14 The role of the court in the adoption process

Introduction

  1. 14.1 Courts oversee the adoption process in Victoria.
  2. 14.2 The Supreme Court and the County Court have jurisdiction to hear and determine adoption proceedings.1 The vast majority of proceedings are heard in the County Court. Accordingly, in this chapter ‘the Court’ refers to the County Court except where otherwise stated.
  3. 14.3 The most common roles for the Court are:
  4. a) To grant an adoption order, the terms of which have usually been agreed to by the parties prior to coming to court.
  5. b) To make decisions that have not already been agreed on by the parties, for example to dispense with a natural parent’s consent.2
  6. 14.4 The Court has an important role in the adoption process, as it is independent from government and adoption agencies. However, the Court’s engagement in the adoption process is limited. Most decisions are made by the Secretary or principal officer many months before the filing of an application for adoption.
  7. 14.5 This chapter is divided into four parts:
  8. 1) Pre-adoption decisions.
  9. 2) Adoption hearing. This part is divided into two sections:
  10. i) Application for an adoption order.
  11. ii) Representation of the child.
  12. 3) Post-adoption decisions. This part is divided into two sections:
  13. i) Variation of conditions in an adoption order.
  14. ii) Discharge of an adoption order.
  15. 4) Jurisdiction of the Court.

Pre-adoption decisions

Current law and practice

  1. 14.6 The key decisions before an adoption order is made involve obtaining the consent of the natural parent (in some cases, dispensing with consent), and the placement of the child with a prospective adoptive family. The Court has a limited role in these decisions.
  2. 14.7 The role of the Court in the consent process is to ensure that consent has been given and the requirements under the Adoption Act 1984 (Vic) have been complied with.3 A court official may also witness the giving of a natural parent’s consent.4
  3. 14.8 In the absence of consent, the Court must consider whether there is an appropriate person to give consent5 and if so, decide whether to dispense with their consent.6
  4. 14.9 The Court is unable to make an adoption order if it appears that:
  • consent was not given in accordance with the Adoption Act
  • consent was obtained by fraud or duress
  • consent was revoked
  • the consent form was altered without authority
  • the natural parent was not fit to give consent or did not understand the nature of consent
  • the consent form was signed before the birth of the child.7
  1. 14.10 The Court’s ability to inquire into the validity of a natural parent’s consent is limited. A natural parent who has consented does not usually appear before the Court, as they do not generally have legal standing at an adoption hearing.8 The evidence available to the Court that informed consent was given is provided by the Secretary or principal officer of the agency which took the consent.9
  2. 14.11 As applications for an adoption order can be filed up to a year after a child has been placed with the prospective adoptive parents,10 consideration by the Court of the validity of consent occurs very late in the process, usually at the same time it considers the application for an adoption order.

Dispensing with consent

  1. 14.12 The Adoption Act permits an application to dispense with the consent of a natural parent to be filed with the Court before the filing of an application for an adoption order, or before prospective adoptive parents have been selected.11 The Supreme Court (Adoption) Rules 2015 (Vic) require the Secretary or principal officer to attach a copy of any order dispensing with consent to their report to the Court for the making of an adoption order.12
  2. 14.13 County Court data shows that applications to dispense with consent are often filed with the Court only days before, or on the same day as an application to adopt.13

Role of the Court during the placement period

  1. 14.14 Following consent, a child is usually placed with prospective adoptive parents with a view to adoption. During this period, the Secretary or principal officer is the child’s guardian.14
  2. 14.15 The Court plays no role in the selection of prospective adoptive parents15 nor in the oversight of the child during the placement period.
  3. 14.16 The first time the Court encounters a child is usually at the time of the application for the adoption order. By this time, the child has been living with their prospective adoptive parents for nearly 12 months. This timing shifts the balance in favour of the making of an adoption order.

Preliminary hearing

  1. 14.17 The Commission heard a proposal for a separate preliminary hearing with the natural parents to give the Court the opportunity to satisfy itself that consent was given freely before the placement of the child.16
  2. 14.18 A number of concerns arise with this approach:
  • It requires a natural parent to participate in a court process at a particularly vulnerable time.
  • Fear of a court process may cause a natural parent to disengage or disappear.
  • It would dramatically change the established consent process.
  1. 14.19 One aim of the consent process is to ensure the parent understands the consequences of their decision. Giving evidence to the Court will not necessarily assist in this regard.
  2. 14.20 Preliminary hearings are a component of adoption proceedings in New South Wales.17 In 1994, the New South Wales Law Reform Commission proposed that preliminary hearings be held, even in uncontested proceedings, to allow the court to make a variety of decisions earlier in the adoption process, including determining the parties to proceedings and whether the consent of a natural parent should be dispensed with.18 This would allow court oversight and ensure that the needs of children are properly represented in decision-making processes.19
  3. 14.21 In Queensland, while there are no specified ‘preliminary hearings’, the court can hold a hearing specifically in relation to the issue of consent.20

Commission’s conclusions

  1. 14.22 The Commission does not consider that the Court’s oversight is needed in cases where consent is given. However, the Commission sees merit in the Court being required to hold a preliminary hearing to consider any application to dispense with consent.
  2. 14.23 Currently, this decision is made late in the adoption process. This timing inevitably shifts the balance in favour of dispensing with consent to enable the making of an adoption order, to support the child’s need for stability.
  3. 14.24 In practice, when an application to dispense with consent is filed and is not contested, the Court may consider the application without a hearing.
  4. 14.25 The Commission considers any application to dispense with consent should be heard in open court at a preliminary hearing, with parties present if they choose to attend, regardless of whether an application is contested. This should occur prior to the placement of a child with prospective adoptive parents. Section 43(4) of the Adoption Act should be amended to reflect this requirement.
  5. 14.26 Section 43(5) of the Adoption Act should be retained. The Court should retain the power to revoke an order dispensing with the consent of a person at any time before the making of an adoption order.
  6. 14.27 An application to dispense with consent currently requires the appointment of a separate representative for the child.21 As discussed further below, this does not occur.22 The holding of a preliminary hearing would ensure that the Court hears from an independent legal representative advocating for a child’s best interests.
  7. 14.28 The Commission is mindful that natural parents may be unwilling to participate in a court hearing.23 Natural parents should be a party to proceedings and should have the right to appear and be heard by the Court.24 However, there should be no implication in the Adoption Act that natural parents be required to attend a preliminary hearing.

Recommendation

  1. 61 The Adoption Act should require the court to hold a preliminary hearing to determine any application to dispense with consent, prior to the placement of a child with prospective adoptive parents. A hearing should be held regardless of whether an application is contested.

