Adoption in NSW – A Guide for Step-Parents

Adoption is the legal process by which a person legally becomes the child of an adoptive parent(s) and ceases to be the child of his or her existing parent(s).  In the right circumstances, adoption is a wonderful and rewarding process, for both the child and the proposed adoptive parent(s). It cements arrangements and relationships that are often already in place and creates new relationships and identities for the benefit of the child by providing the child with “safety, nurture and stability”.

How does Adoption Work?

The Adoption Act 2000 (NSW) enforces the idea that adoption is a service for the child, rather than the right of an adult applying to adopt, and that it should always be in the child’s best interests (both in childhood and in later life) and "clearly preferable …than any other action that could be taken by law in relation to the care of the child".

In NSW, adoptions are overseen by the Department of Communities and Justice (DCJ) and adoption orders are made by the Supreme Court of NSW (the Court) transferring the legal rights and responsibilities for a child from the (birth) parent(s) to the adoptive parent(s).

Once an adoption order is made, the Registrar of the Births, Deaths & Marriages issues a new birth certificate for the child that records the child’s adoptive parent(s) as if the child were born to them. It makes no reference to the child’s birth parent(s) unless one of them becomes the child’s adoptive parent.

Following an adoption order the child will become a legal member of the adoptive family.  This means that:

• The child will have the same rights and responsibilities as any other child in the adoptive family;
• The child can take, and legally use, the adoptive family’s last name;
• The child will have an automatic right to inherit the property of the adoptive parent(s), just like any other children in the adoptive family - but will not automatically receive any inheritance from their (birth) parent(s) unless specifically provided for;
• The child’s adoptive parent(s) will be able to make all the parental decisions about the child’s upbringing;
• The child will no longer be under the parental responsibility of the Minister for DCJ.

The different types of adoptions available in NSW are Local Adoption and Permanent Care Program (including Special Placements Program), Overseas Adoptions, and Intrafamily Adoption (including step-parent adoptions).

Step-Parent Adoptions

Step-Parent adoptions are the most common type of adoption applications we see in family law.

There are strict criteria for making an application for adoption and the Court considers all applications very carefully.  This means that the adoption process can be lengthy, complex, and expensive with many delays along the way.

Here at Lamrocks, we have made successful applications on behalf of step-parents wishing to adopt their step-child (with one of the child’s birth parents) in situations when there has been a long period of little-to-no contact between the child/ren and their birth parent(s) or when there have been concerns raised in relation to the birth parent(s) such as domestic violence, mental illness and/or drug addiction. 

Under these circumstances it was clear that the adoption was in the best interests of the child/ren and was the preferred way forward.  In some instances, however, it might be recommended that a client bring an application under the Family Law Act seeking parental responsibility orders, which include the step-parent and a change of name for the child, instead of making an application for adoption.

Step-Parent Adoption Regulations

The Court must not make an adoption order in favour of a step-parent of a child unless:

• the child is at least 5 years old, and
• the step-parent has lived with the child and the child’s (birth) parent for a continuous period of not less than 2 years immediately before the application for the adoption order (except where the child is over 18 years of age provided they were cared for by proposed adoptive parent(s) before they turned 18 years), and
• specific consent to the adoption of the child by the step-parent has been given by any person(s) that has parental responsibility for the child, and
• the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child. Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) or a parenting order under the Family Law Act 1975 (Cth) (the Family Law Act).

Where parenting orders have previously been made in the Federal Circuit and Family Court of Australia, the Court will be reluctant to make an adoption order unless leave from the Federal Circuit and Family Court of Australia has firstly been obtained.  If a person does not seek leave from the Federal Circuit and Family Court of Australia, they are not precluded from obtaining an adoption order in relation to the child, however, with prior leave under section 60G of the Family Law Act 1975 (Cth), an adoption order:

• renders the child the subject of the adoption no longer a child of the marriage for the purposes of the Family Law Act;
• ends parental responsibility for the child of the parent who is not the adoptive parent;
• ends the operation of any parenting order which was in force under the Family Law Act.

In addition, both parents of a child (or any person with parental responsibility for) must have a chance to express their views in relation to the proposed adoption, regardless of the age of the child.  In a step-parent adoption, the adopting parents are required to ‘Give Notice’ to the other birth parent who must also consent to the adoption unless the Court waives this requirement, the child is over 18, or the child is over the age of 12 and gives his or her sole consent to the adoption.

For more information on step-parent adoptions, contact Nicole Smith at Lamrocks Solicitors on ph: 02 4731 5688.