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Joining the Familia – NSW Adoption Laws

In my time as a solicitor I have had several inquiries related to adoption. They have come from step-parents wishing to adopt children under 18, or the children themselves. In some instances, it has been adults wishing to formalise a close bond that exists between them and a step-parent.

The purpose of this post is to outline the adoption process in NSW as it relates to step-children/step-parents only, focusing on topics such as: –

  • What are the eligibility requirements for adoption.
  • Who can be adopted.
  • Which Court must the application be filed in.
  • What must be done about consent.
  • What documents need to be filed.
  • What are the associated fees.
  • How long does the process take.

Eligibility requirements

If you’re interested in reading the NSW Adoption Laws, they are the NSW Adoption Act 2000 and the Adoption Regulation 2015. It is these instruments which spell out the eligibility requirements for step-parent adoption in NSW.

As an overview, the requirements for adopting a step-child under 18 are as follows: –

  1. Adoption must be in the child’s best interests presently and later in life, against any other possible alternative arrangement (for example, the making of parenting orders which favour the step-parent).
  2. Generally speaking, the child must be present in NSW at the time of filing the application, and the adopting step-parent must live in or be permanently resident in NSW.
  3. Consent has been provided by the appropriate persons (e.g. non-custodial parent, the child themselves if they over 12 years of age, and any other person who has parental responsibility for the child).
  4. An independent person must witness the consent to adopt a child.
  5. The relevant persons giving consent to the adoption must be provided with Mandatory Written Information.
  6. The adoptive step-parent has lived with the child and/or the child’s birth parent continuously for 2 years before the application is made.
  7. The person or child consenting to the adoption must have Registered counselling to ensure they are aware of the legal and emotional effects of the decision.
  8. A Court Report has been prepared by the Secretary or an authorised person.

Who can be adopted?

The following types of people are capable of being adopted: –

  1. Children under 18 years old.
  2. Adult children (over 18) who were cared for by the adopting step-parent prior to the application being made.
  3. Children who are under the parental responsibility of the Minister under a care and protection order.

Which Court is the Application heard in?

It is the NSW Supreme Court that has the jurisdiction to hear Adoption applications.

Who’s consent is needed?

Adoption is no small procedure, given the practical effect of it is to transfer all the legal, emotional, social and economic implications of parenthood onto a new person (or persons). As a result, obtaining consent is pivotal and is a requirement in many scenarios.

If a child is under 18, consent must be given by all appropriate persons, including: –

  1. The child’s birth parent/s.
  2. The child themselves (if over 12, provided they have sufficient maturity and understanding to understand the implications of adoption).
  3. Any other person with parental responsibility for the child (for example, a grandparent who has been ordered to have parental responsibility during family law proceedings).

The exceptions to obtaining these forms of consent are when: –

  1. The Court waives this requirement.
  2. In a joint application, the person whose consent is required is a proposed adoptive parent.
  3. The child who is over 12 and of sufficient understanding and maturity gives sole consent.
  4. An adult child is involved (over 18).

What documents must be filed?

The requisite documents can be found here on the Supreme Court website. There are several documents which may be required depending on the circumstances of the case, including: –

  1. Summons for Adoption.
  2. Affidavits (written evidence) from all relevant parties.
  3. The Adoption Orders proposed.
  4. Evidence of consent from all relevant parties.
  5. Court report (if the child is under 18 years old).
  6. Affidavits of service (to prove that relevant parties have been served and notified of the application).

What fees are applicable?

There is a mandatory Court fee of $1,169 upon filing the Application (as at 1 July 2021).

How long does the process take?

Depending on the nature of the case, the entire process can take between 3 – 6 months. The greater the case relies on external components, for example the preparation of a Court Report (where the proposed adoptee is under 18), the longer it will likely take.

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The process for Adoption in NSW contains many moving parts. It requires a preparation of the correct documents and the gathering of all requisite information.

If you or someone you know is looking for further advice or representation in an adoption application, please send through an email here. We would be happy to provide you with further direction and a fixed fee quote estimate for whichever your needs may be.

** Disclaimer: the content in this post is general information only and not to be taken as legal advice.

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