 

Adoption hearing

  1. 14.29 An application for an adoption order is generally made 12 months after the placement of the child.25
  2. 14.30 At an adoption hearing the Court is able to make decisions relating to:
  • the making of an adoption order26
  • the making of adoption orders involving children from countries other than Australia (intercountry adoption)27
  • the making of an interim order for the custody of the child in favour of the prospective adoptive parents.28

Application for an adoption order

Current law and practice

  1. 14.31 The applicants for an adoption order are the prospective adoptive parents. They are required to file affidavit evidence29 which is served on the guardian of the child (the Secretary or principal officer).30 The Secretary or principal officer is required to investigate and report to the Court.31
  2. 14.32 The Court is unable to make an adoption order unless it is satisfied that:
  • the applicants satisfy the eligibility criteria32
  • the applicants satisfy the prescribed requirements relating to approval to adopt33
  • consideration has been given to any wishes of a natural parent, as to the religion, race or ethnic background of the prospective adoptive parents34
  • consideration has been given to any wishes of a natural parent regarding ongoing contact and information about the child.35 The Court can include these arrangements as conditions to the adoption order.36
  • the welfare and interests of the child will be promoted by the adoption37
  • consent to the adoption has been given by the appropriate people.38
Hearing procedure
  1. 14.33 The prospective adoptive parents, together with any solicitor, the child and any persons directly related to the matter, such as the Secretary or principal officer, may appear at the hearing.39
  2. 14.34 Hearings are held in camera (in a closed room) so they are private but are relatively informal.40 This is consistent with all other Australian jurisdictions which require adoption proceedings to be heard in a closed court.41
  3. 14.35 The County Court Guide to Making an Application for Adoption describes the hearing process:

Although the adoption process is extremely formal from the point of view of the application and the documents having to comply with legislative provisions, the actual hearing is held as informally as possible and in a relaxed atmosphere. DO NOT WORRY!

Judges consider hearing Adoption Applications as one of their more pleasurable duties.42

  1. 14.36 Friends and family are invited to the hearing and photos and video can be permitted.43 At the conclusion, the Court makes an adoption order which includes any conditions as to the natural parent’s contact and access to information,44 and makes any direction approving the child’s name.45 The adoptive parents are issued with a certificate of adoption46 and the child’s new birth certificate is later issued and provided to the adoptive parents.47
  2. 14.37 In Victoria, the average time between the date of originating summons48 to the making of the adoption order is 34 days.49
 
The presumption of confidentiality
  1. 14.38 There is a presumption of confidentiality in adoption proceedings.
  2. 14.39 The Adoption Act and the Supreme Court (Adoption) Rules contain provisions which assume confidentiality in court proceedings:
  • The Secretary or principal officer’s report to the Court is confidential.50 This includes the child’s birth certificate.51 of the 
  • All documents filed in the Court are confidential and must be kept in secret and in a place of special security.52
  • Adoption proceedings are heard in closed court.53
  • In an application to dispense with consent, the names of the proposed adoptive parents and the proposed name of the child must not appear on the summons and must not be disclosed to the natural parent.54
  • It is an offence to publish the identity of parties to an adoption.55
  1. 14.40 Additionally in Victoria, publication of judicial reasons in adoption proceedings is rare. The Commission identified only one published decision of the Victorian courts under the 1984 Act.56 This is in contrast to other jurisdictions. Published adoption decisions are available in Queensland, the Northern Territory, Western Australia, South Australia and the Australian Capital Territory, though there are few reported judgments. New South Wales publishes the greatest number of adoption decisions in Australia. To preserve anonymity, judgments in New South Wales use pseudonyms.57
  2. 14.41 In Victoria, one effect of the presumption of confidentiality is that adoptive parents and natural parents’ surnames are not known to each other, unless disclosed voluntarily or by accident.58
  3. 14.42 As discussed in Chapter 1, the non-disclosure of the child’s name and the names of the parents appears contrary to the intention of the Adoption Act that adoption in Victoria is ‘open’. There is an expectation that the adoptive parents will continue to facilitate contact and the child knows who their natural parents are, yet the names of the persons involved are not disclosed to each other.
  4. 14.43 The Adoption of Children Act 1964 (Vic) introduced ‘confidential’ adoption.59 Secrecy was seen as necessary to:
  • protect the anonymity of the natural parents
  • protect adopted persons from the stigma of illegitimacy
  • protect the adoptive parents’ privacy from the natural parents
  • help adoptive parents to build a good relationship with their child.60
  1. 14.44 These provisions were carried over to the Adoption Act and Rules.
 
Parties to an adoption hearing
  1. 14.45 The Adoption Act does not define the parties to adoption proceedings. It gives the court broad discretion to permit anyone it thinks fit to be joined as a party to the proceedings, provided that person is opposing an application.61
  2. 14.46 Adoption legislation in most other Australian jurisdictions provides specific definitions of parties to adoption proceedings.62
  3. 14.47 However, the Adoption Act does prescribe who must be served with a notice of an application, including:63
  • any natural parent who has not consented to the adoption or whose consent has not yet been dispensed with
  • any person who is a guardian of the child (the Secretary or principal officer)
  • any person who lives with the child or has the care or custody of the child (the prospective adoptive parents)
  • any other person the court directs notice be given to, if it is in the interests of justice to do so.
  1. 14.48 Natural parents who have given their consent are not a party to proceedings and are not notified.64 If they express the wish to be informed of the making of an adoption order, that happens after the conclusion of the proceedings.65
The child as a party to proceedings
  1. 14.49 The Adoption Act does not recognise a child as a party to adoption proceedings, though the court has the power to do so.66
  2. 14.50 New South Wales,67 the Northern Territory,68 Queensland69 and Western Australia70 all name the child as a party.
  3. 14.51 Similarly, the Children, Youth and Families Act 2005 (Vic) (the CYF Act) does not define the parties to proceedings. However, children may have standing to participate in the decision-making process if they are legally represented.71 The Family Law Act 1975 (Cth) also does not name a child as a party to proceedings.72
  4. 14.52 The Commission, in its 2010 report on protection applications in the Children’s Court, proposed that every child subject to a protection order should be a party to the proceedings.73 The Commission commented:

The failure to afford party status to children in protection proceedings appears to be an historical anomaly that might not be consistent with contemporary human rights protections. Under the Charter, a child who is the subject of a protection application
has the right to be recognised ‘as a person before the law’ and to be treated equally before the law.74

  1. 14.53 The Report of the Protecting Victoria’s Vulnerable Children Inquiry recommended that a child named on a protection application should have the formal status of a party to proceedings.75 It was also recommended that only in exceptional circumstances should a child be required to attend any stage of the court process. The Inquiry considered that a child could attend if they had expressed a wish to be present and had the capacity to understand proceedings.76

