

139.Certain children in WA adopted outside Australia, CEO’s powers to supervise welfare etc. of122

Division 4 — Financial assistance and payment for services

140.Financial assistance, CEO’s powers to provide123

141.Services provided by CEO, payments for123

Division 5 — Rules and regulations

142.Rules of Court124

143.Regulations125

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

144.Adoption of Children Act 1896 repealed and transitional etc. provisions for (Sch. 3)126

145.Adoption Amendment Act 2012, transitional provisions for127

146.Review of Act127

Schedule 1 — Effective consent

1.Information and counselling required before consent given129

2.Witness to form of consent, who can be130

3.Preconditions to witnessing form of consent131

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

1.Infancy132

2.Childhood132

3.Adolescence133

4.Adulthood133

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

Schedule 2B — The Hague Convention

Schedule 3 — Transitional and savings

1.Terms used150

2.Interpretation Act 1984 not affected150

3.Further savings150

8.Provisions of this Act that apply to adoptions under 1896 Act150

9.Access to information, modified versions of s. 84, 85 and 88 apply to adoptions under 1896 Act151

10.Access to information, effect of death of person required to consent154

11.Access to information, effect of adoptee being mentally incapable of consenting154

12.Access to information, effect of adoptive or birth parents being mentally incapable of consenting154

13.Access to information, CEO may grant access to adoptee under 18 who cannot obtain required consents154

14.Reference to record of Court proceedings includes record of proceedings under 1896 Act155

15.Reference to registration of birth includes certain other registrations155

Notes

Compilation table157

Defined terms

 

 

Crest

Reprinted under the Reprints Act 1984 as

at 1 March 2013

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.Paramount considerations when administering Act etc.

(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; and

(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.Terms used

(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); or

(b)an adult under section 69(1); or

(c)a child under section 78A(2);

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 2007 (Commonwealth);

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

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

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

carer, in relation to a child, means a person with whom the child lives and who, either alone or jointly with another person, has the daily care of the child;

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;

Class 1 offence has the meaning given in the Working with Children (Criminal Record Checking) Act 2004 section 7(1);

Class 2 offence has the meaning given in the Working with Children (Criminal Record Checking) Act 2004 section 7(2);

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;

conviction has the meaning given in the Working with Children (Criminal Record Checking) Act 2004 section 8;

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 an Australian lawyer within the meaning of that term in the Legal Profession Act 2008 section 3;

legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3;

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;

(c)the person’s sibling of the whole or half blood,

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

medical practitioner means a person registered under the Health Practitioner Regulation National Law ( Western Australia ) in the medical profession;

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; and

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

(iii)the prospective adoptive parent;

and

(b)in relation to an adoption —

(i)the adoptee; and

(ii)the adoptee’s birth parents; and

(iii)the adoptee’s adoptive parent;

pending charge has the meaning given in the Working with Children (Criminal Record Checking) Act 2004 section 4;

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 the person’s —

(a)grandparent; or

(b)sibling; or

(c)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;

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 Sch. 2 cl. 2(2) and (8); No. 21 of 2008 s. 638(2); No. 22 of 2008 Sch. 3 cl. 1; No. 35 of 2010 s. 23; No. 15 of 2012 s. 4.]

4A.Presumptions of parentage in Family Court Act 1997, when applicable

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.Crown bound

This Act binds the Crown.

Part 2 — Adoption agencies

Division 1 — Authority to conduct adoption services

6.Adoption services, conduct of by CEO or delegate

(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 Sch. 2 cl. 2(8).]

7.Adoption services, conduct of by birth parent to facilitate adoption by step-parent

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.Unauthorised adoption services, offences as to

(1)A person must not —

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

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

(c)arrange or participate in a change of a child’s place of residence with a view to the adoption of the child; or

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

Penalty: a fine of $25 000 and imprisonment for 2 years.

(2)This section does not apply to —

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

(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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 5.]

Division 2 — Private adoption agencies

9.Private adoption agencies, licensing of

(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 licensing 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; and

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

(c)the procedure for applications and grounds for refusal of applications; and

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

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

(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; and

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

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

(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 Sch. 2 cl. 2(8); No. 55 of 2004 s. 11.]

11.Pretending to be etc. private adoption agency, offence

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: a fine of $10 000 and imprisonment for 12 months.

[Section 11 amended by No. 15 of 2012 s. 70.]

Division 3 — Adoption applications committee

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

12.Appointment of 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 Sch. 2 cl. 2(8).]

13.Functions of 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;

(c)children who are not of an age, origin or ethnic background 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 Sch. 2 cl. 2(8).]

14.Membership of 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 —

(a)a majority of the members are to be independent of the Department; and

(b)at least one of the members is to be a lawyer.

(3)The CEO is to appoint one of the members who is independent of the Department to be the chairperson of the committee.

[Section 14 amended by No. 8 of 2003 s. 12; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 6.]

15A.CEO may give committee general directions

(1)Subject to subsection (2), the CEO may give written directions to the adoption applications committee with respect to the performance of its functions and the committee is to give effect to any such direction.

(2)The CEO must not under subsection (1) direct the committee with respect to the performance of its functions in respect of a particular application.

[Section 15A inserted by No. 15 of 2012 s. 7.]

15.Procedure etc. of 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, subject to any direction given by the CEO under section 15A, 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; No. 15 of 2012 s. 8.]

Part 3 — The adoption process

Division 1 — Preliminary matters

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

16.Birth parent wanting to have child adopted, CEO’s duties as to

(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 Schedule 1 clause 1(1)(a); and

(b)provide counselling services to the birth parents; and

(c)assist the birth parents to make arrangements for the child to be cared for; and

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

(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) —

(a)in the case of a request by a person who is thinking about relinquishing her or his child for adoption by a step-parent, relative or carer of the child, within 28 days of the request; or

(b)in any other case, within 7 days of the request.

[Section 16 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 9.]

16A.Aboriginal or Torres Strait Islander child, CEO’s duties as to prospective adoption of

The CEO must consult with —

(a)an officer of the department who is an Aboriginal person or a Torres Strait Islander; or

(b)an Aboriginal person or a Torres Strait Islander who, in the opinion of the CEO, has relevant knowledge of the child, the child’s family or the child’s community; or

(c)an Aboriginal or Torres Strait Islander agency that, in the opinion of the CEO, has relevant knowledge of the child, the child’s family or the child’s community,

regarding the prospective adoption of a child who is an Aboriginal person or a Torres Strait Islander.

[Section 16A inserted by No. 15 of 2012 s. 10.]

Division 2 — Consent to adoption

17.Persons whose effective consent is required

(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;

or

(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

(c)in every case —

(i)each person with parental responsibility for the child; 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; No. 15 of 2012 s. 69.]

18.Effective consent, meaning of

(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; and

(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; and

(c)the consent is in writing in a form that has been approved by the CEO; and

(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; and

(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 has parental responsibility for 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; or

(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 person with parental responsibility for 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 the person with parental responsibility for him or her,

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 Sch. 2 cl. 2(8) and (9); No. 15 of 2012 s. 69.]

[19.Deleted by No. 8 of 2003 s. 17.]

20.Prospective adoptive parent, who can be specified as in consent

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

(iia)relative; or

(ii)carer,

of the child; and

(b)wishes to adopt the child.

[Section 20 amended by No. 15 of 2012 s. 11.]

21.Man who may be prospective adoptee’s father to be notified of consent etc.

(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; and

(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 Sch. 2 cl. 2(8).]

22.Revoking consent, time limit for

(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.Revoking consent, formalities for

(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 Sch. 2 cl. 2(8).]

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

24.Consent requirement (s. 17), Court may dispense with

(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; or

(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;

or

(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, relative or carer of the child; or

(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; or

(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; or

(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;

or

(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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 12.]

25.Service of notice requirements (s. 21), Court’s powers as to

(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 —

(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 Sch. 2 cl. 2(3) and (8).]

26.Parenting order application (s. 21), Court’s powers as to

(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 3ACourt applications for determinations of parentage

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

26A.Terms used

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.Determination of parentage, application for

(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; or

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

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

(c)by the CEO; or

(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 Sch. 2 cl. 2(8).]

26D.Application under s. 26C, Court’s powers as to

(1)On an application the Court —

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

(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; or

(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.Parentage testing order, ancillary orders for

(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;

(c)an order requiring a person to provide information relevant to the person’s medical or family history.

(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.Adult contravening parentage testing order, consequences of

(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.Parentage testing order against child, execution and contravention of

(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 person with parental responsibility for the child.

(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; amended by No. 15 of 2012 s. 13.]

26H.Person testing child under parentage testing order, liability of

(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 person with parental responsibility for the child.

(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; amended by No. 15 of 2012 s. 14.]

26I.Report for this Division, receipt of by Court as evidence etc.

(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.Revoking consent after s. 26C application made

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 — Parental responsibility for prospective adoptees

[Heading amended by No. 15 of 2012 s. 69.]

27.Who has parental responsibility after consent requirements met

(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 persons with parental responsibility for the child 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 parental responsibility for the child has been specified in the forms of consent as the prospective adoptive parent, both the birth parent and the step‑parent are to have parental responsibility for the child.

(3)Where a relative or a carer of the child has been specified in the forms of consent as the prospective adoptive parent, that person is to have parental responsibility for the child.

[(4)deleted]

(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 have parental responsibility for the child.

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

(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)a person has parental responsibility for the child by operation of the law of another State or a Territory corresponding to the provisions of the Children and Community Services Act 2004 Part 4,

in which case the person with parental responsibility for the child has parental responsibility 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 15.]

28.Who has parental responsibility where consent requirements not met etc.

(1)This section applies to a child if —

(a)the child 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);

or

(b)a birth parent of the child 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 Sch. 2 cl. 2(4); amended by No. 15 of 2012 s. 16.]

29.When parental responsibility ceases

(1)Parental responsibility for a child under this Division ceases —

(a)if a consent to the child’s adoption is revoked, in which case a person who had parental responsibility for the child immediately before the commencement of parental responsibility for the child under this Division is to have parental responsibility for the child again; or

(b)if a court makes further provision in respect of parental responsibility for the child; or

(c)where the CEO has parental responsibility for the child —

(i)if notice is given under section 30(1); or

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

or

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

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

[Section 29 inserted by No. 15 of 2012 s. 17.]

30.CEO having parental responsibility, duties of if not possible or desirable to place child for adoption

(1)If the CEO has parental responsibility for 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 the CEO believes is a birth parent of the child or who had parental responsibility for the child before the commencement of the CEO’s parental responsibility under this Division.

(2)If the CEO gives a notice under subsection (1) —

(a)a person who had parental responsibility for the child before the commencement of the CEO’s parental responsibility under this Division has parental responsibility for the child; and

(b)any consents to the child’s adoption cease to have effect.

[Section 30 inserted by No. 15 of 2012 s. 18.]

31.CEO having parental responsibility, powers of as to care of child

Where the CEO has parental responsibility for 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 69.]

32.Person with parental responsibility, duties of

Within 12 months of a person commencing to have parental responsibility for a child under this Division, or such further time as the court allows, the person 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 about parental responsibility for the child.

[Section 32 inserted by No. 15 of 2012 s. 19.]

33.CEO with parental responsibility, when may renounce or transfer responsibility

(1)Where the CEO has parental responsibility for 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 parental responsibility for the child,

the CEO may by an instrument in writing, renounce the parental responsibility.

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

(a)the revocation period has expired; and

(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 have parental responsibility for the child when the CEO signs an instrument renouncing parental responsibility.

(3)The CEO ceases to have parental responsibility under this Division when an instrument renouncing the parental responsibility 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 parental responsibility for children awaiting adoption.

[Section 33 amended by No. 41 of 1997 s. 28; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 20.]

34.Corresponding officer with parental responsibility, when CEO may request transfer etc. of responsibility

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

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

(b)request the corresponding officer to renounce parental responsibility for 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 parental responsibility under subsection (1) unless —

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

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

(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 parental responsibility, the corresponding officer ceases to have parental responsibility for the child.

(3)The CEO has parental responsibility for the child under this Division when the corresponding officer signs an instrument renouncing parental responsibility for the child.

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

[Section 34 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 21.]

35.Removing child from WA without consent, offence

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

Penalty: a fine of $10 000 and imprisonment for 12 months.

[Section 35 inserted by No. 15 of 2012 s. 22.]

Division 5 — Court applications as to parental responsibility for children awaiting adoption

[Heading amended by No. 15 of 2012 s. 69.]

36.Parental responsibility etc., Court’s powers as to

(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 person with parental responsibility for the child under Division 4 for an order to make further provision for parental responsibility for the child.

(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 parental responsibility under Division 4 for not more than a further 12 months on each application; or

(b)make an order changing the person who has parental responsibility for the child for the 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 Sch. 2 cl. 2(5) and (6); No. 15 of 2012 s. 23.]

Division 6 — Prospective adoptive parents

37.CEO to inform etc. prospective adoptive parents

(1)The CEO is to provide persons contemplating adoptive parenthood with —

(a)oral and written information about adoption; and

(b)counselling in relation to adoption.

(2)Subsection (1)(b) does not apply to a step‑parent, relative or carer of a child who is thinking of adopting the child, but if requested, the CEO is to provide such a person with 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 24.]

38.Applying to be 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, relative 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 25.]

39.Who can apply under s. 38(1)

(1)A person may only apply under section 38(1) if at the time of the application, he or she —

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

(b)is 18 or more years of age; and

(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; and

(d)has not been convicted of a Class 1 offence committed after he or she attained 18 years of age; and

(ea)if married to another person —

(i)applies as a joint applicant with that person; or

(ii)has been separated from that person for at least 12 months and does not intend to resume cohabitation with that person;

and

(eb)is, or in the previous 12 months has been, 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.

(2A)Despite subsection (1), a person who applied jointly with another person under section 38(1) may, in accordance with the regulations, continue the application in his or her own name if the joint applicants commence living separately and apart.

(2)Two persons may only apply jointly under section 38(1) if 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 26.]

40.Assessment report for s. 38(1) applicant, CEO to arrange

(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; and

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

(c)is of good repute; and

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

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

(e)has not been convicted of a Class 1 or Class 2 offence; and

(fa)does not have a pending charge in respect of a Class 1 or Class 2 offence; and

(f)satisfies other criteria as prescribed by regulation.

(3)Despite subsection (2), an applicant who has —

(a)previously been assessed under the Act as suitable to adopt a child; and

(b)subsequently adopted a child,

is not required to provide evidence in respect of the matters referred to in subsection (2)(b), (c), (d), (da) or (f) unless requested to do so by the person appointed to prepare the assessment report under subsection (1).

[Section 40 amended by No. 3 of 2002 s. 13; No. 34 of 2004 Sch. 2 cl. 2(8); No. 29 of 2008 s. 23; No. 15 of 2012 s. 27.]

