AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
the child is the child of the woman and the other intended parent under a prescribed law of a state or territory, then the child is the child of the woman and the other intended parent, for the purposes of the Family Law Act, and the woman and other intended parent would both hold parental responsi - bility under the common law. 1.6 Same-Sex Relationships The presumptions of parentage in relation to children born as a result of an artificial conception procedure (see 1.4 Requirements for Non-Genetic Parents ) apply to same-sex couples who are married or in a de facto relationship at the time of the child’s conception. If the relationship commences after the child’s concep - tion, the partner who is not the “parent” could apply to the court for an order to obtain parental responsibility. 1.7 Adoption Under Australian law, adoption is the permanent transfer of all legal parental rights and responsibilities to the adoptive parents. Once an adoption order is made, the law regards the child as though they were born to the adoptive parents. Adoption of Children Within Australia An application for an adoption order can only be made to the relevant court in the state or territory where the child resides. Each state or territory has enacted legislation about adoption, and the requirements may vary between different states and territories. There are restrictions on who can apply to adopt a child, under domestic law. An adoptive parent (who is not a relative or step-parent) can only apply to adopt a child with the consent of the relevant state or territory child protection authority or where that authority has enquired into the proposed adoption. Where children are in foster care, in some jurisdictions it is the state child protection agency (or other approved agency) that will make the application to the court for an adop - tion order in favour of the foster carers (also called the proposed adoptive parents). In the case of a step-parent adoption, an adoption order will not displace the existing parental responsi - bility for a child (whether that is because of the com -
mon law or an order made under the Family Law Act) unless leave was granted to commence the adoption proceedings under Section 60G of the Family Law Act. Similarly, if a parenting order is in force and leave is not granted, the parenting order will remain in force. The relevant legislation in each state and territory sets out the requirements that a proposed adoptive parent needs to meet. These requirements differ, depending on whether the proposed adoptive parent is a fos - ter carer, step-parent or relative. Requirements may include things like: • that the child has attained a certain age; • that the adoptive parent has an established rela - tionship with the child or has cared for them for a certain period; • that the adoptive parent’s spouse consents, or if the adoptive parents are a couple they have lived together for a certain period of time; and • that the adoptive parents have been domiciled in the particular state or territory for a certain period of time. In all states and territories, the relevant court will only make an adoption order if it is in the child’s best inter - ests, and if specific requirements of the law have been satisfied. The applicable legislation will set out in detail the factors that the court must consider when decid - ing whether the order is in the child’s best interests, including the child’s wishes, identity, culture, language and religion. Where the child is an Aboriginal or Torres Strait Islander child, special considerations apply. In some states and territories, a person who has been adopted can decide whether to use the new birth cer - tificate that is issued after the adoption order is made or an integrated birth certificate, which records details of the person’s birth parents and their adoptive par - ents. Recognition of Foreign Adoption Orders There are some differences under state and federal law as to when an adoption order made in a foreign country will be recognised. Australia has signed and ratified the Convention on Protection of Children and Co-operation in Respect of
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