Commission’s conclusions

Changes to proceedings
  1. 14.54 The Commission considers that any court hearing must accommodate the sensitive nature of proceedings, especially for natural parents. Natural parents may wish their views to be heard by the court but not wish to appear.
  2. 14.55 Natural parents should be made aware that they may choose to appear at a final hearing, make submissions to the court in absentia, appear by audio-visual link, or have their legal representative appear on their behalf.
  3. 14.56 The presumption of confidentiality in adoption proceedings should be removed. Adoption should not be considered secretive or shameful. The principle of open justice should apply. The court should only be closed at the court’s discretion.
  4. 14.57 Many court rules perpetuate confidentiality and have a chilling effect. The Supreme Court (Adoption) Rules should be reviewed with a view to removing elements that are inconsistent with open adoption. That review should distinguish between confidentiality for protection of children and confidentiality arising from closed adoption practices. It would be of value to consider the approach taken to identifying information in child protection matters and the nature of a child protection hearing.
  5. 14.58 Publication of judicial reasons would provide greater understanding of adoption practice and law and facilitate open adoption research.
  6. 14.59 The Commission recommends that the court give reasons in all adoption hearings. The current situation in Victoria is not consistent with open adoption and does not provide transparency. Judicial reasons should be publicly available, unless an order has been made under section 17 of the Open Courts Act 2013 (Vic), and be anonymised if disclosure poses a risk to the child, the natural parents or the adoptive parents.
Adoption plan
  1. 14.60 In Chapter 4, the Commission recommends the development of an adoption plan for all adoption placements.77
  2. 14.61 The Commission considers that the court should approve and register an adoption plan before an adoption order is made. This could occur at the adoption hearing.
  3. 14.62 Registering an adoption plan will make the plan part of the adoption order. Upon registering the plan, the court should be satisfied that the parties understand its provisions, have freely entered into it, and that the terms are in the child’s best interests.
  4. 14.63 If some aspects of an adoption plan cannot be agreed upon or the court considers that any term is not in the best interests of the child, the court should have the power to vary, remove or add terms where satisfied that it is in the best interests of the child.
 
Defining parties to proceedings
  1. 14.64 The Commission considers that the Adoption Act should provide a definition of the parties at each stage of the process. Parties’ standing and interests will differ depending on the application before the court.
  2. 14.65 In preliminary hearings and in all adoption hearings, natural parents should be named as a party. This grants them the right to appear and be heard by the court in decisions that affect them. However, there should be no implication that natural parents be required to attend a hearing.
  3. 14.66 A child should always be named as a party to adoption proceedings and should have the formal status of a party. Under the Charter, a child has the right to be recognised and be treated equally before the law.78
  4. 14.67 However, a child should not be required to attend a court hearing. If a child has expressed a wish to attend and has the capacity to understand proceedings, they should be permitted to attend with their legal representative.
  5. 14.68 After an adoption order, parties may come back to the court to vary the order or conditions79 or apply to discharge it.80 Additionally, in Chapter 4, the Commission recommends the use of adoption plans. If enacted, parties may also come back to the court at a later stage to vary or revoke the terms of an adoption plan.
  6. 14.69 If those applications are filed in relation to an adopted child, parties should be the same as in the hearing of an application for an adoption order.

Recommendations

  1. 62 The Adoption Act should define the parties to an adoption hearing in relation to a child:
  2. a. Parties to a preliminary hearing should include the child, the natural parents, the Secretary or principal officer, and any other person the court thinks fit.
  3. b. Parties to any other adoption hearing should include the child, the natural parents, the prospective adoptive parents, the Secretary or principal officer, any party to an adoption plan, and any other person the court thinks fit.
  4. 63 At an adoption hearing, the Adoption Act should require the court to:
  5. a. decide any disputed matter in the best interests of the child if an adoption plan, or some aspect of an adoption plan, cannot be agreed upon
  6. b. approve an adoption plan before an adoption order is made. The court should be satisfied that the parties to the adoption plan understand its provisions and have freely entered into it, and that the provisions of the plan are in the child’s best interests.
  7. c. vary, remove or add terms about contact to the adoption plan where it considers it is in the best interests of the child to do so
  8. d. register an approved adoption plan, which has the effect of making it part of the adoption order and enforceable as an order of the court.

 

  1. 64 The Adoption Act and Supreme Court (Adoption) Rules 2015 (Vic) should not contain a presumption of confidentiality in adoption proceedings. Hearings under the Adoption Act should be heard in open court. The court should exercise its discretion in the usual way to determine that certain information is confidential, if disclosure of that information poses a risk to the child, the natural parents or the adoptive parents.
  2. 65 The Adoption Act should require that judicial reasons be given in all adoption proceedings. Judicial reasons should be publicly available, unless an order has been made under section 17 of the Open Courts Act 2013 (Vic), and should be anonymised to ensure confidentiality of any matters likely to enable the child, the adoptive parents, or natural parents, to be identified.

 