41A.CEO may conduct checks of s. 38(1) applicant

(1)The CEO may conduct any check (including a criminal record check) that the CEO considers appropriate as to whether an applicant under section 38(1) is suitable to be an adoptive parent.

(2)The CEO may provide information obtained as a result of a check referred to in subsection (1) to —

(a)a person appointed under section 40(1) to prepare an assessment report on the applicant; or

(b)the adoption applications committee.

[Section 41A inserted by No. 15 of 2012 s. 28.]

41.Assessment report to be given to adoption applications committee etc.

(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.Committee may review own decision

(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)deleted]

[Section 42 amended by No. 8 of 2003 s. 25; No. 8 of 2009 s. 18(2); No. 15 of 2012 s. 29.]

43.Committee’s decision, CEO to advise applicant of etc.

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.

[Section 43 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 30.]

44.Register of s. 38(1) applicants etc., CEO’s functions as to

(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 Sch. 2 cl. 2(8).]

Division 7 — Placement of prospective adoptees

45.Person consenting to child’s adoption, CEO to seek wishes of etc. as to prospective adoptive parents

Where a person signs a form of consent to a child’s adoption (not being an adoption by a step‑parent, relative 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 31.]

46.Adoption plan, negotiation and content of etc.

(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; and

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

(c)if the CEO thinks it is appropriate, the child’s representative.

(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;

(c)any other matters relating to the child;

(d)a process for reviewing the adoption plan,

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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 32.]

47.Adoption plan, CEO’s duties as to

The CEO is to provide assistance and mediation to —

(a)persons in the process of negotiating an adoption plan under section 46(1) or (3)(b) or 55; and

(b)persons in the process of negotiating the variation of an adoption plan referred to in paragraph (a); and

(c)persons seeking to review an adoption plan referred to in paragraph (a).

[Section 47 inserted by No. 15 of 2012 s. 33.]

48.After adoption plan agreed, CEO to place child

(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 Sch. 2 cl. 2(8).]

49.Adoption plan not agreed, CEO’s powers in case of

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; or

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

(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; or

(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 has parental responsibility for the child under Division 4, cause notice to be given under section 30(1).

[Section 49 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 34.]

50.Dispute in negotiating adoption plan, Court’s powers as to

(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, relative or carer of the child.

[Section 50 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 35.]

51.Medical report on child required before placed for adoption

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 Sch. 2 cl. 2(8).]

52.Prerequisites for CEO placing child for adoption

(1A)In this section —

place, in relation to a child who is habitually resident in a Convention country or an overseas jurisdiction, means to make an offer of the child to a prospective adoptive parent following the receipt of advice from the competent authority of the Convention country or the adoption authority of the overseas jurisdiction that the placement of the child with the prospective adoptive parent with a view to adoption has been approved.

(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); and

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

(iii)satisfies the age differential requirement set out in subsection (3); and

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

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

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

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

[(vi)deleted]

and

(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; and

(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; and

(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; and

[(c)deleted]

(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, and cannot be changed, by any provision of an adoption plan.

(3)For the purposes of subsection (1)(a)(iii) the age differential requirement is that the prospective adoptive parent —

(a)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, do not have parental responsibility for another child; or

[(b)deleted]

(c)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 parental responsibility for another child; or

[(d)deleted]

(e)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 does not have parental responsibility for another child; or

(f)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 parental responsibility for another child.

[Section 52 amended by No. 3 of 2002 s. 14; No. 8 of 2003 s. 29; No. 34 of 2004 Sch. 2 cl. 2(8); No. 8 of 2009 s. 18(3)‑(5); No. 15 of 2012 s. 36.]

53.Placing child 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 Sch. 2 cl. 2(8).]

54.Child’s welfare etc. during placement, CEO to arrange supervision of

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 Sch. 2 cl. 2(8).]

Division 8 — Adoptions by step‑parents, relatives or carers

[Heading amended by No. 15 of 2012 s. 37.]

55A.Placement of child with relative or carer, approval of by CEO

(1)A relative or a carer of a child may apply to the CEO for the approval of the placement of the child with the person with a view to the person adopting the child.

(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.

(4)On an application under subsection (1) the CEO may approve the placement of the child if the CEO is satisfied that each applicant —

(a)is an Australian citizen or a permanent resident; and

(b)is 18 or more years of age; and

(c)is of good repute; and

(d)is able to provide care for the child in a way that —

(i)ensures the safety and well being of the child; and

(ii)recognises the wishes and views of the child in a manner that is consistent with the age and understanding of the child.

(5)If the child is the subject of a protection order (time limited) or protection order (until 18) under the Children and Community Services Act 2004 the CEO must not approve the placement of the child under this section unless the CEO is satisfied that the child’s adoption would be preferable to the making of a protection order (special guardianship) under the Children and Community Services Act 2004 in respect of the child.

[Section 55A inserted by No. 15 of 2012 s. 38.]

55B.CEO may conduct checks of s. 55A(1) applicant

The CEO may conduct any check (including a criminal record check) that the CEO considers appropriate as to whether an applicant under section 55A(1) is suitable to be an adoptive parent of the child.

[Section 55B inserted by No. 15 of 2012 s. 38.]

55C.When application by relative or carer for adoption order can be made

An application for an order for a child to be adopted by a relative or a carer is not to be filed unless —

(a)the child has been in the care of the person making the application for a period of at least 2 years immediately preceding the day on which the application is made; and

(b)the placement of the child with the relative or the carer has been approved under section 55A.

[Section 55C inserted by No. 15 of 2012 s. 38.]

55.Adoption plan required for adoption by step‑parent, relative or carer

(1)An application for an order for a child to be adopted by a step‑parent, relative 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; and

(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

(c)if the CEO thinks it is appropriate, the child’s representative,

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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 39.]

Division 9 — Applications for adoption orders

56.When application for adoption order can be made

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 Sch. 2 cl. 2(8).]

57.Court may override s. 56

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.CEO to be notified of intention to apply for adoption order etc.

(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 Sch. 2 cl. 2(8).]

59.Relatives etc. to be notified of intention to apply for adoption order if birth parent deceased or cannot be found

(1A)In this section —

close relative, in relation to a birth parent, means each of the following people —

(a)a birth parent or an adoptive parent of the birth parent;

(b)a sibling of the birth parent —

(i)whether of the whole or half blood; or

(ii)whether the relationship is established by this Act or another written law.

(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;

or

(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)Written notice of the intention to file an application for an adoption order in relation to the child —

(a)is to be given to as many close relatives of the birth parents who have attained the age of 18 years as is practicable; or

(b)if no close relative of a birth parent can reasonably be located, is to be given to an aunt or uncle of the birth parent who has attained the age of 18 years and is reasonably available at the relevant time.

(3)For the purposes of subsection (2) notice is given to a person if the notice is delivered personally or by registered post to that person’s last known address.

(4)The CEO may provide assistance to a person who is required to give notice of the intention to file an application for an adoption order under this section.

[Section 59 amended by No. 41 of 1997 s. 28; No. 8 of 2003 s. 32; No. 15 of 2012 s. 40.]

60.Court may vary or override s. 58(1) or 59(2)

(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; or

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

(c)determine the person or persons to whom it is sufficient for notice to be given for purposes of section 59(2).

61.Report for Court, CEO to arrange after receipt of s. 58(1) notice

(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 Sch. 2 cl. 2(8).]

62.Application for adoption order, filing formalities for

(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 others in adoption order proceedings

(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 Sch. 2 cl. 2(8).]

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.Residential etc. prerequisites to making adoption order

(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 relative or 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.

[Section 66 amended by No. 3 of 2002 s. 15; No. 8 of 2003 s. 35; No. 15 of 2012 s. 41.]

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; or

(ba)is a relative of the child; or

(b)is a carer of the child; or

(c)has, under this Act, had the child placed in his or her care with a view to the child’s adoption by him or her.

(2)Persons referred to in subsection (1)(ba), (b) and (c) and relatives and carers referred to in section 66(2) may, subject to this Act, jointly adopt another person if the first‑mentioned persons, relatives 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)(ba), (b) and (c) or the relatives or the carers referred to in section 66(2) are married and before the marriage those persons, relatives 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; No. 15 of 2012 s. 42.]

68.Adoption order for child, preconditions for making etc.

(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); and

(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); and

(c)the application is in accordance with an order on any application mentioned in section 21(2)(b) or (c); and

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

(ea)if a relative or carer of a child wishes to adopt the child, the application is in accordance with section 55C; and

(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; and

(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); and

(fa)if a step-parent, relative or carer of a child wishes to adopt the child, the child’s adoption by the person is preferable to any of the following orders being made under the Family Law Act 1975 (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 appointment or removal of a guardian of the child;

and

(fb)if a relative of a child wishes to adopt the child, there are good reasons to redefine relationships within the child’s family in the way that the order would do; and

(fc)if a relative or carer of a child wishes to adopt the child and the child is the subject of a protection order (time limited) or protection order (until 18) under the Children and Community Services Act 2004, the child’s adoption would be preferable to the making of a protection order (special guardianship) under the Children and Community Services Act 2004 in respect 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; and

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

(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; and

(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;

and

(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 relative or 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; and

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

(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;

and

(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; and

(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; No. 15 of 2012 s. 43.]

69.Adoption order for adult, preconditions for making etc.

(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;

and

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

(ca)if a prospective adoptive parent is a relative of the prospective adoptee, there are good reasons to redefine the relationships within the prospective adoptee’s family in the way that the order would do; 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 44.]

70.Adoption plan, Court may allow added parties to

(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.Court’s 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.Adoption plan, Court approval of required; enforcement of

(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.Adoption plan, Court may dispense with requirement for

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;

or

(b)in special circumstances.

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

74.Name of adoptee, Court to declare

(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 the adoptee’s first name before the making of an adoption order should be included in the name by which the adoptee is to be known; and

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

(b)any views expressed by the adoptee and any factors (such as the adoptee’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the adoptee’s views; and

(ca)the adoptee’s relationships with his or her birth parents or any other person and the extent to which those relationships should be recognised in the name by which the adoptee is to be known; and

(cb)the adoptee’s cultural background and the principle that the name by which the adoptee is to be known should recognise that background; and

(c)any adoption plan that is made in relation to the adoptee and approved by the Court.

(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; No. 15 of 2012 s. 45.]

75.Effect of adoption order

(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; and

(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; and

(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)deleted]

(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.Adoption plan, varying

(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, relative 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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 46.]

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;

(c)an adult adoptee who has notified the CEO of the adoptee’s intention to so apply.

(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; or

(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

(c)there is some exceptional reason why the order should be made.

(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; or

(b)the ownership or possession of property; or

(c)any matter affecting parental responsibility for the adoptee; 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; or

(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 Sch. 2 cl. 2(8); No. 15 of 2012 s. 47.]

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; and

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

(c)the name by which the adoptee is known before, and is to be known after, the order becomes effective; and

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

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

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

78A.Adoption order for WA resident child by Convention country person, prerequisites for making etc.

(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 ; and

(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;

and

(c)the arrangements for the adoption of the child are in accordance with the requirements of the Hague Convention; and

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

(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.Adoption compliance certificate for s. 78A order, issue of for Hague Convention

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.CEO’s duties 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; and

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

(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; and

(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;

and

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

(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;

and

(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; and

(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; or

(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;

and

(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 —

(a)before the release of identifying information under this Part; or

(b)before the registration of a contact veto.

(3)The CEO is not to release identifying information under this Act to a person whose access to the information is the subject of an information veto that will become, or became, ineffective because of the operation of section 59(2) of the Adoption Amendment Act (No. 2) 2003 unless —

(a)the person attends an interview with an officer of the Department; and

(b)all the parties to the adoption and their relatives have been provided with the information, counselling and mediation that the CEO thinks is necessary in the particular case.

[Section 79 amended by No. 40 of 1998 s. 6(5); No. 8 of 2003 s. 42; No. 34 of 2004 Sch. 2 cl. 2(8) and (9).]

80.Death of party to adoption etc., CEO to notify certain persons

(1)If the CEO is informed by the Registrar that an adoptee has died, the CEO is to inform the adoptee’s birth parents of the death if the CEO considers that —

(a)it is reasonably practicable to do so; and

(b)it is appropriate to do so, after having regard to the provisions of the relevant adoption plan.

(2)If the CEO receives information that one of the parties to an adoption or a sibling of the adoptee (whether of the whole or half blood) has died, the CEO is to inform the other parties to the adoption, or the adoptee’s siblings (whether of the whole or half blood), as the case may be, of the death so far as the CEO considers that it is reasonably practicable to do so.

(3)The CEO does not have to inform a person under subsection (1) or (2) of a death —

(a)if the person has, in a manner approved by the CEO, notified the CEO that the person does not wish to be so advised; or

(b)in special circumstances.

[Section 80 amended by No. 40 of 1998 s. 6(6); No. 8 of 2003 s. 43; No. 34 of 2004 Sch. 2 cl. 2(8).]

Division 2 — Access to adoptions information

81.Terms used and application of Division 2

(1)In this Division —

(a)descendant means a lineal descendant;

(b)grandparent means a lineal grandparent or a lineal ancestor;

(c)sibling means a brother or sister of the whole or half blood,

whether or not the relationship is traced through, or to, a person whose parents were not married to each other at the time of the person’s birth, or subsequently, but does not include a relationship that is established by a written law if the relationship is not otherwise a natural relationship.

(2)This Division has effect subject to the provisions of an adoption plan that allow a party to the plan or a sibling of an adoptee greater or earlier access to information in relation to an adoptee or the adoptee’s adoptive family or birth parents than that provided for in this Division.

(3)This Division applies despite a provision of any contract or adoption plan that purports to restrict or exclude a right set out in this Division, and any such provision is of no effect.

(4)Subsections (2) and (3) have effect subject to an order of the Court under section 83(2).

(5)This Division applies despite the Freedom of Information Act 1992.

[Section 81 amended by No. 3 of 2002 s. 19; No. 15 of 2012 s. 48.]

82.Access to certain information, application for and grant by CEO of

(1)A person wishing to have access to information under section 84(1), 85(1), 88, 89 or 90 is to apply to the CEO in a form approved by the CEO and provide proof of the person’s identity, if relevant the person’s age, and other information that the CEO thinks is relevant to the application.

(2)On an application under subsection (1), the CEO is to give his or her authority for the applicant to have access to the information as requested in the application unless the CEO thinks that there is a good reason for not doing so and in that case, the CEO may give the authority on condition that the applicant may or may not have access to the information specified in the authority.

(3)The CEO’s authority under subsection (2) is to be in writing in a form approved by the CEO.

(4)The CEO’s power to authorise the access to information under this section is subject to —

(a)section 79(3); and

(b)an order of the Court under section 83(2); and

(c)section 103.

