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Contents (2000 - 75)
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Adoption Act 2000 No 75
Current version for 27 June 2017 to date (accessed 20 September 2017 at 12:00)
Chapter 4
Chapter 4 The adoption process
Part 1 General
22   Proceedings
Proceedings for the making of adoption orders and other orders under this Act are to be heard and determined by the Supreme Court.
23   Jurisdiction
(cf AC Act ss 8 and 9)
(1)  Subject to this Act, the Court may make an order for the adoption of a child (an adoption order) solely in favour of one person or jointly in favour of a couple.
Note.
 Couple is defined in the Dictionary to mean 2 persons who are married to each other or who are de facto partners of each other (de facto partner is defined in section 21C (1) of the Interpretation Act 1987 and refers to persons whether of the same sex or a different sex). The effect of the making of an adoption order is described in Part 11 of this Chapter.
(2)  The Court must not make an adoption order unless, when the application for the order is filed:
(a)  the child is present in the State, and
(b)  the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State.
(3)  For the purposes of this section, if the Court is satisfied that the child was present in the State, or that the applicant or each applicant was resident or domiciled in the State, for a period of 3 months immediately before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that:
(a)  the child was present in, or
(b)  that the applicant or each applicant was resident or domiciled in,
the State when the application was filed.
(4)  The Court has jurisdiction under this section to make an adoption order despite any rule of private international law to the contrary.
(5)  Subject to Part 2 of Chapter 5, the Court has jurisdiction, under and in accordance with this Part, to make an adoption order with respect to the intercountry adoption of a child referred to in Part 2.
Note.
 Child is defined in the Dictionary.
24   Who can be adopted?
(cf AC Act s 18 (1))
(1)  An adoption order may be made in relation to a child who:
(a)  was less than 18 years of age on the date on which the application for the order was made, or
(b)  was 18 or more years of age on that date and was cared for by the applicant or applicants for the order.
(2)  For the purposes of subsection (1) (b), a child was cared for if the child:
(a)  has been cared for by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or her or their child prior to reaching the age of 18 years, or
(b)  has, as a ward within the meaning of the Children (Care and Protection) Act 1987 or a person under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998, been in the care responsibility of the applicant or applicants or of the applicant and a deceased spouse of the applicant.
Note.
 Spouse is defined in the Dictionary.
(3)    (Repealed)
25   Previous adoption or marital status immaterial
(cf AC Act s 18 (5))
An adoption order may be made:
(a)  even if the child concerned has, whether before or after the commencement of this section and whether in the State or elsewhere, previously been adopted, and
(b)  irrespective of the marital status of the child.
26   Who can adopt?
(cf AC Act ss 8, 19, 20, 21 (1) (c) (i) (a))
An application for an adoption order may be made in accordance with this Act solely by or on behalf of one person or jointly by or on behalf of a couple.
Note.
 Couple is defined in the Dictionary.
27   Adoption by one person
(cf AC Act ss 8, 19 (2) and (3), 20, 21 (1) (c) (i) (a))
(1) Basic requirements One person may, subject to this Act, adopt a child only if the person is:
(a)  resident or domiciled in the State, and
(b)  of good repute and a fit and proper person to fulfil the responsibilities of a parent.
(2) Age requirements The Court must not make an adoption order in favour of one person who is not a birth parent or relative of the child unless:
(a)  the person is 21 or more years of age and 18 or more years older than the child, or
(b)  the Court considers that in the particular circumstances of the case it is desirable to make the order even though the person does not fulfil the age requirements.
(3) Consent of spouse The Court must not make an adoption order in favour of one person who is living with a spouse unless the person’s spouse consents in writing to the application for the adoption order.
Note.
 Spouse is defined in the Dictionary.
28   Adoption by couple
(cf AC Act ss 8, 19, 20, 21 (1) (c) (i) (a))
(1) Basic requirements Two persons who are a couple may, subject to this Act, adopt a child only if:
(a)  both of them are resident or domiciled in the State, and
(b)  both of them are of good repute and are fit and proper persons to fulfil the responsibilities of parents.
(2) Requirements for step parent The Court must not make an order in favour of a couple if one of them is a step parent unless section 30 is complied with.
(3) Age requirements The Court must not make an adoption order in favour of a couple if neither of them is a birth parent or relative of the child unless:
(a)  each of them is 21 or more years of age and 18 or more years older than the child, or
(b)  the Court considers that in the particular circumstances of the case it is desirable to make the order even though one or both of them do not fulfil the age requirements.
(4) Length of relationship requirement The Court must not make an adoption order in favour of a couple unless the couple have been living together for a continuous period of not less than 2 years immediately before the application for the adoption order.
(5)  The Court may make an adoption order in favour of a couple jointly even if one of them is a birth parent, or they are the birth parents, of the child.
Note.
 Couple is defined in the Dictionary.
29   Adoption by relative
The Court must not make an adoption order in favour of a relative of a child unless:
(a)  specific consent to the adoption of the child by the relative has been given in accordance with this Act by the appropriate person or persons specified in section 53 (b), and
(b)  the child has established a relationship of at least 2 years’ duration with the relative, and
(c)  the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child.
Note.
 Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.
30   Adoption by step parent
(1)  The Court must not make an adoption order in favour of a step parent of a child unless:
(a)  the child is at least 5 years old, and
(b)  the step parent has lived with the child and the child’s birth or adoptive parent for a continuous period of not less than 2 years immediately before the application for the adoption order, and
(c)  specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and
(d)  the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child.
Note.
 Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.
(2)  Subsection (1) (b) does not apply to the adoption of a child who is 18 years of age or more at the time of the application for the adoption order.
31   Adoption of non-citizen child
(1)  The Court must not make an adoption order in relation to a non-citizen child as referred to in Part 2 of Chapter 5 unless:
(a)  arrangements for adoption of the child have been made by the Secretary or an accredited adoption service provider that may provide intercountry adoption services or the Secretary applies for the order on the basis that the proposed adoptive parent has intercountry parental responsibility for the child, and
(b)  the provisions of this Act and the regulations relating to intercountry adoptions have been complied with.
(2)  For the purposes of this section, a person has intercountry parental responsibility for a child if the child is from a country other than a Convention country or a prescribed overseas jurisdiction and the person, after being resident in that country for 12 months or more or being domiciled in that country, was given parental responsibility for the child under the law of that country.
Part 2 Placement of children for adoption
Division 1 Children other than Aboriginal and Torres Strait Islanders
32   Regard to be had to cultural heritage of child
(1)  In placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, the decision maker must take into account the culture, any disability, language and religion of the child and the principle that the child’s given name, identity, language and cultural and religious ties should, as far as possible, be preserved.
(2)  Without limiting matters that may be taken into account, the decision maker must take into account whether a prospective adoptive parent of a different cultural heritage to that of the child has demonstrated the following:
(a)  the capacity to assist the child to develop a healthy and positive cultural identity,
(b)  knowledge of or a willingness to learn about, and teach the child about, the child’s cultural heritage,
(c)  a willingness to foster links with that heritage in the child’s upbringing,
(d)  the capacity to help the child if the child encounters racism or discrimination in school or the wider community.
Division 2 Aboriginal children
33   Aboriginal participation in decision making
(1)  The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child:
(a)  a person approved in accordance with section 195, or
(b)  a person nominated by the child’s parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Aboriginal children.
