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Contents (2000 - 75)
Adoption Act 2000 No 75
Current version for 27 June 2017 to date (accessed 20 November 2017 at 22:26)
Chapter 5 Part 2
Part 2 Intercountry and overseas adoptions
Division 1 General
103   Object of Part
The object of Divisions 1–3 is to provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth law.
Note.
 For the effect of doing this, see regulation 34 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 and regulation 8 of the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 1998, of the Commonwealth.
104   Meaning of child
In this Part:
child means a person who is less than 18 years of age.
105   Application of Act
Except as provided by this Act, the adoption of a person (whether before or after the commencement of this section) in a country outside Australia does not have effect for the purposes of the law of the State.
Division 2 Hague Convention on Intercountry Adoption
106   Adoption in NSW of child from NSW by parents from Convention country
(1)  The Court may, on application by the Secretary, make an order for the adoption of a child who is habitually resident in New South Wales by a prospective adoptive parent or parents who are habitually resident in a Convention country.
(2)  The Court may make the order only if satisfied that:
(a)  the Central Authority of the Convention country has agreed to the adoption of the child, and
(b)  the Secretary or principal officer has considered the possibility of placing the child for adoption within Australia and any other action that could be taken by law to care for the child, and
(c)  the adoption is in the best interests of the child.
(3)  The Court must not make the order if the child is not allowed to leave Australia:
(a)  under a law of the Commonwealth or a State, or
(b)  because of an order of a court of the Commonwealth or a State.
(4)  The best interests of the child are to be determined in accordance with the adoption principles.
107   Adoption in NSW of child from Convention country by parents from NSW
(1)  The Court may, on application by the Secretary or the principal officer of an accredited adoption service provider that may provide intercountry adoption services, make an order for the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who are habitually resident in the State.
Note.
 Part 3 of Chapter 4 provides for assessment of the suitability, and selection, of persons to adopt by the Secretary or principal officer.
(2)  The Court may make the order only if satisfied that:
(a)  the Central Authority of the Convention country has agreed to the adoption of the child, and
(b)  the child is allowed to reside permanently in Australia.
(3)  The Court must not make the order if the child is not in Australia.
(4)  For the purposes of subsection (2) (b), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth or the State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child so residing.
Note.
 If a child enters Australia before the order is made, the child may be subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth. See section 77 of this Act.
108   Recognition of adoption of a child from a Convention country in that country
(1)  This section applies if:
(a)  an adoption (whether before or after the commencement of this section) by a person who is habitually resident in the State, of a child who is habitually resident in a Convention country, is granted in that country, and
(b)  an adoption compliance certificate issued (whether before or after the commencement of this section) in the Convention country in which the adoption is granted is in force for the adoption.
(2)  Subject to section 110, the adoption is recognised and effective, for the law of the State, on and from the day the certificate becomes effective.
109   Effect of recognition
For the purposes of the law of the State, an adoption of a child that is recognised and effective under section 108:
(a)  is to be treated as having the same effect as an adoption order made under this Act, and
Note.
 See Part 11 of Chapter 4, especially section 95 (General effect of adoption orders) and cf Articles 26 and 27 of the Convention.
(b)  if the law of the Convention country where the adoption was granted provide that the adoption of the child terminates the legal relationship between the child and the individuals who were immediately before the adoption, the child’s parents—the relationship is terminated.
110   Refusal to recognise an adoption
(1)  The Secretary may apply to the Court for a declaration that an adoption or decision made in accordance with article 27 of the Convention is not recognised.
(2)  The Court may make such a declaration if the Court is satisfied that the adoption or decision is manifestly contrary to public policy, taking into account the best interests of the child concerned.
(3)  If the Court declares that it does not recognise the adoption or decision, the adoption or decision (as the case requires) has no effect for the law of the State.
111   Order terminating legal relationship between child and parents
(1)  This section applies if:
(a)  an adoption, by an adoptive parent who is habitually resident in the State, of a child who is habitually resident in a Convention country is granted in that country, and
(b)  the law of the Convention country does not provide that the adoption of the child terminates the legal relationship between the child and the individual or individuals who were, immediately before the adoption, the child’s parent or parents (the pre-adoption parents).
(2)  The Secretary may, on behalf of an adoptive parent, apply to the Court for an order that the adoption of the child terminates the legal relationship between the child and the pre-adoption parents.
Note.
 See articles 26 and 27 of the Convention.
(3)  The Secretary must give written notice of the application to the Central Authority of the Convention country concerned.
(4)  The Court may make the order only if satisfied that:
(a)  an adoption compliance certificate issued in the Convention country is in force for the adoption, and
(b)  the law of the Convention country does not provide that the adoption of the child terminates the legal relationship between the child and the pre-adoption parents, and
(c)  the child is allowed:
(i)  to enter Australia, and
(ii)  to reside permanently in Australia, and
(d)  notice has been given as required by subsection (3).