[Section 82 amended by No. 8 of 2003 s. 44; No. 34 of 2004 Sch. 2 cl. 2(8) and (9); No. 15 of 2012 s. 49.]

83.Court may prevent CEO granting access under s. 82(2) etc.

(1)On an application for an adoption order or after an adoption order has been made, a party to the adoption may apply to the Court for an order to prevent the CEO from giving his or her authority under section 82(2) in relation to a person who would otherwise have a right of access to information under this Act.

(2)On an application under subsection (1), the Court may make an order referred to in that subsection if it is satisfied that the person’s access to the information would be likely to place the applicant or the person to whom the applicant is married, or in a de facto relationship with, or the applicant’s children at serious risk.

(3)If an order is made under subsection (2), the registrar of the Court is to give the CEO a certified copy of the order as soon as is practicable.

(4)On the application of a person affected by an order under subsection (2), the Court may revoke, suspend or vary the order.

[Section 83 amended by No. 3 of 2002 s. 20; No. 34 of 2004 Sch. 2 cl. 2(8).]

84.Court records of adoption proceedings, who has right of access to

(1)Subject to section 82(2), no persons other than the following persons have the right to have access to the record of proceedings in a court in relation to an adoption or a proposed adoption —

(a)the adoptee;

(b)a birth parent of the adoptee;

(c)an adoptive parent of the adoptee;

(da)a sibling of the adoptee, if both the sibling and the adoptee are 18 or more years of age;

(d)a person who was a party to the proceedings.

(2)Subsection (1) has effect subject to —

(a)the production to the registrar of the court or other similar officer, of the authority under section 82(2) to allow access to the information; and

(b)the requirements of the relevant court under any law or rule of practice relating to inspection of and release of information generally from its record of proceedings; and

(c)any court order in relation to exclusion of persons from the hearing of the proceedings; and

(d)sections 89 and 90.

(3)Nothing in subsection (1) prevents an adoptive parent from obtaining a record of the adoption order.

(4)Nothing in subsection (1) or (2) prevents a person referred to in subsection (1)(a) to (d) from applying in writing to the Court for a copy of a report under section 61 or a report from a representative of the child submitted to the Court in relation to the adoption.

(5)On an application under subsection (4) the Court may, as it thinks fit, release all or part of a report under section 61 or a report from a representative of the child submitted to the Court in relation to the adoption.

[Section 84 amended by No. 8 of 2003 s. 45; No. 15 of 2012 s. 50.]

85.Registration of adoptee’s birth, who has right of access to

(1)Subject to section 82(2), no persons other than the following persons have the right to have access to the registration of an adoptee’s birth —

(a)the adoptee;

(b)a birth parent of the adoptee;

(c)an adoptive parent of the adoptee;

(d)a sibling of the adoptee, if both the sibling and the adoptee are 18 or more years of age.

(2)Subsection (1) has effect subject to —

(a)production to the Registrar, of the authority under section 82(2) to allow access to the information; and

(b)the Births, Deaths and Marriages Registration Act 1998 in relation to the manner of application for access to information held by the Registrar; and

(c)sections 89 and 90.

(3)The production to the Registrar of the authority referred to in subsection (2)(a) is to be treated as an adequate reason, for the purposes of section 54 or 55 of the Births, Deaths and Marriages Registration Act 1998, for the Registrar —

(a)to allow a person access to the Register; or

(b)to provide a person with information extracted from the Register; or

(c)to search for information in the Register,

within the meaning of that Act.

[Section 85 amended by No. 40 of 1998 s. 6(7), (8) and (9); No. 15 of 2012 s. 51.]

86.Portion of registration of birth not referring to adoption, Registrar may issue copy of

(1)At the request of —

(a)an adoptee’s adoptive parent, if the adoptee is less than 18 years of age; or

(b)an adoptee, if the adoptee is 18 or more years of age,

the Registrar is to issue to the person making the request, a certified copy of that portion of the registration of the adoptee’s birth that does not refer to the adoptee’s adoption or birth parents.

(2)A certified copy of that portion of the registration of an adoptee’s birth that does not refer to the adoptee’s adoption or birth parents that is issued by the Registrar under subsection (1) is admissible in legal proceedings as evidence of the facts recorded on the document.

[Section 86 amended by No. 40 of 1998 s. 6(10); No. 8 of 2003 s. 46.]

[87.Deleted by No. 3 of 2003 s. 47.]

88.Non‑identifying information held by adoption agency, who has right of access to

Subject to section 82(2), the following persons have the right to have access to non‑identifying information in relation to the parties to an adoption that is in the custody, power or control of the CEO or a private adoption agency —

(a)the adoptee; and

(b)a birth parent of the adoptee; and

(c)an adoptive parent of the adoptee; and

(d)any grandparent of the adoptee; and

(e)any descendant of the adoptee who is 18 or more years of age; and

(f)any sibling of the adoptee, if both the adoptee and the sibling are 18 or more years of age; and

(g)any other person who, in the opinion of the CEO, has a suitable reason for having access to the information.

[Section 88 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

89.Death of party to adoption, who has right of access to information in case of

(1)If a party to an adoption is deceased, any —

(a)grandparent of the party; or

(b)descendant of the party; or

(c)sibling of the party,

who is 18 or more years of age has the right to have access to the registration of the adoptee’s birth.

(2)Subsection (1) is subject to —

(a)section 82(2); and

(b)production to the Registrar, of the authority under section 82(2) to allow access to the information; and

(c)the Births, Deaths and Marriages Registration Act 1998 in relation to the manner of application for access to information held by the Registrar.

(3)The production to the Registrar of the authority referred to in subsection (2)(b) is to be treated as an adequate reason, for the purposes of section 54 or 55 of the Births, Deaths and Marriages Registration Act 1998, for the Registrar —

(a)to allow a person access to the Register; or

(b)to provide a person with information extracted from the Register; or

(c)to search for information in the Register,

within the meaning of that Act.

(4)If a party to an adoption is deceased, any —

(a)grandparent of the party; or

(b)descendant of the party; or

(c)sibling of the party,

who is 18 or more years of age has the right to have access to the record of proceedings in a court in relation to an adoption or a proposed adoption.

(5)Subsection (4) is subject to —

(a)section 82(2); and

(b)the production to the registrar of the court or other similar officer, of the authority under section 82(2) to allow access to the information; and

(c)the requirements of the relevant court under any law or rule of practice relating to inspection of and release of information generally from its record of proceedings; and

(d)any court order in relation to exclusion of persons from the hearing of the proceedings.

[Section 89 inserted by No. 8 of 2003 s. 48.]

90.If adoptee cannot be found, who has right of access to information in case of

(1)If an adoptee who is 18 or more years of age, cannot be found or contacted after enquiries which the CEO thinks are sufficient, any —

(a)grandparent of the adoptee; or

(b)descendant of the adoptee,

who is 18 or more years of age has the right to have access to the registration of the adoptee’s birth.

(2)Subsection (1) is subject to —

(a)section 82(2); and

(b)production to the Registrar, of the authority under section 82(2) to allow access to the information; and

(c)the Births, Deaths and Marriages Registration Act 1998 in relation to the manner of application for access to information held by the Registrar.

(3)The production to the Registrar of the authority referred to in subsection (2)(b) is to be treated as an adequate reason, for the purposes of section 54 or 55 of the Births, Deaths and Marriages Registration Act 1998, for the Registrar —

(a)to allow a person access to the Register; or

(b)to provide a person with information extracted from the Register; or

(c)to search for information in the Register,

within the meaning of that Act.

(4)If an adoptee who is 18 or more years of age, cannot be found or contacted after enquiries which the CEO thinks are sufficient, any —

(a)grandparent of the adoptee; or

(b)descendant of the adoptee,

who is 18 or more years of age has the right to have access to the record of proceedings in a court in relation to an adoption or a proposed adoption.

(5)Subsection (4) is subject to —

(a)section 82(2); and

(b)the production to the registrar of the court or other similar officer, of the authority under section 82(2) to allow access to the information; and

(c)the requirements of the relevant court under any law or rule of practice relating to inspection of and release of information generally from its record of proceedings; and

(d)any court order in relation to exclusion of persons from the hearing of the proceedings.

[Section 90 inserted by No. 8 of 2003 s. 49; amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 52.]

Division 3 — Exchange and preservation of adoptions information

91.Court to give CEO information

The registrar of the Court is to give to the CEO such information from the records under the registrar’s control as the CEO certifies in writing is required by the CEO for the purposes of this Act.

[Section 91 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

92.Registrar to give CEO information

(1)The Registrar is to give to the CEO such information from the Register as the CEO certifies in writing is required by the CEO for the purposes of this Act.

(2)If the Registrar receives information that a person has died, and it appears from the Register that the person was an adoptee, the Registrar is to inform the CEO of the adoptee’s death.

(3)In this section —

Register has the meaning that it has in the Births, Deaths and Marriages Registration Act 1998.

[Section 92 inserted by No. 40 of 1998 s. 6(12); amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

93.Persons conducting etc. adoption services, CEO may direct to give CEO information

(1)The CEO may direct a person (including an association or body of persons, corporate or unincorporate) that conducts or has conducted adoption services, whether before or after the commencement of this Act, to give to the CEO such information in relation to those adoption services, from the records in its custody, power or control, as the CEO certifies in writing is required for the purposes of this Act.

(2)A person is to comply with a direction of the CEO under subsection (1).

Penalty: a fine of $10 000 and imprisonment for 12 months.

[Section 93 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 70.]

94.Records of adoptions etc., preservation of

(1)Records of proceedings in a court in relation to an adoption or proposed adoption are to be preserved, in so far as is practicable, indefinitely.

(2)Where it is not practicable to keep a record referred to in subsection (1), the record may only be destroyed with the authority of the registrar of the court or other similar officer, after consultation with the CEO.

(3)The CEO, a person (including a hospital or hostel or any other association or body of persons, corporate or unincorporate) that conducts or has conducted adoption services, whether before or after the commencement of this Act, or a person acting on behalf of such a person, who has in his, her or its custody, power or control, any document that records information in relation to an adoption or proposed adoption or the parties to such adoption, is to cause the document to be preserved for not less than 100 years from the day on which the document came into his, her or its custody, power or control.

Penalty: a fine of $10 000 and imprisonment for 12 months.

(4)If a person (other than the CEO) referred to in subsection (3) ceases or has ceased the conduct of adoption services, the person is to cause any document in his, her or its power, custody or control of the nature referred to in subsection (3) to be transferred to the possession of the CEO unless the person satisfies the CEO that provision has been made for access to and safekeeping of the document under this Act.

Penalty: a fine of $10 000 and imprisonment for 12 months.

[Section 94 amended by No. 8 of 2003 s. 50; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 70.]

Division 4 — Contact vetoes

[Heading amended by No. 8 of 2003 s. 51.]

[95.Deleted by No. 8 of 2003 s. 52.]

[96.Deleted by No. 8 of 2003 s. 53.]

[97.Deleted by No. 8 of 2003 s. 54.]

[98.Deleted by No. 8 of 2003 s. 56.]

99.Register of contact vetoes, CEO to maintain

The CEO is to maintain a register of —

(a)the statements of wishes that were registered under this Division before the veto cut off day; and

(b)any cancellation or variation under section 102(1).

[Section 99 inserted by No. 8 of 2003 s. 57; amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

100.Duration of contact vetoes

(1)A contact veto is of effect —

(a)for the period stated by the person who lodged the statement of wishes; or

(b)until the person who lodged the statement of wishes dies; or

(c)until cancelled by the person who lodged the statement of wishes; or

(d)subject to subsection (3), where the statement of wishes was lodged on behalf of an adoptee who was less than 18 years of age at the time of the lodgment by a person with parental responsibility for the adoptee, until the adoptee attains 19 years of age,

whichever occurs first.

(2)The person who lodged the statement of wishes may vary the period referred to in subsection (1)(a).

(3)An adoptee on behalf of whom a statement of wishes for a contact veto was lodged before the veto cut off day may —

(a)within 12 months after attaining the age of 18 years; and

(b)in writing given to the CEO,

continue the effect of the statement of wishes and, in that case, subsections (1)(a), (b) and (c) and (2) and sections 102, 103 and 104 apply in relation to the adoptee as if the adoptee were the person who lodged the statement of wishes or sought the registration of the relevant contact veto.

[Section 100 amended by No. 8 of 2003 s. 58; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 53.]

[101.Deleted by No. 8 of 2003 s. 59(1).]

102.Confirming, cancelling and varying veto

(1)A person whose statement of wishes was registered under this Division before the veto cut off day may, in a form approved by the CEO, cancel or apply to vary the statement.

(2)The CEO may approach the person who sought the registration of a contact veto and ask the person whether he or she wishes to —

(a)confirm the veto; or

(b)cancel the veto; or

(c)vary the veto in so far as it relates to contact with a specified person.

(3)The CEO may arrange for a party or parties affected by a contact veto to be offered such counselling as the CEO thinks will assist in the matter.

[Section 102 amended by No. 8 of 2003 s. 60; No. 34 of 2004 Sch. 2 cl. 2(8).]

103.Undertaking not to contact person who has lodged contact veto required before access to information granted

If the CEO receives an application under section 82(1) to authorise access to identifying information in relation to a person and a contact veto has been registered that forbids the applicant from contacting the person, the CEO is not to give his or her authorisation under section 82(2) unless the applicant signs an undertaking, in a form approved by the CEO, that the applicant will not, while the contact veto remains in force, contact, or request another person to contact on his or her behalf, the person who lodged the contact veto.

[Section 103 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

[104.Deleted by No. 15 of 2012 s. 54.]

Division 5 — Private contact and mediation licensees

[Heading amended by No. 8 of 2003 s. 61.]

105.Contact and mediation agencies to be licensed

(1)A person, other than the CEO, is not to act on behalf of another person —

(a)for the purpose of contacting a party to an adoption in relation to the adoption; or

(b)in negotiations as to contact between any parties to an adoption,

except under and in accordance with a licence under this Division to do so.

Penalty: a fine of $10 000 and imprisonment for 12 months.

(2)A person, not being a contact and mediation licensee, 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 contact and mediation licensee.

Penalty: a fine of $10 000 and imprisonment for 12 months.

[Section 105 amended by No. 8 of 2003 s. 62; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 55 and 70.]

106.Licence to conduct contact and mediation services, grant of

The CEO may grant a licence to an individual to conduct the activities mentioned in section 105(1) on behalf of another person.

[Section 106 amended by No. 8 of 2003 s. 63; No. 34 of 2004 Sch. 2 cl. 2(8).]