(2)  In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation.
34   Application of Aboriginal child placement principles
(1)  The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child.
(2)  The Aboriginal child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is an Aboriginal child for adoption.
35   Aboriginal child placement principles
(1) General principle It is a principle to be applied in the administration of this Act that Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children (which is a concept that is absent in customary Aboriginal child care arrangements).
(2) The general order for placement The Aboriginal child placement principles are as follows:
(a)  The first preference for placement of an Aboriginal child is for the child to be placed for adoption with a prospective adoptive parent or parents belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belongs.
(b)  If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents from another Aboriginal community.
(c)  If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a non-Aboriginal prospective adoptive parent or parents.
(3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent:
(a)  has the capacity to assist the child to develop a healthy and positive cultural identity, and
(b)  has knowledge of or is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and
(c)  has the capacity to help the child if the child encounters racism or discrimination in the wider community,
and that the Aboriginal child placement principles have been properly applied.
Note.
 Placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing—see section 80.
(4) Child with one Aboriginal parent and one non-Aboriginal parent If a child has one Aboriginal parent and one non-Aboriginal parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act.
(5)  If a child to whom subsection (4) applies:
(a)  is placed with a person who is not within an Aboriginal family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs, or
(b)  is placed with a person who is within an Aboriginal community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Aboriginal community to which the child belongs.
36   Alternatives to placement for adoption to be considered
An Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child.
Note.
 Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth.
Division 3 Torres Strait Islanders
37   Torres Strait Islander participation in decision making
(1)  The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of a Torres Strait Islander child:
(a)  a person approved in accordance with section 196, or
(b)  a person nominated by the child’s parents, extended family or kinship group, as recognised by the Torres Strait Islander community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Torres Strait Islander children.
(2)  In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Torres Strait Islander organisation.
38   Application of Torres Strait Islander child placement principles
(1)  The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is a Torres Strait Islander child.
(2)  The Torres Strait Islander child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is a Torres Strait Islander for adoption.
39   Torres Strait Islander child placement principles
(1) The general order for placement The Torres Strait Islander child placement principles are as follows:
(a)  The first preference for placement of a Torres Strait Islander child is for the child to be placed for adoption with a prospective adoptive parent or parents within the child’s extended family.
(b)  If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents within the community, or one of the communities, to which the birth parent or birth parents of the child belongs.
(c)  If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a prospective adoptive parent or parents from another Torres Strait Islander community.
(d)  If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), (b) or (c), the child is to be placed with a non-Torres Strait Islander prospective adoptive parent or parents.
(2)  A Torres Strait Islander child is not to be placed with a prospective adoptive parent who is not a Torres Strait Islander unless the Court is satisfied that the prospective parent:
(a)  has the capacity to assist the child to develop a healthy and positive cultural identity, and
(b)  is willing to learn about, and teach the child about, the child’s Torres Strait Islander heritage and foster links with that heritage in the child’s upbringing, and
(c)  has the capacity to help the child if the child encounters racism or discrimination in the wider community,
and that the Torres Strait Islander child placement principles have been properly applied.
Note.
 Placement with a non-Torres Strait Islander prospective adoptive parent requires an application to the Court for a preliminary hearing—see section 80.
(3) Child with one Torres Strait Islander parent and one non-Torres Strait Islander parent If a child has one Torres Strait Islander parent and one non-Torres Strait Islander parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act.
(4)  If a child to whom subsection (3) applies:
(a)  is placed with a person who is not within a Torres Strait Islander family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Torres Strait Islander community to which the child belongs, or
(b)  is placed with a person who is within a Torres Strait Islander community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Torres Strait Islander community to which the child belongs.
Division 4 Placement outside Australia
40   Report on child for intercountry adoption
(1)  A child who is resident or domiciled in the State is not to be adopted in a place outside Australia unless the Secretary has:
(a)  determined that the consent necessary for the adoption has been given in accordance with this Act (or dispensed with), and
(b)  determined that a suitable family to adopt or otherwise care for the child cannot be found in Australia, and
(c)  if satisfied that the child should be adopted outside Australia, prepared a report to that effect.
(2)  The report is to include information about the child’s identity, adaptability, background, social environment, family history, medical history of the child and the child’s family and any special needs of the child and is to indicate that the consents required under this Act have been obtained.
Note.
 Under Article 16 of the Hague Convention on Intercountry Adoption the report prepared under this section will be transmitted by the Secretary to the appropriate authority in the place outside Australia.
Part 3 Selection of prospective adoptive parents other than authorised carers
41   Application of Part
This Part applies to the assessment of the suitability, and selection, of prospective adoptive parents of a child other than step parents or relatives or authorised carers.
Note.
 Part 3A of this Chapter provides for prospective adoptive parents who are authorised carers.
41A   Definitions
In this Part:
applicant means a person whose application to adopt under this Part:
(a)  has been submitted to the Secretary or a principal officer, and
(b)  has not been withdrawn or finally dealt with by the making of, or refusal to make, an adoption order.
reside on a property has the same meaning as in the Child Protection (Working with Children) Act 2012.
42   Expression of interest in adopting a child
(1)  One person, or a couple, may submit to the Secretary, or principal officer of an adoption service provider accredited to accept applications to adopt, an expression of interest in:
(a)  being approved as suitable to adopt a child (whether a citizen or non-citizen), and
(b)  being selected, in a manner determined by the Secretary or principal officer, to adopt a child.
(2)  A submission of an expression of interest may be made only if the person or each person is resident or domiciled in the State.
43   Application to adopt
(cf AC Reg Part 3)
The Secretary or principal officer may, in accordance with the regulations and subject to any conditions of the accreditation of the adoption service provider concerned, invite a person or a couple who have submitted an expression of interest to submit an application to adopt a child.
44   Form of expression of interest or application
A submission of an expression of interest or application to adopt a child under this Part is to be made in accordance with the regulations.
45   Assessment of suitability, and selection, of adoptive parents
(1)  The regulations may make provision for or with respect to the following:
(a)  the assessment of the suitability of persons to be approved to adopt, and selection of persons to adopt, children under this Act from within New South Wales or elsewhere,
(b)  the keeping by the Secretary of a register of persons approved by the Secretary or by principal officers as fit and proper persons to adopt children.
(2)  The Secretary or appropriate principal officer must not assess a person as suitable to be approved to adopt a child unless the person and every adult person who resides on the same property as the person has a working with children check clearance that is in force under the Child Protection (Working with Children) Act 2012 or is exempted by the regulations under that Act from the requirement to hold such a clearance.
45A   Background information about prospective adoptive parents to be made available to birth parents
(1)  If an application to adopt a child is made by a couple, background information relating to the couple that is obtained by the Secretary or principal officer in connection with the application is, at the request of the birth parents of the child, to be provided to the birth parents before any adoption order may be made in relation to that child.
(2)  In this section, background information relating to a couple includes information about the couple’s social and cultural background, religious beliefs, domestic relationship and living arrangements, but does not include any information that identifies the couple.
45AA   Provision of information
(1)  Any person (the provider of information) may provide information to the principal officer of an accredited adoption service provider or the Secretary about another person if:
(a)  the provider of information has been notified by the principal officer or the Secretary that the other person is an applicant or a person who resides on the same property as an applicant, or
(b)  the provider of information otherwise reasonably believes the other person to be an applicant or a person who resides on the same property as an applicant.
