Adoption

Adoption of a child is the permanent arrangement, finalised by Family Court order, for a child to no longer have any legal ties with their biological parent(s), with those rights instead being vested in another individual(s). After an adoption order is made, the child cannot be ‘reclaimed’ by the biological parents and the law applies to the child and their adoptive parents as if the child had been born to them. This extends from the parental responsibility and rights of the new, adoptive parents, to the child’s right to their parents’ estate after death.

Children are adopted for a variety of reasons. However, generally, adoption provides a new family for a child who can’t be cared for by their own parents. In Western Australia, there are roughly 10 – 20 local adoptions each year.

A child is adopted by first being linked to their new prospective parent(s) by an adoption agency. The Department of Child Protective Services (“DCP”) is the only adoption agency in Western Australia. All adoptions must be administered via DCP. To finalise an adoption, adoptive parents must then obtain an adoption order from the Family Court of Western Australia.

Adoption orders are made in the Family Court of Western Australia under the Adoption Act 1994 (WA). The Court can only make an order for adoption if each prospective adoptive parent, and the child, are all ‘domiciled’ or living in Western Australia. If the adoptive child is not an Australian citizen, they must be permitted by the Department of Immigration to remain permanently in Australia.

Adoption of a child generally falls into three different categories:

  1. Child adoption (what some might see as a “normal” adoption);
  2. Adult adoption (for adoptive children over the age of 18 years); and
  3. Step-parent adoption (where the prospective parent is already the adoptive child’s step-parent).

The Family Court makes adoption orders to finalise each type of adoption, as well as additional ancillary adoption orders as required. Any adoption order made by the Family Court must be in the best interests of the child in question.

Upon an adoption order being made, the biological parent(s) of the adoptive child are removed of their parental rights of the child, and those parental rights are then vested in the child’s new, adoptive parents. If any parenting orders are in existence prior to an adoption order being made, those parenting orders are then cancelled upon the adoption order being made.

Adoptions of children from overseas must comply with both Western Australian law and the law of the country where the child is from, otherwise an adoption may fail or not be recognised in Western Australia. If that is the case, then an adoptive parent may not actually have the parental rights in respect of a child that they believe they do. International adoptions must meet additional regulations and often require more paperwork and procedural steps.

Naturally, a step-parent may wish to adopt the child of their partner. Step-parent adoption is available to step-parents who meet the following criteria:

  • The step-parent must be married to the adoptive child’s biological parent, or have been in a de facto relationship with them, for at least 3 years;
  • There must be a parent-child relationship between the step-parent and the adoptive child;
  • That the step-parent’s adoption of the child would be in the best interests of the child and must promote the child’s long-term care and welfare; and
  • A reason provided as to why an adoption order would be better than a parenting order (for example, if there is no dispute between any of the parent(s) of the child and the child is not a subject of Family Court proceedings already).

Adoption can take a fair amount of time and a child you seek to adopt at birth may be over 12 months old by the time an adoption takes effect. However, you may be able to commence more immediate care of a child by fostering the child ahead of adoption. For more information about fostering a child, see our “Fostering” tab above.

The DCP encourages adoptive families to arrange an “open adoption”. An “open adoption” is where any remaining biological parents of an adoptive child are kept informed about the child’s welfare and development and (with the permission of all adoptive parents) they may remain in contact with the child throughout their life. This allows a child to remain connected with any cultural or personal history that they may have. The view is taken that an “open adoption” is preferable, where possible and appropriate.

An adopted child is treated by the law as a biological child once an adoption order is made. To this end, adoption of a child may void a child maintenance order from the Family Court, and/or your right to seek child support payments. Conversely, if you adopt a child you may then be entitled to seek child support or a child maintenance order yourself.

Further, an adopted child can be the subject of Family Court proceedings should their adoptive parents separate.

If you would like any assistance in adopting a child, you may wish to consider seeking legal advice. This is particularly with respect to overseas adoptions. Additionally, you may want to consider seeking immigration advice.

Useful Links

  • The Department of Child Protective Services have a wealth of information available at their website. You can visit the DCP’s adoption fact page by clicking here, or calling DCP on 1800 182 178.
  • The Family Court of Western Australia has a wealth of information about how to apply for an adoption order to finalise the adoption of a child, as well as providing all forms, instructions and kits available for applying for an adoption order. To access this information, visit the Family Court of Western Australia’s adoption page here and/or download a copy of their Adoption Kit here.
  • Legal Aid WA also have an information fact sheet where you can find out more about adoption and the resources available to prospective parents to complete such an application. You can visit their adoption fact page by clicking here or calling Legal Aid WA on (08) 9261 6222.
  • If you are pregnant, are considering adoption for your child and want to find out more, visit the DCP’s adoption considerations fact page here. You may also wish to call the DCP on 1800 182 178.
  • For Western Australian adoption support and counselling services, visit the Adopt Change website by clicking here.

 

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