107.Regulations as to contact and mediation agencies

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

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

(b)the procedure for applications and grounds for refusal of applications; and

(c)the duration, renewal, revocation and suspension of licences, including provision for the contravention of or failure to comply with a provision of a code of practice published by order of the CEO in the Government Gazette in relation to the conduct of a contact and mediation licensee to be a ground for the suspension, revocation or refusal of the renewal of a licence under this Division; and

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

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

(f)the provision of information to the CEO by contact and mediation licensees in relation to the services conducted by them.

[Section 107 amended by No. 8 of 2003 s. 64; No. 34 of 2004 Sch. 2 cl. 2(8) and (9); No. 55 of 2004 s. 12.]

108.Contact and mediation agencies bound by contact veto

(1)A contact and mediation licensee who proposes to contact a person in relation to an adoption is to apply to the CEO, before contacting the person, to ascertain whether a current contact veto is registered in relation to the person the licensee proposes to contact.

(2)Where the CEO notifies a contact and mediation licensee of the requirements of a current contact veto registered in relation to a person, the licensee must not contravene or fail to comply with those requirements.

Penalty: $10 000 and 12 months’ imprisonment.

(3)If a contact and mediation licensee is convicted of an offence under this section, the CEO may —

(a)cancel the licensee’s licence forthwith; and

(b)order that the licensee not be re‑issued with a licence for 10 years; and

(c)where the licensee is registered with, or a member of, a professional organisation, inform the organisation of the offence and conviction.

[Section 108 amended by No. 8 of 2003 s. 65; No. 34 of 2004 Sch. 2 cl. 2(8).]

Division 6 — Updating non‑identifying information

109.CEO, on request, to attempt to obtain current information

(1)If the CEO receives a request for current non‑identifying information (which may include medical information) from —

(a)an adoptee who is 18 or more years of age, as to a birth parent of the adoptee or a sibling of the adoptee who is 18 or more years of age; or

(b)an adoptee’s birth parent, as to the adoptee if the adoptee is 18 or more years of age or the adoptee’s adoptive parent; or

(c)an adoptee’s adoptive parent, as to a birth parent of the adoptee or a sibling of the adoptee who is 18 or more years of age; or

(d)a sibling, who is 18 or more years of age, of the adoptee, as to the adoptee if the adoptee is 18 or more years of age or the adoptee’s adoptive parent,

the CEO may approach the person in relation to whom the information is requested and indicate the nature of the requested information.

(2)If a person is approached by the CEO under subsection (1), the person may decline to provide some or all of the requested information.

(3)In this section, sibling has the same meaning as in section 81(1)(c).

[Section 109 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

Part 5 — Review of decisions and appeals

Division 1 — Review by CEO

[Heading amended by No. 34 of 2004 Sch. 2 cl. 2(7).]

110.Review by CEO of certain decisions, application for

(1)A person who is aggrieved by a decision made for the purposes of this Act by —

(a)a person to whom the CEO had delegated a function under section 6(1); or

(ba)the adoption applications committee; or

(b)a private adoption agency,

may apply to the CEO to review the decision.

[(2)deleted]

[Section 110 amended by No. 8 of 2003 s. 66; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 56.]

111.Nature of review by CEO and evidence

(1)An application for review under this Division is to be in a form approved by the CEO and is to be delivered to the CEO within 21 days from the day on which the applicant received notice of the decision, or such further time as the CEO allows.

(2)The CEO is to determine the review —

(a)on the material that was before the person who made the decision; and

(b)on such further material either oral or in writing as the CEO thinks fit to receive.

[Section 111 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

112.CEO’s powers on review

(1)Upon a review under this Division, the CEO may do one or more of the following things —

(a)confirm, set aside or vary the decision being reviewed; or

(b)substitute another decision for the decision being reviewed; or

(c)if the decision being reviewed is a decision of the adoption applications committee, refer the decision back to the adoption applications committee for further consideration.

(2)The CEO must give the applicant written notice of the decision under subsection (1), the reasons for the decision and the person’s right of review under section 113.

[Section 112 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 57.]

Division 2 — Review by State Administrative Tribunal

[Heading inserted by No. 15 of 2012 s. 58.]

113.Review by SAT of CEO’s decision under s. 112(1)(a) or (b)

(1)Except as provided in subsection (4), a person who is aggrieved by a decision of the CEO under section 112(1)(a) or (b) may apply to the State Administrative Tribunal for a review of the CEO’s decision.

(2)The application must be made within 28 days after the day on which the CEO gives the applicant notice in accordance with section 112(2).

(3)A decision that is the subject of an application under subsection (1) continues to have effect pending the outcome of the review, unless the State Administrative Tribunal orders otherwise.

(4)This section does not apply if the decision that was reviewed by the CEO under Division 1 was a decision to place a child with a view to the child’s adoption and the child has already been placed in accordance with that decision.

[Section 113 inserted by No. 15 of 2012 s. 58.]

[Division 3, 4 (s. 114‑119) deleted by No. 15 of 2012 s. 59.]

Part 6  Offences

120.Terms used

(1)In this Part —

child includes a reference to an unborn child;

publish means to bring, by any means, to the notice of the public or a person in his or her capacity as a member of the public;

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).

(2)In this Part, a reference to the authority of, the approval of or charges made by, a private adoption agency is a reference to the authority, approval or charging that is in accordance with the agency’s licence or any condition or restriction attached to the licence.

[Section 120 amended by No. 3 of 2002 s. 22; No. 8 of 2003 s. 71; No. 15 of 2012 s. 60.]

121.Territorial application of s. 122 to 125

Sections 122, 123, 124 and 125 —

(a)do not apply to acts outside this State; and

(b)unless otherwise expressly provided, apply to acts in this State in relation to —

(i)the adoption of a child in; or

(ii)a person adopted in,

another State or a Territory or a country other than Australia .

122.Making or receiving payment for adoption, adoption service etc.

(1)A person must not make, give or receive, or agree to make, give or receive, a payment or reward for or in consideration of —

(a)a child’s adoption or proposed adoption; or

(b)the giving of consent, or signing a form of consent to a child’s adoption; or

(c)conducting an adoption service in relation to a child.

Penalty: a fine of $25 000 and imprisonment for 2 years.

(2)This section does not apply to a payment —

(a)of legal expenses;

(b)of medical or hospital expenses for the care or treatment of a mother or child in relation to the bearing and birth of the child, that is authorised by the CEO or a private adoption agency;

(c)authorised by the CEO, a private adoption agency or the Court, that was incurred in relation to an adoption or proposed adoption or to an adoptee or prospective adoptee.

(3)This section does not apply to a payment or reward made, given or received, or agreed to be made, given or received in relation to an adoption or proposed adoption under the law of another State or a Territory, if the making of the payment, giving of the reward or agreement to do so is lawful under the law of the other State or the Territory.

(4)This section does not apply to charges made by the CEO or private adoption agencies for providing services under this Act.

(5)An agreement under which a person makes, gives or receives a payment or reward for or in consideration of a matter mentioned in subsection (1)(a), (b) or (c), other than a payment or reward mentioned in subsection (2), (3) or (4), is of no effect.

[Section 122 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 61.]

123.Advertising child for adoption etc.

(1)A person must not publish material to the effect that a person —

(a)wishes to have a child adopted, or placed with another person with a view to the adoption of the child by that other person; or

(b)wishes to adopt a child, or to have a child placed with the person with a view to adopting the child; or

(c)conducts or is available to conduct an adoption service.

Penalty: a fine of $10 000 and imprisonment for 12 months.

(2)This section does not apply to material approved by the CEO or a private adoption agency for publication.

[Section 123 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 70.]

124.Publishing identity of party to adoption etc.

(1)A person must not publish material that identifies or is likely to identify a person —

(a)who is, or was but is no longer, a party to an adoption or a proposed adoption, as a party to the adoption or proposed adoption; or

(b)who is a party to proceedings in any court in relation to an adoption, a proposed adoption or the discharge of an adoption order, as a party to the proceedings; or

(c)whose consent to the adoption of a person is or was required, (whether or not the requirement for consent has been dispensed with), as a person whose consent was so required; or

(d)who is, or is likely to be affected by an adoption order or an adoption plan, as a person so affected; or

(e)who is a relative of a person to whom paragraph (a) or (b) applies, as a person who is such a relative,

where the adoption is under this Act or a law of another State or a Territory.

Penalty: a fine of $10 000 and imprisonment for 12 months.

(2)This section does not apply to —

(a)material approved by the CEO, a private adoption agency or a court for publication; or

(b)the matters mentioned in section 243(8) of the Family Court Act 1997.

(3)This section does not apply to the identification or likely identification of —

(a)an adoptee or prospective adoptee who is 18 or more years of age and consents in writing to being identified; or

(b)an adoptee or prospective adoptee who is less than 18 years of age where consent in writing to the identification of that person has been given by a person with parental responsibility for the adoptee or the prospective adoptee; or

(c)a person, other than an adoptee or prospective adoptee, who is 18 or more years of age and consents in writing to being identified, unless the identification of the person identifies or is likely to identify an adoptee or prospective adoptee who has not consented to being identified,

where the identification is in accordance with any conditions or restrictions attached to the consent.

(4)In subsection (3) —

adoptee includes a person who was but is no longer an adoptee.

[Section 124 amended by No. 41 of 1997 s. 23; No. 8 of 2003 s. 72; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 62 and 70.]

125.Threat against person to induce consent etc.

A person must not use or threaten to use force or restraint, or injure or threaten to injure, or cause or threaten detriment of any kind to another person, with a view —

(a)to inducing the other person to consent, or to refrain from consenting, to an adoption; or

(b)to inducing the other person to revoke, or to refrain from revoking, his or her consent to an adoption; or

(c)to influencing the other person in the —

(i)specification in a form of consent of a person as a child’s prospective adoptive parent; or

(ii)expression of wishes under section 45(a)(i) or section 52(1)(a)(v); or

(iii)negotiation of an adoption plan.

Penalty: a fine of $10 000 and imprisonment for 12 months.

[Section 125 amended by No. 15 of 2012 s. 70.]

126.Harassing etc. party to adoption etc.

A person must not do any act intended or likely to harass, intimidate, embarrass, or ridicule another person by reason of that other person being —

(a)a party to an adoption or proposed adoption; or

(b)a relative of a party to an adoption or proposed adoption.

Penalty: a fine of $10 000 and imprisonment for 12 months.

[Section 126 amended by No. 15 of 2012 s. 70.]

127A.False etc. information in application etc.

A person must not give information orally or in writing in, or in relation to, an application, report or other document prepared for the purposes of this Act that the person knows to be false or misleading in a material respect.

Penalty: a fine of $6 000.

[Section 127A inserted by No. 15 of 2012 s. 63.]

127B.Party to proposed adoption etc. to notify CEO of certain information etc.

(1)In this section —

register means the register referred to in section 44.

(2)A person who is a party to a proposed adoption must notify the CEO within 28 days of becoming aware of —

(a)information that may be relevant to the identification of a person who may be required to give effective consent to the adoption; or

(b)circumstances that may affect whether a consent to the adoption is effective.

Penalty: a fine of $10 000 and imprisonment for 12 months.

(3)A person whose name is on the register must notify the CEO within 28 days of becoming aware of any change in the person’s circumstances that may affect his or her suitability for adoptive parenthood in accordance with the criteria referred to in section 40(2).

Penalty: a fine of $10 000 and imprisonment for 12 months.

[Section 127B inserted by No. 15 of 2012 s. 63.]

127.Disclosure etc. of information restricted

(1)A person must not directly or indirectly —

(a)make a record of; or

(b)make use of; or

(c)disclose or communicate to another person,

information to which this section applies.

Penalty: a fine of $10 000 and imprisonment for 12 months.

(2)This section applies to information contained in any document of or in the possession or under the control of —

(a)the Minister; or

(b)the Department; or

(ba)an Aboriginal or Torres Strait Islander agency, approved by the CEO for the purposes of section 16A(2) 3; or

(c)a private adoption agency; or

(d)a contact and mediation licensee,

relating to an adoption or proposed adoption, an adoption service conducted in relation to an adoptee or a prospective adoptee, the parties to an adoption or proposed adoption, an adoption plan in relation to an adoptee or prospective adoptee, or mediation between the parties to an adoption or proposed adoption, or the discharge of an adoption order.

(3)This section does not apply to the recording, use, disclosure or communication of information —

(a)under and in accordance with this Act or any other law; or

(b)in the course of duty; or

(c)for the purposes of proceedings in any court in relation to matters under or in relation to, or offences against, this Act; or

(d)with the written authority of the Minister or all persons to whom the information relates.

[Section 127 amended by No. 8 of 2003 s. 73; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 70.]

128.Prosecutions, who can commence and time limit for

(1)All proceedings for offences against this Act are to be —

(a)instituted by a person who —

(i)is the Attorney General; or

(ii)is the CEO; or

(iii)is the Commissioner of Police; or

(iv)has the written consent of a person referred to in subparagraph (i), (ii) or (iii) to do so;

and

(b)commenced within 12 months after the day on which evidence, sufficient in the person’s opinion to justify the proceedings, comes to the person’s knowledge.

(2)A certificate of the person referred to in subsection (1) that evidence referred to in subsection (1)(b) came to the person’s knowledge on a particular day, is conclusive evidence of that fact.

(3)Judicial notice is to be taken, for the purposes of this section, of the signature of a person referred to in subsection (1) on a prosecution notice and on a certificate purporting to be issued under subsection (2).

[Section 128 inserted by No. 8 of 2003 s. 74; amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 84 of 2004 s. 79.]

129.Evidentiary matters

(1)In all courts and before all persons and bodies authorised to receive evidence —

(a)a certificate purporting to be issued by the CEO and stating that any person was or was not licensed as a private adoption agency or a contact and mediation licensee, or the conditions or restrictions applicable to any such licence, on any day or days or during any period mentioned in the certificate, is evidence of the matters so stated; and

(b)a certificate purporting to be issued by the CEO and stating that the CEO had or had not given authority under section 82(2) for a person to have access to the information described in the certificate, on any day or days, is evidence of the matters so stated; and

(c)a copy of or extract from a register under section 44(1) or Division 4 of Part 4, or any statement that purports to reproduce matters entered in a register and to be certified by the CEO as a true copy, extract or statement, is evidence of the facts appearing in that copy, extract or statement.

(2)Judicial notice is to be taken, for the purposes of this Act, of the fact that a person is the CEO and of the signature of the CEO on a certificate purporting to be issued under subsection (1).

[Section 129 amended by No. 8 of 2003 s. 75; No. 34 of 2004 Sch. 2 cl. 2(8).]

Part 7 — Miscellaneous

Division 1 — Delegation and protection

130.Delegation by CEO

The CEO may delegate for the purposes of this Act, either generally or as otherwise provided by the instrument of delegation, by writing signed by the CEO, to a person any of the CEO’s functions under this Act, other than this power of delegation.

