Why is Adoption so hard in Australia? – Adoption Lawyers Australia

Sarah Bevan Family Lawyers have extensive experience in a wide range of family law matters including advising and assisting prospective parents through the process of adopting a child. Adopting a child is generally a long and complex process and requires an expert with experience in the legal process to ensure an adoption matter can progress as smoothly as possible.

Adopting a child is a complex legal process where the rights and responsibilities for the child are transferred from the child’s birth parents (or the Minister for Family and Community Services) to the adoptive parents. The Adoption Act 2000 and Adoption Regulations 2003 are the main pieces of legislation which regulate adoption in New South Wales. There is a strict process which must be followed for an adoption to have legal effect and the Supreme Court will not make an adoption order unless the court is satisfied an order should be made.

Adoption and the Law

Section 7 of the Adoption Act contains the objects of the Act which include:

• To emphasise that the best interests of the child must be the paramount consideration in adoption law and practice
• To make it clear that adoption is regarded as a service for the child concerned (rather than the prospective parents)
• To ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage

In making an adoption application, certain factors concerning the prospective parents will be considered, including:

• any criminal conviction
• age
• citizenship
• any children already in the family
• mental and physical health

The law requires that the prospective parents must:

• reside in New South Wales
• be fit and proper persons to care for a child and must have the ability to fulfil the responsibilities that come with parenting; and
• the prospective parents must be over the age of 21 and at least 18 years older than the child to be adopted

Adoption Process

To commence the adoption process, the prospective parents must contact Community Services to obtain an Expression of Interest. This must be completed and returned to Community Services. Once this has been received by Community Services, the prospective parents must attend a preparation seminar. A preparation seminar can be attended by invitation only.

When all necessary documents have been lodged with Community Services and the prospective parents have completed the preparation seminar and assessment process, the Adoption and Permanent Care Services (part of Family & Community Services) will make a determination as to whether the prospective parents are suitable to adopt a child. If the parents are deemed as suitable, the prospective parents will be placed among a ‘pool’ of other parents also waiting to adopt.

Where applicable, the birth parents (along with Community Services) will participate in assessing the suitability of the prospective parents for adopting their child. Every child and parent is assessed on a case by case basis, as opposed to first in time.

In assessing the prospective parents for suitability to adopt, factors that may be considered include:

• ability to care for the child and undertake parenting tasks
• capacity to provide emotional and physical care of the child
• financial circumstances
• capacity to encourage and facilitate the child retaining their heritage and cultural identity
• capacity to encourage and facilitate the child maintaining contact with their birth parents and other significant persons

This assessment process takes place during interviews with the prospective parents.

In NSW adoption orders are made by the Supreme Court. To commence legal proceedings, a formal application (summons) for adoption must be filed with the Supreme Court together with:

• details of persons willing to be a referee
• a statement of health of the prospective parents
• an affidavit of the prospective parents

There are several documents which must be lodged with the Supreme Court including:

• Form 3 – Summons for adoption
• Forms of consent (if necessary)
• Affidavit of applicants
• Form 62 – Affidavit of referees and
• Affidavit by Community Services

It is advisable to file these and pay the filing fee all at the same time.

The Court will make a decision which can occur after several Court attendances. The Court will determine whether the prospective parents are suitable and whether the adoption would be in the best interests of the child after taking into consideration all information provided. As such, the prospective parent’s affidavit should contain all matters relevant to the adoption.

The Court will not make an adoption order unless the court is satisfied 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
• All appropriate consents have been provided and
• That the prospective parents are approved persons.

Our expert lawyers can assist you from the very beginning to the end of the adoption process and ensure the matter progresses as efficiently as possible.

For more information and to speak with an expert in family law, contact Sarah Bevan Family Lawyers on 02 8218 2116 or 1300 007 235. We have offices located in Parramatta, in Crows Nest and Surry Hills.