Chapter 5 The best interests and rights of the child
The Commission is seeking the views of the community on any changes that may be required to the Adoption Act 1984 to ensure that the best interests of the child are paramount.
1 Should the Adoption Act use consistent terminology to guide decision makers in a decision relating to adoption? If not, in what circumstances should terminology other than the best interests of the child be used?
2 Should the Adoption Act provide guidance about how to determine what
is in a child’s best interests? If yes:
(a) What should decision makers be required to consider?
(b) Should all the matters have equal weight or should some be weighted more heavily than others?
(c) If some matters should be weighted more heavily than others, what are they?
3 Should the Adoption Act have requirements about the age differences between the adopted child and any other children in the family? If yes, what requirements?
4 Should the Adoption Act include a principle requiring decision makers to consider placing siblings for adoption in the same family? If not, in what other ways could the Adoption Act ensure that sibling relationships are considered in decisions about adoption?
5 Should there be a greater obligation to identify and contact the father of the child to obtain his consent to an adoption? If yes, what steps are reasonable to try to obtain a father’s consent?
6 Are there any situations when no attempts should be made to contact the father
to seek his consent to an adoption? If yes, what are they?
7 Should any changes be made to the current consent provisions? If yes, what changes?
8 Should any other people be consulted about, or required to consent to an adoption? If so, who?
9 Are the grounds for dispensing with consent appropriate for adoption
in contemporary Victoria? If not, what changes should be made?
10 Should the court be able to put conditions on an adoption order in a broader range of circumstances if it is in the best interests of the child? These circumstances might include situations where:
(a) the court has dispensed with the consent of a parent but it is in the best interests of the child to have contact with the parent or with relatives of that parent
(b) consent was given but the adoptive parents and the birth parent giving consent have not agreed about contact or exchanging information about
11 How should adoption law provide for the child’s contact with family members other than parents? For example:
(a) Should contact arrangements be considered as part of a best interests principle?
(b) Should a decision maker, such as DHHS, be required to consider contact with family members other than parents after an adoption?
(c) Should the court be required to consider making conditions for contact with family members other than parents after an adoption?
12 Are there any other issues within the terms of reference that should be considered in determining the best interests of the child and balancing the rights and interests of other people with an interest in the adoption? If yes, what are they?
13 In some states and territories, children aged 12 and over consent to an adoption. Should this be required in Victoria? If not, are there any changes that should be made to the Adoption Act to ensure it provides appropriately for the views and wishes of the child?
14 In what circumstances, if any, should a child have separate legal representation
in adoption proceedings?
15 Should the Adoption Act provide guidance about the duties and role of a legal representative? For example, should a lawyer act in what they think is the best interests of the child, or should they follow the instructions of the child even if they don’t think this is in the child’s best interests?
16 Should the Adoption Act provide for non-legal representation or support of a child in adoption proceedings? If yes, what kind of representation or support should this be?
Chapter 6 Aboriginal and Torres Strait Islander children and the best interests principle
The Commission is seeking the views of the community about whether the Adoption Act provides appropriately for the best interests of Aboriginal and Torres Strait Islander children.
17 Should there be a positive duty on the Secretary of DHHS to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal or Torres Strait Islander child? If yes, what type of inquiry might be reasonable?
18 Should there be separate rules and guidelines that apply only to the adoption of Aboriginal and Torres Strait Islander children? If yes, is the child placement principle in the Adoption Act (section 50) an appropriate mechanism? If not, what changes should be made?
19 Should there be a requirement that in any adoption of an Aboriginal or Torres Strait Islander child the first preference is to place a child for adoption with Aboriginal or Torres Strait Islander extended family or relatives? If not, what should the order of preference be for placing Aboriginal and Torres Strait Islander children for adoption?
20 Should the Adoption Act require that adoption be considered for Aboriginal and Torres Strait Islander children only where there is no other appropriate alternative?
21 Should there be different principles for the adoption of Aboriginal children as compared to Torres Strait Islander children? For example, should there be a separate child placement principle for Torres Strait Islander children as compared
to Aboriginal children as is the case in New South Wales adoption law?
22 Should parents of Aboriginal and Torres Strait Islander children retain the ability, that parents of other children do not have, to put conditions on their consent to the adoption of their children? If not, what options should there be to protect the connection of Aboriginal and Torres Strait Islander children to country, kin, language and community?