(2)  Information provided under this section may be used to determine whether the applicant is suitable to adopt a child.
(3)  Information may be provided under this section regardless of whether the provider of information has been requested to provide the information.
(4)  A person who, acting in good faith, provides information under this section:
(a)  is not liable to any civil or criminal action, or any disciplinary action, for providing the information, and
(b)  in providing the information, cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct.
45AB   Notification about other residents
An applicant must, as soon as reasonably practicable, notify the Secretary or the principal officer to whom the application was submitted:
(a)  if any person (other than the applicant or a person who submitted an application to adopt jointly with the applicant) resides on the same property as the applicant for 3 weeks or more, or
(b)  if a person residing on the same property as the applicant attains the age of 18 years.
45B   Consideration of wishes of parents consenting to adoption
(1)  A general consent of the parent of a child to the adoption of the child, as referred to in section 53, may express the wishes of the parent as to the preferred background, beliefs or domestic relationship of any prospective adoptive parents of the child.
(2)  Nothing in the Anti-Discrimination Act 1977 prevents the Secretary or a principal officer of an adoption service provider from identifying (consistently with the best interests of the child) prospective adoptive parents who reflect those wishes in the adoption selection process under this Part.
Part 3A Selection of authorised carers as adoptive parents
45C   Application of Part
This Part applies to the assessment of the suitability, and selection, of prospective adoptive parents who are authorised carers (within the meaning of section 137 (1) (b) of the Children and Young Persons (Care and Protection) Act 1998) of a child who is in out-of-home care.
45CA   Definitions
In this Part:
applicant means a person whose application to adopt under this Part:
(a)  has been submitted to the Secretary or a principal officer, and
(b)  has not been withdrawn or finally dealt with by the making of, or refusal to make, an adoption order.
reside on a property has the same meaning as in the Child Protection (Working with Children) Act 2012.
45D   Application to adopt
The Secretary or the principal officer of an accredited adoption service provider may, in accordance with the regulations, invite an authorised carer of a child who is in out-of-home care to submit an application to adopt the child.
45E   Form of application
An application to adopt a child under this Part is to be made in accordance with the regulations.
45F   Assessment of suitability, and selection, of adoptive parents
The regulations may make provision for or with respect to the assessment of the suitability of authorised carers of children to be approved and selected to adopt the children under this Act.
45G   Background information about prospective adoptive parents to be made available to birth parents
(1)  If an application to adopt a child is made by an authorised carer, background information relating to the authorised carer that is obtained by the Secretary or principal officer in connection with the application is, at the request of the birth parents of the child, to be provided to the birth parents before any adoption order may be made in relation to that child.
(2)  In this section, background information relating to an authorised carer includes information about the carer’s social and cultural background, religious beliefs, domestic relationship and living arrangements, but does not include any information that identifies the carer.
45GA   Provision of information
(1)  Any person (the provider of information) may provide information to the principal officer of an accredited adoption service provider or the Secretary about another person if:
(a)  the provider of information has been notified by the principal officer or the Secretary that the other person is an applicant or a person who resides on the same property as an applicant, or
(b)  the provider of information otherwise reasonably believes the other person to be an applicant or a person who resides on the same property as an applicant.
(2)  Information provided under this section may be used to determine whether the applicant is suitable to adopt a child.
(3)  Information may be provided under this section regardless of whether the provider of information has been requested to provide the information.
(4)  A person who, acting in good faith, provides information under this section:
(a)  is not liable to any civil or criminal action, or any disciplinary action, for providing the information, and
(b)  in providing the information, cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct.
45GB   Notification about other residents
An applicant must, as soon as reasonably practicable, notify the Secretary or the principal officer to whom the application was submitted:
(a)  if any person (other than the applicant or a person who submitted an application to adopt jointly with the applicant) resides on the same property as the applicant for 3 weeks or more, or
(b)  if a person residing on the same property as the applicant attains the age of 18 years.
45H   Consideration of wishes of parents consenting to adoption
(1)  A general consent of the parent of a child to the adoption of the child, as referred to in section 53, may express the wishes of the parent as to the preferred background, beliefs or domestic relationship of any prospective adoptive parents of the child.
(2)  Nothing in the Anti-Discrimination Act 1977 prevents the Secretary or a principal officer of an adoption service provider from identifying (consistently with the best interests of the child) prospective adoptive parents who reflect those wishes in the adoption selection process under this Part.
Part 4 Adoption plans
46   What is an adoption plan?
(1)  An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:
(a)  the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:
(i)  the child’s medical background or condition,
(ii)  the child’s development and important events in the child’s life,
(iii)  the means and nature of contact between the parties and the child, and
(b)  any other matter relating to the adoption of the child.
Note.
 Parties to an adoption is defined in the Dictionary. The Court is required to take an adoption plan into consideration in making an adoption order. See section 90 (2) and (3).
(2)  Without limiting the matters for which an adoption plan may make provision:
(a)  it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and
(b)  it may provide for the giving of certain financial and other assistance as referred to in section 201.
(2A)  A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.
(2B)  A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.
(3)  An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a).
(4)  If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.
47   How is an adoption plan made?
(1)  Before the making of an order for the adoption of a child, parties to the adoption may agree on an adoption plan.
Note.
 The parties must agree to an adoption plan in some circumstances—see sections 35 (5) and 39 (4).
(2)  An adoption plan is to be in writing and is to contain the particulars (if any) required by the regulations.
48   Adoption plan to accompany application for adoption order
If the parties to an adoption agree to an adoption plan, a copy of the plan must (unless registered under section 50) accompany the application for an adoption order.
49   Notice to be given of adoption plan
The Secretary or appropriate principal officer is to give notice to any person who has the care responsibility for the child of the terms of the adoption plan.
50   Registration of adoption plans
(1)  The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan.
(2)  The regulations may make provision for or with respect to such an application.
(3)  The Court may register an adoption plan if it is satisfied that:
(a)  the plan does not contravene the adoption principles, and
(b)  the parties to the adoption understand the provisions of the plan and have freely entered into it, and
(c)  the provisions of the plan are in the child’s best interests and is proper in the circumstances.
(4)  An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order.
51   Review of adoption plans
(1)  The Court may review an adoption plan on application of one or more of the parties to the plan.
(2)  Unless the Court otherwise determines, the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application.
(3)  Following its review, the Court may, by order:
(a)  make such changes (if any) to the provisions of the adoption plan as it considers appropriate, or
(b)  revoke the plan, or
(c)  confirm the plan.
(4)  The Court may change the provisions, or revoke, an adoption plan only if it is satisfied that it is in the best interests of the child and proper in the circumstances to do so.
(5)  An adoption plan that is changed by an order of the Court has effect as if it were the plan originally agreed to by the parties.
Part 5 Consents to adoptions
Division 1 Who must consent to an adoption?
52   Consent of parents and persons who have parental responsibility generally required
(cf AC Act s 26)
The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given:
(a)  in the case of a child who has not been previously adopted by:
(i)  each parent of the child, and
(ii)  any person who has parental responsibility for the child, or
(b)  in the case of a child who has previously been adopted—by each adoptive parent of, or person who has parental responsibility for, the child.