[Section 130 amended by No. 34 of 2004 Sch. 2 cl. 2(8) and (9).]

130A.Delegation by State Central Authority

The State Central Authority may delegate for the purposes of this Act, either generally or as otherwise provided by the instrument of delegation, by writing signed by the State Central Authority, to the CEO or an officer of the Department any of the State Central Authority’s functions under this Act or the Hague Convention, other than this power of delegation.

[Section 130A inserted by No. 7 of 1999 s. 14; amended by No. 8 of 2003 s. 76; No. 34 of 2004 Sch. 2 cl. 2(8).]

131.Protection from personal liability

(1)A matter or thing done or omitted by —

(a)the Minister;

(b)the CEO or a person to whom section 6(2) or 130 applies;

(c)a private adoption agency, or a person acting on behalf of the agency, where the matter or thing done or omitted was in accordance with the agency’s licence or any condition or restriction attached to the licence;

(d)an officer of the Department;

(e)the adoption applications committee or a member of that committee;

(f)a person who otherwise performs a function under this Act,

does not, if the matter or thing was done or omitted in good faith for the purposes of this Act, subject the person to any action, liability, claim or demand.

(2)Subsection (1) does not apply to a contact and mediation licensee.

[Section 131 amended by No. 8 of 2003 s. 77; No. 34 of 2004 Sch. 2 cl. 2(8).]

132.Distribution of property by trustee etc. without notice of adoption order

(1)A trustee or personal representative may convey, transfer, or distribute property to or among the persons appearing to be entitled to the property without having ascertained whether or not an adoption order has been made which may affect a person’s entitlement to an interest in the property.

(2)A trustee or personal representative who conveys, transfers or distributes property in the manner referred to in subsection (1) is not liable to a person who claims, directly or indirectly, an entitlement to an interest in the property by reason of an adoption, unless the trustee or personal representative had notice of the claim before the conveyance, transfer or distribution was effected.

(3)This section does not affect the right of a person to follow property into the hands of a person, other than a purchaser for value, who has received it.

Division 2 — Proceedings

133.Court etc. proceedings to be in private

(1)Proceedings in any court or tribunal under or in relation to this Act are not to be heard in open court and all persons other than a party to the proceedings or his or her legal practitioner are to be excluded during the proceedings, except as otherwise directed by the court or tribunal.

(2)A court or tribunal may order any person to leave the room or other place during the examination of a witness in proceedings mentioned in subsection (1).

[Section 133 amended by No. 21 of 2008 s. 638(3); No. 15 of 2012 s. 64.]

134.Child, representation of

(1)The CEO may, at any time, appoint a person who, in the CEO’s opinion, is suitably qualified to represent a child who is a prospective adoptee or adoptee.

(1a)The CEO must, as soon as practicable after the Department has been contacted in relation to the matter, appoint a person who, in the CEO’s opinion, is suitably qualified to represent a child who —

(a)is a prospective adoptee or adoptee; and

(b)has a disability of a kind that is likely to affect the placement of the child.

(1b)The CEO must, as soon as practicable after the Department has been contacted in relation to the matter, appoint a person who, in the CEO’s opinion, is suitably qualified to represent a child who is a birth parent and who is considering the adoption of her or his child.

(2)A person appointed under subsection (1), (1a) or (1b) may instruct a legal practitioner on behalf of the child, and in that case, the CEO is to make arrangements in relation to the legal advice to be given to, or the legal representation to be provided for, the child.

(3)In proceedings under or in relation to this Act in respect of a child who is a prospective adoptee or an adoptee, the court before which the proceedings are held may direct that the child be separately represented by a legal practitioner.

(4)If a court gives a direction under subsection (3), the CEO is to —

(a)make arrangements in accordance with the direction; and

(b)be responsible for the legal costs,

unless the court orders otherwise.

(5)A legal practitioner who represents a child under a direction under subsection (3) must act on the instructions of the child if the child —

(a)has sufficient maturity and understanding to give instructions; and

(b)wishes to give instructions,

and in any other case must act in the best interests of the child.

(6)Any question as to whether a child has sufficient maturity and understanding to give instructions is to be determined by the court.

[Section 134 amended by No. 8 of 2003 s. 78; No. 34 of 2004 Sch. 2 cl. 2(8) and (9); No. 21 of 2008 s. 638(3).]

Division 2AState Central Authority

[Heading inserted by No. 7 of 1999 s. 15.]

134A.Minister is Central Authority for WA for Hague Convention etc.

(1)The Minister is appointed to be the Central Authority for the State of Western Australia for the purpose of Article 6.2 of the Hague Convention.

(2)The Minister is to advise the Commonwealth Central Authority that the Minister is the State Central Authority and the address and functions of the State Central Authority.

(3)As soon as practicable after a change to the address or functions of the State Central Authority, the Minister is to advise the Commonwealth Central Authority of the change.

[Section 134A inserted by No. 7 of 1999 s. 15.]

134B.Functions of the State Central Authority

The State Central Authority, in this State —

(a)has all the duties of a Central Authority under the Hague Convention; and

(b)may exercise all of the powers of a Central Authority under the Hague Convention.

[Section 134B inserted by No. 7 of 1999 s. 15.]

Division 3 — Non‑Western Australian adoptions

135.Arrangements with other States and Territories, Minister may make

The Minister may make arrangements with the minister or other authority administering, in another State or a Territory, the law in that State or Territory relating to the adoption of persons, for the exchange of information in relation to the adoption or proposed adoption of a person who was —

(a)born in the other State or the Territory and adopted or to be adopted in this State; or

(b)born in this State and adopted or to be adopted in the other State or the Territory.

136.Recognition of other Australian adoptions

An order for the adoption of a person that was made in another State or a Territory (whether before or after the commencement of this Act) that —

(a)is in accordance with; and

(b)has not been rescinded under,

a law of the other State or the Territory, is to be treated as having the same effect as an adoption order made under this Act.

136A.Recognition in WA of adoption in Convention country of child resident in that country by Australian resident

(1)Subject to section 136F, an adoption in a Convention country (whether before or after the commencement of this section) —

(a)of a child who is habitually resident in a Convention country;

(b)by a person who is habitually resident in Australia ,

is recognised if an adoption compliance certificate issued by a competent authority of that country is in force in relation to the adoption.

(2)An adoption that is recognised under subsection (1) is effective on and from the day the adoption compliance certificate becomes effective.

(3)In any proceedings it is to be presumed, unless the contrary appears, that an adoption of a child that was made in a Convention country complies with subsection (1).

[Section 136A inserted by No. 7 of 1999 s. 16.]

136B.Court may terminate relationship of child and parent of certain adopted children

(1)If —

(a)a child who was or is habitually resident in a Convention country was adopted in a Convention country; and

(b)the adoption was by a person who is habitually resident in this State; and

(c)the laws of that country do not provide that the adoption has the effect of treating the relationship between the child and the persons who were, immediately before the adoption, the child’s parents, as not being that of child and parent,

any of the parties to the adoption may apply to the Court for an order that the relationship between the child and the persons who were, immediately before the adoption, the child’s parents, is to be treated as not being that of child and parent.

(2)If the Court is satisfied that —

(a)an adoption compliance certificate issued by a competent authority of the Convention country is in force in relation to the adoption; and

(b)the child is permitted —

(i)to enter Australia ; and

(ii)to reside permanently in Australia ,

the Court may make an order that the relationship between the child and the persons who were, immediately before the adoption, the child’s parents, is to be treated as not being that of child and parent.

[Section 136B inserted by No. 7 of 1999 s. 16.]

136C.Recognition in WA of adoption of child resident in Convention country by person resident in another such country

Subject to section 136F, if —

(a)a child who is habitually resident in a Convention country is adopted by a person who is habitually resident in another Convention country; and

(b)an adoption compliance certificate issued by a competent authority of the Convention country in which the adoption was made or granted is in force in relation to the adoption,

the adoption is recognised and effective for the laws of the State on and from the day the certificate becomes effective.

[Section 136C inserted by No. 7 of 1999 s. 16.]

136D.Recognition under s. 136A, effect of

(1)If the adoption of a child is recognised under section 136A, for the purposes of the laws of the State —

(a)the relationship between the child and each of the child’s adoptive parents is to be treated as being that of child and parent; and

(b)each adoptive parent of the child has parental responsibility for the child; and

(c)if the laws of the Convention country where the adoption was granted provide that the adoption has the effect of treating the relationship between the child and the persons who were, immediately before the adoption, the child’s parents, as not being that of child and parent — the relationship between the child and those persons is to be treated as not being that of child and parent; and

(d)if the child had been previously adopted, whether under the law of this State or otherwise, the previous adoption does not have effect and the relationship between the child and the individuals who adopted the child under the previous adoption is to be treated as not being that of child and parent; and

(e)the child has the same rights as a child who is adopted under this Act; and

(f)the relationship of all persons to the child, the person who adopted the child and the birth parent or previous adoptive parent are to be determined in accordance with this section; and

(g)an appointment, in a deed or will existing at the time an adoption is effective, of a person as the guardian of the child, ceases to have effect.

(2)Despite subsection (1), 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, the recognition of the adoption of a child in a Convention country does not cause the cessation of any relationship that would have existed if the adoption had not occurred, 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 recognition of an adoption.

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

(4)Nothing in this section affects the jurisdiction of a court of the State or of the Commonwealth to entertain proceedings, make an order, or take any other action in relation to a child whose adoption is recognised under section 136A.

[Section 136D inserted by No. 7 of 1999 s. 16.]

136E.Recognition in WA of decision in Convention country to convert adoption under Hague Convention Art. 27

(1)Subject to section 136F, if a decision is made in a Convention country to convert an adoption of a child in accordance with Article 27 of the Hague Convention, the decision is recognised and effective for the laws of the State on and from the day the decision becomes effective.

(2)The recognition of the decision includes the recognition for the laws of the State that the decision has the effect that the relationship between the child and the individuals who were, immediately before the adoption, the child’s parents is to be treated as not being that of child and parent.

[Section 136E inserted by No. 7 of 1999 s. 16.]

136F.Court may declare recognition under s. 136A or 136C of no effect in WA

(1)If the State Central Authority considers that —

(a)an adoption recognised under section 136A or 136C; or

(b)a decision made in accordance with Article 27 of the Hague Convention,

is manifestly contrary to public policy, taking into account the best interests of the child to whom the adoption or decision relates, the State Central Authority may apply to the Court for a declaration that the adoption or decision is not recognised.

(2)If the Court is satisfied that —

(a)an adoption recognised under section 136A or 136C; or

(b)a decision made in accordance with Article 27 of the Hague Convention,

is manifestly contrary to public policy, taking into account the best interests of the child to whom the adoption or decision relates, the Court may declare that the adoption or decision is not recognised in this State and that the adoption or decision has no effect in this State.

(3)A declaration made under subsection (2) has effect according to its tenor.

(4)If the State Central Authority makes an application to the Court under subsection (1), the Authority is to give the Commonwealth Central Authority written notice of the application.

(5)After the Court has made a decision under subsection (2), the State Central Authority is to give the Commonwealth Central Authority written notice of the Court’s decision.

(6)A declaration made by a court of another State or a Territory under a law corresponding to subsection (2) is to be treated as having the same effect as a declaration made under that subsection.

[Section 136F inserted by No. 7 of 1999 s. 16; amended by No. 8 of 2003 s. 79.]

136G.Adoption compliance certificate, evidential value of

Subject to a declaration made under section 136F(2), an adoption compliance certificate is evidence, for the laws of the State, that the adoption to which the certificate relates —

(a)was agreed to by the Central Authorities of the countries identified in the certificate; and

(b)was carried out in accordance with the Hague Convention and the laws of the countries identified in the certificate.

[Section 136G inserted by No. 7 of 1999 s. 16.]

136H.Person wishing to adopt child in Convention country, State Central Authority to report on

If a person —

(a)wishes to adopt a child in a Convention country; and

(b)is on the register of the names of persons who are approved by the adoption applications committee,

the State Central Authority is to prepare and send a report that complies with Article 15 of the Hague Convention to the Central Authority of the Convention country.

[Section 136H inserted by No. 7 of 1999 s. 16; amended by No. 8 of 2003 s. 80.]

137.Arrangements with other countries, Minister may make

(1)The Minister may make arrangements on behalf of this State with a representative of the government of another country for —

(a)the adoption in this State of a child or children from the other country who cannot be placed with a view to adoption in that country; or

(b)the exchange of information about a child or children from the other country placed with a view to adoption or adopted in this State.

(2)The Minister is not to make arrangements under subsection (1) unless the arrangements —

(a)are approved by the government of the other country; and

(b)are within guidelines agreed between the governments of the Commonwealth and other States and Territories.

138.Recognition in WA of foreign country adoptions

(1)Subject to sections 136A, 136B, 136C, 136D, 138A and 138B, an order for the adoption of a person that was made in a country other than Australia (whether before or after the commencement of this Act) is to be treated as having the same effect as an adoption order made under this Act if —

(a)the order is in accordance with and has not been rescinded under the law of that country; and

(b)either —

(i)when the adoption order was made the adoptive parent —

(I)was domiciled in a country other than Australia ; or

(II)had been resident for the preceding 12 months in a country or countries other than Australia ;

or

(ii)before the order was made, the adoptee had been placed with the adoptive parent with the agreement and on the conditions approved by the CEO or a person whose functions in another State or a Territory correspond to those of the CEO under this Act;

and

(c)the proceedings in which the order was made involved no denial of natural justice or failure to observe the requirements of substantial justice; and

(d)as a consequence of the adoption, the adoptive parent, according to the law of that country —

(i)has a right superior to that of the adoptee’s birth parents in relation to all the duties, powers, responsibilities and authority which, by law, parents have in relation to children; and

(ii)is placed in a relationship with the adoptee that is treated as a parent and child relationship (even though the adoptee may be 18 or more years of age).

(2)In any proceedings it is to be presumed, unless the contrary appears, that an order for the adoption of a person that was made in a country other than Australia , complies with subsection (1).

(3)Any of the parties to an adoption under an order made under a law of a country other than Australia may apply to the Court for a declaration that the order complies with subsection (1).

(4)On an application under subsection (3) the Court may —

(a)direct that notice of the application be given to such persons, who may include the Attorney General or the CEO, as the Court thinks fit; or

(b)direct that a person be made a party to the application; or

(c)permit a person having an interest in the matter to intervene in, and become a party to, the proceedings.

(5)Where, on an application under subsection (3) the Court makes an order or declaration, such particulars in relation to the adoption and the parties to the adoption as the Court finds to be established may be included in the order or declaration.