Representation of the child

Current law and practice

  1. 14.70 The United Nations Convention on the Rights of the Child recognises that children have the right to be heard in proceedings about them, either directly or through a representative.81
  2. 14.71 The Adoption Act recognises in basic terms that a child’s wishes should be ascertained. In adoption order proceedings, the court must be satisfied, depending upon the age and understanding of the child, that a child has received counselling and the child’s wishes have been ascertained and considered.82
  3. 14.72 The Adoption Act requires that a separate representative be appointed for a child in the following circumstances:83
  • a contested application for an adoption order
  • an application for an order to dispense with consent
  • an application to discharge an adoption order.
  1. 14.73 Separate representation is required even if these applications are not contested. The Adoption Act also provides the court with a broad power to order representation for the child if necessary.84
  2. 14.74 From 2010­ to 2016 a separate representative was appointed for the child in two of 168 applications heard by the court.85
  3. 14.75 County Court data for the same period shows:
  • two contested applications for an adoption order
  • two applications to dispense with a natural mother’s consent and 14 applications to dispense with a natural father’s consent
  • no applications for a discharge of an adoption order made in relation to a child.86
  1. 14.76 The data indicates that a child should have been separately represented in as many as 18 cases, as required by section 106(1) of the Adoption Act. This is not happening.
  2. 14.77 The Supreme Court of Victoria decision Re Child X (1989)87 considered an application to the County Court to dispense with the consent of a natural mother, where a child was not separately represented in proceedings until the fifth occasion on which the proceeding was listed for hearing.88 A legal aid lawyer appeared at the direction of the Director of Legal Aid ‘in an attempt to comply with s 106(1)’ but had no instructions from the Court for the purpose of representing the child.89
  3. 14.78 The decision for the Supreme Court was whether the failure to appoint a separate representative for the child at the time the application commenced invalidated the proceedings.90 That Court held that it did not and determined that separate representation is not required at the commencement of the application, but the Adoption Act requires representation at the hearing of the application.91
Legal representation
  1. 14.79 The appointment of a separate representative for a child in proceedings is often based on whether a child is capable of giving instructions.
  2. 14.80 The Adoption Act does not set out the duties of the separate representative for the child. There are no published guidelines to provide guidance to the legal representative to fulfil their role.
  3. 14.81 Two key models are used for the legal representation of a child in Australia. They are a ‘best interests’ model and a ‘direct representation’ model.92
  4. 14.82 In a best interests model the children’s lawyer ‘determines how the child is represented on the basis of the lawyer’s own understanding of the child’s best interests’.93
  5. 14.83 In a direct representation model, the child provides instructions to the lawyer. The lawyer must act in accordance with the child’s instructions, irrespective of the lawyer’s views. A direct representative has the same duties in relation to the child as they would have in relation to an adult client. They include confidentiality, competent representation, and undivided loyalty.94
Best interests model of representation
  1. 14.84 The Family Law Act uses the best interests model of representation.
  2. 14.85 The Act provides for the court to appoint an independent children’s lawyer (ICL) if it appears ‘that the child’s interests in the proceedings ought to be independently represented by a lawyer’.95 The court may request that representation be arranged by Legal Aid.96
  3. 14.86 The Family Law Act outlines the duties and obligations of the ICL, including:97
  • to form an independent view, based on the evidence available, of what is in the best interests of the child98
  • to act in what they believe to be the best interests of the child in relation to the proceedings99
  • to make a submission to the court suggesting a particular course of action if they believe that it is in the best interests of the child.100
  1. 14.87 The Family Law Act also provides specific duties, including that a child’s lawyer acts impartially,101 puts the views of the child before the court,102 and facilitates an agreed resolution of matters, to the extent to which doing so is in the best interests of the child.103 Guidance on how to carry out the role is also provided by the Guidelines for Independent Children’s Lawyers.104
Direct representation and best interests model
  1. 14.88 The CYF Actuses both the direct representation and the best interests models of representation.105
  2. 14.89 Generally, a child aged 10 years or over must have separate legal representation in child protection matters in the Family Division of the Children’s Court.106
  3. 14.90 Independent legal representation is not required for a child under 10, or for a child aged 10 or over when the court has decided the child is not mature enough to give instructions.107 In both cases, in ‘exceptional circumstances’ the court may decide that it is in the best interests of a child to be legally represented.108 Legal representation is on a best interests model.109 The lawyer must act in accordance with what they believe to be in the best interests of the child and communicate the instructions given or wishes expressed by the child as far as practicable to do so.110
  4. 14.91 Legal representation of a child aged 10 or over is usually on a direct representation basis. A legal practitioner must act in accordance with any instructions given or wishes expressed by the child, so far as it is practicable to do so, having regard to the maturity of the child.111
  5. 14.92 Adoption legislation in Western Australia and New South Wales provides for both direct and best interests representation of a child.112
Non-legal representation
  1. 14.93 Unlike other jurisdictions, the Adoption Act does not make provision for the appointment of a non-legal representative for a child.
  2. 14.94 In Queensland, the court is able to appoint a person to provide support to a child, such as a social worker, a lawyer or other person.113 In Western Australia, a suitably qualified person must be appointed to represent a child who has a disability that is likely to affect the placement of the child.114
  3. 14.95 In New South Wales, the court is able to appoint a person to act as a representative if there are special circumstances, such as if the child has special needs due to their age, disability or illness, and the appointment would benefit the child.115 This person is called a guardian ad litem.
  4. 14.96 In civil proceedings, a guardian ad litem can act in place of a child and is required to act in the child’s best interests. In Family Law Act proceedings, a person may apply to be appointed as a ‘case guardian’ to manage the affairs of the child in proceedings.116
  5. 14.97 The 2012 Protecting Victoria’s Vulnerable Children Inquiry considered the merits of appointing a guardian ad litem in child protection proceedings, but on balance considered it ‘would entail an additional and expensive process in the statutory system without a demonstrable benefit over and above the use of properly trained and accredited lawyers’. It recommended the appointment of specialist lawyers in child protection proceedings.117

Responses

  1. 14.98 In its consultation paper, the Commission asked:
  2. a) In what circumstances, if any, should a child have separate legal representation in adoption proceedings?
  3. b) Should the Adoption Act provide guidance about the duties and role of a legal representative?
  4. c) Should the Adoption Act provide for non-legal representation or support of a child in adoption proceedings?
Legal representation
  1. 14.99 Child & Family Services Ballarat, an approved adoption agency, submitted that one of the fundamental roles of the agency is to communicate the child’s wishes and best interests to the court. It submitted that the current provisions in the Adoption Act are sufficient.118This position was shared by Barnardos Australia, which told the Commission:

In NSW it is generally assumed that the State welfare department or the Agency bringing the application represent the interests of the child.119

  1. 14.100 Some submissions suggested that children be legally represented at all stages of adoption proceedings.120 The National Association for Prevention of Child Abuse and Neglect submitted that wherever possible, the voice of the child should be heard at all times.121
  2. 14.101 VANISH submitted that children should have legal representation in any adoption proceeding:

… on the basis of the profound lifelong impact that adoption has on the entirety of the adopted person’s life. If the principles of ‘best interests of the child’ is paramount, and the endeavour to uphold the child’s universal rights is genuine, then independent legal representation should be mandatory in every case where adoption or a post-adoption contact plan is being considered.122

  1. 14.102 The Australian Adoptee Rights Action Group told the Commission that a child should be able to be separately represented, if they wish.123 The Law Institute of Victoria (LIV) submitted that a child should be represented when there is a dispute about whether adoption is in the best interests of a child. This would include when there is a contested application, an order to dispense with consent, an application for discharge of an adoption order, or an application in relation to the conditions in orders relating to contact.124
  2. 14.103 Dr Patricia Harper supported the provisions for legal representation in the CYF Act, which provide for both a direct and best interests model. Dr Harper submitted that ‘it is difficult to argue that different provisions should apply as between the adoption and child protection jurisdictions given the similarities between the matters considered, and the outcomes sought’.125
  3. 14.104 Dr Briony Horsfall, whose doctoral thesis examined children’s participation in child protection proceedings,126 submitted that children should have legal representation as early as possible.127
  4. 14.105 She raised concerns with the use of age limits in jurisdictions, which determine when a child should have legal representation. She submitted that limits provide clear interpretation of legislation and are cost-effective for financially limited legal aid services. However, age limits of themselves are subjective. If an age limit applied to legal representation in adoption, Dr Horsfall submitted that it should be consistent with other age thresholds for children under other Victorian legislation. For example:
  • the age of criminal responsibility for children is 10
  • children who are 10 have the opportunity to participate in child protection proceedings.128
  1. 14.106 Dr Horsfall considered that the Act should contain a rebuttable presumption of direct representation of a child who is younger than 10, to account for a situation where a child holds strong views different to those of a lawyer advocating for their best interests.129
  2. 14.107 Adoption Origins Victoria considered that all children (and parents) should have legal representation at all stages. They considered there should be:
  • direct representation if the child is aged over 10; or
  • best interests representation if the child is below the age of 10.130
  1. 14.108 Others considered that children over 12 should have legal representation.131 Fae Cuff told the Commission that if she had been asked at the age of 12, she could have made an informed decision about her adoption. She submitted that children should have legal representation if they are mature enough to verbalise their concerns.132
  2. 14.109 Grandparents Victoria supported children having legal representation. It considered that the Act should provide guidance as to the role of the lawyer.133 OzChild told the Commission that there should be guidance about the role of a separate representative for the child in adoption proceedings, based on the best interests of the child.134
  3. 14.110 One submitter said that whether the legal representative follows the instructions of the child should depend upon the age of the child and their capacity to provide those views.135 ARMS (Vic), which supports children expressing their views in proceedings, considered that these views should not be determinative in proceedings due to the risk that children’s views can be manipulated.136
  4. 14.111 Members of the legal sector expressed divided views about legal representation for children. One participant at a roundtable suggested that theoretically, the right model would be to have two lawyers for a child—one to represent their best interests and the other direct representation. Another participant questioned whether there was sufficient controversy within the court to warrant such a high level of legal representation. In cases where there is no contest to an order being made, they suggested that separate representation was not necessary.137
  5. 14.112 Professor the Hon. Nahum Mushin suggested that the court have the discretion to appoint separate legal representation for the child. He said that in any contested matter or application to dispense with consent, a child should have a separate representative.138
Non-legal representation or support
  1. 14.113 The Commission also heard support for non-legal representation of a child.139
  2. 14.114 OzChild submitted that there should be the option to appoint a guardian ad litem, similar to the provisions in New South Wales, when special circumstances warrant and the child would benefit.140
  3. 14.115 Child & Family Services Ballarat supported the appointment of a person with special expertise, if needed, such as a psychologist, to act in the best interests of the child.141
  4. 14.116 VANISH supported the appointment of a guardian ad litem in all proceedings.142 Permanent Care and Adoptive Families also told the Commission that it supports the appointment of an advocate for the child, similar to the appointment of a guardian ad litem in adoption proceedings in the United Kingdom.143
  5. 14.117 The Victorian Council of Social Service submitted that independent advocates with early childhood experience should be available to represent a child in proceedings.144 Other submissions saw benefit in a person trusted by the child supporting them, such as a foster parent, family member or social worker.145
  6. 14.118 Professor the Hon. Nahum Mushin suggested that in some cases children should have non-legal representation. Ideally the representative would be a friend and professionally capable of giving advice.146
  7. 14.119 Some participants at a roundtable with the legal sector did not support the appointment of a representative other than a lawyer for a child. They said this was unnecessary because lawyers work within the tenets of procedural fairness and legal rights.147