53   Ways in which parent or person who has parental responsibility can give consent
(cf AC Act s 27)
(1)  For the purposes of this Act, a parent of, or person who has parental responsibility for, a child may consent to the adoption of the child only by:
(a)  giving general consent to the adoption of the child by an adoptive parent or parents selected by the Secretary or principal officer of an accredited adoption service provider, or
(b)  giving specific consent to the adoption of the child by:
(i)  a specified adoptive parent who is a relative of the child, or
(ii)  2 specified adoptive persons, one of whom is a parent or relative of the child, or
(iii)  a specified adoptive parent who is step parent of the child, or
(iv)  a specified adoptive parent who is an authorised carer who has had care responsibility for the child for 2 years or more.
(2)  Nothing in this section prevents the Secretary or principal officer from selecting an adoptive parent or parents for the purposes of subsection (1) (a) from one or more of the classes of persons referred to in subsection (1) (b).
54   When consent of parent or person who has parental responsibility not required
(cf AC Act s 26 (4A))
(1)  Consent is not required under section 52 if:
(a)  the requirement for the consent has been dispensed with by the Court, or
Note.
 See Division 3 of Part 5.
(b)  the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or
(c)  the child gives sole consent to his or her adoption in accordance with subsection (2), or
(d)  the child is 18 or more years of age.
(2)  A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.
(3)  However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless:
(a)  the Court is satisfied that at least 14 days’ notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or
(b)  the Court dispenses with the giving of notice.
(4)  The regulations may prescribe the particulars to be contained in a notice under this section.
Note.
 Parental responsibility is defined in the Dictionary.
55   Consent of child
(cf AC Act ss 26 (4A), 33, 38 (2A))
(1)  The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless:
(a)  the child has been counselled as required by section 63, and
(b)  the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and
(c)  the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent.
Note.
 See Division 3 of Part 5.
(2)  The Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order.
56   Birth father to be given opportunity to consent
(cf AC Act s 31A)
(1)  This section applies if:
(a)  consent to the adoption of a child has been given by the child’s birth mother or person who has parental responsibility but not the birth father of the child, and
(b)  an adoption hearing has not been held, and
(c)  the Secretary or appropriate principal officer knows, or after reasonable inquiry ascertains, the name and address of the person whom the Secretary or principal officer reasonably believes to be the birth father of the child.
Note.
 A person may be presumed to be the father of a child under the Status of Children Act 1996 or may be registered as the father under the Births, Deaths and Marriages Registration Act 1995.
(2)  When this section applies, the Secretary or principal officer must give the person known, or reasonably believed, to be the birth father of the child notice:
(a)  that the child’s birth mother or person who has parental responsibility has consented to the adoption of the child, and
(b)  advise him:
(i)  of the legal processes by which he can establish paternity in relation to the child or be registered as the father of the child, and
(ii)  of his rights as a parent in relation to the adoption of the child.
Division 2 When is consent effective?
57   Definitions
In this Act:
counsellor means a person of a class or description, and having the qualifications and functions, prescribed by the regulations.
informed consent means consent given after a person has been given the mandatory written information.
mandatory written information, in relation to the adoption of a child, means written information on the following:
(a)  the alternatives to the adoption,
(b)  financial and other support services available whether or not the child is relinquished for adoption,
(c)  possible emotional effects, both short and long term, of relinquishing the child for adoption,
(d)  the legal process of adoption (including the consents required and effect and way of revoking consent, the selection procedure, the role of adoption plans, the role of the Court and review and appeals procedure) and the legal consequences of each stage in the process,
(e)  the duties and responsibilities of the Secretary and principal officer in relation to the placement of the child,
(f)  the rights and responsibilities of other parties to the adoption, including access to information about, or contact with, the other parties to the adoption,
(g)  any other matter prescribed by the regulations.
58   When is consent ineffective?
(cf AC Act ss 29, 30, 31, AC Reg cll 21 (a) and (d), 22, 23, Sch 1 Forms 1, 4)
(1)  Consent to a child’s adoption is not effective unless it is:
(a)  informed consent, and
(b)  given in accordance with this Act.
(2)  Consent given by a person (other than a child under 18 years of age) is not effective if it appears to the Court that:
(a)  it was not given in accordance with this Act, or
(b)  it was obtained by fraud, duress or other improper means, or
(c)  the instrument of consent has been altered in a material particular without authority, or
(d)  the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent.
(3)  Consent is not effective if it is revoked during the time allowed by section 73.
(4)  Consent given by a birth parent who is less than 18 years of age is not effective if it appears to the Court that the birth parent did not have the benefit of independent legal advice concerning the adoption before the instrument of consent was signed by the birth parent.
(5)  Consent to a child’s adoption given in another State under the law of the other State is an effective consent for the purposes of this Act.
Note.
 Chapter 5 provides for the recognition of certain adoptions if an adoption compliance certificate has been issued by the appropriate authority of a country outside Australia. Such a certificate will only be issued if the appropriate consents have been given to the adoption. See eg Article 4 of the Convention (which is set out in Schedule 1).
59   Mandatory written information
(1)  The Secretary or appropriate principal officer must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption.
(2)  In the case of the adoption of a child by a step parent or relative of the child:
(a)  the applicant (and not the Secretary or appropriate principal officer) must ensure that a person whose consent to the adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption, and
(b)  the requirement to give that information is satisfied if the information given is information in a form approved by the Secretary for the purposes of compliance with this subsection.
(3)  In the case of an adoption of a child who is under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998, this section does not require the mandatory written information to be given to the Minister or a delegate of the Minister who can consent to the adoption.
60   When is consent to be given?
Consent to the adoption of a child cannot be given unless it is given:
(a)  at least 30 days after the child is born, and
(b)  at least 14 days after the person giving the consent is given a copy of the instrument of consent and the mandatory written information (if required).
61   Form of consent
(1)  Consent is to be given by an instrument (an instrument of consent) that is in a form that contains the information prescribed by the regulations.
(2)  A separate instrument of consent must be signed by the child and by each other person whose consent is required by this Act.
(3)  Before the instrument is signed, a counsellor must sign a statement on it certifying that:
(a)  the child or other person giving the consent has been counselled by the counsellor, and
(b)  that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument.
62   Consent must be witnessed by person independent of counsellor
(1)  The signing of the instrument of consent must be witnessed, in accordance with the regulations, by a person other than the counsellor and who is independent of the counsellor.
(2)  Before witnessing the signing of the instrument of consent by a child or other person, the witness is to sign a statement on it certifying that he or she is not aware of any mental, emotional or physical unfitness of that person to give consent.
(3)  The witness must be a person of a class or description prescribed by the regulations.
63   Child or other person consenting must be counselled
(1)  A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption.
(2)  A person is counselled in accordance with this section if a counsellor:
(a)  accurately explains to the person, in a way that the counsellor thinks will be understood by the person:
(i)  the legal effect of signing the instrument of consent and the procedure for revoking consent, and
(ii)  the effect of the mandatory written information, and
(b)  counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child).
(3)  This section does not require the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or any delegate of the Minister to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister.
