How to Adopt a Child in Australia: The Legal Process
What is adoption?
Adoption is the permanent transfer of all legal parenting responsibilities from the child’s birth parents (or from the person with parental responsibility or guardianship of the child) to the adoptive parent or parents.
Once a Supreme Court in the relevant jurisdiction has issued an Adoption Order, the child’s ties to their birth family are legally severed and the child becomes a permanent member of the adoptive family. As such, the child assumes the same rights as a child born into the family.
Adopting a child is not for everyone
An adopted child can be a source of joy every bit as much as a biological child. But whether you approach adoption as the culmination of a life-long dream or a Plan B due to circumstances, it is important to acknowledge that adoption can be a difficult road.
Adoption is often predicated upon loss: the child’s loss of connection to birth parents, the birth parents loss of connection to their child, and often the adoptive parents loss of the dream of biological children. It is also critical to remember that the focus of adoption is the best interests of the child, and not the needs or expectations of the adoptive parent. It is for the benefit of the adopted child, for instance, that some adoptions are open, allowing children to remain in contact with their birth parents whenever possible.
Despite the conflicting emotions that this can create in adoptive parents, it is considered to be in the best interests of the adoptive child and is therefore the recommended path for every adoptive family.
What are the different types of adoption?
There are several different options when it comes to adoption: domestic adoption (either out of home care or local adoption), intercountry adoption, or permanent care or guardianship of a child.
Intercountry adoption exists because there are countries with more children who require homes than there are suitable adoptive parents. These countries enter into agreements with countries, such as Australia, who have more prospective adoptive parents than available children for adoption.
The Attorney-General’s Department oversees intercountry adoption while the state or territory central authority administers the adoption process. An Australian prospective adopter can seek an international adoption from a partner country including Bulgaria, China, India and Thailand.
Most intercountry adoptions are open adoptions. In an open adoption, the child is aware that they were adopted and wherever possible, they are encouraged to embrace their cultural heritage and retain a relationship with their family of origin.
When child protection services remove children from their birth families or guardians for their own well being, the Children’s Court can grant permanent care to guardians.
Permanent care guardians assume parental responsibility for a child, which involves making long term decisions in relation to education, health care, and cultural experiences of the child. Permanent care differs from foster care as the latter is a temporary arrangement until the child can reunite with their birth parent. It is also different from adoption in that it does not sever the legal relationship between the child and their birth parents.
Ultimately, permanent care is intended to provide a safe and permanent home for children until they reach the age of eighteen. Children in this type of care will often have continued contact with their birth family with this process facilitated by the permanent carer.
Permanent care guardians are eligible for certain ongoing government financial support to defray the costs incurred in raising the child.
Step-Parent adoption is regulated by federal law and adoption law in each state and territory. If you want to adopt the child of your de facto partner or spouse, you need to obtain the approval of the Federal Circuit and Family Court of Australia for the adoption process to proceed. At that stage you will also need to meet the requirements set down in the local jurisdiction in order to adopt your stepchild.
Each Australian state has different requirements imposed by legislation that must be satisfied in order for stepparent adoption to occur.
Who can adopt?
Eligibility to be an adoptive parent in Australia differs according to the statutory provisions in the particular jurisdiction. The key requirements are the age, residence, and marital status of the adoptive parent or parents.
Age of adoptive parents
In New South Wales, the Supreme Court can make an adoption order for someone if they are over 21 years of age, and is at least 18 years older than the child in question. In Victoria, there is no age limit for permanent care or local adoption but it is important that you are capable and healthy enough to care for a child until they can take care of themselves.
Residence of adoptive parents
In New South Wales and Queensland an adoptive parent must be a resident or currently living in that state.
Marital Status and family status
A single person is legally eligible to adopt a child in Australia, although some states and territories look more favourably on an application from a married or de facto couple. For instance, single people are currently not eligible to locally adopt in Victoria, but can apply to be appointed a permanent carer of the child.
In Queensland, you are not eligible to adopt if you are currently pregnant, have custody of a child younger than 1 year of age (unless the parent is an approved carer of the child), or are a prospective parent under a surrogacy arrangement. You also cannot adopt if you have another child who has been in your custody for less than a year.
In Victoria, de facto couples who have been together for more than two years and married spouses can apply to adopt. A couple needs to wait six months after undergoing fertility treatment before they can start the application process.
Intercountry adoptions have their own eligibility criteria for adoptive parents, so you will need to check with a government authority.
Aboriginal People and Adoption
At one time in Australian history it was the official policy of the government to remove Aboriginal children from their families and have them raised by white families, the result of which was the Stolen Generation.
Partly in response to the damage done by this policy, adoption and permanent care of Aboriginal children is now regulated so that whenever possible, Aboriginal children are not adopted by parents outside their community. These regulations are outlined in the Aboriginal and Torres Strait Islander Child Placement Principles which gives preference to Aboriginal children being raised in an Aboriginal community, with extended family members or in other forms of kinship care.
These placements assist the child to maintain ties with their family, community and Aboriginal culture. In limited circumstances, a non-Aboriginal stepparent may be eligible to adopt an Aboriginal child, if this is shown to be in the best interests of the child in all of the particular circumstances of the case.
What if one parent wants to adopt and one doesn’t?
It is actually not unusual for one parent to be more invested in the adoption process than the other, at least in the beginning. A spouse’s reluctance may be understandable, but it must be taken seriously as it is a commitment that both partners make towards the child.
