Appendices A and B

Appendix A: Key differences: Adoption Orders, Permanent Care Orders and Parenting Orders 

 

Adoption Order

Adoption Act 1984 (Vic)

Permanent Care Order

Children, Youth and Families Act 2005 (Vic)

Parenting Order

Family Law Act 1975 (Cth)

Who can apply?

     

Secretary of DHHS

No

Yes—Secretary makes all applications on behalf of person(s) approved as suitable to have parental responsibility for child

No

Married couple1

Yes

Yes—through Secretary

Yes

Couple in domestic/
de facto relationship2

Yes

Yes—through Secretary

Yes

Partner3 of parent/adoptive parent

Yes

Yes—through Secretary

Yes

Single person

Yes—but only if special circumstances exist in relation to
the child

Yes—through Secretary

Yes

Child’s relatives

Yes

Yes—through Secretary

Yes

The child

No

No

Yes

Other

No

Yes—through Secretary

Yes

Is parents’ consent required?

Yes

No

N/A

Court with jurisdiction

The County Court
of Victoria4

The Children’s Court of Victoria

The Family Court
or the Federal Circuit Court of Australia

Effect of order:

Parental responsibility

 

Adoptive parent(s) become child’s parents—assume all parental rights and responsibilities

 

Parental responsibility5 conferred on permanent carer, generally to exclusion of all other people

 

Parental responsibility6 conferred or allocated. Parental responsibility of other parties not diminished unless stated in the order

Legal parentage

Transferred from birth parents to adoptive parents

Unaffected—birth parents remain legal parents

Unaffected—birth parents remain legal parents

Is change of name part of process?

Surname—generally yes

Given names—on application

No

No

Birth certificate

New birth certificate created showing the adoptive parent(s) as the child’s parent(s)

No change to birth certificate

No change to birth certificate

Effect on inheritance

Inheritance rights transferred. Child inherits from adoptive parents, not birth parents

Inheritance rights unaffected

Inheritance rights unaffected

Duration of order

Permanent unless discharged

Until child turns 18
or marries

Until child turns 18, marries, enters into a de facto relationship or upon adoption of the child

Conditions on order

May include conditions regarding contact with birth parents and relatives and/or information sharing with birth parents

Mandatory conditions regarding preserving child’s identity, cultural connection and relationships with ‘birth family’, unless the court provides otherwise

May include conditions regarding contact with parents, siblings and others of significance, and/or a cultural plan

May include conditions covering variety of parenting arrangements, including contact, communication, residence and decision making

Can the conditions be varied?

Yes—in very limited circumstances

Yes—in limited circumstances

Yes

Contact with birth parents, relatives and others

By court order
or agreement

 

By court order
or agreement

 

By court order
or agreement

 

Provisions for Aboriginal children?

Yes

Yes

Yes

Ongoing financial/professional support from government

Limited

Yes

No

 

Possibility of challenge by birth parent, relative or other

Yes—only where fraud, duress, improper means or other special circumstances

Yes—in limited circumstances

 

Yes

 

 

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Appendix B: Rights to adoption information under the information provisions

  1. 1. This appendix summarises people’s rights to adoption information under the information provisions of the Adoption Act 1984 (Vic) discussed in Chapter 8.1

Terminology

Adoption information

  1. 2. In this appendix, the terms ‘information’ or ‘adoption information’ mean ‘information about an adopted person’, which is the term used in the information provisions. This term means:2

information about the adopted person or the natural parents or the relatives3 of the adopted person which …

(a) is reasonably likely to be true; and

(b) does not unreasonably disclose information relating to the personal affairs
of a natural parent, a relative or any other person.

  1. 3. ‘Identifying information’ is information which reveals or may reveal a person’s identity or, in some cases, whereabouts. ‘Non-identifying information’ is general information about a person which does not reveal their identity or whereabouts.

Relevant authority

  1. 4. To obtain adoption information, a person requests the information through an adoption information service within the Department of Health and Human Services (DHHS) or an approved agency.4 The Adoption Act describes the request as ‘an application to a relevant authority’. This appendix uses the term ‘relevant authority’,
    as it is used in the information provisions.5 Relevant authorities include the Secretary of DHHS and approved agencies.6

 

Rights

  1. 5. Each person’s rights to adoption information are set out below.

Adopted person

  1. 6. An ‘adopted person’ includes a person adopted under the Adoption Act or Victoria’s previous adoption legislation.7
  2. 7. An adopted person’s access to adoption information differs depending on whether they are an adult or a child.