64   Consent to adoption of Aboriginal child
(1)  Before a person gives consent to the adoption of an Aboriginal child:
(a)  he or she is to be given adoption counselling by a person approved in accordance with section 195, or
(b)  if he or she is offered, but refuses, adoption counselling by such a person he or she must:
(i)  be provided by the Secretary or appropriate principal officer with written information on Aboriginal customs and culture and any other matters the Secretary or principal officer considers would have been raised by the person, and
(ii)  sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information.
(2)  A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b).
(3)  In this section:
adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Aboriginal customs and culture.
65   Consent to adoption of Torres Strait Islander child
(1)  Before a person gives consent to the adoption of a Torres Strait Islander child:
(a)  he or she must receive adoption counselling from a person approved in accordance with section 196, or
(b)  if he or she has been offered, but has refused, adoption counselling by such a person he or she must:
(i)  be provided by the Secretary or appropriate principal officer with written information on Torres Strait Islander customs and culture and on any other matters that the Secretary or principal officer considers would have been raised by the person, and
(ii)  sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information.
(2)  A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b).
(3)  In this section:
adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Torres Strait Islander customs and culture.
Division 3 Dispensing with consent
66   How is need for consent dispensed with?
A requirement for the consent of a child or any other person to the child’s adoption under this Act can be dispensed with if the Court makes an order under this Division dispensing with the requirement (a consent dispense order).
67   When can Court dispense with consent of person other than the child?
(cf AC s 32 (1))
(1)  The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that:
(a)  the person cannot, after reasonable inquiry, be found or identified, or
(b)  the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or
(c)  if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or
(d)  if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:
(i)  the child has established a stable relationship with those carers, and
(ii)  the adoption of the child by those carers will promote the child’s welfare, and
(iii)  in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.
(2)  The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.
68   Who may apply for order dispensing with consent of person other than the child?
(cf AC Act s 32 (1A))
Any of the following persons may apply to the Court for a consent dispense order:
(a)  the Secretary,
(b)  the appropriate principal officer,
(c)  if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person)—the applicant or applicants,
(d)  with the consent of the Secretary—the applicant or applicants for the adoption of the child.
69   When can the Court dispense with the child’s consent?
(cf AC Act s 33)
(1) Child 12 or more but less than 18 years of age The Court may make a consent dispense order dispensing with the requirement for consent to his or her adoption to be given by a child who is 12 or more but less than 18 years of age if the Court is satisfied that the child is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent.
(2)  An order under subsection (1) may be made on the Court’s own initiative or on application by any person.
(3) Child 18 or more years of age The Court must not make a consent dispense order dispensing with the requirement for consent of a child who is 18 or more years of age in any circumstances.
(4)  The Court must not make a consent dispense order under this section on application of a person other than the Secretary unless not less than 14 days’ notice of the application has been given to the Secretary.
70   When can consent dispense order be made?
(cf AC Act s 32 (2) and (3))
(1)  A consent dispense order may be made:
(a)  before an application for an adoption order has been made in relation to a child, or
(b)  in conjunction with an adoption order in relation to a child.
(2)  Despite subsection (1) (a), a consent dispense order must not be made on the application of a person referred to in section 68 (c) except in conjunction with an adoption order in favour of that person or of that person and another person.
(3)  A consent dispense order relating to the adoption of a child made before an application for an adoption order has been made in relation to the child has effect for the purposes of any application for an adoption order that is subsequently made in relation to the child.
71   Revocation of consent dispense order
(cf AC Act s 32 (4))
(1)  A consent dispense order in relation to the adoption of a child made before an application for an adoption order has been made may be revoked by the Court at any time before the making of the adoption order.
(2)  The consent dispense order may be revoked on the Court’s own initiative or on the application of:
(a)  the Secretary or of the person whose consent was dispensed with, or
(b)  if the order was made on the application of a principal officer—the principal officer.
72   Notice of consent dispense order
(cf AC Act s 32 (5))
(1)  The Court must not make a consent dispense order on the application of any person unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made.
(2)  Subsection (1) does not apply if:
(a)  the person cannot, after reasonable inquiry, be found or identified, or
(b)  the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent and his or her physical or mental health would, in the opinion of the Court, be detrimentally affected if he or she were to receive notice of the application, or
(c)  the Court considers that in the particular circumstances of the case it is desirable to make an order without notice of the application having been given.
(3)  The Court must not revoke any consent dispense order on application of a person unless not less than 14 days’ notice of the application has been given:
(a)  in the case of an application for revocation made by a person other than the Secretary—to the Secretary, and
(b)  in the case of an application for revocation made by a person other than the principal officer who applied for the consent dispense order—to the principal officer, or
(c)  if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person)—to the applicant or applicants.
Division 4 Revocation of consent
73   Revocation of consent
(cf AC Act s 28)
(1) Revocation by child A child who has consented to his or her adoption may revoke his or her consent by notice in writing given to the nominated officer at any time before the adoption order is made.
(2) Revocation by person other than child A person other than a child who has consented to a child’s adoption may revoke his or her consent by notice in writing given to the nominated officer before the end of the period of 30 days beginning on the day on which the instrument of consent to the adoption was signed (the revocation period).
Note.
 Nominated officer is defined in the Dictionary.
(3)  Consent cannot be revoked under subsection (2) after the end of the revocation period.
(4)  As soon as practicable after receiving a notice under this section, the nominated officer is to give notice of the revocation:
(a)  to the Secretary, and
(b)  if it appears to the nominated officer that the consent concerned was given to a principal officer—to the principal officer, and
(c)  if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person)—to the applicant or applicants.
(5)  If the Secretary ceases to have parental responsibility for a child under section 79 (1) (d), any consent to the adoption of the child given for the purposes of this Act is taken to be revoked.
(6)  If the Secretary ceases to have parental responsibility for a child under section 79 (1) (d), the Secretary is to give notice to:
(a)  the nominated officer, and
(b)  if the consent was given to a principal officer—the principal officer.
74   Notification of pending end of revocation period
(1)  The Secretary (or, if the consent was given to a principal officer, the principal officer) must give notice to each person (other than the child) who consented to an adoption before the end of the revocation period that on the end of the revocation period the consent cannot be revoked and that an adoption order may be made.
(2)  The notice is to be given not less than 7 days before the revocation period ends.
Note.
 See section 73 (2).
Part 6 Parental responsibility for children awaiting adoption
Note.
 This Part provides for the parental responsibility for children between the period when consent to adoption is given and an adoption order made. Parental responsibility is given to the Secretary who has power to decide, for example, whether the child should be placed with authorised carers or the proposed adoptive parents, in this period.
75   Parental responsibility for citizen child awaiting adoption
(cf AC Act s 34 except (3) and (4))
(1) Parental responsibility following general consent or dispensing with consent The Secretary has parental responsibility for a child (for purposes other than the purposes of section 52) to the exclusion of all other persons after:
(a)  general consent to the adoption of the child has been given by every person whose consent to the adoption of the child is required under this Act, or
(b)  the requirement for consent has been dispensed with by the Court.
(2)  A person other than the Secretary or a person employed in the Department who witnesses a general consent to the adoption of a child must give the Secretary written notice that it has been given.
(3)  The notice is to be given within 7 days after the person witnesses the consent.