 

Commission’s conclusions

  1. 14.120 A child’s right to be heard in proceedings is recognised in the United Nations Convention on the Rights of the Child.148
  2. 14.121 Appointment of a separate representative for the child should not depend upon a child’s capacity to give instructions. If a child is too young to express views or understand the nature of adoption, it is important that a lawyer is available to advocate for their best interests.
  3. 14.122 The Secretary or principal officer does not represent the child. They represent the views and interests of DHHS or the approved adoption agency and make submissions about what they consider to be the best interests of the child. The role of the Secretary or principal officer is conflicted.149 When making decisions, they are required to balance the interests and views of the child, the natural parents, adoptive parents and their own interests.
  4. 14.123 The Commission considers that an ICL should be appointed for all children in adoption proceedings, regardless of whether proceedings are contested.
  5. 14.124 The current provisions under section 106 of the Adoption Act are not sufficient to recognise the right for children to participate. Furthermore, County Court data indicates that the appointment of a separate representative rarely occurs.
  6. 14.125 An ICL should be appointed as early as possible to represent the child throughout the adoption process:
  • At a preliminary hearing—An ICL should be appointed to represent a child at any application to dispense with consent, whether that application is contested or not. Any hearing should be heard in court and not dealt with on the papers.
  • During the negotiation of an adoption plan—The Secretary and the court should develop a mechanism for the Secretary to apply to the court for appointment of an ICL for the child, after the necessary consents for a child to be adopted have been given and the period for consent to be revoked has passed. The ICL should represent the child in the development of an adoption plan. The long-term implications of the plan for the child are significant and it is important that a child’s interests are independently represented throughout that process.
  • At a final hearing—An ICL should represent a child at a hearing to determine an application for an adoption order and the approval or determination of the terms of an adoption plan.
  • At any subsequent hearings—As discussed below, parties may return to the court after the adoption in certain circumstances. The child should have independent legal representation during any court proceeding regarding an application to vary or revoke the terms of an adoption plan or conditions of an adoption order made under the current Adoption Act, or any application to discharge an adoption order.
  1. 14.126 The Commission has considered the cost implications of ICLs in adoption proceedings. During the last six years, there were 168 applications and orders for the adoption of a child. This equates to approximately 28 matters per year.150 In light of the significance of adoption decisions and their lifelong effects, the Commission considers the cost is justified.
  2. 14.127 The representation of children is a specialist role. In Victoria, there are established procedures for the appointment of lawyers for children.151 The Independent Children’s Lawyer Panel is maintained by Victoria Legal Aid.152
  3. 14.128 The Commission considers that in adoption proceedings, an ICL should act in accordance with the direct representation model for children aged over 10. If a child is under 10 or is not mature enough to give instructions, the best interests model should be used. The lawyer should communicate to the court any wishes expressed by the child to the extent that it is practicable to do so.
  4. 14.129 The Commission also considers that the Adoption Act should make provision for the court to order that the Secretary or principal officer appoint a guardian ad litem to support a child in proceedings, if the court considers that an appointment would be in the best interests of the child. This person should not be an employee of DHHS or an approved adoption agency.

Recommendations

  1. 66 The Adoption Act should require the court to appoint an independent children’s lawyer in all adoption proceedings, regardless of whether the proceedings are contested. The Act should:
  2. a. provide for an independent children’s lawyer to be appointed:
  3. i. after the necessary consents for a child to be adopted have been given and the period for consent to be revoked has passed
  4. ii. upon application to dispense with a parent’s consent
  5. b. permit the independent children’s lawyer to represent the child in the development of an adoption plan
  6. c. require the independent children’s lawyer to act in accordance with the direct representation model for children over the age of 10 years. If a child is under the age of 10 or is aged 10 or over and not mature enough to give instructions, the best interests model of representation should be used.
  7. 67 The Adoption Act should provide for the court to direct the Secretary or principal officer to appoint a person to support a child in proceedings, if it is in the child’s best interests. This person should not be an employee of the Department or an approved adoption agency. 

Post-adoption decisions

  1. 14.130 Following the making of an adoption order, parties can return to the court upon application to:
  • vary or revoke the conditions in an adoption order153
  • discharge an adoption order154
  • access adoption information155
  • recognise the validity of a foreign adoption.156
  1. 14.131 In the next sections, the Commission considers the role of the court in relation to applications to vary or revoke conditions in an adoption order and applications to discharge adoption orders.