Adopted adult

  1. 8. An adopted adult can access non-identifying and identifying information about
    a natural parent or relative.8
  2. 9. Where an adopted adult seeks to access information that reveals a natural parent
    or natural relative’s9 whereabouts, and the information is not contained in the records of the relevant authority, written consent from the natural parent or natural relative
    is required before the information can be disclosed.10 This consent can be given subject to conditions which the relevant authority must comply with.11

Adopted child

  1. 10. An adopted child may apply for non-identifying and identifying information ‘from the records of the relevant authority, or, where the application is made to the Secretary, from the records of the Secretary, an agency, another body or a person’.12
  2. 11. Each adoptive parent13 of the adopted child must consent in writing to the child accessing non-identifying or identifying information.14
  3. 12. An adopted child may only have access to information that reveals the identity
    of a natural parent with that natural parent’s written consent.15

Natural parents

  1. 13. A ‘natural parent’ is a person named in the birth registration entry of an adopted person.16 A man not named in the birth registration is recognised as a natural parent in certain circumstances,17 including where:
  • The Supreme Court has declared the man is the adopted person’s father under the Status of Children Act 1974 (Vic).18
  • The Family Court of Australia has made a parenting order in his favour.19
  • The man satisfies the Secretary of DHHS ‘that there is prima facie evidence
    that [he] is the father of [the adopted person]’.20
  1. 14. A natural parent’s access to adoption information differs depending on whether
    the adopted person is an adult or a child.
  2. 15. Where the adopted person is an adult, natural parents can access:
  • non-identifying information about the adopted person and adoptive parents21
  • information about the whereabouts of the adopted person22
  • information about the identity of the adoptive parents.23
  1. 16. Where the adopted person is a child, natural parents can access:
  • non-identifying information about the adopted person and the adoptive parents24
  • information about the identity of the adoptive parents and the whereabouts of the adopted person,25 with the written consent of each adoptive parent.26
  1. 17. An adoptive parent can give consent subject to conditions.27
  2. 18. The relevant authority must consider any wishes expressed by the adopted child.28
  3. 19. The relevant authority can withhold information to give effect to the adoptive parents’ conditions or the adopted child’s wishes.29

Adoptive parents

  1. 20. Adoptive parents can access non-identifying information about an adopted person’s natural parent or relative.30
  2. 21. Adoptive parents can also access identifying information about a natural parent,31
    but only with that natural parent’s written consent.32 This consent can be given subject to conditions.33 The relevant authority can withhold information to give effect to the conditions.34
  3. 22. Where the adopted person is an adult, the relevant authority must notify the adopted person that it intends to give the identifying information to the adoptive parent or parents.35

Natural relatives

  1. 23. A ‘natural relative’ of an adopted person is a brother, sister, uncle, aunt and grandparent ‘where the relationship is of the whole blood or half-blood’.36
  2. 24. A natural relative can access non-identifying information that does not reveal
    the identity of the adoptive parents or the adopted person’s whereabouts.37
  3. 25. Natural relatives can only access information about the identity of adoptive parents
    or whereabouts of the adopted person where:
  • ‘circumstances exist which make it desirable’ to give the information38
  • written consent has been given by:
  • an adopted person who is an adult,39 or
  • where the adopted person is a child, the adoptive parents.40
  1. 26. The adopted adult or adoptive parents’ consent can be given subject to conditions.41
  2. 27. In addition, any wishes expressed by an adopted child must be considered.42
  3. 28. The relevant authority can withhold information to give effect to any conditions
    that attach to the consent or the adopted child’s wishes.43

Natural adult children of adopted people

  1. 29. A ‘natural child’ of an adopted person is ‘a son or daughter of the adopted person where the relationship is of the whole blood’.44
  2. 30. A natural adult child of an adopted person can access non-identifying and identifying information about their parent’s adoption, including information that reveals the identity of a natural parent or natural relative of the adopted person.45
  3. 31. Where the information reveals the identity of a natural parent or natural relative, the relevant authority must notify the adopted person that it intends to give that information to the adopted person’s natural child.46
  4. 32. Where the information reveals a natural parent or natural relative’s whereabouts, and the information is not contained in the records of the relevant authority, written consent from the natural parent or natural relative is required before the information can be disclosed.47 This consent can be given subject to conditions which the relevant authority must comply with.48

Footnotes

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