(4)  Subsection (1) does not apply to a child unless and until the Secretary:
(a)  is satisfied that each person who is required to give general consent to the adoption of the child under this Act has given consent or that the Court has dispensed with the requirement for that person to consent, or
Note.
 Grounds on which the Court may dispense with consent include that, after reasonable inquiry, the person whose consent is required cannot be found or identified—see section 67.
(b)  the Court makes an interim order under section 84 in favour of the Secretary,
whichever first occurs.
(5)  Within 21 days after the Secretary is satisfied as referred to in subsection (4), the Secretary may, by instrument in writing, decline parental responsibility for the child.
(6)  As soon as practicable after declining parental responsibility, the Secretary must cause a copy of the instrument to be given to each person who consented to the adoption of the child.
(7) Parental responsibility following renunciation of parental responsibility by officer of another State The Secretary takes parental responsibility for a child in place of a corresponding officer who has parental responsibility for the child under a corresponding law if the corresponding officer executes a parental responsibility renunciation instrument.
(8)  Subsection (7) applies only if:
(a)  any consent to the adoption of the child held by the corresponding officer cannot be lawfully revoked by the person or persons by whom it was given, and
(b)  the Secretary is satisfied the child is present in New South Wales, and
(c)  the corresponding officer requested the Secretary to accept, and the Secretary by an instrument in writing forwarded to that officer, agreed to accept, parental responsibility for the child before the parental responsibility renunciation instrument was executed.
(9)  The Secretary has parental responsibility for purposes other than section 52.
(10)  Subsections (1) and (5) do not apply to a child who is under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.
(11)  In this section:
corresponding law means a law of another State that corresponds to this section.
corresponding officer means an officer of another State whose functions correspond to those of the Secretary under this Act.
parental responsibility renunciation instrument means an instrument in writing executed by a corresponding officer renouncing the officer’s parental responsibility for a child under a corresponding law and on execution of which the officer ceases, under that law, to have parental responsibility for the child.
76   Renunciation of parental responsibility for child present in another State
(1)  The Secretary may execute a parental responsibility renunciation instrument in relation to a child the Secretary has parental responsibility for under section 75 if:
(a)  consent to the adoption of the child cannot be lawfully revoked by the person or persons by whom it was given, and
(b)  the Secretary is satisfied that the child is present in another State, and
(c)  the Secretary has requested a corresponding officer to accept, and that officer has, by an instrument in writing forwarded to the Secretary, agreed to accept, parental responsibility for the child, and
(d)  under a corresponding law, that officer will, on execution by the Secretary of a parental responsibility renunciation instrument, have parental responsibility for the child.
(2)  The Secretary ceases to have parental responsibility for the child on execution of the parental responsibility renunciation instrument.
(3)  As soon as practicable after executing the parental responsibility renunciation instrument, the Secretary must forward the instrument to that officer.
(4)  In this section:
corresponding law means a law of another State that corresponds to this section.
corresponding officer means an officer of another State whose functions correspond to those of the Secretary under this Act.
parental responsibility renunciation instrument means an instrument in writing executed by the Secretary renouncing the Secretary’s parental responsibility for a child.
77   Parental responsibility for certain non-citizen children awaiting adoption
(1)  This section applies to a non-citizen child who is subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth on entry to Australia and in relation to whom an adoption order has not been made under any law.
(2)  The Secretary has parental responsibility for a child to whom this section applies and section 75 is, to the extent necessary, to apply to that child as if he or she were born in a State of the Commonwealth for so long as New South Wales is the normal place of residence of the child.
Note.
 The Minister for Immigration of the Commonwealth is the guardian of a child arriving in Australia and who is subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth until an adoption order is made. The functions of parental responsibility are presently delegated to the Secretary under section 5 of that Act.
78   Parental responsibility reports—citizen and non-citizen children
(cf AC Act s 34 (3) and (4))
(1)  The Secretary must make a report to the Court concerning any child of whom the Secretary has parental responsibility under this Part if the Secretary has not, within a period of one year after taking over parental responsibility, ceased to have parental responsibility.
(2)  The Court may make any order concerning the parental responsibility for the child that it thinks fit.
(3)  Without limitation, an order under subsection (2) may, if the child is less than 18 years of age:
(a)  declare the child to be under the parental responsibility of the Minister under the Children and Young Persons (Care and Protection) Act 1998, or
(b)  order that the Secretary continue to have parental responsibility for the child for a further period of one year.
79   Duration of parental responsibility
(1)  The Secretary continues to have parental responsibility for a child under section 75 or 78 until:
(a)  an adoption order is made in relation to the child, or
(b)  if consent has been given, the instrument of consent is lawfully revoked, or
(c)  the Court, by order, makes other provision for parental responsibility for the child, or
(d)    (Repealed)
(e)  the Secretary declines to have parental responsibility for the child, or
Note.
 See section 75 (5).
(f)  the Secretary renounces parental responsibility for the child, or
Note.
 See section 76.
(g)  the child is declared to be, or is placed, under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.
(2)  The Secretary may, on such terms and conditions as the Secretary thinks fit, place any child for whom the Secretary has parental responsibility under section 75 or 78 in the care responsibility of any suitable person who has agreed to have the child in his or her care.
(2A)  The Secretary’s parental responsibility for a child under section 75 or 78 is suspended while the child is placed in some other person’s care responsibility pursuant to subsection (2).
(2B)  The Secretary may at any time, and for any reason or no reason, make an order terminating a child’s placement under subsection (2) and directing that the child be returned to the parental responsibility of the Secretary.
(3)  The fact that the Secretary has parental responsibility for a child under this section does not affect the liability of any person to provide adequate means of support for the child.
(4)  The loss of parental responsibility for a non-citizen child under this section does not affect any duty imposed on the Secretary by any law with respect to the on-going supervision, and reports concerning, the child to be made to the appropriate authority in a Convention country or other place outside Australia, after the adoption of the child.
79A   Children under the parental responsibility of Secretary leaving or being removed from care
If:
(a)  a child who is under the parental responsibility of the Secretary, or under the care responsibility of a person under section 79 (2), has, without lawful excuse, left, or been removed from, the care of the Secretary or person, as the case may be, and
(b)  the Secretary is of the opinion that the child should be returned to that care,
the Secretary may, by order in writing, direct that the child be returned to that care.
79B   Power of search for and removal of children in need of care and protection
(1)  The Secretary or a police officer may apply to an authorised officer for a search warrant if the Secretary or police officer has reasonable grounds for believing that:
(a)  a child whom the Secretary has placed in some other person’s care responsibility pursuant to section 79 (2), or
(b)  a child the subject of an order in force under section 79 (2B) or 79A,
may be found in any premises.
(2)  An authorised officer to whom such an application is made may issue a search warrant if satisfied that there are reasonable grounds for doing so.
(3)  A search warrant authorises the person named in the warrant:
(a)  to enter the premises (if any) specified in the warrant, and
(b)  to search the premises (if any) or elsewhere, or at large, for the presence of the child referred to in subsection (1) (a) or (b), and
(c)  to remove the child, and
(d)  to return the child to, or to place the child in, the custody of the Secretary or the person having care responsibility for the child under section 79 (2), as the case requires.
(4)  An application for a warrant or warrant may specify one or more addresses or other descriptions of premises. However, it is not necessary to specify an address or other description of premises in an application for a warrant or in a warrant.