(6)For the purposes of the law of this State, an order or declaration under this section binds the Crown in right of the State, whether or not a notice of the application for the order was given to the Attorney General or the CEO, but, does not affect —

(a)the rights of another person unless that person was —

(i)a party to the proceedings for the order or declaration, or a person claiming through such a party; or

(ii)a person to whom notice of the application for the order was given or a person claiming through such a person;

or

(b)an earlier judgment, order or decree of a court of competent jurisdiction.

(7)In any proceedings affected by an order or declaration made under this section, being proceedings relating to the rights of a person other than a person referred to in subsection (6)(a)(i) or (ii), the production of a copy of the order or declaration certified by the registrar of the Court to be a true copy of the order is evidence that —

(a)an adoption was effected in accordance with the particulars contained in the order or declaration; and

(b)the adoption is one to which this section applies.

[Section 138 amended by No. 41 of 1997 s. 24; No. 7 of 1999 s. 6 and 17; No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 65.]

138A.Recognition in WA of adoption in overseas jurisdiction of child resident in that jurisdiction by Australian resident

(1)An adoption in an overseas jurisdiction —

(a)of a child who is habitually resident in the overseas jurisdiction;

(b)by a person who is habitually resident in Australia ,

is recognised if —

(c)the adoption is granted in accordance with the laws of that overseas jurisdiction; and

(d)an adoption certificate is in force in relation to the adoption; and

(e)the child is permitted —

(i)to enter Australia ; and

(ii)to reside permanently in Australia .

(2)An adoption that is recognised under subsection (1) is effective on and from the date that the adoption takes effect in the overseas jurisdiction.

[Section 138A inserted by No. 7 of 1999 s. 7; amended by No. 15 of 2012 s. 66.]

138B.Recognition under s. 138A, effect of

(1)If the adoption of a child is recognised under section 138A, for the purposes of the laws of the State —

(a)the relationship between the child and each of the child’s adoptive parents is to be treated as being that of child and parent; and

(b)each adoptive parent of the child has parental responsibility for the child; and

(c)if the laws of the overseas jurisdiction in which the adoption was granted do not have the effect of treating the relationship between the child and the persons who were, immediately before the adoption, the child’s parents, as not being that of child and parent, that relationship is to be treated as not being that of child and parent and the adoption of the child terminates the legal relationship between the child and the individuals who were, immediately before the adoption, the child’s parents; and

(d)if the child had been previously adopted, whether under the law of this State or otherwise, the previous adoption does not have effect and the relationship between the child and the individuals who adopted the child under the previous adoption is to be treated as not being that of child and parent; and

(e)the child has the same rights as a child who is adopted under this Act; and

(f)the relationship of all persons to the child, the person who adopted the child and the birth parent or previous adoptive parent are to be determined in accordance with this section; and

(g)an appointment, in a deed or will existing at the time an adoption is effective, of a person as the guardian of the child, ceases to have effect.

(2)Despite subsection (1), 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, the recognition of the adoption of a child in an overseas jurisdiction does not cause the cessation of any relationship that would have existed if the adoption had not occurred, 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 recognition of an adoption.

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

(4)Nothing in this section affects the jurisdiction of a court of the State or of the Commonwealth to entertain proceedings, make an order, or take any other action in relation to a child whose adoption is recognised under section 138A.

[Section 138B inserted by No. 7 of 1999 s. 7.]

138C.Adoption certificate, evidential value of

An adoption certificate is evidence, for the laws of the State, that the adoption to which the certificate relates was carried out in accordance with the laws of the overseas jurisdiction whose adoption authority issued the certificate.

[Section 138C inserted by No. 7 of 1999 s. 7.]

138D.Person wishing to adopt child in overseas jurisdiction, CEO may report on

If a person —

(a)wishes to adopt a child in an overseas jurisdiction; and

(b)is on the register of the names of persons who are approved by the adoption applications committee,

the CEO may send an assessment report on the person to the adoption authority of the overseas jurisdiction.

[Section 138D inserted by No. 7 of 1999 s. 7; amended by No. 8 of 2003 s. 81; No. 34 of 2004 Sch. 2 cl. 2(8).]

139.Certain children in WA adopted outside Australia, CEO’s powers to supervise welfare etc. of

(1)Where —

(a)a child is adopted in a country other than Australia , whether or not the adoption is an adoption that has the same effect as an adoption order under this Act; and

(b)the order that was made in relation to the child’s adoption has been in force for less than 12 months; and

(c)an adoptive parent of the child was not a citizen of the country in which the order was made at the time the order was made; and

(d)the child is present in this State,

the CEO may supervise the welfare and interests of the child during the 6 months commencing from the day on which the child arrived in this State, and a person authorised in writing by the CEO for that purpose has a right of access to the child at all reasonable times during that period.

(2)If a child to whom subsection (1) applies has been resident in another State or a Territory after being adopted but before arriving in this State, the period of supervision is to be reduced by the length of the period of the residence in the other State or the Territory.

[Section 139 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

Division 4 — Financial assistance and payment for services

140.Financial assistance, CEO’s powers to provide

(1)The CEO may provide financial assistance —

(a)to a person in whose care a child has been placed; or

(b)in relation to a service provided or arranged,

under Division 1 of Part 3.

(2)The CEO may provide financial assistance to —

(a)a person who looks after a child under section 31; or

(b)a prospective adoptive parent with whom a child has been placed with a view to the child’s adoption by that person; or

(c)a carer who is a prospective adoptive parent; or

(d)a child’s adoptive parent, in relation to the child.

[Section 140 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

141.Services provided by CEO, payments for

(1)The following are to be prescribed by regulation —

(a)the fees and charges for services provided by the CEO under this Act;

(b)the persons or classes of persons to be exempted from paying fees or charges.

(2)The CEO may require payment or reimbursement of expenses incurred in the provision of services under this Act.

(3)The CEO may —

(a)waive the payment of, or reduce, a fee or charge;

(b)waive or reduce the payment to, or the reimbursement of, the Department in relation to expenses incurred in the provision of services under this Act,

either generally or in a particular case.

[Section 141 amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

Division 5 — Rules and regulations

142.Rules of Court

(1)A majority of the judges of the Court may, from time to time, make rules —

(a)for the practice and procedure to be followed in the Court and the matters incidental to such practice and procedure; and

(b)necessary or convenient to be prescribed for the conduct of matters in the Court; and

(c)for the keeping of records and the provision of information in connection with the performance of the Court’s functions under this Act.

(2)If no provision is made by law or rule under subsection (1) in relation to a matter for which rules may be made under that subsection —

(a)the provisions of the rules and regulations under the Family Court Act 1997 that are most nearly applicable in relation to the matter are to apply; or

(b)if there is no provision such as that mentioned in paragraph (a), the rules and regulations under the Family Law Act 1975 of the Commonwealth that are most nearly applicable in relation to the matter are to apply.

[Section 142 amended by No. 41 of 1997 s. 25.]

143.Regulations

(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of this Act.

(2)Without limiting the generality of subsection (1), regulations may —

(a)be made for the purpose of prescribing the fees to be payable in relation to proceedings in the Court under this Act; and

(b)provide for the conduct of parentage testing procedures under parentage testing orders; and

(c)provide for the preparation of reports relating to the information obtained as the result of conducting such procedures.

(2a)If no provision is made by regulation under subsection (1) or (2) in relation to a matter for which regulations may be made under either of those subsections —

(a)the provisions of the regulations under the Family Court Act 1997 that are most nearly applicable in relation to the matter are to apply; or

(b)if there is no provision such as that mentioned in paragraph (a), the regulations under the Family Law Act 1975 of the Commonwealth that are most nearly applicable in relation to the matter are to apply.

(3)Regulations made under this Act may provide for a penalty for contravention of a provision of the regulations not exceeding a fine of $2 000.

(4)Without limiting the generality of subsection (1), regulations may be made prescribing all matters that are necessary or convenient for giving effect to the Hague Convention including —

(a)granting accreditation to a body for the purposes of Article 9 of the Hague Convention; and

(b)the functions that may be performed by a body granted accreditation; and

(c)the qualifications of and requirements to be satisfied by an applicant for accreditation; and

(d)the procedure for applications and grounds for refusal of applications; and

(e)the duration, renewal, revocation and suspension of accreditation; and

(f)the effect of the winding up of an accredited body or revocation or suspension of accreditation, in relation to records and documents held by the accredited body or former accredited body; and

(g)the conferral of a right to apply to the State Administrative Tribunal for a review of a decision as to an application or as to accreditation; and

(h)the requirements for public notification of the accreditation of bodies; and

(i)the provision of a biannual report to the Minister on the operations of the body in relation to the performance of authorised functions and any other information as the Minister may direct in writing; and

(j)the provision of a code of conduct for an accredited body and its staff.

[Section 143 amended by No. 41 of 1997 s. 26; No. 7 of 1999 s. 18; No. 8 of 2003 s. 82; No. 55 of 2004 s. 13.]

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

144.Adoption of Children Act 1896 repealed and transitional etc. provisions for (Sch. 3)

(1)The Adoption of Children Act 1896 is repealed.

(2)Schedule 3 has effect in relation to the repeal effected by subsection (1).

145.Adoption Amendment Act 2012, transitional provisions for

(1)In this section —

commencement day means the day on which the Adoption Amendment Act 2012 section 59 comes into operation 1.

(2)Part 5 as in force immediately before commencement day applies to —

(a)an appeal to the Family Court made under section 114 before commencement day that has not been finalised; or

(b)an appeal to the Court of Appeal made under section 118 before commencement day that has not been finalised.

[Section 145 inserted by No. 15 of 2012 s. 67.]

146.Review of Act

(1A)In this section —

commencement day means the day on which the Adoption Amendment Act 2012 section 68 comes into operation 1.

(1)The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiration of 5 years from the commencement day, and in the course of that review the Minister is to consider and have regard to —

(a)the implementation and administration of the Act; and

(b)the extent to which members of the public are aware of the effects of the Act; and

(c)the effect of the Act on birth parents, adoptees and prospective adoptive parents and the relatives of parties to adoptions; and

(d)such other matters as appear to the Minister to be relevant to the operation and effectiveness of this Act.

(2)The Minister is to prepare a report based on the review under subsection (1).

(3)The Minister is to cause the report to be laid before each House of Parliament not later than 12 months after the expiration of 5 years from the commencement day.

[Section 146 inserted by No. 8 of 2003 s. 83; amended by No. 15 of 2012 s. 68.]

 

Schedule 1 Effective consent

[s. 16(1)(a), 18(1)(b) and (d), 23(1)(a) and 69(1)(a)(i)]

[Heading amended by No. 19 of 2010 s. 4.]

1.Information and counselling required before consent given

(1)A person whose consent is required for a child’s adoption must not sign a form of consent to the adoption unless the person —

(a)has received from the CEO oral and written information on —

(i)the alternatives to adoption; and

(ii)the community supports available whether or not the child is relinquished for adoption; and

(iii)the social implications of adoption for the parties to an adoption; and

(iv)the legal process of adoption, including consent, revocation of consent, the selection procedure, adoption plans, the role of the Court and review and appeals procedures; and

(v)the rights and responsibilities of the parties to an adoption including access to information about, or contact with, the other parties to the adoption,

in a manner that the CEO thinks will be understood by the person; and

(b)has been offered counselling to be given on behalf of the CEO on the matters referred to in paragraph (a); and

(c)has received from the CEO a list of independent counsellors from whom the person may seek further counselling if the person so wishes; and

(d)if he or she has sought counselling from the CEO or an independent counsellor on the matters referred to in paragraph (a), has received the counselling; and

(e)has considered the alternatives to the child’s adoption.

(2)In this clause —

independent counsellor means a person, other than an officer or employee of the Department, who has been approved by the CEO as a person who has such qualifications and experience as are appropriate for the person to provide counselling for the purposes of this Schedule.

[Clause 1 inserted by No. 8 of 2003 s. 84(1); amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

2.Witness to form of consent, who can be

(1)Subject to subclauses (2) and (3), the signing of a form of consent to adoption is to be witnessed by one of the following persons —

(a)a person before whom a person may make a statutory declaration under —

(i)the Oaths, Affidavits and Statutory Declarations Act 2005; or

(ii)the Statutory Declarations Act 1959 (Commonwealth);

(b)an enrolment officer under the Electoral Act 1907;

(c)any other persons prescribed by regulations.

(2)A person who provides information or counselling under clause 1 is not to witness the signing of a form of consent by the person who was informed or counselled by the first‑mentioned person.

(3)The signing of a form of consent is not to be witnessed under subclause (1) —

(a)where a lawyer prepares the form of consent or acts for an applicant for an adoption order in relation to the child who is the subject of the consent, by the lawyer or the lawyer’s partner, employee or agent; or

(b)where the CEO is conducting adoption services in relation to the child who is the subject of the consent, by an officer or employee of the Department, or a delegate of the CEO.

[Clause 2 amended by No. 14 of 1996 s. 4; No. 36 of 1999 s. 247; No. 34 of 2004 Sch. 2 cl. 2(8); No. 24 of 2005 s. 63; No. 47 of 2011 s. 18.]

3.Preconditions to witnessing form of consent

A person referred to in clause 2(1) is not to witness the signing of a form of consent to adoption unless the person certifies, in a form approved by the CEO, that he or she has seen affidavit evidence sworn by or on behalf of the person who provided the information or counselling under clause 1 to the effect that the person who has signed the form of consent —

(a)has been provided with written and oral information on the matters referred to in clause 1(1)(a) by the CEO; and

(b)has been offered counselling to be given on behalf of the CEO on the matters referred to in clause 1(1)(a); and

(c)has received from the CEO a list of independent counsellors from whom the person may seek further counselling if the person so wishes; and

(d)if he or she has sought counselling from the CEO or an independent counsellor on the matters referred to in clause 1(1)(a), has received the counselling; and

(e)has considered the alternatives to the child’s adoption.

[Clause 3 inserted by No. 8 of 2003 s. 84(2); amended by No. 34 of 2004 Sch. 2 cl. 2(8).]

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

[s. 46(5), 50(3)(a), 55(2), 68(2)(d)(i), 70(2) and 76(4)(b)]

[Heading amended by No. 19 of 2010 s. 4.]

1.Infancy

(1)A significant feature of the infancy stage is that the child needs to be able to trust others to care for and nurture the child. The child has the right —

(a)to be cared for and nurtured; and

(b)to develop attachment to the adoptive family without undue disruption by the birth parents.

(2)Before consenting to the child’s adoption, the child’s birth parents have the right to make an informed and unpressured decision about the child’s future. After consenting to the child’s adoption, the child’s birth parents have the right to negotiate as to the provision of information and the extent of any contact between the parties.

(3)There is no right to adopt a child. The adoptive or prospective adoptive parent with whom the child is placed with a view to the child’s adoption has the right to bond to the child.

