Intrafamily Step-Parent and Relative Adoption in New South Wales

Intrafamily Adoption is where a child is adopted by a step-parent or close relative. In the year 2020 to 2021, 69% of all adoptions finalised in Australia were comprised of known child adoptions which include intrafamily adoption and adoption by carers such as foster parents.

In New South Wales, the adoption process is largely prescribed by The Adoption Act 2000 (NSW), Adoption Regulation 2015 (NSW) and Family Law Act 1975 (Cth) which outline the requirements of adoption as shown below.

Who can be adopted?

In New South Wales, the following persons can be adopted by a step-parent or relative:

1. A child less than 18 years of age;

2. A person 18-years or older on the date the application is made (that person being cared for, or was cared for prior to turning 18, by the step-parent or relative making the application);

3. In the case of a step-parent adoption:
   • The child must be a child of a relationship of two years or more; and
   • That child must have lived with the applicant for a continuous period of not less than two years immediately before the application is made.

4. In the case of a relative adoption, the child must have had a stable and ongoing relationship with that relative for at least two years before the application is made;

5. A child under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998 (NSW).

Who can adopt?

In addition to the above requirements, the applicant must also be a resident or domiciled in NSW (and has been so for a period of three months or more) and the applicant must be present in NSW at the time of the application.

Obtaining a report

The process of adoption will require the applicant to make arrangements to obtain a report which will also be filed in Court with the application. A principal officer’s report or social worker’s report must be prepared by an approved person. Persons capable of preparing a report include an approved assessor, the principal officer of an accredited adoption service provider or the principal officer of a designated agency.  More information is available on the Department of Communities and Justice website.

The report must provide an evaluation in relation to the circumstances of the prospective parents and child, the suitability of the parents to become adoptive parents and the reasons for the proposed adoption and the benefits and disadvantages of the adoption. The report will also need to include a criminal record check of the applicant.

Obtaining consent

When filing an adoption application with the Court, consent is ordinarily required from the biological parents or any person with parental responsibility.  Consent must be in the prescribed form and can only be provided 14 days after that person has been served with the application and mandatory written information on intrafamily adoption.  In addition, the person granting consent should have obtained counselling before granting consent, and their consent needs to be witnessed by a person prescribed by the regulation.

In cases where the child being adopted is over the age of 12, that child can also give consent. When obtaining consent of a child, the child must attend upon a registered counsellor and will have the opportunity to express their views regarding the adoption.

In limited circumstances, an order may be sought for consent to be waived.  In such circumstances, applicants would need to be able to satisfy the Court that after reasonable enquiry, the person that must provide consent could not be found.

Adoption plan

The parties (being the applicants and persons who are required to provide consent) will need to prepare and execute an agreed adoption plan, to be filed with the Court. The plan has the same effect as the making of an adoption order and replaces any previous orders made by the Federal Circuit and Family Court of Australia.

The adoption plan has to be in writing and must be signed by all the parties.

Affidavit by referee

The applicant must obtain and file two affidavits of referees that are not related to the applicant.

The referees will confirm that they are not related to the applicant and are required to provide details in respect of the referees’ relationship with the applicant including how long the referees have known the applicant. The referees will also have to provide their opinion as to the character and reputation of the applicant.

Affidavit of the applicant

As well as the affidavits by the referees, the applicant also needs to complete an affidavit to be filed with the summons in Court and the abovementioned documents.  This affidavit provides the Court with information in respect of the applicant’s circumstances, such as:

4. 4. 1. Details and history of the relationship of the parties;
      2. Details relating to the child and why it would be in the child’s best interest to be adopted by the applicant;
      3. Details of the living arrangements of the parties;
      4. Confirmation that the Court has jurisdiction to hear the matter;
      5. Details of any proposals in relation to any other persons that will care for the child;
      6. Any relevant information in relation to consent or the adoption plan;
      7. Details of the parties assets, source of income, liabilities and other commitments the applicant has and any other relevant information with respect to the applicant’s financial circumstances; and
      8. Details of any proceedings in the Federal Circuit and Family Court of Australia.

Adoption order

Once an application for intrafamily adoption is made, if the Court is of the view that adoption is in the best interests of the child over any other action that could be taken by law, then the Court will make the adoption order. Once an adoption order is made, parental responsibility and all the legal rights and obligations regarded by law are allocated to the adoptive parents.

Once an order is made, the Supreme Court will notify the registry of Births, Deaths and Marriages and a new birth certificate will be issued naming the adoptive parents as the parent.

Benefits of adoption

Adoption is beneficial because it gives the child a permanent home, family, sense of security and identity.  In addition, once a child is adopted, that child will also have the right to share in the adoptive parent’s estate and will enjoy all the rights and entitlements that a birth parent can confer on his or her biological children.

About the Author:

Sara Arnold is an Associate at Doolan Wagner Family Lawyers.  Sara holds a Master of Applied Law (Family Law), a Bachelor of Laws and a Bachelor of Business Management.

Connect with Sara on LinkedIn

Disclaimer:

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us on 02 9437 0010.