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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 21 September 2017 at 00:27)
Chapter 4 Part 5
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).