2.Childhood

(1)A significant feature of the childhood stage is the development of autonomy and initiative. The child has the right —

(a)to belong to a secure family system, extending to friends, schooling and neighbourhood activities; and

(b)to know about the adoption in a manner appropriate to the child and the child’s stage of development.

(2)The birth parents have a responsibility during this stage to respect the privacy of the child’s adoptive family.

(3)The adoptive parent has the right —

(a)to rear the child without undue disruption by the birth parents; and

(b)to family privacy,

and a responsibility to inform the child of the adoption.

3.Adolescence

(1)A significant feature of adolescence is the development of the child’s sense of identity. The child has the right to resolve identity issues and is to be responsible for the effects of his or her actions on others if access to information is made available.

(2)The birth parents have a responsibility to be aware of the child’s needs when responding to requests for information about the child’s origins.

(3)The adoptive parent has the right —

(a)to rear the child without undue disruption by the birth parents; and

(b)to family privacy,

and has a responsibility to support the child during any identity crisis and be responsive to the child’s needs.

4.Adulthood

(1)A significant feature of adulthood is forming and consolidating relationships. The child’s right to information about the birth parents increases in importance as the child approaches adulthood.

(2)The birth parents’ right to information about the child increases in importance as the child approaches adulthood.

(3)The adoptive parent’s right to control the exchange of information and any contact between the child and the birth parents lessens as the child approaches adulthood.

 

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

[s. 52(1)(ab)]

The objective of this principle is to maintain a connection with family and culture for children who are Aboriginal persons or Torres Strait Islanders and who are to be placed with a person or persons with a view to adoption by the person or persons.

If there is no appropriate alternative to adoption for the child, the placement of the child for adoption is to be considered in the following order of priority.

1.The child be placed with a person who is an Aboriginal person or a Torres Strait Islander in the child’s community in accordance with local customary practice.

2.The child be placed with a person who is an Aboriginal person or a Torres Strait Islander.

3.The child be placed with a person who is not an Aboriginal person or a Torres Strait Islander but who is sensitive to the needs of the child and capable of promoting the child’s ongoing affiliation with the child’s culture, and where possible, family.

[Schedule 2A inserted by No. 8 of 2003 s. 85.]

Schedule 2B — The Hague Convention

[s. 4(1)]

CONVENTION ON PROTECTION OF CHILDREN AND COOPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

The States signatory to the present Convention,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,

Recognizing that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,

Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children,

Desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of 20 November 1989, and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986),

Have agreed upon the following provisions —

CHAPTER I — SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are —

ato establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

bto establish a system of cooperation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

cto secure the recognition in Contracting States of adoptions made in accordance with the Convention.

Article 2

1The Convention shall apply where a child habitually resident in one Contracting State (‘the State of origin’) has been, is being, or is to be moved to another Contracting State (‘the receiving State’) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

2The Convention covers only adoptions which create a permanent parent‑child relationship.

Article 3

The Convention ceases to apply if the agreements mentioned in Article 17, sub‑paragraph c, have not been given before the child attains the age of eighteen years.

CHAPTER II — REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS

Article 4

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin —

ahave established that the child is adoptable;

bhave determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is the in the child’s best interests;

chave ensured that

(1)the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2)such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3)the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4)the consent of the mother, where required, has been given only after the birth of the child; and

dhave ensured, having regard to the age and degree of maturity of the child, that

(1)he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2)consideration has been given to the child’s wishes and opinions,

(3)the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4)such consent has not been induced by payment or compensation of any kind.

Article 5

An adoption within the scope of the convention shall take place only if the competent authorities of the receiving State —

ahave determined that the prospective adoptive parents are eligible and suited to adopt;

bhave ensured that the prospective adoptive parents have been counselled as may be necessary; and

chave determined that the child is or will be authorised to enter and reside permanently in that State.

CHAPTER III — CENTRAL AUTHORITIES AND
ACCREDITED BODIES

Article 6

1A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.

2 Federal States , States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.

Article 7

1Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention.

2They shall take directly all appropriate measures to —

aprovide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms;

bkeep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to it application.

Article 8

Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention.

Article 9

Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to —

acollect, preserve and exchange information about the situation of the child and the prospective adoptive parents, so far as is necessary to complete the adoption;

bfacilitate, follow and expedite proceedings with a view to obtaining the adoption;

cpromote the development of adoption counselling and post‑adoption services in their States;

dprovide each other with general evaluation reports about experience with intercountry adoption;

ereply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.

Article 10

Accreditation shall only be granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted.

Article 11

An accredited body shall —

apursue only non‑profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation;

bbe directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption; and

cbe subject to supervision by competent authorities of that State as to its composition, operation and financial situation.

Article 12

A body accredited in one Contracting State may act in another Contracting State only if the competent authorities of both States have authorised it to do so.

Article 13

The designation of the Central Authorities and where appropriate, the extent of their functions, as well as the names and addresses of the accredited bodies shall be communicated by each Contracting State to the Permanent Bureau of the Hague Conference on Private International Law.

CHAPTER IV — PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION

Article 14

Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State , shall apply to the Central Authority in the State of their habitual residence.

Article 15

1If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.

2It shall transmit the report to the Central Authority of the State of origin.

Article 16

1If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall —

aprepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child;

bgive due consideration to the child’s upbringing and to his or her ethnic, religious and cultural background;

censure that consents have been obtained in accordance with Article 4; and

ddetermine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.

2It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.

Article 17

Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if —

athe Central Authority of that State has ensured that the prospective adoptive parents agree;

bthe Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;

cthe Central Authorities of both States have agreed that the adoption may proceed; and

dit has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.

Article 18

The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.

Article 19

1The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.

2The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents.

3If the transfer of the child does not take place, the reports referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.

Article 20

The Central Authorities shall keep each other informed about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.

Article 21

1Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child, in particular —

ato cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care;

bin consultation with the Central Authority of the State of origin, to arrange without delay a new placement of the child with a view to adoption or, if this is not appropriate, to arrange alternative long‑term care; an adoption shall not take place until the Central Authority of the State of origin has been duly informed concerning the new prospective adoptive parents;

cas a last resort, to arrange the return of the child, if his or her interests so require.

2Having regard in particular to the age and degree of maturity of the child, he or she shall be consulted and, where appropriate, his or her consent obtained in relation to measures to be taken under this Article.

Article 22

1The functions of a Central Authority under this Chapter may be performed by public authorities or by bodies accredited under Chapter III, to the extent permitted by the law of its State.

2Any Contracting State may declare to the depositary of the Convention that the functions of the Central Authority under Articles 15 to 21 may be performed in that State, to the extent permitted by the law and subject to the supervision of the competent authorities of that State, also by bodies or person who —

ameet the requirements of integrity, professional competence, experience and accountability of that State; and

bare qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

3A Contracting State which makes the declaration provided for in paragraph 2 shall keep the Permanent Bureau of the Hague Conference on Private International Law informed of the names and addresses of these bodies and persons.

4Any Contracting State may declare to the depositary of the Convention that adoptions of children habitually resident in its territory may only take place if the functions of the Central Authorities are performed in accordance with paragraph 1.

5Notwithstanding any declaration made under paragraph 2, the reports provide for in Articles 15 and 16 shall, in every case, be prepared under the responsibility of the Central Authority or other authorities or bodies in accordance with paragraph 1.

CHAPTER V — RECOGNITION AND EFFECTS OF THE

ADOPTION

Article 23

1An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub‑paragraph c, were given.

2Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, notify the depositary of the Convention of the identity and the functions of the authority or the authorities which, in that State, are competent to make the certification. It shall also notify the depositary of any modification in the designation of these authorities.

Article 24

The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.

Article 25

Any Contracting State may declare to the depositary of the Convention that it will not be bound under this Convention to recognise adoptions made in accordance with an agreement concluded by application of Article 39, paragraph 2.

Article 26

1The recognition of an adoption includes recognition of

athe legal parent‑child relationship between the child and his or her adoptive parents;

bparental responsibility of the adoptive parents for the child;

cthe termination of a pre‑existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.

2In the case of an adoption having the effect of terminating a pre‑existing legal parent‑child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognised, rights equivalent to those resulting from adoptions having this effect in each such State.

3The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognises the adoption.

Article 27

1Where an adoption granted in the State of origin does not have the effect of terminating a pre‑existing legal parent‑child relationship, it may, in the receiving State which recognises the adoption under the Convention, be converted into an adoption having such an effect —

aif the law of the receiving State so permits; and

bif the consent referred to in Article 4, sub‑paragraphs c and d, have been or are given for the purpose of such an adoption.

2Article 23 applies to the decision converting the adoption.

CHAPTER VI — GENERAL PROVISIONS

Article 28

The Convention does not affect any law of a State of origin which requires that the adoption of a child habitually resident within that State take place in that State or which prohibits the child’s placement in, or transfer to, the receiving State prior to adoption.

Article 29

There shall be no contact between the prospective adoptive parents and the child’s parents or any other person who has care of the child until the requirements of Article 4, sub‑paragraphs a to c, and Article 5, sub‑paragraph a, have been met, unless the adoption takes place within a family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin.

Article 30

1The competent Authorities of a Contracting State shall ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.

2They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.

Article 31

Without prejudice to Article 30, personal data gathered or transmitted under the Convention, especially data referred to in Articles 15 and 16, shall be used only for the purposes for which they were gathered or transmitted.

Article 32

1No one shall derive improper financial or other gain from an activity related to an intercountry adoption.

2Only costs and expenses, including reasonable professional fees of person involved in the adoption, may be charged or paid.

3The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.

Article 33

A competent authority which finds that any provision of the Convention has not been respected or that there is a serious risk that it may not be respected, shall immediately inform the Central Authority of its State. This Central Authority shall be responsible for ensuring that appropriate measures are taken.

Article 34

If the competent authority of the State of destination of a document so requests, a translation certified as being in conformity with the original must be furnished. Unless otherwise provided, the costs of such translation are to be borne by the prospective adoptive parents.

Article 35

The competent authorities of the Contracting States shall act expeditiously in the process of adoption.

Article 36

In relation to a State which has two or more systems of law with regard to adoption applicable in different territorial units —

aany reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;

bany reference to the law of that State shall be construed as referring to the law in force in the relevant territorial unit;

cany reference to the competent authorities or to be public authorities of that State shall be construed as referring to those authorised to act in the relevant territorial unit;

dany reference to the accredited bodies of that State shall be construed as referring to bodies accredited in the relevant territorial unit.

Article 37

In relation to a State which with regard to adoption has two or more systems of law applicable to different categories of person, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.

Article 38

A State within which different territorial units have their own rules of law in respect of adoption shall not be bound to apply the Convention where a State with a unified system of law would not be bound to do so.

Article 39

1The Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.

2Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.

Article 40

No reservation to the Convention shall be permitted.

Article 41

The convention shall apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin.

Article 42

The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.

CHAPTER VII — FINAL CLAUSES

Article 43

1The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Seventeenth Session and by the other States which participated in that Session.

2It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands , depositary of the Convention.

Article 44

1Any other State may accede to the Convention after it has entered into force in accordance with Article 46, paragraph 1.

2The instrument of accession shall be deposited with the depositary.

3Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub‑paragraph b of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

Article 45

1If a State has two or more territorial units in which different systems of law are applicable in relation to matter dealt with in the Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

2Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

3If a State makes no declaration under this Article, the Convention is to extend to all territorial units of that State.

Article 46

1The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 43.

2Thereafter the Convention shall enter into force —

afor each State ratifying, accepting or approving it subsequently, or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession;

bfor a territorial unit to which the Convention has been extended in conformity with Article 45, on the first day of the month following the expiration of three months after the notification referred to in that Article.

Article 47

1A State Party to the Convention may denounce it by a notification in writing addressed to the depositary.

2The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

Article 48

The depositary shall notify the States Members of the Hague Conference on Private International Law, the other States which participated in the Seventeenth Session and the States which have acceded in accordance with Article 44, of the following —

athe signatures, ratifications, acceptances and approvals referred to in Article 43;

bthe accessions and objections raised to accessions referred to in Article 44;

cthe date on which the Convention enters into force in accordance with Article 46;

dthe declarations and designations referred to in Articles 22, 23, 25 and 45;

ethe agreements referred to in Article 39;

fthe denunciations referred to in Article 47.

In whereof the undersigned, being duly authorised thereto, have signed this Convention.

Done at The Hague, on the twenty‑ninth day of May 1993 in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Seventeenth Session and to each of the other States which participated in that Session.

[Schedule 2B inserted by No. 7 of 1999 s. 19.]

 

Schedule 3 — Transitional and savings

[s. 144(2)]

[Heading amended by No. 19 of 2010 s. 4.]

1.Terms used

In this Schedule —

commencement means the commencement of Part 3 of this Act;

order of adoption means an order of adoption within the meaning of and made under the repealed Act —

(a)subsisting immediately before commencement; or

(b)made after commencement under clause 4 or 5 9;

repealed Act means the Adoption of Children Act 1896.

2.Interpretation Act 1984 not affected

The provisions of this Schedule do not prejudice or affect the application of the Interpretation Act 1984 to and in relation to the repeal effected by section 144(1).

3.Further savings

Section 8 of the repealed Act continues to apply to the dispositions of property mentioned in section 8(1)(a) and (b) of the repealed Act and the agreements and instruments mentioned in section 8(2) of the repealed Act as if the repealed Act had not been repealed.

[4‑7.Deleted by No. 15 of 2012 s. 71(1) 9.]

8.Provisions of this Act that apply to adoptions under 1896 Act

(1)Subject to clause 9, sections 75 and 77 and Parts 4 to 7 of this Act apply in relation to —

(a)an order of adoption; and

(b)a party to an adoption under an order of adoption,

and for the purposes of this Act, an order of adoption is to be treated as an adoption order under this Act, and a party to an adoption under an order of adoption is to be treated as a party to an adoption under this Act.

(2)A reference in Parts 4 to 7 of this Act to a party to an adoption includes a reference to a person presumed under section 4A to be the father of an adoptee under an order of adoption, even where the father’s consent to the adoption was not required under the repealed Act.

(3)Where an order of adoption is made after commencement under clause 4 or 5 9, section 78 applies to the order of adoption as if it were an adoption order under this Act.

[Clause 8 amended by No. 8 of 2003 s. 86(1).]

9.Access to information, modified versions of s. 84, 85 and 88 apply to adoptions under 1896 Act

(1)Paragraphs (a) and (b) of section 84(1) do not apply in relation to an adoptee or a birth parent of an adoptee under an order of adoption, and in that case, the following paragraphs apply in substitution for those paragraphs —

(a)the adoptee, if he or she is —

(i)18 or more years of age; or

(ii)less than 18 years of age and a person with parental responsibility for the adoptee, and each of the adoptee’s birth parents who consented to the adoption, consent to the adoptee having access to the information;

(b)a birth parent of the adoptee, if —

(i)the adoptee is 18 or more years of age; or

(ii)the adoptee is less than 18 years of age and a person with parental responsibility for the adoptee consents to the birth parent having access to the information, after having due regard to the wishes of the adoptee;

”.