Chapter 7 Eligibility, suitability, contemporary attitudes
and the law
The Commission is seeking the views of the community about who should be eligible
to adopt, and whether current suitability and eligibility requirements are consistent with contemporary views and expectations about family.
23 To be able to adopt, couples in domestic relationships are required to prove that they live together and have lived together for two years. This requirement does not apply to other couples such as married couples.
(a) Is a co-habitation requirement consistent with contemporary family life and the best interests of the child?
(b) If yes, should a co-habitation requirement apply to all couples equally?
24 Single people can adopt a child only if there are ‘special circumstances in relation
to the child’ which make the adoption ‘desirable’.
(a) Is this requirement consistent with the best interests of the child?
(b) Should this requirement be amended? If yes, what criteria should apply
to adoptions by single people?
25 A religious body that provides adoption services may refuse to provide services to same-sex couples and people who do not identify with a specific sex or gender, if the body acts in accordance with its religious doctrines, beliefs or principles. Is this consistent with amendments to the Adoption Act that enable same-sex couples, and people who do not identify with a specific sex or gender, to adopt?
26 Step-parents and relatives of a child can only adopt a child in their care in limited circumstances. Parenting orders under the Family Law Act are the preferred option in these situations. Is this appropriate? If not, what changes are needed?
27 Are the suitability criteria in the Adoption Regulations appropriate? Should any criteria be added, removed or changed?
28 Should the requirements applicants must satisfy for approval to adopt be set out more clearly in the Adoption Act and/or Adoption Regulations? If yes, what changes are required to make this clearer?
29 Should the steps in the assessment process be set out more clearly in the Adoption Act and/or Adoption Regulations? If yes, what changes are required to make the assessment process clearer?
30 Could any other improvements be made to the assessment process? If yes, what improvements could be made?
31 Should the process by which adoptive parents are selected be set out more clearly in the Adoption Act and/or Adoption Regulations? If yes, what changes are required to make the selection process clearer?
32 Is it appropriate that birth parents are able to express wishes about the religion, race and ethnic background of adoptive parents? What matters should parents be able to express wishes about? Should other matters be included in the Adoption Act?
Chapter 8 Information and identity
The Commission is seeking the views of the community on access to adoption information under the Adoption Act, how an adopted person’s identity should be reflected on their birth certificate and the ability to change a child’s given names.
33 Should any other people have rights to adoption information under the Adoption Act? If yes, who should be given these rights and what should their rights be?
34 Do any problems arise when people seek adoption information through an adoption information service? If yes, what are the problems and what legal changes, if any, are required to address them?
35 Are the rights to adoption information and the limitations on those rights fair to all people involved in the adoption process? If not, what changes are needed?
36 Is the balance in the Adoption Act between providing access to information and protecting people’s privacy appropriate? If not, what changes are needed?
37 What factors should be taken into account in deciding to release identifying information about a person?
38 Should the provisions of the Adoption Act relating to the release of adoption information be made clearer? If yes, what changes are needed?
39 How should an adopted person’s identity be reflected on their birth certificate?
40 If a different form of birth certificate were available to adopted people, what legal status should it have?
41 Are there any problems with introducing integrated birth certificates or another form of birth certificate? If yes, what are the problems and how could they be addressed?
42 Is changing a child’s given names consistent with the best interests of the child?
43 In what circumstances (if any) should the Adoption Act allow a child’s given names to be changed?
Chapter 9 Modernisation and operation of the Adoption Act
The Commission is seeking the views of the community on modernisation of the Adoption Act and also on how to ensure that the procedural and operational requirements in the Act are suited to contemporary society and consistent with other laws.
44 Should the Adoption Act include a section identifying the main object of the Act?
If yes, how should the main object be described?
45 Should the Adoption Act include general principles to guide the exercise of power? If yes, what should these principles be?
46 Is there terminology in the Adoption Act that should be changed because it is unclear, outdated or inconsistent with other law? If yes, what are the issues and what changes would be appropriate?
47 Are there requirements in the Adoption Act or Adoption Regulations that are out of step with contemporary technology or unduly burdensome without providing effective additional safeguards? If yes, what are they and what would provide appropriate alternatives?
48 Should there be increased requirements in the Adoption Act to provide post-adoption support? If yes:
(a) Who should be responsible for providing this support?
(b) What type of post-adoption support should be provided, and in what circumstances?
(c) Who should be eligible for it?