Contents (2000 - 75)
Adoption Act 2000 No 75
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, andthat 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.(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,(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:
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.