Adoption by same sex parents
In 1994, Western Australia was the first Australian jurisdiction to pass legislation to allow same sex parents to adopt. The Adoption Act 1994 (WA) allowed same sex individuals or couples to be assessed as adoptive parents according to the same criteria as heterosexual applicants. In response to increasing state and territory legislation, in 2007 the Howard coalition government drafted legislation in an unsuccessful attempt to amend the Family Law Act 1975 (Cth) to override state law and invalidate same sex adoption.
In the decade since then, attitudes towards same sex parents have shifted to reflect more progressive social attitudes, and by 2018, every jurisdiction in Australia allows same sex parents to adopt.
The adoption process in Australia
Initial steps and forms
The first step if you are considering adopting a child in Australia is to look into the type of adoption that is most appropriate for you and your family. Because child welfare and adoption is managed at a state government level, you need to be aware of that each jurisdiction has their own criteria for eligibility of prospective adoptive parents, and specific training and assessment processes. The steps set out below are broadly applicable but you will need to explore the specific arrangements in place in your jurisdiction.
Expression of interest
In most states, if you are interested in adopting a child you should fill out an expression of interest (or EOI form) and return it to the Department of Communities and Justice or similar organisation in your jurisdiction. The department will assess your documentation to see whether you meet the criteria for adoption.
Adoption Preparation Seminar
The next step for first time applicants is to attend an adoption preparation seminar with a relevant accredited agency or state department. At this event you will receive information about undertaking training and assessment. This will prepare you for the adoption process, inform you on timeframes, how to lodge an application and the assessment process, the types of adoption, the circumstances when an adoption might be contested and outline some of the issues and experiences of fellow carers and adoptive parents.
Formal application for adoption
Once you have attended the required seminars and training sessions, you will make a formal application for adoption. It is important to be patient in approaching this process, as it does involve assembling and supplying a significant amount of information about yourself, your family and your broader circumstances.
Screening of your application
Your application will be screened to see if you are a suitable candidate for adopting a child. At this time, all documentation relating to your medical status, personal references, criminal record checks, birth and marriage certificates will be reviewed and assessed. You will receive written notification of whether your application will progress.
The assessment process
Adoption legislation from each state and territory governs the adoption assessment process. For instance, in NSW, the assessment process is based on the requirements in the Adoption Act 2000 (NSW), as well as those factors that research into adoption has suggested present predictive placement risks or success factors.
The assessment process will differ for the adoption of children over 2 years of age, sibling groups or a child in permanent care. Ultimately, the assessment is intended to place the child according to the child’s best interests and respecting the rights of the child.
Most adoption programs employ an independent assessor to conduct the assessment proceeding. The assessment process will take at least three months, long enough for a thorough and fair assessment of your capability and suitability to adopt a child. This delay will give you a chance to understand all the consequences of your decision and explore the available options.
Determining whether you are suitable to adopt
Your assessor will prepare a report on your suitability and make a recommendation to the program manager who will determine whether you are suitable to adopt a child. If you are deemed suitable, your name will be added to the relevant Register of approved prospective parents. You will be informed if the assessment is not favourable and the reasons why your application was denied. Under legislation including the Adoption Act 2000 you can ask for this decision to be reviewed.
If your application is for an intercountry adoption, your assessment report will be sent to the overseas program for their assessment of your suitability. You will be contacted regarding the next steps and what procedures you will need to follow, including which documentation you will need to provide.
It is important that you maintain your eligibility during this process until an adoption order is granted. If there is a significant change in your circumstances then the assessment report will need to be updated.
The prospective adoptive parents will receive all the relevant information about a child in an interview prior to placement. The decision on when the child is introduced to the adoptive family will be based on the individual child’s best interests and personal circumstances. Once a child has been selected for placement with your family, they will come to stay with you and there will be ongoing placement (post adoptive) support available to help you through the transition period.
How much does it cost to adopt a child in Australia?
The amount of money that it costs to locally adopt a child in Australia depends on the specific jurisdiction. In NSW, there is no cost associated with a foster carer adopting a child in their care, while other local adoptions in NSW can cost more than $3,000, including legal and departmental fees.
Non-government organisations set their own fees for adoption, but these fees cannot be so inflated that they constitute the selling of the opportunity to adopt.
Intercountry adoption is the more expensive option for prospective adoptive parents. The applicants must fund each step of the process, from the initial expression of interest to the post-adoption supervision. Fees for an intercountry adoption include moneys due to the state or territory central authority that administers the application, which vary from between $3,000 and $12,000 per application, as well as fees to the partner country. It should be noted that paying an initial application fee carries no guarantee that you will be successful in your application to adopt.
You will also have to take time off work while you make arrangements and travel out of the country. There will be airfare and accommodation costs as you travel to the child’s country of origin and stay for the required period, before you travel back home again. You will also be responsible for all of the costs of immigration and visa fees for your adoptive child.
How long does the adoption process take in Australia?
International adoption can easily take years from the point at which you contact the agency or department to the time that you receive a child placement, although this can vary according to a number of factors. The longest waits will be if you are only willing to take younger children with no challenges, and the shortest wait is likely to be if you are open to a range of different ages, backgrounds and capacities in children.
It may also be a shorter wait if you are prepared to adopt multiple siblings. It is important that you are prepared for a long wait particularly with international cases, as adoption arrangements are slowed down by the bureaucracy of not one but two countries.
Here For You
Unified Lawyers is here for you if you need advice on adoption law or guidance through the complex legal processes, rules and regulations involved in adopting a child in Australia.
Whether you are considering intercountry adoption, permanent placement, home care or local adoption, the solicitors at Unified Lawyers can help you on your journey to parenthood. Please call 1300 667 461 or contact the team for a free initial consultation.