Variation of conditions in an adoption order

Current law and practice

  1. 14.132 An adoption order may be subject to conditions in relation to natural parents’ or relatives’ rights to have contact with the child,157 or in relation to the adoptive parents providing information about the child to the natural parents.158
  2. 14.133 The court can vary or revoke conditions on an adoption order, if satisfied that it is in the best interests of the child.159
  3. 14.134 An application to vary or revoke conditions can be brought by an adoptive parent, a natural parent, or by or on behalf of an adopted child.160 Any application must be accompanied by a report from an approved counsellor.161
  4. 14.135 If conditions regarding contact and information exchange were not agreed to and reflected in the adoption order, a natural parent will need the consent of the adoptive parent to have any such conditions made later. The court is unable to grant a person a right of access, or greater rights of access, unless by agreement of the adoptive parents, and the court is satisfied that the wishes of the child have been ascertained.162
  5. 14.136 In the absence of agreement from the adoptive parents, the only court option available to a natural parent is an application to the Family Court as a person ‘concerned with the care, welfare or development of the child’.163
  6. 14.137 In 2010, Dr Phillipa Castle observed that when contact relationships had broken down, the law in Victoria was ‘not a useful tool of repair’:

The only case heard, was heard in the Family Court (Adoption Orders and contests are made in the County Court), and only went forward because the child told the Family Court clinician that she wanted contact. The perception is that alone, the birthmother has little power.164

 

Commission’s conclusions

  1. 14.138 In Chapter 4, the Commission recommends contact and information exchange provisions should be reflected in an adoption plan which is registered with the court, as opposed to conditions in an adoption order.165
  2. 14.139 If parties find that conflict arises in relation to an adoption plan, they should first seek the assistance of an approved adoption agency or other post-adoption support service.166
  3. 14.140 The Commission considers that parties should attend mediation to attempt to resolve a dispute, before filing an application to the court.167 In Chapter 15, the Commission recommends that the Secretary develop a specialist mediation service to assist families in negotiating conflict in any adoption arrangement (Recommendation 72(b)).
  4. 14.141 The court should require certification from the mediation service to the effect that mediation has been attempted or is not suitable, before considering an application to vary or revoke the terms of an adoption plan or conditions of an adoption order.
  5. 14.142 Any new agreement the parties want reflected in an adoption plan should be filed and registered with the court. Unless the court is not satisfied that the terms are in the best interests of the child, this should not require an appearance by the parties at court.
  6. 14.143 If agreement cannot be reached, access to the court should be available to an adopted child, an adoptive parent, any party to an adoption plan, and a natural parent. This should include a natural parent whose consent was dispensed with and who is not a party to an adoption plan.
  7. 14.144 Section 60(4) of the Adoption Act currently requires that an application to the court be accompanied by a report from an approved counsellor. Though counselling should still be available to parties, a report from a counsellor should not be required. This section should be removed.
Application for variation or revocation
  1. 14.145 Registration of an adoption plan enables the plan to be recognised as a legal document and included on the court file.168 The Commission considers that parties should be able to come back to court to apply to vary or revoke conditions in an adoption plan.
  2. 14.146 Conditions on an adoption order relating to contact and information exchange made under the 1984 Act can be varied or revoked in limited circumstances. Access to the court for this purpose should remain. However, several provisions of the Adoption Act require amendment for consistency with the principles of openness and the rights of adopted persons:
  • Section 60(3) should be amended to enable an adopted child or a person on behalf of a child, an adoptive parent, or a natural parent, including a natural parent whose consent was dispensed with, to apply to vary or revoke the conditions of an adoption order.
  • Section 60(5) should be removed. It is not in the interests of justice or in the best interests of a child that adoptive parents can prevent a natural parent from applying to the court. The court’s discretion should not be fettered and it should be open to the court to grant a person rights of contact or greater rights of contact.

 

Recommendation

  1. 68 The Adoption Act should permit an adopted child, a natural parent (including a natural parent whose consent was dispensed with and is not a party to an adoption plan), an adoptive parent, any party to an adoption plan, or any other person the court thinks fit, to apply to the court for variation or revocation of the terms or conditions of an adoption plan or conditions under an adoption order made under the Adoption Act. In considering an application, the court should:
  2. a. require certification from the mediation service developed by the Secretary, to the effect that mediation has been attempted or is not suitable, before considering an application
  3. b. be satisfied that the wishes of the child have been ascertained and given due consideration, as far as practicable
  4. c. be satisfied that any decision made is in the best interests of the child
  5. d. be able to grant a person a right of contact or greater rights of contact with an adopted child, if it is in the best interests of the child.

 

Discharge of adoption orders

Current law and practice

  1. 14.147 Adoption orders are considered more permanent than orders under the CYF Act169 and Family Law Act,170 as they do not automatically expire when an adopted child turns 18. However, adoption orders can be discharged by the court.
  2. 14.148 An adopted child or adult, a natural parent, an adoptive parent, or the Secretary or principal officer, may apply to the court to discharge an adoption order, if:171
  • the order, or consent given for that order, was obtained by fraud, duress or other improper means, or
  • special circumstances exist for the order to be discharged.
  1. 14.149 The term ‘special circumstances’ is defined in the Adoption Act to include ‘an irretrievable breakdown of the relationship between the adoptive parents and the adopted person’.172
  2. 14.150 The court can direct an investigation into the circumstances of an application (known as a section 19(3) investigation).173 The investigation can be undertaken by the Secretary, or a nominated person from the Department of Justice and Regulation, who makes enquiries and files a confidential report with the court.174
  3. 14.151 The court must be satisfied that ‘the welfare and interests of the child would be promoted by the discharge of the adoption order’.175
 
The effect of a discharge order
  1. 14.152 The effect of a discharge order is that:
  • any consent given to the adoption ceases to have effect176
  • the ‘rights, privileges, duties, liabilities and relationships of the child and of all other persons’, shall be as if the adoption order had not been made.177
  1. 14.153 The discharge of an adoption order severs an adopted person’s legal relationship with their adoptive family and reinstates their legal relationship with their family of origin.178 It also reinstates their original birth certificate, their rights of inheritance from their natural parents and their legal relationship with any biological siblings or wider family.
  2. 14.154 Children and those over the age of 18 are both subject to the same legal test.179 The Adoption Act does not provide for a ‘no fault’ discharge or reflect a person’s autonomy to choose their identity once they are an adult.
  3. 14.155 From 2010 to 2016 there were 17 applications for discharge. All applications were made by adults and all were granted by the court. In 16 cases, the court directed a section 19(3) investigation.180

Responses

  1. 14.156 The Commission was told that the grounds upon which an application to discharge an adoption order can be made should be amended.
  2. 14.157 Some submissions stated that it was ‘virtually impossible’ to discharge an adoption order.181 Others stated that it should be a person’s ‘right’ to seek a discharge of their adoption order and restore their original birth certificate.182
  3. 14.158 Adoption Origins Victoria proposed that the Adoption Act should contain a ‘no fault’ discharge to enable adoptive persons over the age of 18 years to easily apply to discharge their own order. Adoption Origins Victoria explained that the requirement in the Adoption Act of ‘special circumstances’ almost always requires that the person has suffered abuse. It submitted that:

To many adopted adults who seek a discharge, the relationship with the adopters is irrelevant to their right to live as the person they were when they were born and have the ancestry they had when they were born.183

  1. 14.159 Adoption Origins Victoria considered that the Adoption Act ‘ignores the rights of adopted adults’ and binds them to a contract that they did not consent to.184

