3.1 Except in special circumstances, adoptive parents must have been living in a marriage relationship (which includes de-facto) for 5 years. (Sn 12)

3.2 In some circumstances an adoption order may be made in favour of one person. (Sn 12(3))

4 Consent

4.1 Consent must be given by each parent or guardian of the child.

4.2 Generally speaking a mother cannot consent to her child being adopted before the child is 14 days old. In some circumstances (Sn 15(3)) consent may be given after 5 days.

4.3 The consent must be in proper form and appropriately witnessed (Sn 15(5)) and may in certain circumstances be revoked. (Sn 15(6))

4.4 Consent of the father is not required if paternity is not acknowledged. If the Court is satisfied that a person may be able to establish paternity he should be allowed a reasonable opportunity to establish it. (Sn 15(7))

4.5 The child must consent when of the age of 12 years. (Sn 16)

4.6 Consent may be dispensed with in certain circumstances. (Sn 18)

4.7 The Court may make orders dispensing with consent or recognising the validity of consent before an adoption application if filed. (Sn 19)

4.8 Many adoptions involve only one party adopting the children into a new relationship. The Family Court require the consent of the relinquishing parent as well as leave of that Court before an adoption can proceed.

5 Recognition of Adoption Orders under Australian Law and under foreign law (Sections 20 and 21)

Australia is a signatory to the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption.

The Court must, before making an adoption order, consider a report from the Chief Executive as to the circumstances of the child and the suitability of the parents. (Sn 22)

7 Name of Child

6.1 The Court must take into account any wishes expressed by the child in relation to any change of name and when the child is over 12 the child must consent to any such change. (Sn 23) The child should be consulted on this issue during the hearing.

6.2 Any change in the name of a child to be adopted in the circumstance mentioned in para 4.8 may be contentious. Every endeavour should be made to ensue that the parent whose rights are being extinguished consents.

8 Proceedings

7.1 The hearing of the application and records of the proceedings are private. The hearing must not be in open Court. (Sn 24)

7.2 The proceedings should be kept as informal as reasonably practicable.

7.3 Whilst the evidence of the applicants must be recorded, it need not be signed by them.

7.4 The suggested form of the evidence is set out hereunder in forms 1 and 2. These forms are only intended to indicate the areas that should be covered and may be adjusted to fit the circumstances of each case.

7.5 The informality of adoption proceedings is very important to the applicants who often come with a large number of relatives and friends and are anxious after waiting a number of years for the final aspects of the adoption. The parties to the application may be invited to approach the bench, or a member of the bench approach the parties, to receive the order. All members of the family should be encouraged to be a party to the procedure, which is usually followed by family photographs.

9 Regulations

The Principal Regulations were published in the Government Gazette 17/8/89.  Amended Regulations were published in the Government Gazette 11/9/97 and came into effect on 5/10/97.

10 Adoption of children from overseas

10.1 Section 5 of the Immigration (Guardianship of Children) Act 1946 (Cwth) provides that the guardianship of a child who enters Australia otherwise than in the care of a parent or close relative, is vested in the Minister for Immigration or his delegate.

10.2 The Minister has the authority, and has exercised the authority, to delegate his function in respect of such children in South Australia, to the Chief Executive of the Department of Human Services.

10.3 As the obtaining of parental consent, or proof of the matters necessary to authorise dispensing with consent are virtually impossible in most overseas adoptions, sections 17(2) and 18 of the Adoption Act provide procedures replacing the normal requirement of parental consent.

In such cases:-

9.3.1 the application must be supported by the Director-General;

9.3.2 the child must have been in the care of the applicant or applicants for at least 12 months

11 Documents required 

11.1 Form 1.

11.2 Form 2.

11.3 Form 3 (Application to dispense with*/recognise the validity of* the consent of a person to the Adoption of a child - overseas adoption)

11.4 Form 6 (Application to dispense with the giving of notice - overseas apotion)

11.5 Affidavit of Manager, Adoption & Family Information Service.

11.6 Child's Birth Certificate.

11.7 Child's history.

11.8 Memorandum of Agreement (Usually between the appropriate Government Department of the child's country of origin - eg Department of Public Welfare of Thailand - and the prospective adoptive parents.)

11.9 Consent to adoption - Chief Executive's Delegate (overseas adoption)

11.10 Instrument of Delegation (overseas adoption)

11.11 Request to Chief Executive for an Adoption Order.

11.12 Certificate of Exemption from the Immigration (Guardianship of Children) Act (overseas adoption)

11.13 Medical report on child.

11.14 Report to Court pursuant to Section 22 of the Adoption Act 

11.15 Statement of expenses (overseas adoption)

11.16 Certificate of Applicants Australian Citizenship (if appropriate).

11.17 Copy of Marriage Certificate of Applicants.

11.18 Home visit report (Schedule D)

11.19 Home study report.

12 Evidence

The form of evidence set out below was approved by the then Senior Judge Simpson and is asked of both adoptive parents.  The practice is not to have this signed by the witness.

13 Registration

The general principle is that the Registrar of Birth Deaths and Marriages must, upon receipt of a notice of adoption, cancel any previous entry. (Section 41(1))  There is power for the court to order that the previous entry not be removed, but rather that the adoption information be added.  (Section 41(2))

ON AN APPLICATION TO ADOPT A CHILD OR CHILDREN

(Oath/Affirmation)

1. Would you please look at the statement submitted with this Application:

(a) Are you an applicant referred to in the statement?

(b) Are the contents of the statement to your knowledge true and correct in every particular?

2. Have you received a copy of a report prepared on behalf of the Chief Executive of the Department of Family and Youth Services and submitted to this court?

3. Do you agree with the contents of that report?

4. Are you prepared to provide to the child/children the standard of care necessary to safeguard and promote his/her/their physical, intellectual and emotional welfare?

14. If an adoption order is made, what is the name by which the child/children is/are to be known?