(5)  It is not necessary in any search warrant issued under this section to name any particular child.
(6)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(7)  In this section, authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.
Part 7 Preliminary hearings
Note.
 This Part enables a preliminary hearing to be held before a full adoption hearing. At such a hearing the Court may examine certain prescribed matters. Matters that might be prescribed are for example, that a child may have indicated he or she does not want to be placed with the proposed family or that continued access of relatives significant to an older child has not been provided for.
80   Preliminary hearings
(1)  The Court may hold a preliminary hearing in relation to any matter concerning or arising out of an application to adopt a child that is prescribed by the regulations.
(2)  The Court must hold a preliminary hearing before the placement for adoption of:
(a)  an Aboriginal child with a prospective adoptive parent other than an Aboriginal, or
(b)  a Torres Strait Islander child with a prospective adoptive parent other than a Torres Strait Islander.
(3)  The Court may hold a preliminary hearing on its own motion or on application of a person of a class prescribed by the regulations.
(4)  The Court may give such directions and make any order it thinks fit at a preliminary hearing.
(5)  Without limiting subsection (4), the Court may make an order as to parental responsibility for the child (including an interim order) and any order that it may make at an adoption hearing.
81   When may preliminary hearings be held?
A preliminary hearing may be held at any time before the making of an adoption order.
82   Notice to be given
Unless the Court dispenses with notice, notice of the preliminary hearing is to be given to the child, the prospective adoptive parent or parents and any other person to whom the Court directs the notice be given.
83   Rules of court
Rules of court may be made for and with respect to preliminary hearings.
Part 8 Interim orders
84   Making of interim orders
(cf AC Act s 41)
(1)  The Court may postpone the determination of any application to the Court for an order for the adoption of a child and make an interim order for parental responsibility for the child in favour of the prospective adoptive parent or parents.
(2)  On application to the Court by the Secretary or a principal officer, the Court may make an interim order for parental responsibility for the child in favour of the Secretary or principal officer.
(3)  An interim order is subject to such terms and conditions as the Court thinks fit.
(4)  The Court must not make an interim order in relation to a child in favour of any person unless the Court could lawfully make an order for the adoption of that child by that person.
(5)  While an interim order remains in force in relation to a child, the person or persons in whose favour the order is made have parental responsibility for the child.
85   Duration of interim orders
(cf AC Act s 42)
(1)  Subject to this Part, an interim order remains in force for such period, not exceeding one year, as the Court specifies in the order and for such further periods, if any, as the Court may from time to time order.
(2)  An interim order must not be in force for periods exceeding in total 2 years.
86   Discharge of interim orders
(cf AC Act s 43)
(1)  The Court may, at any time, make an order discharging an interim order made under this Part.
(2)  If the Court discharges an interim order the Court may make any order concerning parental responsibility for the child that it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.
(3)  An interim order in relation to a child ceases to have effect on the making of an order for the adoption of that child, whether made in New South Wales or in another State or in a country outside Australia.
Part 9 Adoption orders
Note.
 The power to make adoption orders is conferred by section 23.
87   Application to be consented to by Secretary
(cf AC Act s 18 (2) and (3))
(1)  The Court may make an adoption order only on application made by:
(a)  the prospective adoptive parent or parents with the consent of the Secretary, or
(b)  the Secretary or by a principal officer on behalf of the prospective adoptive parent or parents, or
(c)    (Repealed)
(d)  a child who is 18 or more years of age for his or her adoption.
(2)  Despite subsection (1) (a), the consent of the Secretary to an application for an adoption order is not required:
(a)  if the applicant is a step parent or relative of the child, or
(b)  if the application relates to an intercountry adoption.
88   Notice of application for adoption orders
(cf AC Act s 22)
(1)  The Court may not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars, if any, prescribed by the regulations) has been given:
(a)  to any person whose consent to the adoption of the child concerned is required under this Act and has not been given (or the requirement for which has been dispensed with by the Court), and
(b)  to any person (not being a person whose consent is so required) with whom the child resides or who has parental responsibility for the child.
(2)  Except as the Court may otherwise determine, nothing in subsection (1) requires a notice referred to in that subsection to be given to a person referred to in subsection (1) (b) if that person is:
(a)  an applicant for the adoption order, or
(b)  a person with whom the child resides only as a patient or inmate of a hospital of which that person is in charge or a person who has parental responsibility for a child only as the person in charge of a hospital.
(3)  The notice must not specify the name of, or identify, any applicant.
(4)  The Court may dispense with the giving of the notice.
(5)  If it appears to the Court to be necessary in the interests of justice so to do, the Court may direct that notice of an application for an adoption order be given to any specified person.
89   When can order be made?
The Court must not make an adoption order until:
(a)  the revocation period for each consent given by an adult to the adoption has expired, and
(b)  if the child to be adopted has consented to the adoption—a period of 30 days, beginning on the day on which the instrument of consent to the adoption was signed, has expired.
Note.
 Revocation period is defined in the Dictionary.
90   Court to be satisfied as to certain matters
(cf AC Act s 21)
(1)  The Court must not make an adoption order in relation to a child unless the Court is satisfied:
(a)  that the best interests of the child will be promoted by the adoption, and
(b)  that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and
Note.
 Sections 127–129 contain provisions about ascertainment of the wishes of a child by the Court.
(c)  if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and
Note.
 See Part 3 of this Chapter.
(d)  that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and
(e)  if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and
(f)  if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and
(g)  if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and
Note.
 See for example, section 31.
(h)  in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.
(2)  The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.
(3)  The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.
Note.
 Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt.
91   Report required before order made for adoption of child
(1)  The Court may not make an order for the adoption of a child under 18 years of age unless a report in writing concerning the proposed adoption has been provided to the Court by the applicant.
(2)  The report is to be accepted by the Court only if it has been prepared by the Secretary or an authorised person.
(2A)  In this section, an authorised person means any of the following:
(a)  an approved assessor,
(b)  the principal officer of an accredited adoption service provider (or delegate),
(c)  the principal officer of a designated agency (or delegate),
(d)  a suitably qualified person employed or nominated by an approved organisation to prepare reports in accordance with this section.
(3)  This section does not prevent the Secretary from making a report to the Court in relation to the adoption of a child before the Court if the Secretary considers it appropriate to do so.
(4)  The Court may require the Secretary to make a report in relation to an application for an adoption order made by a person other than the Secretary, but only if the child is under 18 years of age.
(5)  However, the Court is not to require the Secretary to make a report unless the Court considers that the Secretary should report on the case because of:
(a)  particular concerns about the safety, welfare or well-being of the child concerned, or
(b)  serious concerns about the reliability or independence of a report made by an authorised person concerning the case, or
(c)  other exceptional circumstances.
(6)  The Court may require the Secretary to make such a report within a period of 6 months after the date of the making of the application or such other period as the Court may, having regard to the circumstances of the case, specify.
(6A)  A principal officer of an accredited adoption service provider may delegate his or her function under subsection (2) to one or more employees of the accredited adoption service provider or of an affiliated foster care service, whom the principal officer considers to be appropriately qualified to exercise the function.
(6B)  A principal officer of a designated agency may delegate his or her function under subsection (2) to one or more employees of the agency, whom the principal officer considers to be appropriately qualified to exercise the function.