Commission’s conclusions

Adopted child
  1. 14.160 Judicial oversight is required to ensure that the discharge of an adoption order would be in the best interests of a child. The current legal threshold set out in section 19 is appropriate for applications to discharge an order in relation to an adopted child.
  2. 14.161 The tests set out in sections 19(1)­–(2) and 19(5A) should remain for applications to discharge an order in relation to an adopted child.
Adopted adult
  1. 14.162 A number of people can bring an application to the court to discharge an adoption order, including the adopted person, the adoptive parents and natural parents.185
  2. 14.163 The tests in section 19 are appropriate for applications to discharge an order in relation to an adopted person who is over the age of 18, if the application is filed by a person186 who is not the adopted person.
  3. 14.164 For example, an adoptive parent should not be able to apply to discharge an order without establishing, to the court’s satisfaction, that there has been fraud, duress or improper means, or that there are special circumstances to warrant an application, as the effect of the discharge would be to legally exclude their adopted adult child from their family, a decision that may not be in the adopted person’s welfare and interests.
  4. 14.165 The Adoption Act should apply a different test to applications to discharge an adoption order filed by an adopted person over the age of 18.
Application filed by an adopted adult
  1. 14.166 To apply for a discharge of an adoption order, section 19(1) requires that the order or consent was obtained by fraud, duress or other improper means. This is a high threshold for an adult adopted person to meet. Alternatively, they must establish ‘special circumstances’ which justify that the order be discharged, such as an irretrievable breakdown or abuse in their relationship with their adoptive parents.187
  2. 14.167 It is not clear whether the current tests in section 19(1) are difficult to satisfy, as judicial reasons are not published. In any case, the Commission considers that these tests do not reflect an adopted adult’s autonomy to choose who they are. A person adopted as an infant had no say in their parentage or in the change of their identity. Adopted adults may wish to discharge their adoption order for a wide range of reasons. They should have greater access to the court for this purpose.
  3. 14.168 The Commission considers that the tests set out in sections 19(1) and 19(5A) should not apply to an application brought by an adopted person over 18.
  4. 14.169 The Adoption Act should not impose a barrier to an adult adoptee applying to the court for a discharge of an adoption order but should require the court to be satisfied that the discharge of an adoption order is appropriate and desirable in all the circumstances.
  5. 14.170 The Commission acknowledges that discharging an adoption order has implications such as reinstating a person’s right to inherit from their natural parents and severing their right to inherit from their adoptive parents. It is open to the court to make any orders relating to the ownership of property.188 The court should continue to have the ability to make ancillary orders when discharging an adoption order.189
  6. 14.171 The Commission observes that the court has made 17 such orders in the previous six years. Its recommendation does not change the consequence of discharge orders.
Parties to an application to discharge an adoption order
  1. 14.172 Under section 19(9) of the Adoption Act, the child, the natural parents, the adoptive parents, the Secretary or principal officer, and any other person who the court determines has a sufficient interest in the matter, may appear and be heard at the hearing of an application to discharge an adoption order.
  2. 14.173 The Commission recommends that the Adoption Act should prescribe the parties to proceedings rather than it be discretionary. This should ensure that parties, including the natural parents and adopted parents, are advised of any application to discharge an adoption order and permit them the right to appear and be heard by the court in relation to an application.
  3. 14.174 It is important that all parties understand the legal effect and the possible consequences of discharging an adoption order. The court should ensure that they are advised of those consequences when they are notified of proceedings.
  4. 14.175 The Adoption Act should differentiate between parties to the discharge of an adoption order which relates to an adopted child or to an adopted person over the age of 18.
  5. 14.176 Parties to an application in relation to an adopted adult should include the adopted person, the natural parents and the adopted parents.
  6. 14.177 Parties to an adoption plan or the Secretary or principal officer should not be parties to proceedings for a discharge of an adoption order that relates to an adopted person over the age of 18. The terms of any adoption plan190 or conditions under an adoption order cease to have effect once an adopted person is over the age of 18,191 and the views of the Secretary or principal officer are no longer relevant.

Recommendations

  1. 69 The Adoption Act should:
  2. a. define the parties to an application to discharge an adoption order:
  3. i. in relation to an adopted person over 18, to include the adopted person, the natural parents, the adoptive parents, and any other person the court determines has a sufficient interest in the matter
  4. ii. in relation to an adopted child, to include the adopted child, the natural parents, the adoptive parents, the Secretary or principal officer, any party to an adoption plan, and any other person the court determines has a sufficient interest in the matter.
  5. b. require that the parties are advised of the legal effect of discharging an adoption order, when they are notified of proceedings.
  6. 70 The Adoption Act should provide that an application to discharge an adoption order filed by an adopted person over the age of 18 should only require the court to be satisfied that the discharge of the order is appropriate and desirable in all the circumstances.

 

Jurisdiction of the court

  1. 14.178 The Australian Constitution gives the Commonwealth powers with respect to marriage,192 divorce and matrimonial causes (parental rights, custody and guardianship of infants).193 Child protection and adoption matters are within the jurisdiction of the states.
  2. 14.179 In Victoria, the Supreme Court, and at the option of the applicant, the County Court, have jurisdiction in adoption matters.194 In practice, most proceedings under the Adoption Act are heard and determined by the County Court.

Current law and practice

  1. 14.180 The Court’s jurisdiction under the Adoption Act is limited to hearing adoption applications, where:
  • an applicant is resident or domiciled in Victoria and a child, who is able to be adopted, is present in Victoria, or
  • a child is born in Victoria and under the guardianship of the Secretary or principal officer.195

The County Court

  1. 14.181 The County Court is a major trial court in Victoria. It exercises civil jurisdiction and criminal jurisdiction and hears appeals from the Magistrates’ Court and from the criminal and family divisions of the Children’s Court. The Court has large civil, commercial and criminal jurisdictions.196 It is not a specialist children’s court.
  2. 14.182 In addition to adoption proceedings, the Court also hears proceedings under the Status of Children Act 1974 (Vic) in relation to substitute parentage orders. These orders relate to children born as a result of a surrogacy arrangement.197 Adoption and substitute parentage matters are heard in the same County Court list.198
  3. 14.183 The County Court does not exercise jurisdiction under the CYF Act (except on appeal)199 or the Family Law Act.
  4. 14.184 Under the Adoption Act, there is provision for the Court to make alternative orders relating to a child when they do not make an adoption order. Section 18 of the Adoption Act provides:

If the Court refuses an application for an order for the adoption of a child, the Court may make such order for the care and control of the child or for the making of any further application under this Act as it thinks fit.200

  1. 14.185 It appears that this section was included in the Act in recognition of the Children (Guardianship and Custody) Act 1984 (Vic), which was introduced at the same time as the Adoption Act and ‘guardianship or custody’ offered a less formal alternative to adoption.201 This Act has since been repealed.202 It is not known if the Court has ever made an order pursuant to section 18.

