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Adoption in Queensland

The formal adoption of a child in Queensland is governed by the Adoption Act 2009 which came into force on 1 February 2010.  The effect of an adoption order is that the child becomes the child of the adoptive parents and ceases to be the child of the birth parents.

To commence adoption proceedings the Adoption Act requires:

  • That the child is at least 5 years of age and not yet 17 years of age;
  • That consent is obtained of the other parent (unless the Court dispenses with that requirement);
  • That the Family Court of Australia grants leave for the adoption to occur.

In considering whether the Family Court of Australia is going to grant leave for the adoption to proceed, the Family Court of Australia is required to apply a number of principles which are directed towards focusing the Court on the interests of the children and the impact of proceedings on children.

The granting of leave by the Family Court of Australia does not automatically permit the adoption to be granted.  It is the State Court in Queensland which must make the order for adoption.

The leave of the Family Court of Australia is a precondition to the making of an order for adoption in favour of a non-parent by the State Magistrates Court, sitting as the Children’s Court.  Further, the Children’s Court must also consider, as well as the general requirement to consider the best interests of the relevant child or children, the matters set out as Section 208 of the Adoption Act.

Those requirements as set out in Section 208 are:

  • That the child is present in Queensland;
  • That the step-parent is an adult and is resident or domiciled in Queensland;
  • That the step-parent or his or her spouse is an Australian citizen;
  • That the step-parent is suitable having regard to the matters stated in Part 6 Division 5;
  • That an order for the adoption by the step-parent would better promote the child’s wellbeing and at best interests;
  • That there are exceptional circumstances that warrant the making of the order.

The suitability matters set out in Division 5 of the Adoption Act include the health of a party, capacity to be an adoptive parent generally, good character, attitudes to children and parenting capacity.

The Children’s Court must also have regard to the guiding principles set out in Section 6 of the Adoption Act which include that the purpose of an adoption is to provide for the child’s long term care, welfare and development by creating a permanent parent-child relationship between the child and the adoptive parents.

The Family Court of Australia has made it clear that while the specific requirements under the Adoption Act are specified as requirements in the application before the Family Court of Australia, those matters are directly relevant to any application, if for no other reason than the Family Court of Australia ought not grant leave to permit proceedings in the State Court which are doomed to fail because of the absence of those mandatory State pre-requisites.

It is therefore incumbent upon the judicial officers determining whether leave should be granted for adoption proceedings to proceed to consider – is it in the child’s best interests to permit those adoption proceedings to proceed? With the potential consequence being that a parent with or without the consent of the other parent, by Court Order, shall cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from Orders being made in this Court that might involve the parent and step-parent.

If you require assistance through the Family Court of Australia process in seeking the Court’s permission for an Adoption Order, please contact us.

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