(5)  For the purposes of subsection (4) (c), a child is not allowed to enter, or reside permanently in Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so entering or residing.
112   Evidential value of adoption compliance certificate and Convention country adoption order
Subject to section 110, an adoption compliance certificate issued in a Convention country, or adoption order certified by the Central Authority of a Convention country as having been made in accordance with the law of that country, is evidence for the law of the State, that the adoption to which the certificate or order relates:
(a)  was agreed to by the Central Authorities of the countries mentioned in the certificate, and
(b)  was carried out in accordance with the Convention and the law of that country.
Note.
 Adoption compliance certificate is defined in the Dictionary.
Division 3 Bilateral arrangements
113   Adoption by NSW parent in prescribed overseas jurisdiction of a child from that overseas jurisdiction
(1)  This section applies if:
(a)  an adoption, by a person who is habitually resident in the State, of a child who is habitually resident in a prescribed overseas jurisdiction, is granted under the law of that overseas jurisdiction, and
(b)  an adoption compliance certificate issued by a competent authority of that overseas jurisdiction is in force in relation to the adoption.
(2)  The adoption is recognised and effective, for the law of the State, on and after the adoption takes effect in the overseas jurisdiction.
114   Effect of recognition
For the purposes of the law of the State, an adoption of a child that is recognised and effective under section 113 is to be treated as having the same effect as an adoption order made under this Act.
Note.
 See Part 11 of Chapter 4, especially section 95 (General effect of adoption orders) and regulation 6 of the Commonwealth Bilateral Arrangements Regulations.
115   Evidential value of adoption compliance certificate
An adoption compliance certificate issued in a prescribed overseas jurisdiction, or adoption order certified by the competent authority of such a country as having been made in accordance with the law of that country, is evidence, for the purposes of the law of the State, that the adoption to which the certificate or order relates was carried out under the law of the overseas jurisdiction whose competent authority issued the certificate or certified the order.
Note.
 Adoption compliance certificate is defined in the Dictionary.
Division 4 Recognition of other overseas adoptions
116   Recognition of foreign adoptions in countries other than Convention countries and prescribed overseas jurisdictions
(cf AC Act s 46)
(1)  This section applies to an order for the adoption of a person:
(a)  that was made (whether before or after the commencement of this section) in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction, and
(b)  if, at the time at which the legal steps that resulted in the adoption were commenced, the adoptive parent or parents:
(i)  had been resident in that country for 12 months or more, or
(ii)  were domiciled in that country.
(2)  An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if:
(a)  the adoption is in accordance with and has not been rescinded under the law of that country, and
(b)  in consequence of the adoption, the adoptive parent or parents, under the law of that country, have a right superior to that of the adopted person’s birth parents in relation to the custody of the adopted person, and
(c)  under the law of that country the adoptive parent or parents were, because of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.
(3)  Despite subsection (2), a court (including a court dealing with an application under section 117) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.
(4)  A court that refuses to recognise an adoption may, at the time of refusing or at a later time, give leave to the applicant to seek an order for the adoption of the child concerned.
Note.
 See section 31.
(5)  In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1).
(6)  Nothing in this section affects any right that was acquired by, or became vested in, a person before the commencement of this section.
117   Declarations of validity of foreign adoptions
(cf AC Act s 47)
(1)  Any of the parties to an adoption under an order made outside Australia may apply to the Court for a declaration that the order complies with section 116.
(2)  On an application under this section, the Court may:
(a)  direct that notice of the application be given to such persons (including the Attorney General) as the Court thinks fit, or
(b)  direct that a person be made a party to the application, or
(c)  permit a person having an interest in the matter to intervene in, and become a party to, the proceedings.
(3)  If the Court makes a declaration under this section, it may include in the declaration such particulars in relation to the adoption, the adopted child and the adoptive parent or parents as the Court finds to be established.
(4)  For the purposes of the law of New South Wales, a declaration under this section binds the Crown in right of New South Wales, whether or not notice was given to the Attorney General, and any person who was:
(a)  a party to the proceedings for the declaration or a person claiming through such a party, or
(b)  a person to whom notice of the application for the declaration was given or a person claiming through such a person,
but does not affect:
(c)  the rights of any other person, or
(d)  an earlier judgment, order or decree of a court or other body of competent jurisdiction.
(5)  In proceedings in a court of New South Wales, the production of a copy of a declaration under this section, certified by the nominated officer to be a true copy:
(a)  if the proceedings relate to a person referred to in paragraph (a) or (b) of subsection (4), is conclusive evidence, and
(b)  if the proceedings relate to the rights of any other person, is evidence,
that an adoption was effected in accordance with the particulars contained in the declaration and that it complies with section 116.