Alternatives to the County Court

  1. 14.186 During the Commission’s consultation and submission processes, the question of the appropriate court to hear adoption proceedings was discussed.
  2. 14.187 This issue was canvassed in Victoria in 1983 by the Adoption Legislation Review Committee. In considering the appropriate forum to determine adoption matters, the Committee developed the following seven principles:
  • ‘Adoption matters should be considered within an environment which minimises the adversary process in relation to contested cases and includes the process of conciliation.’203
  • ‘Adoption matters should be considered within an environment which is more flexible and less formal than the traditional court setting.’204
  • ‘Adoption matters should be considered within an environment in which multidisciplinary expertise is available to the decision-making body.’205
  • ‘Adoption matters should be considered within an environment which ensures that the welfare and interests of the child are adequately represented in all cases.’206
  • ‘Adoption matters should be considered within an environment which allows for the consideration and determination of all matters relating to the child.’207
  • ‘Adoption matters should be considered within an environment which is required by legislation to expedite its business in cases where a child’s permanent family life is being affected.’208
  • ‘Adoption matters should be considered within an environment which involves the minimum of cost to individuals, agencies, and society.’209
  1. 14.188 The Committee considered the Family Court, an Adoption Tribunal, and the Supreme Court or County Court as potential options.210 It recommended that adoption matters be determined by a family court, vested with state and federal jurisdiction. This would permit the court to determine all family related matters for the child.211
  2. 14.189 The Committee did not consider the Children’s Court as an option but the Commission notes that the Family Division of the Children’s Court was not established until the Children and Young Persons Act 1989 (Vic) and was not established as a jurisdiction independent of the Magistrates’ Court until 2000.212
  3. 14.190 In Victoria, the Family Court of Australia, the Federal Circuit Court of Australia and in limited circumstances, the Magistrates’ Court of Victoria, exercise jurisdiction under the Family Law Act.213 However, the Family Court has exclusive jurisdiction in relation to adoption matters214 when a step-parent approaches the Family Court to apply for leave to adopt.215

Responses

  1. 14.191 The Commission received submissions about the appropriateness of the County Court exercising jurisdiction in adoption proceedings.
  2. 14.192 Some were of the view that the Court was not the most appropriate jurisdiction to hear matters relating to children.216 The primary reason was that it is not a specialist children’s court.217
  3. 14.193 Suggestions for an alternative jurisdiction included:
  • the Family Court of Australia
  • the Children’s Court of Victoria
  • the Victorian Civil and Administrative Tribunal —Human Rights Division (VCAT)
  • the Koori Court (a division of the Magistrates’ Court of Victoria).
  1. 14.194 ARMS (Vic) submitted that adoption proceedings should be heard by the Family Court,218 which has an established infrastructure and services.219 This view was well supported.220
  2. 14.195 Concerns raised about the Family Court were the constitutional barriers to it being able to exercise jurisdiction, and a concern that it was already overloaded with demand.221
  3. 14.196 Professor the Hon. Nahum Mushin acknowledged the limitations on the County Court’s jurisdiction, observing that when assessing a child’s best interests, the court has only two options: it can either make the adoption order, or not. The Court is unable to make an alternative order that may better serve the child’s interests.222 He supported the Family Court having jurisdiction, but he considered the referral of powers to the Commonwealth unlikely.223
  4. 14.197 The Commission also heard support for the Children’s Court of Victoria to exercise jurisdiction.224 Reasons included:
  • The Children’s Court is a specialist children’s jurisdiction.225
  • The Court hears similar proceedings, assessing children’s best interests, on a daily basis.226
  • The Court’s judicial officers have training in children’s issues, such as attachment.227
  • There is access to the Children’s Court Clinic.228
  1. 14.198 Concerns raised about the Children’s Court related to the lack of fit between adoption matters with a court that hears youth crime and child protection matters.229 However, it was acknowledged that such matters could be resolved by appropriate listing of cases within the Family Division of that court.230
  2. 14.199 Concern was expressed that transferring adoption matters into the Children’s Court might cause adoption to be ranked as the ‘higher option’ to permanent care.231 Berry Street expressed this concern in light of the permanency objectives under the CYF Act which appear to rank adoption higher than permanent care orders.232
  3. 14.200 The Office of the Public Advocate submitted that the Human Rights Division of VCAT would provide an appropriate forum for adoption matters. The benefits would include: that it employs an ‘inquisitorial rather than an adversarial model, it is accessible, timely and of little or no cost’. It submitted that as a specialist jurisdiction with experience in assessing capacity, VCAT also has the power to order supports that would protect the interest of parties.233
  4. 14.201 A participant at a consultation with the Aboriginal and Torres Strait Islander peak bodies and agencies suggested that the Koori Court could be an option to hear adoption matters. Another participant suggested the Koori Family Hearing Day in the Broadmeadows Children’s Court as an alternative.234
  5. 14.202 The Commission also heard support for the County Court to retain jurisdiction because it has an existing mechanism and experience in adoption, and its cost and accessibility make it preferable to the Supreme Court.235
  6. 14.203 Reasons against adoption matters continuing to be heard in the County Court were that the cost is prohibitive for natural parents to go back to the Court so as to seek contact when the adoptive parents prevent it.236

Commission’s conclusions

  1. 14.204 The seven principles developed by the Adoption Legislation Review Committee in 1983, discussed at [14.187], are still relevant today.
  2. 14.205 In this report, the Commission has made recommendations about the objects of the Adoption Act, the principles of the Act and the best interests principles which should be applied by the court and all decision makers throughout the adoption process.237
  3. 14.206 It is not practical to propose that the Family Court exercise jurisdiction under the Adoption Act. To do so would require significant legislative amendments, such as:
  • adopting the Western Australian model of Family Court, which exercises both federal and state jurisdiction
  • amending the Australian Constitution to vest the Commonwealth with powers in relation to adoption matters, or
  • amending the Family Law Act to allow the Family Court to exercise powers referred by the state including adoption matters.238 Further, as noted in [14.195], the Family Court has resource limitations.
  1. 14.207 The Commission does not consider that VCAT is an appropriate alternative jurisdiction. While it is appropriate that VCAT has jurisdiction in some administrative aspects of adoption (as recommended in Recommendation 87 as to review of the release of information), it would be inappropriate to recommend that VCAT be given a wholly new and different jurisdiction, namely adoption.
  2. 14.208 While the Commission respects the proposal, made at the roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies, that the Koori Court could exercise adoption jurisdiction, the Koori Court has a specialist jurisdiction which would require extensive change and funding to undertake adoption matters.
  3. 14.209 Adoption is a separate legal framework from the child protection framework. In adoption, the consent of a child’s natural parents is the fundamental requirement, and there is usually no risk of harm to the child. Although the Children’s Court is a specialist children’s jurisdiction the Commission considers there is a lack of fit between the adoption and child protection jurisdictions.
  4. 14.210 In this report, the Commission recommends a number of changes to County Court process in adoption matters. However the Commission considers affirmatively that the appropriate course is for that Court, with its established expertise, to continue to be the Court in Victoria exercising adoption jurisdiction.

Footnotes

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