(2)Paragraph (c) of section 84(1) does not apply in relation to an adoptive parent under an order of adoption, and in that case, the following paragraph applies in substitution for that paragraph —

(c)an adoptive parent of the adoptee, if —

(i)the adoptee is 18 or more years of age; or

(ii)the adoptee is less than 18 years of age and each of the adoptee’s birth parents who consented to the adoption, consent to the adoptive parent having access to the information; and

”.

(3)Section 84(3) does not apply in relation to an adoptive parent under an order of adoption, and in that case, the following subsection applies in substitution for that subsection —

(3)Nothing in subsection (1) prevents an adoptive parent from obtaining a record of the order of adoption.

”.

(4)Paragraphs (a) and (c) of section 85(1) do not apply to the original registration under the Registration of Births, Deaths and Marriages Act 1961 4 of an adoptee under an order of adoption, and in that case, the following paragraphs apply in substitution for those paragraphs —

(a)the adoptee, if he or she is —

(i)18 or more years of age; or

(ii)less than 18 years of age and a person with parental responsibility for the adoptee, and each of the adoptee’s birth parents who consented to the adoption, consent to the adoptee having access to the information;

”;

and

(c)an adoptive parent of the adoptee, if —

(i)the adoptee is 18 or more years of age; or

(ii)the adoptee is less than 18 years of age and each of the adoptee’s birth parents who consented to the adoption, consent to the adoptive parent having access to the information.

”.

(5)Paragraph (b) of section 85(1) does not apply to —

(a)the re‑registration under section 12A of the repealed Act of the birth of an adoptee under an order of adoption; or

(b)the registration under section 13A of the repealed Act of the birth of an adoptee under an order of adoption,

and in those cases, the following paragraph applies in substitution of that paragraph —

(b)a birth parent of the adoptee, if —

(i) the adoptee is 18 or more years of age; or

(ii) the adoptee is less than 18 years of age and a person with parental responsibility for the adoptee consents to the birth parent having access to the information, after having due regard to the wishes of the adoptee; and

”.

(6)Paragraph (a) of section 88 does not apply to an adoptee under an order of adoption and in that case, the following paragraph applies in substitution for that paragraph —

(a)the adoptee, if he or she is —

(i)18 or more years of age; or

(ii)less than 18 years of age and a person with parental responsibility for the adoptee consents to the adoptee having access to the information;

”.

[Clause 9 amended by No. 8 of 2003 s. 86(2)-(5); No. 15 of 2012 s. 71(2)-(5).]

10.Access to information, effect of death of person required to consent

A person’s consent in relation to access to information under this Act, as affected by clause 9, is required only if the person is living, and lack of consent because of the person being deceased is not to prevent access to the information where it would otherwise be available under this Act.

11.Access to information, effect of adoptee being mentally incapable of consenting

If an adoptee’s consent for access to information is required by this Act, as affected by clause 9, but the adoptee is mentally incapable of understanding the nature and effect of the consent required, the consent may be given by the adoptee’s guardian appointed under the Guardianship and Administration Act 1990, or if such a guardian has not been appointed and where relevant, a person with parental responsibility for the adoptee.

[Clause 11 amended by No. 15 of 2012 s. 71(6).]

12.Access to information, effect of adoptive or birth parents being mentally incapable of consenting

If the consent of an adoptive or birth parent is required by this Act, as affected by clause 9, for another person’s access to information but the adoptive or birth parent is mentally incapable of understanding the nature and effect of the consent required, in that case the consent of the adoptive or birth parent to the access to the information is not required.

13.Access to information, CEO may grant access to adoptee under 18 who cannot obtain required consents

(1)Where an adoptee under an order of adoption is less than 18 years of age and wishes to have access to information which requires the consent of a person who has not given consent under section 84, 85 or 88 as affected by clause 9 the adoptee may apply to the CEO to give his or her authority under section 82(2) for the adoptee to have access to the information.

(2)On an application under subclause (1) the CEO may give his or her authority for the adoptee to have access to the information if the CEO is satisfied that —

(a)a person with parental responsibility for the adoptee is unreasonably withholding consent, or cannot be found or contacted after reasonable enquiries; or

(b)there has been a breakdown in the adoption relationship and attempts to resolve the matter have not been successful,

and the adoptee is mature enough to receive the information.

[Clause 13 amended by No. 34 of 2004 Sch. 2 cl. 2(8); No. 15 of 2012 s. 71(7).]

14.Reference to record of Court proceedings includes record of proceedings under 1896 Act

A reference in this Act to the record of proceedings in a court, includes a reference, where the proceedings were under the repealed Act, to the record kept by the registrar of the Court, whether the proceedings were in the Court or the Supreme Court and whether before or after commencement, and includes a certified copy or a memorandum of an order of adoption mentioned in section 13A(2) of the repealed Act.

15.Reference to registration of birth includes certain other registrations

A reference in this Act to the registration of the birth of an adoptee under an order of adoption, includes a reference, where the order of adoption was made before commencement, unless the contrary intention appears, to —

(a)the registration of the adoptee’s birth under the Registration of Births, Deaths and Marriages Act 1961 4; or

(b)the re‑registration of the adoptee’s birth under section 12A of the repealed Act; or

(c)the registration of the adoptee’s birth under section 13A of the repealed Act,

or more than one of those, as is relevant to the individual case.

[Schedule 4 omitted under the Reprints Act 1984 s. 7(4)(e).]

 

dline

 

Notes

1This reprint is a compilation as at 1 March 2013 of the Adoption Act 1994 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title

Number and year

Assent

Commencement

Adoption Act 1994

9 of 1994

15 Apr 1994

s. 1 and 2: 15 Apr 1994;
Act other than s. 1 and 2: 1 Jan 1995 (see s. 2 and Gazette 25 Nov 1994 p. 5905)

Local Government (Consequential Amendments) Act 1996 s. 4

14 of 1996

28 Jun 1996

1 Jul 1996 (see s. 2)

Acts Amendment and Repeal (Family Court) Act 1997 Pt. 2

41 of 1997

9 Dec 1997

26 Sep 1998 (see s. 2 and Gazette 25 Sep 1998 p. 5295)

Statutes (Repeals and Minor Amendments) Act 1997 s. 17

57 of 1997

15 Dec 1997

15 Dec 1997 (see s. 2(1))

Acts Repeal and Amendment (Births, Deaths and Marriages Registration) Act 1998 s. 6

40 of 1998

30 Oct 1998

14 Apr 1999 (see s. 2 and Gazette 9 Apr 1999 p. 1433)

Adoption Amendment Act 1999

7 of 1999

13 Apr 1999

Act other than Pt. 3: 13 Apr 1999 (see s. 2(1));
Pt. 3: 15 Sep 1999 (see s. 2(2) and Gazette 3 Sep 1999 p. 4295)

School Education Act 1999 s. 247

36 of 1999

2 Nov 1999

1 Jan 2001 (see s. 2 and Gazette 29 Dec 2000 p. 7904)

Reprint of the Adoption Act 1994 as at 2 Jan 2001 (includes amendments listed above)

Acts Amendment (Lesbian and Gay Law Reform) Act 2002 Pt. 3

3 of 2002

17 Apr 2002

21 Sep 2002 (see s. 2 and Gazette 20 Sep 2002 p. 4693)

Adoption Amendment Act (No. 2) 2003  5, 6

8 of 2003

1 Apr 2003

s. 1 and 2: 1 Apr 2003;
Act other than s. 1, 2, 5(4) and (5), 42(1) and (3), 44, 51, 53, 54, 56, 57, 59, 60 and 86(2), (4) and (5): 1 Jun 2003 (see s. 2(1) and Gazette 20 May 2003 p. 1783);
s. 5(4) and (5), 42(1) and (3), 44, 51, 53, 54, 56, 57, 59, 60 and 86(2), (4) and (5): 1 Jun 2005 (see s. 2(2))

Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 12

65 of 2003

4 Dec 2003

1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722)

Criminal Injuries Compensation Act 2003 s. 73

77 of 2003

15 Dec 2003

1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722)

Reprint 2: The Adoption Act 1994 as at 21 May 2004 (includes amendments listed above except those in the Adoption Amendment Act (No. 2) 2003 s. 5(4) and (5), 42(1) and (3), 44, 51, 53, 54, 56, 57, 59, 60 and 86(2), (4) and (5))

Children and Community Services Act 2004 Sch. 2 cl. 2 7

34 of 2004

20 Oct 2004

1 Mar 2006 (see s. 2 and Gazette 14 Feb 2006 p. 695)

Acts Amendment (Court of Appeal) Act 2004 s. 37

45 of 2004

9 Nov 2004

1 Feb 2005 (see s. 2 and Gazette 14 Jan 2005 p. 163)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 2 8

55 of 2004

24 Nov 2004

1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)

Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 79

84 of 2004

16 Dec 2004

2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))

Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Act 2005 s. 63

24 of 2005

2 Dec 2005

1 Jan 2006 (see s. 2 and Gazette 23 Dec 2005 p. 6244)

Reprint 3: The Adoption Act 1994 as at 12 May 2006 (includes amendments listed above)

Legal Profession Act 2008 s. 638

21 of 2008

27 May 2008

1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511)

Medical Practitioners Act 2008 Sch. 3 cl. 1

22 of 2008

27 May 2008

1 Dec 2008 (see s. 2 and Gazette 25 Nov 2008 p. 4989)

Criminal Law Amendment (Homicide) Act 2008 s. 23

29 of 2008

27 Jun 2008

1 Aug 2008 (see s. 2(d) and Gazette 22 Jul 2008 p. 3353)

Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 18

8 of 2009

21 May 2009

22 May 2009 (see s. 2(b))

Statutes (Repeals and Minor Amendments) Act 2009 s. 17

46 of 2009

3 Dec 2009

4 Dec 2009 (see s. 2(b))

Reprint 4: The Adoption Act 1994 as at 5 Mar 2010 (includes amendments listed above)

Standardisation of Formatting Act 2010 s. 4

19 of 2010

28 Jun 2010

11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)

Health Practitioner Regulation National Law (WA) Act 2010 Pt. 5 Div. 1

35 of 2010

30 Aug 2010

18 Oct 2010 (see s. 2(b) and Gazette 1 Oct 2010 p. 5075‑6)

Statutes (Repeals and Minor Amendments) Act 2011 s. 18

47 of 2011

25 Oct 2011

26 Oct 2011 (see s. 2(b))

Adoption Amendment Act 2012

15 of 2012

3 Jul 2012

s. 1 and 2: 3 Jul 2012 (see s. 2(a));
Act other than s. 1 and 2: 3 Dec 2012 (see s. 2(b) and Gazette 30 Nov 2012 p. 5773)

Reprint 5: The Adoption Act 1994 as at 1 Mar 2013 (includes amendments listed above)

2The day fixed under s. 2(1) of the Adoption Amendment Act (No. 2) 2003 is 1 June 2003: see Gazette 20 May 2003 p. 1783.

3Section 16A(2) was deleted by the Adoption Amendment Act 2012 s. 10.

4Repealed by the Births, Deaths and Marriages Registration Act 1998.

5The Adoption Amendment Act (No. 2) 2003 s. 7(3) is a transitional provision that is of no further effect.

6The Adoption Amendment Act (No. 2) 2003 s. 34(2) and 59(2) read as follows:

 

34.Section 65 amended and validation of certain adoption orders

(2)An adoption order made or purported to be made by the Court before the commencement of this Act is, and is taken always to have been, as valid and effective as it would have been if the amendments made by subsection (1) were in effect at the time the order was made or purported to be made.

59.Section 101 repealed and a provision declaring information vetoes to be ineffective from the time of the repeal

(2)An information veto —

(a)that was registered under Part 4 Division 4 of the Adoption Act 1994 before the veto cut off day; and

(b)that has effect immediately before the day on which subsection (1) comes into operation,

has no effect on and from the day on which subsection (1) comes into operation.

 

7The amendment in the Children and Community Services Act 2004 Sch. 2 cl. 2(9) to s. 107(d) is not included because the provision it sought to amend was replaced by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 s. 12 before the amendment purported to come into operation.

8The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

9The Adoption Act 1994 Sch. 3 cl. 4 and 5 were deleted by the Adoption Amendment Act 2012 (No. 15 of 2012) s. 71(1). They read as follows:

 

4.Application for order of adoption

Subject to clause 8, an application for an order of adoption filed before commencement continues to be governed by the repealed Act, despite the repeal of that Act.

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

Subject to clause 8, where immediately before commencement, a child had been placed in a person’s care under the repealed Act for or towards or with a view to the child’s adoption by the person, an application for the child’s adoption continues to be governed by the repealed Act, despite the repeal of that Act.

 

 

 

Defined terms

 

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined termProvision(s)

Aboriginal person4(1)

access4(1)

adoptee4(1), 124(4)

adoption applications committee4(1)

adoption authority4(1)

adoption certificate4(1)

adoption compliance certificate4(1)

adoption order4(1)

adoption plan4(1)

adoption service4(1)

adoptive parent4(1)

application26(1), 26A

assessment report40(1)

Australian citizen4(1)

birth parent4(1)

carer4(1)

Central Authority4(1)

CEO4(1)

child4(1), 75(7), 120(1), 136D(3), 138B(3)

Class 1 offence4(1)

Class 2 offence4(1)

close relative59(1A)

commencementSch. 3 cl. 1

commencement day145(1), 146(1A)

Commonwealth Central Authority4(1)

competent authority4(1)

contact4(1)

contact and mediation licensee4(1)

contact veto4(1)

conviction4(1)

corresponding officer33(5), 34(4)

country4(1)

Court4(1)

Department4(1)

descendant81(1)

document4(1)

effective consent4(1)

grandparent81(1)

Hague Convention4(1)

identifying information4(1)

independent counsellorSch. 1 cl. 1(2)

lawyer4(1)

legal practitioner4(1)

lineal relative4(1)

medical practitioner4(1)

mother4(1)

order of adoptionSch. 3 cl. 1

overseas jurisdiction4(1)

parentage testing order26A

parental responsibility4(1)

particulars78(3)

party to an adoption4(1)

pending charge4(1)

place52(1A)

private adoption agency4(1)

publish120(1)

Register92(3)

register127B(1)

Registrar4(1)

relative4(1), 120(1)

repealed ActSch. 3 cl. 1

representative4(1)

revocation period4(1)

sibling81(1), 109(3)

State Central Authority4(1)

step‑parent4(1)

Torres Strait Islander4(1)

veto cut off day4(1)