(7)  In this section:
approved assessor means a person, or a person of a class, approved by the Secretary from time to time, by order in writing, to provide a report to the Court for the purposes of this section.
approved organisation means an organisation approved by the Secretary from time to time, by order in writing, to provide a report to the Court for the purposes of this section.
designated agency has the same meaning as in section 139 of the Children and Young Persons (Care and Protection) Act 1998.
Part 10 Procedures after application dealt with
92   Care of child after refusal of an application
(cf AC Act s 24)
If the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.
93   Discharge of adoption orders
(cf AC Act s 25)
(1)  In this section:
concerned person means the Attorney General, or any party to an adoption.
(2)  A concerned person may apply to the Court for an order discharging an adoption order (a discharge order).
(3)  The Court is to give each concerned person (other than the applicant for the discharge order) notice of the application.
(4)  The Court may make a discharge order if it is satisfied that:
(a)  the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or
(b)  there is some other exceptional reason why the adoption order should be discharged.
(5)  The Court must not make a discharge order if it appears to the Court that:
(a)  the making of the order would be prejudicial to the best interests of the child, or
(b)  if the application for the order is made by the child—the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child’s access to information or contact with a person under Chapter 8 (Adoption information).
(6)  If the Court makes a discharge order respecting a general consent, that consent remains effective for the purpose of a further application for an adoption order in relation to the same child, unless the Court orders otherwise.
(7)  If the Court makes a discharge order, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the best interests of the child, including orders relating to the following:
(a)  the name of the child,
(b)  the ownership of property,
(c)  the parental responsibility for the child,
(d)  the domicile of the child.
(8)  On the making of a discharge order, but subject to any order made under subsection (6) and to section 95 (4), the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made, but without prejudice to:
(a)  anything lawfully done, or
(b)  the consequences of anything unlawfully done, or
(c)  any proprietary right or interest that became vested in any person,
while the adoption order was in force.
94   Investigation of application for discharge
The Court may require the Secretary to investigate the circumstances of any application for a discharge order and report to it.
Part 11 Effect of adoption orders
Note.
 This Part describes the effect of the adoption order. It recognises the change in the legal status of the child and his or her transfer from one family to another but also recognises the benefit of maintaining a relationship with birth parents.
95   General effect of adoption orders
(cf AC Act s 35 (1) and (4))
(1)  An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order (the adoptive parent or adoptive parents).
(2)  For the purposes of the law of New South Wales, if an adoption order is made:
(a)  the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,
(b)  the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,
(c)  the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child,
(d)  the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.
Note.
 For example, for the purposes of a distribution on intestacy, an adopted child is regarded as a child of the adoptive parent or parents and the child’s family relationships are determined accordingly. See section 109 of the Succession Act 2006.
(3)  Despite subsection (1), an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent, and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living.
(4)  For the purposes of any law of New South Wales relating to a sexual offence (being a law for which the relationship between persons is relevant), any relationship that would have existed if an adoption order or discharge order had not been made continues to exist for the purposes of that law in addition to any relationship that exists under this section by virtue of the order.
96   Effect of adoption order on parental responsibility and previous adoption
(cf AC Act s 35 (1) (d) and (e))
(1)  On the making of an adoption order:
(a)  the existing parental responsibility for the adopted child (including the Minister’s parental responsibility under the Children and Young Persons (Care and Protection) Act 1998) ceases to have effect, and
(b)  any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.
(2)  This section does not apply in relation to an agreement or instrument (not being a disposition of property) made or executed before 7 February 1967.
Note.
 7 February 1967 was the date of commencement of the Adoption of Children Act 1965.
97   Effect of orders as regards property
(cf AC Act ss 35 (2) and (3) and 36)
(1)  Section 95 does not have effect so as to deprive an adopted child of any vested or contingent property right acquired by the child before the making of the adoption order.
(2)    (Repealed)
98   Effect of orders as regards dispositions of property etc
(cf AC Act s 36)
(1)  Subject to section 97 (1), section 95 has effect in relation to a disposition of property, whether by will or otherwise, and whether made before or after the commencement of this section, and to a devolution of property in relation to which a person dies intestate after 7 February 1967. However, those provisions do not affect a disposition of property:
(a)  by a person who, or by persons any of whom, died before 7 February 1967, and
(b)  that has taken effect in possession before that date.
(2)  If:
(a)  before 7 February 1967, a person made, by an instrument other than a will, a disposition of property (a disposition instrument), and
(b)  the disposition had not taken effect in possession before that date, and
(c)  it did not appear from the disposition instrument that it was the intention of that person to include adopted children as objects of the disposition,
that person may, even though the disposition instrument could not, apart from this subsection, be revoked or varied, by another instrument other than a will, vary the disposition instrument to exclude adopted children (whether adopted under this Act or otherwise) from participation in any right, benefit or privilege under the disposition instrument.
(3)  In relation to a disposition of property by a person who, or by persons any of whom, died before 7 February 1967, and in relation to a devolution of property in relation to which a person died intestate before that date, an adoption order made under this Act has the same effect as if the former Acts had continued in force and the adoption order had been made under those Acts.
Note.
 Former Act is defined in the Dictionary.
(4)  Nothing in section 95 or in this section affects the operation of any provision in a will or other instrument (whether made or coming into operation before or after the commencement of this section) distinguishing between adopted children and children other than adopted children.
99   Relationship of adopted child to other children of the adopter
(cf AC Act s 37)
(1)  This section has effect for the purposes of:
(a)  the application of the Succession Act 2006 to the devolution of any property in relation to which a person dies intestate, and
(b)  the construction of any disposition of any property.
(2)  An adopted child is taken to be related to another person, being the child or adopted child of his or her adoptive parent or parents:
(a)  if he or she was adopted by 2 persons who are the spouses of each other jointly, and that other person is the child or adopted child of both of them, as brother or sister of the whole blood, and
(b)  in any other case, as brother or sister of the half blood.
Note.
 Spouse is defined in the Dictionary. For the purposes of a devolution of property on intestacy, if a child is adopted by a couple, the adopted child is treated as a whole blood sibling of any other child (whether or not adopted) of the couple.
100   Liability of trustees and personal representatives in relation to adopted persons
(cf AC Act s 40)
(1)  If, before conveying, transferring or distributing any property among the persons appearing to be entitled to the property, a trustee or personal representative gives a claims notice and the time fixed by the notice has expired, the trustee or personal representative is not liable to any person:
(a)  who claims directly or indirectly an interest in the property by virtue of an adoption, and
(b)  of whose claim the trustee or personal representative does not have notice at the time of the conveyance, transfer or distribution.
(2)  Nothing in this section prejudices the right of a person to follow property into the hands of a person, other than a bona fide purchaser for value, who has received it.
(3)  In this section:
claims notice means notice referred to in section 60 of the Trustee Act 1925 or section 92 of the Probate and Administration Act 1898.
101   Names of adopted children
(cf AC Act s 38)
(1)  On the making of an adoption order:
(a)  an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and
(b)  an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.
(2)  Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.
(3)  If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.
(4)  An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change.
(5)  The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless the Court is satisfied that the name change is in the best interests of the child.
Note.
 Section 8 sets out the principles that are to be applied by persons making decisions about the adoption of a child, and includes the principle that a child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.
(6)  Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales.