Adoption Act 2009


Queensland Crest
Adoption Act 2009
Queensland Adoption Act 2009 Reprinted as in force on 17 September 2012 Reprint No. 1E This reprint is prepared by the Office of the Queensland Parliamentary Counsel Warning—This reprint is not an authorised copy
Information about this reprint This Act is reprinted as at 17 September 2012. The reprint shows the law as amended by all amendments that commenced on or before that day (Reprints Act 1992 s 5(c)). The reprint includes a reference to the law by which each amendment was made—see list of legislation and list of annotations in endnotes. Also see list of legislation for any uncommenced amendments. This page is specific to this reprint. See previous reprints for information about earlier changes made under the Reprints Act 1992. A table of reprints is included in the endnotes. Also see endnotes for information about— when provisions commenced editorial changes made in earlier reprints. Spelling The spelling of certain words or phrases may be inconsistent in this reprint or with other reprints because of changes made in various editions of the Macquarie Dictionary (for example, in the dictionary, ‘lodgement’ has replaced ‘lodgment’). Variations of spelling will be updated in the next authorised reprint. Dates shown on reprints Reprints dated at last amendment All reprints produced on or after 1 July 2002, authorised (that is, hard copy) and unauthorised (that is, electronic), are dated as at the last date of amendment. Previously reprints were dated as at the date of publication. If an authorised reprint is dated earlier than an unauthorised version published before 1 July 2002, it means the legislation was not further amended and the reprint date is the commencement of the last amendment. If the date of an authorised reprint is the same as the date shown for an unauthorised version previously published, it merely means that the unauthorised version was published before the authorised version. Also, any revised edition of the previously published unauthorised version will have the same date as that version. Replacement reprint date If the date of an authorised reprint is the same as the date shown on another authorised reprint it means that one is the replacement of the other.
Queensland Adoption Act 2009 Contents Part 1 Division 1 1 2 3 Division 2 4 5 6 7 8 9 Division 3 10 11 Division 4 12 13 Part 2 Division 1 14 15 16 17 Division 2 18 Page Preliminary Introduction Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Application, object and guiding principles Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Main object of Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Guiding principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Additional principles concerning Aboriginal and Torres Strait Islander persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Act applies despite Anti-Discrimination Act 1991 . . . . . . . . . . . . . 19 References to child’s wellbeing or best interests . . . . . . . . . . . . . 19 Adoptions under this Act Who may be adopted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Rules of private international law not relevant . . . . . . . . . . . . . . . 20 Custody and guardianship What is the effect of custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 What is the effect of guardianship . . . . . . . . . . . . . . . . . . . . . . . . 20 Consent to adoption and related matters Preliminary Non-application to intercountry adoptions . . . . . . . . . . . . . . . . . . 21 References to parent in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Requirement for consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 References to consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Requirements about consent Form of consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Adoption Act 2009 Contents 19 20 Division 3 21 22 23 24 25 26 Division 4 27 28 29 30 Division 5 31 32 33 34 Division 6 35 36 37 38 39 40 41 Division 7 42 Division 8 43 44 45 Time of consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation of consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Giving forms, information and counselling to parents Obligation to enable understanding . . . . . . . . . . . . . . . . . . . . . . . Parents to be given consent documents . . . . . . . . . . . . . . . . . . . Parents to be given prescribed information . . . . . . . . . . . . . . . . . Parents to be given pre-consent counselling . . . . . . . . . . . . . . . . Pre-consent information and counselling for Aboriginal or Torres Strait Islander child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parents’ access to legal advice . . . . . . . . . . . . . . . . . . . . . . . . . . Ensuring parents have capacity to consent Meaning of qualified person for div 4 . . . . . . . . . . . . . . . . . . . . . . Assessing whether a non-adult parent has capacity to consent . Declaration of QCAT whether an adult parent has capacity to consent ....................................... Appointment of guardian for adult parent without capacity to consent ....................................... Identifying child’s father and related matters Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Establishing father’s identity and location. . . . . . . . . . . . . . . . . . . Giving notice to father or person suspected to be father . . . . . . . Chief executive may apply for declaration of paternity . . . . . . . . . Dispensing with requirement for parent’s consent Application for dispensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearing of application in absence of relevant parent . . . . . . . . . . Court may dispense with need for consent . . . . . . . . . . . . . . . . . Notice of court order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge of dispensation order if relevant parent not served with application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complying interstate consents Consent given under a law of another State . . . . . . . . . . . . . . . . Giving information, counselling and support to child Application of div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child must be given information . . . . . . . . . . . . . . . . . . . . . . . . . . Child must be given counselling . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 23 23 23 23 24 25 26 27 27 28 28 29 29 29 30 30 31 31 32 32 32 34 35 35 36 36 38
46 47 Part 3 Division 1 48 49 50 51 52 53 54 Division 2 55 56 57 58 59 60 61 62 Division 3 63 64 65 Part 4 Division 1 66 67 Division 2 68 69 70 71 Adoption Act 2009 Contents Counselling for Aboriginal or Torres Strait Islander child . . . . . . . Child may be given other support. . . . . . . . . . . . . . . . . . . . . . . . . Custody and guardianship of a child awaiting adoption Custody of child under care agreement References to parent in div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of care agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entering into care agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of care agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No agreement against the wishes of a parent . . . . . . . . . . . . . . . Maximum period of care agreement. . . . . . . . . . . . . . . . . . . . . . . Ending of care agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guardianship of child after consent is given to local adoption Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive becomes guardian when consent is given or dispensed with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child may be placed in care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of consent or dispensation ending . . . . . . . . . . . . . . . . . . . Chief executive may place child in parents’ care . . . . . . . . . . . . . Other ending of chief executive’s guardianship . . . . . . . . . . . . . . Guardianship under Child Protection Act not affected . . . . . . . . . Transfer of guardianship between chief executive and corresponding officer for another State Corresponding officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive may renounce guardianship . . . . . . . . . . . . . . . . Chief executive may ask corresponding officer to renounce guardianship ................................... Recruitment and selection of prospective adoptive parents Planning Chief executive must plan for future need . . . . . . . . . . . . . . . . . . Deciding number of parents to be assessed . . . . . . . . . . . . . . . . Making expressions of interest Who may make an expression of interest. . . . . . . . . . . . . . . . . . . Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nomination relating to local or intercountry adoption . . . . . . . . . . Other requirements for expressing an interest . . . . . . . . . . . . . . . 38 39 39 40 40 40 41 41 41 42 42 42 43 43 43 44 44 44 45 45 46 47 48 48 49 49 Page 3
Adoption Act 2009 Contents 72 73 74 Division 3 75 76 77 78 79 80 81 82 83 Division 4 84 85 86 87 Division 5 88 89 90 91 Part 5 Division 1 92 93 94 95 Division 2 96 97 98 99 Person may express an interest despite previous expressions . . Changes to current expression of interest or relevant information No expressions of interest while register is closed. . . . . . . . . . . . Expression of interest register Expression of interest register . . . . . . . . . . . . . . . . . . . . . . . . . . . Eligibility for inclusion in register. . . . . . . . . . . . . . . . . . . . . . . . . . Notice and information to persons entered in register . . . . . . . . . Notice to persons not entered in register . . . . . . . . . . . . . . . . . . . Automatic removal from register. . . . . . . . . . . . . . . . . . . . . . . . . . Other removal from register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive may require further information . . . . . . . . . . . . . . Obligation to notify chief executive of changed or new information relevant to eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . Inclusion in register does not confer entitlement . . . . . . . . . . . . . Closing and re-opening expression of interest register Chief executive may close register . . . . . . . . . . . . . . . . . . . . . . . . Notice of closure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Periodic review of closure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Re-opening the register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Selections for assessment Selection to meet anticipated future need . . . . . . . . . . . . . . . . . . Selection to meet needs of particular child . . . . . . . . . . . . . . . . . Joint selection of spouses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of selection and fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application by person wishing to adopt stepchild Making an application Who may apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . Refusal of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obligation to notify chief executive of changed or new information relevant to application . . . . . . . . . . . . . . . . . . . . . . . . How chief executive must deal with accepted application Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obtaining consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . All consents not obtained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 50 51 51 51 52 53 53 54 55 56 57 57 58 58 58 59 60 61 62 62 63 63 64 64 65 65 65 Page 4
100 Part 6 Division 1 101 102 103 Division 2 104 105 106 107 Division 3 108 109 110 111 112 Division 4 113 114 115 116 117 118 119 Division 5 120 121 122 123 124 125 Adoption Act 2009 Contents Lapsing of application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment of prospective adoptive parents Preliminary Who is assessed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suitable adoptive parents register . . . . . . . . . . . . . . . . . . . . . . . . This part applies despite the Criminal Law (Rehabilitation of Offenders) Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purpose and scope of assessment Purpose of assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of assessment—persons selected to meet anticipated future need . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of assessment—persons selected to meet needs of particular child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of assessment—persons wishing to adopt stepchild . . . . Assessment process Joint assessment of a couple . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Timing and pace of assessment. . . . . . . . . . . . . . . . . . . . . . . . . . Consent of household members to assessment . . . . . . . . . . . . . Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information to assess suitability Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive may require information . . . . . . . . . . . . . . . . . . . Obligation to notify chief executive of changed or new information relevant to eligibility or suitability . . . . . . . . . . . . . . . . Police information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Traffic information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consultation with appropriate Aboriginal or Torres Strait Islander person ................................. Other information gathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bases for deciding suitability Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unacceptable risk of harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guiding principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Capacity to be adoptive parent generally . . . . . . . . . . . . . . . . . . . Good character. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 66 67 67 67 67 68 68 68 69 70 70 71 72 72 73 74 75 76 76 77 77 79 79 79 80 Page 5
Adoption Act 2009 Contents 126 127 128 129 130 131 132 133 Division 6 134 135 136 137 138 Division 7 139 Division 8 140 141 142 143 Division 9 144 145 146 Division 10 147 148 149 150 Part 7 Division 1 151 152 Page 6 Attitudes to children and parenting. . . . . . . . . . . . . . . . . . . . . . . . Adoptive parenting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Quality of relationship with spouse. . . . . . . . . . . . . . . . . . . . . . . . Infertility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Matters relating to step-parent . . . . . . . . . . . . . . . . . . . . . . . . . . . Aboriginal or Torres Strait Islander children . . . . . . . . . . . . . . . . . Other cultural matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other prescribed matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action following decision Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive must give notice of decision . . . . . . . . . . . . . . . . Removal from expression of interest register . . . . . . . . . . . . . . . . Entry in suitable adoptive parents register . . . . . . . . . . . . . . . . . . Preparation of report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interstate register Registration of person on interstate register . . . . . . . . . . . . . . . . Re-assessment of person listed in suitable adoptive parents register When a person may be re-assessed . . . . . . . . . . . . . . . . . . . . . . Conduct of re-assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Re-assessment may be limited . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of re-assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Removal from suitable adoptive parents register Automatic removal from register. . . . . . . . . . . . . . . . . . . . . . . . . . Removal after re-assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . Other grounds for removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Investigative information Police commissioner may decide that information about a person is investigative information . . . . . . . . . . . . . . . . . . . . . . . . Appeal from decision that information is investigative information Court to decide matters afresh . . . . . . . . . . . . . . . . . . . . . . . . . . . Consequence of successful appeal . . . . . . . . . . . . . . . . . . . . . . . Selection of prospective adoptive parents Requirement to select persons as prospective adoptive parents Application of div 1 for initial selection for local adoptions . . . . . . Application of div 1 when further selection required. . . . . . . . . . . 80 80 81 81 81 81 82 83 83 83 83 83 84 85 86 86 86 87 87 88 88 89 90 91 92 92 92
153 Division 2 154 155 156 157 158 159 160 161 162 163 Division 3 164 Part 8 Division 1 165 166 167 168 169 Division 2 170 171 172 173 Part 9 Division 1 174 175 176 177 178 179 Adoption Act 2009 Contents Chief executive must select prospective adoptive parents . . . . . . How selection must be made Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child’s wellbeing and best interests generally . . . . . . . . . . . . . . . Child’s particular needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preferences of parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Characteristics of persons who may be selected . . . . . . . . . . . . . Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Placement with sibling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other children in adoptive family . . . . . . . . . . . . . . . . . . . . . . . . . Initial period of full-time personal care by adoptive parents . . . . . Additional provisions relating to Aboriginal or Torres Strait Islander children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Facilitating matters between parents and selected persons Facilitating agreement or adoption plan . . . . . . . . . . . . . . . . . . . . Adoption plans General What is an adoption plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nature of plan and limitations on operation . . . . . . . . . . . . . . . . . Chief executive to help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . When is plan required In-person contact between child and birth family . . . . . . . . . . . . . Child protection order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Particular Aboriginal or Torres Strait Islander placements . . . . . . Adoption plans otherwise not compulsory . . . . . . . . . . . . . . . . . . Adoption orders General matters Court may make adoption orders . . . . . . . . . . . . . . . . . . . . . . . . . Consents and pre-consent counselling and information . . . . . . . Particular documents not to be served on prospective adoptive parents ....................................... Proceedings about whether parents have consented . . . . . . . . . Child subject to child protection order . . . . . . . . . . . . . . . . . . . . . Child able to form and express views . . . . . . . . . . . . . . . . . . . . . . 93 94 94 94 94 95 95 96 96 96 96 97 98 99 100 100 100 101 101 101 102 102 102 103 103 105 105 Page 7
Adoption Act 2009 Contents 180 Division 2 181 182 183 184 185 186 187 188 189 190 Division 3 191 192 193 194 195 196 197 198 199 200 201 202 Division 4 203 204 205 206 207 208 209 Division 5 210 References to prospective adoptive parents . . . . . . . . . . . . . . . . Local adoptions Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application for interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements for making interim order . . . . . . . . . . . . . . . . . . . . Period of operation of interim order . . . . . . . . . . . . . . . . . . . . . . . Effect of interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge of interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application for final adoption order if interim order is in force. . . . Application for final adoption order in favour of approved carers . Requirements for making final adoption order . . . . . . . . . . . . . . . Notice of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intercountry adoptions Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Custody and guardianship if no guardian under Commonwealth Act ............................. Custody and guardianship if interim order in force . . . . . . . . . . . . Order ending custody or discharging interim order . . . . . . . . . . . Application for interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements for making interim order . . . . . . . . . . . . . . . . . . . . Period of operation of interim order . . . . . . . . . . . . . . . . . . . . . . . Chief executive to supervise child’s wellbeing and interests . . . . Application for final adoption order . . . . . . . . . . . . . . . . . . . . . . . . Requirements for making final adoption order . . . . . . . . . . . . . . . Discharge of interim order on application for final order. . . . . . . . Notice of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adoptions by step-parent Meaning of suitability report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application by step-parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive must file report . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements for making final adoption order . . . . . . . . . . . . . . . Notice of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adoptions by residents of a convention country Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 106 106 106 107 107 108 109 109 110 111 112 112 112 113 113 114 115 115 116 116 118 118 118 119 119 119 119 120 120 121 Page 8
211 212 213 Division 6 214 215 216 217 218 Division 7 219 220 221 222 223 224 225 226 Part 10 Division 1 227 Division 2 228 229 230 231 232 233 234 235 236 237 238 239 240 Adoption Act 2009 Contents Selection of prospective adoptive parents . . . . . . . . . . . . . . . . . . Application for final adoption order . . . . . . . . . . . . . . . . . . . . . . . . Requirements for making adoption order . . . . . . . . . . . . . . . . . . . Effect of final adoption order Effect on relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Child’s name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of adoption orders in relation to property . . . . . . . . . . . . . . Bequest by will to an unascertained adopted person. . . . . . . . . . Transfer or distribution of property by trustee or personal representative .................................. Discharge of final adoption order Grounds for discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Who may apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How to apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearing not to be in public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearing of application in absence of party . . . . . . . . . . . . . . . . . . Court orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court proceedings Preliminary Application of pt 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitution of court and procedural provisions Court’s constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court’s paramount consideration . . . . . . . . . . . . . . . . . . . . . . . . . Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court to ensure parties understand proceeding. . . . . . . . . . . . . . Expert help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right of appearance and representation . . . . . . . . . . . . . . . . . . . Right of appearance of departmental coordinators . . . . . . . . . . . Separate legal representation of child . . . . . . . . . . . . . . . . . . . . . Support for child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal representation of more than 1 child . . . . . . . . . . . . . . . . . . Child can not be compelled to give evidence . . . . . . . . . . . . . . . . Court may hear submissions from non-parties to proceeding . . . Transfer of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 121 121 122 123 124 124 126 126 127 127 128 128 129 129 130 130 131 131 131 131 132 132 132 132 133 134 134 134 134 Page 9
Adoption Act 2009 Contents 241 242 Division 3 243 244 245 246 247 Part 11 Division 1 248 249 250 251 252 253 254 Division 2 255 256 257 258 259 260 261 Division 3 262 263 264 265 266 267 268 Hearing of applications together. . . . . . . . . . . . . . . . . . . . . . . . . . Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeals Who may appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How to start appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stay of operation of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Powers of appellate court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Access to adoption information Preliminary Identifying information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of relative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References to birth parent—who is a biological father . . . . . . . . . Application to persons who have died . . . . . . . . . . . . . . . . . . . . . Prescribed documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Release of altered documents . . . . . . . . . . . . . . . . . . . . . . . . . . . How request for information is made . . . . . . . . . . . . . . . . . . . . . . Access to particular identifying information while adopted person is a child Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Request by, or on behalf of, adopted child . . . . . . . . . . . . . . . . . . Request by birth parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking steps to obtain consent to disclosure . . . . . . . . . . . . . . . . Support for persons involved in disclosure of information . . . . . . Adoption plan may include consent or request not to be asked for consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Access to information is subject to court order. . . . . . . . . . . . . . . Access to particular information when adopted person is an adult Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Request by adopted person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Request by adult relative in place of adopted person. . . . . . . . . . Request by birth parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Request by adult relative in place of birth parent . . . . . . . . . . . . . Request by pre-adoption sibling . . . . . . . . . . . . . . . . . . . . . . . . . . Limitations on access to information . . . . . . . . . . . . . . . . . . . . . . 135 135 135 136 136 136 136 137 137 138 138 139 139 139 140 140 141 143 143 143 144 144 144 145 145 146 146 147 Page 10
Division 4 269 270 271 272 273 274 Division 5 275 276 277 Division 6 278 279 280 281 282 283 284 285 286 287 Part 12 288 289 290 290A 290B 290C Part 13 Division 1 291 292 293 Adoption Act 2009 Contents Contact statements and related matters Contact statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contact statement obligations for post-June 1991 adoptions. . . . Contact statement obligations for pre-June 1991 adoptions . . . . Offence about contact for pre-June 1991 adoptions. . . . . . . . . . . Currency and revocation of contact statements . . . . . . . . . . . . . . Persons making contact statements presumed to be living . . . . . Miscellaneous Court order restricting access to information . . . . . . . . . . . . . . . . Chief executive may obtain or disclose non-identifying medical information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intercountry adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mailbox service What is the mailbox service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other definitions for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Who is eligible to take part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exchanging non-identifying information . . . . . . . . . . . . . . . . . . . . Exchanging identifying information. . . . . . . . . . . . . . . . . . . . . . . . Notice of intention to take part . . . . . . . . . . . . . . . . . . . . . . . . . . . Receipt and review of documents . . . . . . . . . . . . . . . . . . . . . . . . Document with no identifying information or concerning matter. . Document with identifying information or concerning matter . . . . Photographs of persons more than 2 years old . . . . . . . . . . . . . . Registration of adoptions Definitions for pt 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive must notify registrar. . . . . . . . . . . . . . . . . . . . . . . Entitlement to certificate, information or source document relating to particular entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application for notice of adoptions in another country . . . . . . . . . Deciding applications for notice of adoptions in another country . Registrar to record information about adoptions granted in another country . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recognition of adoptions and related matters Recognition of interstate and overseas adoptions Recognition of Australian and New Zealand adoptions . . . . . . . . Recognition of adoptions granted in convention countries . . . . . . Recognition of adoptions granted in non-convention countries . . 147 148 149 151 152 152 153 154 155 156 156 157 157 157 158 159 159 160 160 162 162 162 163 164 165 165 166 167 Page 11
Adoption Act 2009 Contents Division 2 294 295 296 297 Division 3 298 299 Part 14 300 301 302 303 304 305 306 307 Part 14A Division 1 307A 307B 307C 307D Division 2 307E Division 3 307F 307G Division 4 307H 307I 307J 307K 307L 307M Simple adoptions Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Simple adoption does not end parent-child relationship. . . . . . . . Conversion of simple adoption in convention country . . . . . . . . . Conversion of simple adoption by Childrens Court . . . . . . . . . . . Other matters concerning overseas adoptions Chief executive to have limited supervision of adopted children . Declarations of validity of overseas adoptions . . . . . . . . . . . . . . . Offences Definitions for pt 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Territorial application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . False representation about arranging adoption . . . . . . . . . . . . . . Giving or receiving consideration . . . . . . . . . . . . . . . . . . . . . . . . . Advertisements and other published matters . . . . . . . . . . . . . . . . False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . Improperly witnessing a consent . . . . . . . . . . . . . . . . . . . . . . . . . Fraud or undue influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings before QCAT Preliminary Application of pt 14A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions for pt 14A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Object of pt 14A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Principles for tribunal in matters relating to this Act . . . . . . . . . . . Notice for proceedings Government entity may nominate decision-maker . . . . . . . . . . . . Proceedings Constitution of tribunal and hearing of compulsory conference . . Hearing must usually be held in private . . . . . . . . . . . . . . . . . . . . Children in proceedings Requirements about ensuring proper understanding of tribunal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Separate representation of children . . . . . . . . . . . . . . . . . . . . . . . Children must not be compelled to give evidence . . . . . . . . . . . . Child’s right to express views to tribunal. . . . . . . . . . . . . . . . . . . . Children giving evidence or expressing views to tribunal . . . . . . . Questioning of children. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 169 169 170 171 172 174 174 174 175 175 176 176 177 178 178 179 179 179 180 181 182 182 183 183 183 184 Page 12
Division 5 307N 307O 307P 307Q Part 15 Division 1 308 309 310 311 312 313 Division 2 314 315 316 Division 3 317 318 319 320 321 322 323 324 325 326 327 328 Part 16 Division 1 329 Adoption Act 2009 Contents Confidentiality Confidentiality order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limited access to tribunal’s register of proceedings . . . . . . . . . . . Limited access to tribunal’s record of proceedings. . . . . . . . . . . . Certain information not to be published . . . . . . . . . . . . . . . . . . . . General Matters about offences and proceedings Types of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings for indictable offence . . . . . . . . . . . . . . . . . . . . . . . . Limitation on who may summarily hear indictable offence . . . . . . Limitation on time for starting summary proceeding. . . . . . . . . . . Evidentiary provisions for proceedings under this Act . . . . . . . . . Proof of adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Confidentiality Confidentiality of information obtained by persons involved in administration of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Publishing identifying material . . . . . . . . . . . . . . . . . . . . . . . . . . . Disclosure to other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous Adoption contract workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of appropriate Aboriginal or Torres Strait Islander person ....................................... Right of review against particular decisions . . . . . . . . . . . . . . . . . Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Convention countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State central authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assistance to adoptive parents and others. . . . . . . . . . . . . . . . . . Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Repeal, savings and transitional provisions Repeal Repeal of Adoption of Children Act 1964 . . . . . . . . . . . . . . . . . . . 184 185 185 186 187 187 188 188 188 190 190 192 194 194 194 195 196 196 196 197 197 198 198 198 199 199 Page 13
Adoption Act 2009 Contents Division 2 330 331 331A 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 Schedule 1 Schedule 3 Savings and transitional Meaning of commencement day . . . . . . . . . . . . . . . . . . . . . . . . . Adoption orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Correction of adoption orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . Application by step-parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special Needs Children’s Adoption List . . . . . . . . . . . . . . . . . . . . Review of decision to remove name from adoption list . . . . . . . . Expression of interest register . . . . . . . . . . . . . . . . . . . . . . . . . . . Uncompleted review of decision to remove persons from expression of interest register . . . . . . . . . . . . . . . . . . . . . . . . . . . Suitable adoptive parents register . . . . . . . . . . . . . . . . . . . . . . . . Current applications to Supreme Court or Childrens Court . . . . . Consents to adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chief executive’s guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . Current applications to chief executive to convert simple adoption ...................................... Particular objections continue in force as contact statements for pt 11 ...................................... Current application to chief executive to disclose particular information .................................... Entitlement to particular records . . . . . . . . . . . . . . . . . . . . . . . . . Transitional—effect of adoption orders in relation to property . . . Hague convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 199 200 200 200 201 201 202 202 203 203 203 204 204 204 205 205 205 206 225 Endnotes 1 2 3 4 5 6 7 Index to endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forms notified or published in the gazette . . . . . . . . . . . . . . . . . . . . . 235 235 236 236 236 237 239 Page 14
Adoption Act 2009 Adoption Act 2009 Part 1 Preliminary [s 1] [as amended by all amendments that commenced on or before 17 September 2012] An Act to make provision about the adoption of children and to make related amendments of the Adoption of Children Act 1964, the Births, Deaths and Marriages Registration Act 2003 and the Child Protection Act 1999 and to make consequential amendments of other Acts as stated in schedule 2 Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Adoption Act 2009 . 2 Commencement This Act, other than part 17 division 1, commences on a day to be fixed by proclamation. 3 Dictionary The dictionary in schedule 3 defines particular words used in this Act. Reprint 1E effective 17 September 2012 Page 15
Adoption Act 2009 Part 1 Preliminary [s 4] Division 2 Application, object and guiding principles 4 Act binds all persons (1) This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and all the other States. (2) Subsection (1) does not make the State, the Commonwealth or another State liable for an offence. 5 Main object of Act The main object of this Act is to provide for the adoption of children in Queensland, and for access to information about parties to adoptions in Queensland, in a way that— (a) promotes the wellbeing and best interests of adopted persons throughout their lives; and (b) supports efficient and accountable practice in the delivery of adoption services; and (c) complies with Australia’s obligations under the Hague convention. 6 Guiding principles (1) This Act is to be administered under the principle that the wellbeing and best interests of an adopted child, both through childhood and the rest of his or her life, are paramount. (2) Subject to subsection (1), this Act is to be administered under the following principles— (a) the purpose of an adoption is to provide for a child’s long-term care, wellbeing and development by creating a permanent parent-child relationship between the child and the adoptive parents; (b) adoption is an appropriate long-term care option for a child if— Page 16 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 1 Preliminary [s 6] (i) the child’s parents choose adoption for the child’s long-term care; or (ii) the child does not have a parent who is willing and able to protect the child from harm and meet the child’s need for long-term stable care; (c) each of the parties to an adoption or proposed adoption should be given the information he or she reasonably needs to participate effectively in processes under this Act; (d) a child should be kept informed of matters affecting him or her in a way and to an extent that is appropriate, having regard to the child’s age and ability to understand; (e) the process for a child’s adoption should include considering the views of— (i) the child’s parents; and (ii) the child, if he or she is able to form and express views about the adoption, having regard to the child’s age and ability to understand; (f) an adopted child of a particular ethnic or other cultural background should have— (i) access to information about the child’s ethnic or cultural heritage; and (ii) opportunities to develop and maintain a connection with the child’s ethnicity or culture; and (iii) opportunities to maintain contact with the child’s community or language group; (g) a child’s adoptive parents have the primary responsibility for the child’s upbringing, protection and development; (h) an adopted child should be cared for in a way that— (i) ensures a safe, stable and nurturing family and home life; and Reprint 1E effective 17 September 2012 Page 17
Adoption Act 2009 Part 1 Preliminary [s 7] (ii) promotes openness and honesty about the child’s adoption; and (iii) promotes the development of the child’s emotional, mental, physical and social wellbeing; (i) the same protection, support and resources should be available to an adopted person regardless of whether the adoption was a local adoption, intercountry adoption or adoption by a step-parent; (j) although a final adoption order changes legal relationships, it may be in an adopted child’s best interests for— (i) the child’s emotional connections with members of the child’s birth family to continue; or (ii) the child to have ongoing contact with members of the child’s birth family; or (iii) the child or the child’s adoptive parents to exchange information with members of the child’s birth family. 7 Additional principles concerning Aboriginal and Torres Strait Islander persons (1) This Act is also to be administered under the following principles— (a) because adoption (as provided for in this Act) is not part of Aboriginal tradition or Island custom, adoption of an Aboriginal or Torres Strait Islander child should be considered as a way of meeting the child’s need for long-term stable care only if there is no better available option; Note Island custom includes a customary child-rearing practice that is similar to adoption in so far as parental responsibility for a child is permanently transferred to someone other than the child’s parents. This practice is sometimes referred to as either ‘customary adoption’ or ‘traditional adoption’. Page 18 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 1 Preliminary [s 8] (b) it is in the best interests of an Aboriginal or Torres Strait Islander child— (i) to be cared for within an Aboriginal or Torres Strait Islander community; and (ii) to maintain contact with the child’s community or language group; and (iii) to develop and maintain a connection with the child’s Aboriginal tradition or Island custom; and (iv) for the child’s sense of Aboriginal or Torres Strait Islander identity to be preserved and enhanced. (2) If the Childrens Court exercises a power under this Act in relation to an Aboriginal or Torres Strait Islander child, the court must have regard to the views, about the child and about Aboriginal tradition or Island custom relating to the child, of an appropriate Aboriginal or Torres Strait Islander person. (3) As far as is reasonably practicable, the chief executive and other officers of the department must try to conduct consultations, counselling, negotiations and other proceedings involving an Aboriginal person or Torres Strait Islander in a way and in a place that is appropriate to Aboriginal tradition or Island custom. 8 Act applies despite Anti-Discrimination Act 1991 (1) Despite the Anti-Discrimination Act 1991 , a person may make a decision or do another act that is necessary to comply with, or is specifically authorised by, this Act. (2) Without limiting subsection (1), a person may make a decision or do another act under this Act to comply with the main guiding principle under section 6(1). 9 References to child’s wellbeing or best interests Unless a contrary intention appears, a reference in this Act to a child’s wellbeing or best interests is a reference to the child’s Reprint 1E effective 17 September 2012 Page 19
Adoption Act 2009 Part 1 Preliminary [s 10] wellbeing or best interests through both childhood and the rest of his or her life. Division 3 Adoptions under this Act 10 Who may be adopted (1) A child may be adopted by an order of the Childrens Court under this Act. (2) A child may be adopted whether or not the child has been previously adopted. (3) An adult may not be adopted. 11 Rules of private international law not relevant The power to make an adoption order under this Act does not depend on any fact or circumstance not expressly stated in this Act. Division 4 Custody and guardianship 12 What is the effect of custody For this Act, a person who has custody of a child has— (a) the right to have the child’s daily care; and (b) the right and responsibility to make decisions about the child’s daily care. 13 What is the effect of guardianship For this Act, a person who has guardianship of a child has— (a) the right to have the child’s daily care; and (b) the right and responsibility to make decisions about the child’s daily care; and Page 20 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 14] (c) all the powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for making decisions about the long-term care, wellbeing and development of the child. Part 2 Consent to adoption and related matters Division 1 Preliminary 14 Non-application to intercountry adoptions This part applies to the proposed adoption of a child other than by an intercountry adoption. 15 References to parent in pt 2 A reference in this part, other than division 6, to a parent of the child does not include a person if, under section 39, a court has dispensed with the need for the person’s consent to the child’s adoption. 16 Requirement for consent Section 175 states the requirement for the child’s parents to consent under this part to the adoption before the Childrens Court may make an adoption order. 17 References to consent (1) In this part— consent means consent freely and voluntarily given by a person with capacity to give the consent. Reprint 1E effective 17 September 2012 Page 21
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 18] (2) A reference in this part to consent to an adoption is a reference to— (a) for an adoption of a step-child under part 9, division 4— (i) consent to the child’s adoption by the proposed adoptive parent; or (ii) consent to the child’s adoption generally; or (b) otherwise, consent to the child’s adoption generally. Division 2 Requirements about consent 18 Form of consent (1) A parent’s consent to the child’s adoption must be in the approved form, signed by the parent and witnessed by an authorised person. (2) The approved form must include provision for— (a) information to identify the child; and (b) information to identify the parent; and (c) a signed statement by the witness that the witness has sighted the documents, relating to proof of the parent’s identity, prescribed under a regulation. (3) The approved form may also include provision for other matters relevant to the child’s adoption that may be, but are not required to be, completed. Example of other matters details of another parent of the child to the extent the details are known by the parent giving the consent (4) A single document must not contain— (a) consent to the adoption of more than 1 child; or (b) more than 1 parent’s consent to the adoption of the child. (5) In this section— Page 22 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 19] authorised person means a public service employee, or other appropriate person in Queensland or elsewhere, authorised by the chief executive to witness a consent for this Act. 19 Time of consent A parent’s consent to the child’s adoption may not be given— (a) less than 30 days after the child’s birth; or (b) less than 14 days after the parent is given the documents under section 22; or (c) less than 14 days after the parent is given the prescribed information under section 23; or (d) less than 14 days after the day the counsellor swears the statement mentioned in section 175(3)(b). 20 Revocation of consent A parent may revoke the parent’s consent to the child’s adoption only by giving a signed notice to the chief executive within 30 days after the consent is given. Division 3 Giving forms, information and counselling to parents 21 Obligation to enable understanding The chief executive must ensure information is given to each of the child’s parents under this division, and counselling of the parent is carried out under this division, in a way that enables the parent to understand. 22 Parents to be given consent documents The chief executive must give to each of the child’s parents— (a) a document showing the contents of the approved form for section 18; and Reprint 1E effective 17 September 2012 Page 23
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 23] (b) a document that the parent may use to revoke consent given by the parent to the child’s adoption. 23 Parents to be given prescribed information (1) The chief executive must give each of the child’s parents a document containing information about the following matters (the prescribed information )— (a) options other than adoption for the child’s long-term care; (b) support (financial and otherwise) that may be available to the parent whether or not adoption of the child proceeds; (c) possible psychological effects for the parent, both short and long-term, of consenting to the adoption; (d) possible psychological effects for the child, both short and long-term, of being adopted; (e) how and when the parent’s consent to the adoption may be revoked; (f) how the parent may give the chief executive the parent’s preferences relating to the child’s adoption including, for example, preferences about— (i) the child’s religious upbringing; or (ii) the characteristics of the child’s adoptive parents and adoptive family; or (iii) the degree of openness in the adoption; (g) the adoption process under this Act, including— (i) the consents required for an adoption; and (ii) the process for recruiting, assessing and selecting prospective adoptive parents; and (iii) the chief executive’s functions and powers relating to the child’s adoption; and (iv) the role of the Childrens Court; Page 24 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 24] (h) the legal effect of adoption; (i) the rights and responsibilities of the parties to an adoption, including those relating to— (i) adoption plans; and (ii) access to information about, and contact with, other parties to an adoption throughout the life of the adopted person; (j) the requirement for pre-consent counselling and how it will be arranged; (k) if the child to be adopted is an Aboriginal person or Torres Strait Islander— (i) options other than adoption for the child’s long-term care in accordance with Aboriginal tradition or Island custom; and (ii) the importance of the child being cared for in a way that— (A) helps the child to develop and maintain a connection with the child’s Aboriginal tradition or Island custom; and (B) preserves and enhances the child’s sense of Aboriginal or Torres Strait Islander identity. (2) The chief executive must arrange for the prescribed information to be explained to the parent. 24 Parents to be given pre-consent counselling (1) The chief executive must arrange for each of the child’s parents to receive counselling about the prescribed information under section 23. (2) The counselling must be carried out by a counsellor nominated by the chief executive. (3) The nominated counsellor may be an officer of the department. Reprint 1E effective 17 September 2012 Page 25
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 25] (4) However, if the nominated counsellor is an officer of the department, the chief executive must— (a) advise the parent that he or she may ask for further counselling by someone who is not an officer of the department; and (b) if the parent makes a request under paragraph (a), nominate another counsellor who is not an officer of the department to carry out the further counselling. (5) The counselling must be carried out in a way that allows the parent to ask questions and discuss the prescribed information and matters arising from the information. (6) If the counsellor reasonably suspects the parent does not have capacity to consent to the adoption, the counsellor must notify the chief executive. (7) The counsellor may offer to meet with other persons. Example The counsellor may offer to meet other family members to help the parent to consider other options for the child’s long-term care. (8) The counselling may be carried out in 1 or more sessions and by 1 or more counsellors. (9) In this section— counsellor means a person who the chief executive is satisfied has appropriate qualifications or experience to carry out counselling under this section. 25 Pre-consent information and counselling for Aboriginal or Torres Strait Islander child (1) This section applies if the child to be adopted is an Aboriginal person or Torres Strait Islander. (2) The counselling under section 24 must be carried out in a way and at a place that is appropriate to Aboriginal tradition or Island custom. (3) The person who explains the prescribed information mentioned in section 23(1)(k)— Page 26 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 26] (a) need not be a counsellor under section 24; but (b) must be an appropriate Aboriginal or Torres Strait Islander person. (4) This section does not apply to the counselling of a parent to the extent the parent, by giving the chief executive a signed notice in the approved form, declines to receive counselling in a way, or by a person, required by this section. (5) The approved form for subsection (4) must state— (a) that the chief executive has offered the parent counselling under this section; and (b) the extent to which the counselling is declined; and (c) that the chief executive has given the parent a document containing the information mentioned in subsection (3). 26 Parents’ access to legal advice The chief executive must ensure each of the child’s parents is told that the parent may wish to seek legal advice and is given the details of at least 1 entity that generally provides free legal services. Division 4 Ensuring parents have capacity to consent 27 Meaning of qualified person for div 4 In this division— qualified person means a person who, if called as a witness in a proceeding, would be qualified to give expert evidence on the issue whether a parent has capacity to give consent to an adoption of the child. Reprint 1E effective 17 September 2012 Page 27
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 28] 28 Assessing whether a non-adult parent has capacity to consent (1) This section applies if a parent of the child is not an adult. (2) Before the parent may consent to the adoption, the chief executive must have a qualified person assess whether the parent has capacity to give the consent. (3) The qualified person must not be the same person who counsels the parent under section 24. 29 Declaration of QCAT whether an adult parent has capacity to consent (1) This section applies to an adult parent of the child if— (a) a counsellor under section 24 notifies the chief executive that the counsellor reasonably suspects the parent does not have capacity to consent to the adoption; or (b) the chief executive otherwise knows or reasonably suspects the parent does not have capacity to consent to the adoption. (2) Before the parent may consent to the adoption, the chief executive must apply to QCAT for a declaration about the parent’s capacity to give the consent. Note See the Guardianship and Administration Act 2000 , section 146. (3) However, if the parent is not in Queensland at the time the parent’s consent is proposed to be given, the chief executive must take the following steps instead of making an application under subsection (2)— (a) if it is possible for the chief executive to make an application, equivalent to an application mentioned in subsection (2), in the jurisdiction where the parent is, the chief executive must make that application; (b) otherwise, the chief executive must ensure a qualified person assesses whether the parent has capacity to give the consent. Page 28 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 30] 30 Appointment of guardian for adult parent without capacity to consent (1) This section applies if— (a) QCAT makes a declaration that the parent does not have capacity to give the consent; and (b) the parent does not have a guardian under the Guardianship and Administration Act 2000 for the matter of dispensation. (2) Before the chief executive may make an application under division 6 for an order for dispensation, the chief executive must apply to QCAT for an order appointing a guardian for the matter of the dispensation. (3) In this section— dispensation means dispensation with the need for the parent’s consent. Division 5 Identifying child’s father and related matters 31 Application of div 5 This division applies in relation to the child if, so far as the chief executive is aware, every consent required for the child’s adoption has been given other than the consent of the child’s father. 32 Establishing father’s identity and location If the chief executive does not know the identity and location of the child’s father, the chief executive must take reasonable steps to establish those matters. Reprint 1E effective 17 September 2012 Page 29
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 33] 33 Giving notice to father or person suspected to be father (1) If the chief executive knows or reasonably suspects a person is the child’s father, the chief executive must give him a notice stating— (a) the other consent or consents to the child’s adoption have been given; and (b) how the person may— (i) give consent; or (ii) take steps to establish whether he is the child’s father; or (iii) apply under the Family Law Act 1975 (Cwlth) for a parenting order for the child. (2) Subsection (1) does not apply if the chief executive is satisfied— (a) the person is a lineal relative of the child’s mother; or (b) the child’s conception was a result of an offence committed by the person; or (c) there would be an unacceptable risk of harm to the child or mother if the person were made aware of the child’s birth or proposed adoption. 34 Chief executive may apply for declaration of paternity For the Status of Children Act 1978 , section 10(1)(c), the chief executive is a person having a proper interest in the result of the question whether the relationship of father and child exists between the child and another person. Page 30 Reprint 1E effective 17 September 2012
Division 6 Adoption Act 2009 Part 2 Consent to adoption and related matters [s 35] Dispensing with requirement for parent’s consent 35 Application for dispensation (1) The chief executive, or a person who has made an application to the chief executive under part 5, may apply to the Childrens Court for an order dispensing with the need for the consent of a stated parent of the child (the relevant parent ) to the child’s adoption. (2) The application must state the grounds on which it is made. 36 Notice of application (1) As soon as practicable after filing the application in the court, the applicant must serve a copy of it on the relevant parent and, if the applicant is not the chief executive, serve a copy on the chief executive. (2) A served copy must state where and when the application is to be heard. (3) A copy served on the relevant parent must also state that the application may be heard and decided even though the relevant parent does not appear in court. (4) The court may dispense with the requirement to serve a copy of the application on the relevant parent if the court is satisfied of any of the following matters— (a) the applicant can not establish the identity of the relevant parent after making all reasonable enquiries; (b) the applicant can not locate the relevant parent after making all reasonable enquiries; (c) the relevant parent is a lineal relative of the child’s mother; (d) the child’s conception was a result of an offence committed by the relevant parent; Reprint 1E effective 17 September 2012 Page 31
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 37] (e) there would be an unacceptable risk of harm to the child or mother if the relevant parent were made aware of the child’s birth or proposed adoption; (f) there are other special circumstances for giving the dispensation. 37 Respondent (1) If the relevant parent is served with a copy of the application, he or she is a respondent in the proceeding. (2) If the chief executive is not the applicant, the chief executive may apply to the court to be included as a respondent in the proceeding. 38 Hearing of application in absence of relevant parent (1) The court may hear and decide the application in the absence of the relevant parent only if— (a) the relevant parent has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or (b) the court dispenses with the requirement to serve a copy of the application on the relevant parent under section 36(4). (2) Subsection (1) does not limit the court’s jurisdiction to exclude a person from a proceeding. 39 Court may dispense with need for consent (1) The court may make an order dispensing with the need for the relevant parent’s consent to the adoption if— (a) the court is satisfied of a matter stated in section 36(4)(a) to (e); or (b) QCAT has made a declaration that the relevant parent does not have capacity to give the consent; or Page 32 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 39] (c) the relevant parent is not an adult and the court is satisfied, on the basis of an assessment mentioned in section 28, that the relevant parent does not have capacity to give the consent; or (d) the relevant parent is not in Queensland and the court is satisfied, on the basis of a declaration or assessment mentioned in section 29(3), that the relevant parent does not have capacity to give the consent; or (e) the court is satisfied the relevant parent— (i) is not, and will not be within a time frame appropriate to the child’s age and circumstances, willing and able to protect the child from harm and meet the child’s need for long-term stable care; and (ii) is unreasonably— (A) withholding his or her consent to the adoption; or (B) refusing to engage with the chief executive in relation to the issue of whether to give consent to the adoption; or (f) the court is satisfied there are other special circumstances for giving the dispensation. (2) However, if the relevant parent is or is believed to be the child’s father, the court may not give the dispensation— (a) within 30 days after notice is given to the relevant parent under section 33; or (b) if the court has reason to believe there is— (i) a current application under the Status of Children Act 1978 , section 10, by the relevant parent or someone else, for a declaration of paternity for the child; or (ii) a current application under the Family Law Act 1975 (Cwlth) by the relevant parent for a parenting order for the child. Reprint 1E effective 17 September 2012 Page 33
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 40] (3) Also, the court must not give the dispensation unless satisfied it would be in the child’s best interests for arrangements for the child’s adoption to continue to be made. (4) Without limiting subsection (3)— (a) if the applicant is a person who has made an application under part 5, the court must be satisfied the grounds for making an adoption order in favour of the applicant are likely to exist; and (b) if the child is in the custody or guardianship of the chief executive (child safety) or someone else under the Child Protection Act 1999 , the court must— (i) have regard to anything in a case plan in force for the child under chapter 2, part 3A of that Act about— (A) adoption as a way of meeting the child’s need for long-term stable care; or (B) re-uniting the child with the child’s family; and (ii) consider whether there is another way of meeting the child’s need for long-term stable care that would better promote the child’s wellbeing and best interests. (5) If the child has any views about the relevant parent and is able to express the views, having regard to the child’s age and ability to understand, the court must consider the views. 40 Notice of court order (1) This section applies if— (a) the court makes an order dispensing with the need for the relevant parent’s consent; and (b) the chief executive was not the applicant for the order. (2) The applicant must give the chief executive a copy of the order. Page 34 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 41] 41 Discharge of dispensation order if relevant parent not served with application (1) This section applies if— (a) the court makes an order dispensing with the need for the relevant parent’s consent (the dispensation order ); and (b) a copy of the application for the dispensation order was not served on the relevant parent. (2) The relevant parent or the chief executive may apply to the court to discharge the dispensation order. (3) The applicant must serve a copy of the application on each party to the proceeding for the dispensation order. (4) The court may discharge the dispensation order if— (a) an adoption order for the child has not been made; and (b) the court is satisfied the ground on which the dispensation order was made under section 39(1) does not apply. (5) The discharge of the dispensation order does not affect a consent given by anyone else to the child’s adoption unless the court decides otherwise. Division 7 Complying interstate consents 42 Consent given under a law of another State (1) A complying interstate consent has effect for this Act as if it were given under this part. (2) For subsection (1), a person’s consent to the child’s adoption is a complying interstate consent if an authorised officer for another State has given the chief executive— (a) a notice stating that the consent was given, by signed writing, under a law of the other State and has not been revoked under that law; and Reprint 1E effective 17 September 2012 Page 35
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 43] (b) a written authorisation to make arrangements for the adoption of the child in Queensland. (3) In this section— authorised officer , for another State, means an officer who, under the law of the State, is authorised to make arrangements for the adoption of children in the State. Division 8 Giving information, counselling and support to child 43 Application of div 8 This division applies if the child is able to form and express views about the adoption. 44 Child must be given information (1) The chief executive must ensure the child is given the prescribed information before an application for an adoption order for the child is made. (2) The information must be given in a way and to an extent that is reasonable, having regard to the child’s age and ability to understand. (3) In this section— prescribed information means information about the following matters— (a) options other than adoption for the child’s long-term care; (b) possible psychological effects for the child, both short and long-term, of being adopted; (c) how the child’s parents may give the chief executive their preferences relating to the child’s adoption including, for example, preferences about— (i) the child’s religious upbringing; or Page 36 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 44] (ii) the characteristics of the child’s adoptive parents and adoptive family; or (iii) the degree of openness in the adoption; (d) the adoption process under this Act, including— (i) the consents required for an adoption; and (ii) the process for recruiting, assessing and selecting prospective adoptive parents; and (iii) the chief executive’s functions and powers relating to the child’s adoption; and (iv) the role of the Childrens Court; (e) support that may be available to the child under sections 47, 235 and 236; (f) the legal effect of adoption; (g) the rights and responsibilities of the parties to an adoption, including those relating to— (i) adoption plans; and (ii) access to information about, and contact with, other parties to an adoption throughout the life of the adopted person; (h) the requirement for counselling under section 45 and how it will be arranged; (i) if the child to be adopted is an Aboriginal person or Torres Strait Islander— (i) options other than adoption for the child’s long-term care in accordance with Aboriginal tradition or Island custom; and (ii) the importance of the child being cared for in a way that— (A) helps the child to develop and maintain a connection with the child’s Aboriginal tradition or Island custom; and Reprint 1E effective 17 September 2012 Page 37
Adoption Act 2009 Part 2 Consent to adoption and related matters [s 45] (B) preserves and enhances the child’s sense of Aboriginal or Torres Strait Islander identity; (j) the guiding principles that— (i) the child should be kept informed of matters affecting him or her in a way and to an extent that is appropriate, having regard to the child’s age and ability to understand; and (ii) the child’s views must be given consideration, having regard to the child’s age or ability to understand. 45 Child must be given counselling (1) The chief executive must ensure the child receives counselling about the proposed adoption, from a counsellor nominated by the chief executive, before an application for an adoption order for the child is made. (2) The counselling must be carried out in a way and to an extent that is reasonable, having regard to the child’s age and ability to understand. (3) The counselling may be carried out in 1 or more sessions and by 1 or more counsellors. (4) In this section— counsellor means a person who the chief executive is satisfied has appropriate qualifications or experience to carry out counselling under this section. 46 Counselling for Aboriginal or Torres Strait Islander child (1) This section applies to the counselling under section 45 if the child is an Aboriginal person or Torres Strait Islander. (2) The counselling must be carried out in a way and at a place that is appropriate to Aboriginal tradition or Island custom. Page 38 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 3 Custody and guardianship of a child awaiting adoption [s 47] (3) A person who, as part of the counselling, explains the information under section 44(3), definition prescribed information , paragraph (i)— (a) need not be a counsellor under section 45; but (b) must be an appropriate Aboriginal or Torres Strait Islander person. (4) This section does not apply to the extent the child declines to receive counselling in a way, or by a person, required by this section. 47 Child may be given other support (1) The chief executive may appoint a qualified person to support the child during the adoption process. (2) In this section— qualified person means a social worker, lawyer or other person who the chief executive is satisfied has the necessary expertise or experience to give the relevant support and who is not an employee of the department. Part 3 Custody and guardianship of a child awaiting adoption Division 1 Custody of child under care agreement 48 References to parent in div 1 A reference in this division to a parent of a child does not include a person if, under section 39, a court has dispensed with the need for the person’s consent to the child’s adoption. Reprint 1E effective 17 September 2012 Page 39
Adoption Act 2009 Part 3 Custody and guardianship of a child awaiting adoption [s 49] 49 Meaning of care agreement In this division— care agreement means an agreement under this division between a child’s parent and the chief executive (child safety) for the short-term placement of the child in care while consents for the child’s adoption are obtained. 50 Entering into care agreements (1) This section applies if a parent of a child has asked the chief executive to arrange for the child’s adoption or indicated to the chief executive that the parent is considering adoption for the child. (2) The chief executive (child safety) may enter into a care agreement with a parent who has custody of the child. (3) The agreement must be in the approved form, signed by the parties. (4) The child may also be a party to the agreement if the chief executive (child safety) considers it appropriate, having regard to the child’s age and ability to understand. (5) The agreement must state— (a) arrangements for contact between the child and the parents; and (b) the type of decisions relating to the child for which the parents must be consulted. 51 Effect of care agreement (1) While a care agreement for a child is in force, the chief executive (child safety) has custody of the child and may place the child in care under the Child Protection Act 1999 , chapter 2, part 6, division 4. (2) The Child Protection Act 1999 , sections 74, 90 and 162 apply as if a reference in the sections to a care agreement included a care agreement under this Act. Page 40 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 3 Custody and guardianship of a child awaiting adoption [s 52] 52 No agreement against the wishes of a parent (1) A parent of a child may give the chief executive (child safety) notice that the parent does not wish the child to be placed in care under a care agreement. (2) On receiving a notice under subsection (1)— (a) the chief executive (child safety) must not enter a care agreement for the child with another parent of the child; or (b) if a care agreement is in force for the child with another parent of the child, the chief executive (child safety) must end the agreement under section 54. 53 Maximum period of care agreement (1) A care agreement may not be entered into for a child if 1 or more care agreements have already been in force for the child for a total period of 1 year. (2) A care agreement expires if the total period for which the care agreement and any other care agreement entered into for the child under this division has been in force is 1 year. 54 Ending of care agreement (1) Unless it ends earlier under this division, a care agreement has effect until the chief executive becomes a guardian of the child under section 57. (2) A care agreement may be ended at any time with the agreement of the chief executive and each parent who is a party to the agreement. (3) A party to a care agreement may end the agreement at any time by giving at least 2 days notice to the other parties. (4) A care agreement ends if the chief executive (child safety) obtains custody or guardianship of the child under the Child Protection Act 1999 . Reprint 1E effective 17 September 2012 Page 41
Adoption Act 2009 Part 3 Custody and guardianship of a child awaiting adoption [s 55] Note If a care agreement ends and the child is a child in need of protection under the Child Protection Act 1999 , the chief executive (child safety) may take the action under that Act that the chief executive (child safety) considers appropriate. Division 2 Guardianship of child after consent is given to local adoption 55 Application of div 2 This division applies to the proposed adoption of a child by a local adoption. 56 Definitions for div 2 In this division— consent means consent given under part 2. dispense with , in relation to the need for a parent’s consent, means dispense with under section 39. 57 Chief executive becomes guardian when consent is given or dispensed with (1) This section applies when— (a) a parent consents to the child’s adoption; or (b) the need for a parent’s consent to the child’s adoption is dispensed with. (2) The parent stops having guardianship of the child. (3) The chief executive becomes a guardian of the child under this section. (4) No-one else’s guardianship of the child is affected. Page 42 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 3 Custody and guardianship of a child awaiting adoption [s 58] 58 Child may be placed in care If the chief executive is the child’s guardian under section 57, the chief executive may place the child in care under the Child Protection Act 1999 , chapter 2, part 6, division 4. 59 Effect of consent or dispensation ending (1) This section applies if— (a) a parent revokes his or her consent to the child’s adoption under section 20; or (b) an order dispensing with the need for a parent’s consent is overturned on appeal or discharged. (2) The parent’s guardianship of the child resumes. (3) The chief executive’s guardianship under section 57, because of the consent or dispensation, ends. (4) The chief executive’s guardianship under section 57, because of another parent’s consent or another dispensation, is not affected. 60 Chief executive may place child in parents’ care (1) This section applies if— (a) the chief executive is the child’s guardian under section 57; and (b) it is at least 30 days since, for each of the child’s parents, his or her consent was given or the need for his or her consent was dispensed with; and (c) the chief executive is satisfied— (i) one or more of the child’s parents are willing and able to protect the child from harm and meet the child’s need for long-term stable care; and (ii) it would otherwise be in the child’s best interests to be placed in the care of one or more of the parents under this section; and Reprint 1E effective 17 September 2012 Page 43
Adoption Act 2009 Part 3 Custody and guardianship of a child awaiting adoption [s 61] (d) an interim order is not in force for the child. (2) The chief executive may place the child in the care of one or more of the parents by giving each of the child’s parents a signed notice. (3) On the placement of the child under subsection (2)— (a) the chief executive’s guardianship of the child under section 57 ends; and (b) a consent to the child’s adoption given by a parent of the child stops having effect. 61 Other ending of chief executive’s guardianship The chief executive’s guardianship of the child under section 57 ends if— (a) a final adoption order for the child is made; or (b) a court makes an order ending the chief executive’s guardianship of the child; or (c) under a law of another jurisdiction, the chief executive agrees to someone else having guardianship of the child for the purpose of the child’s adoption under that law. 62 Guardianship under Child Protection Act not affected Nothing in this division affects the chief executive (child safety)’s guardianship of a child under the Child Protection Act 1999 . Division 3 Transfer of guardianship between chief executive and corresponding officer for another State 63 Corresponding officers In this division— Page 44 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 3 Custody and guardianship of a child awaiting adoption [s 64] corresponding officer , for another State, means an officer with powers and functions substantially corresponding to the chief executive’s powers and functions under this Act. 64 Chief executive may renounce guardianship (1) This section applies if— (a) the chief executive is a guardian of a child under section 57; and (b) it is at least 30 days since the last consent required for the adoption was given; and (c) the chief executive has received a notice from a corresponding officer for another State— (i) stating that the corresponding officer wishes to arrange for the child’s adoption in the other State; and (ii) asking the chief executive to renounce the chief executive’s guardianship of the child. (2) If the chief executive is satisfied it would be in the child’s best interests, the chief executive may, by a signed document, renounce the chief executive’s guardianship of the child. (3) Immediately after signing a document under subsection (2), the chief executive must give to the corresponding officer the document and all consents to the adoption of the child held by the chief executive. (4) When the chief executive gives the documents to the corresponding officer, the chief executive stops having guardianship of the child. 65 Chief executive may ask corresponding officer to renounce guardianship (1) This section applies if— (a) the chief executive wishes to arrange for a child’s adoption; and Reprint 1E effective 17 September 2012 Page 45
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 66] (b) a corresponding officer for another State has guardianship of the child under a law of the other State substantially corresponding to section 57. (2) The chief executive may ask the corresponding officer to give the chief executive a document under which the officer renounces the officer’s guardianship of the child. (3) If the chief executive receives the document mentioned in subsection (2), the chief executive becomes guardian of the child. Note The chief executive may also ask the corresponding officer to give the chief executive any of the following documents— a consent to the adoption of the child given under the law of the other State that is held by the officer a document mentioned in section 42. Part 4 Recruitment and selection of prospective adoptive parents Division 1 Planning 66 Chief executive must plan for future need The chief executive must plan continually for the future need for adoptive parents by— (a) anticipating the numbers and characteristics of children likely to need an adoptive placement by local adoption; and (b) anticipating the numbers and characteristics of children likely to be placed for an intercountry adoption from each country with which arrangements have been made Page 46 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 67] or with which it is anticipated arrangements will be made; and (c) anticipating what are likely to be the placement needs of the children; and (d) identifying the numbers and profiles of prospective adoptive parents likely to be needed, having regard to the matters mentioned in paragraphs (a) to (c). 67 Deciding number of parents to be assessed (1) At least once in each financial year, the chief executive must decide the numbers of persons with different profiles that it would be reasonable to assess for suitability to ensure there are enough suitable prospective adoptive parents to meet the needs identified under section 66(d). (2) In deciding the number of persons it would be reasonable to assess, the chief executive must have regard to the numbers and profiles of persons currently listed in the suitable adoptive parents register, and to the considerations that— (a) if too few persons with appropriate profiles are assessed, the need for adoptive parents may not be met within a reasonable time; and (b) if too many persons with appropriate profiles are assessed, this— (i) may be an inefficient use of resources; and (ii) may unnecessarily raise the expectations of some of the assessed persons about the likelihood of their adopting a child; and (iii) may unnecessarily intrude on the privacy or personal affairs of the persons assessed who are not likely to be required. Reprint 1E effective 17 September 2012 Page 47
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 68] Division 2 Making expressions of interest 68 Who may make an expression of interest (1) A couple may make an expression of interest in being assessed for suitability to be adoptive parents. (2) A person may not make an expression of interest unless the person has a spouse and makes the expression of interest jointly with the person’s spouse. (3) A person may not express an interest if— (a) the person’s name is already in the expression of interest register or suitable adoptive parents register; or (b) the person has custody of a child under an interim order. 69 Form (1) A couple make an expression of interest by giving the chief executive a notice in the approved form. (2) The form must be signed by the couple and by each person who is, at the time the form is given to the chief executive, an adult member of the couple’s household. (3) The information that may be required by the approved form includes the following for each member of the couple— (a) information demonstrating the person’s eligibility to have his or her name entered in the expression of interest register; (b) information demonstrating the person’s compliance with a requirement prescribed under section 71 or another requirement under this division; (c) information relating to the person’s profile, including— (i) any preferences of the person relating to the characteristics of a child whom the person is willing to adopt; and Page 48 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 70] (ii) other information relevant to whether the person would meet the anticipated placement needs of children relevant to the expression of interest; (d) information relevant to the person’s suitability, including information about the person’s health and personal history; (e) membership of the person’s household; (f) information of which the person is aware, or that the person reasonably suspects, about the personal history of each adult member of the person’s household. (4) The approved form must include information about the assessment that will be carried out under part 6 if the couple are selected for assessment under division 5. 70 Nomination relating to local or intercountry adoption (1) An expression of interest must state whether it relates to a local adoption, intercountry adoption or both. (2) If a couple’s expression of interest relates to an intercountry adoption, it must state each country for which the couple wish to be considered. 71 Other requirements for expressing an interest (1) A regulation may prescribe requirements with which a couple must comply before or when expressing an interest. (2) A regulation may, for example, require that the couple must— (a) attend a departmental information session within a stated time before expressing an interest; or (b) when expressing an interest, be able to demonstrate— (i) an ability of one or both of them to personally care for a child full-time for a stated period after the child is placed with them; or (ii) for an expression of interest relating to an intercountry adoption—an ability to meet the full Reprint 1E effective 17 September 2012 Page 49
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 72] cost of completing the adoption process within a stated period. (3) A regulation may set a fee payable for an information session or other thing relating to a requirement under this section. 72 Person may express an interest despite previous expressions A person may express an interest even though the person has previously expressed an interest, or purported to express an interest, and— (a) the person was not eligible or, for another reason, the expression of interest or purported expression of interest did not comply with this division; or (b) the person’s name was removed from the expression of interest register. 73 Changes to current expression of interest or relevant information (1) A couple with a current expression of interest may, by giving a notice to the chief executive, change— (a) their preferences relating to the characteristics of a child who they are willing to adopt; or (b) for an expression of interest relating to an intercountry adoption, a country for which they wish to be considered. (2) A couple with a current expression of interest may notify the chief executive of any other new information or changes in information previously given to the chief executive. Note See sections 82 and 115 for the obligations to notify the chief executive of new information, or changes in information previously given to the chief executive, relevant to eligibility or suitability. Page 50 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 74] 74 No expressions of interest while register is closed An expression of interest may not be made while the expression of interest register, or a part of the register to which the expression of interest relates, is closed under division 4. Division 3 Expression of interest register 75 Expression of interest register (1) The chief executive must keep a register of persons who have made an expression of interest under division 2 (the expression of interest register ). (2) The chief executive may only, and must, enter a person’s name in the register if— (a) the person and the person’s spouse make an expression of interest under division 2; and (b) the chief executive is satisfied the person and the person’s spouse are eligible to have their names entered in the expression of interest register. 76 Eligibility for inclusion in register (1) A person is eligible to have his or her name entered or remain in the expression of interest register if— (a) the person is an adult; and (b) the person or the person’s spouse is an Australian citizen; and (c) the person is resident or domiciled in Queensland; and (d) for a woman, the person is not pregnant; and (e) the person is not undergoing fertility treatment and has not undergone fertility treatment within the previous 6 months; and (ea) the person— Reprint 1E effective 17 September 2012 Page 51
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 77] (i) is not an intended parent under a surrogacy arrangement within the meaning of the Surrogacy Act 2010 ; and (ii) if the person has been an intended parent for a surrogacy arrangement within the meaning of the Surrogacy Act 2010 —the surrogacy arrangement ended not less than 6 months earlier; and (f) the person does not have custody of— (i) a child aged less than 1 year; or (ii) a child who has been in the person’s custody for less than 1 year; and (g) the person has a spouse who— (i) is also eligible under paragraphs (a) to (f); and (ii) is not the same gender as the person; and (iii) has been the person’s spouse for at least 2 years; and (h) the person and the person’s spouse— (i) are living together; and (ii) lived together for a continuous period of at least 2 years up to the time they made an expression of interest under division 2. (2) Subsection (1)(f) does not include children of whom the person is an approved carer. 77 Notice and information to persons entered in register After entering a couple’s names in the expression of interest register, the chief executive must give them a notice— (a) stating that their names have been entered in the register; and (b) explaining the selection and assessment processes; and (c) containing information about the fees and other costs associated with the adoption process. Page 52 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 78] 78 Notice to persons not entered in register (1) This section applies if— (a) a person has made, or has purported to make, an expression of interest under division 2; but (b) the chief executive considers that, under section 75(2), the person’s name may not be entered in the expression of interest register. (2) The chief executive must give the person a notice (a show cause notice ) stating— (a) that the person’s name has not been entered in the register; and (b) why the person’s name has not been entered in the register; and (c) that the person may, within a stated time of at least 28 days, give the chief executive a written response about entering the person’s name in the register. (3) The chief executive must consider any response given by the person within the time stated in the show cause notice before deciding whether the person’s name may be entered in the register. (4) If the chief executive decides the person’s name may not be entered in the register, the chief executive must give the person an information notice for the decision. 79 Automatic removal from register (1) The chief executive must remove a person’s name from the expression of interest register if— (a) it is 2 years since the person’s name was entered in the register and the person has not been given a notice under section 91 stating that the person and the person’s spouse have been selected for assessment; or (b) the person has given the chief executive a written request to remove the person’s name from the register; or Reprint 1E effective 17 September 2012 Page 53
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 80] (c) the name of the person’s spouse is not in the register. (2) After removing the person’s name under this section, the chief executive must give the person a notice stating— (a) that the person’s name has been removed from the register; and (b) the reason for the removal. Note Also, if a person is selected for assessment, the person’s name is removed from the expression of interest register when the assessment is complete. See section 136. 80 Other removal from register (1) The chief executive must remove a person’s name from the expression of interest register if— (a) the person or person’s spouse is not eligible to have his or her name remain in the register; or (b) the person has not complied with a requirement under section 112 to pay a prescribed fee or part of a prescribed fee relating to an assessment of the person. (2) The chief executive may remove a person’s name from the expression of interest register if— (a) the person does not comply with a notice under section 81 or 114 by the due day for the notice; or (b) the person contravenes section 82 or 115; or (c) the person gives information to the chief executive for this Act that is false or misleading in a material particular. (3) Before removing a person’s name from the register under this section, the chief executive must give the person a notice (a show cause notice ) stating— (a) that the chief executive proposes to remove the name; and (b) the reason for the proposed removal; and Page 54 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 81] (c) that the person may, within a stated time of at least 28 days, give the chief executive a written response to the proposed removal. (4) The chief executive must consider any response given by the person within the time stated in the show cause notice before deciding whether to remove the person’s name. (5) If the chief executive decides not to remove the person’s name, the chief executive must give the person notice of the decision. (6) If the chief executive decides to remove the person’s name, the chief executive must give the person an information notice for the decision. (7) For subsection (1)(a), a woman does not become ineligible to have her name remain in the register on the ground of being pregnant unless she is at least 14 weeks pregnant. 81 Chief executive may require further information (1) This section applies to a person with a current expression of interest. (2) The person must give the chief executive any relevant information that the chief executive reasonably requires to decide whether the person— (a) is eligible to have his or her name remain in the expression of interest register; or (b) has complied with division 2. (3) The chief executive may seek information mentioned in subsection (2) by giving the person a notice stating— (a) the information that the chief executive requires; and (b) the day by which the person must give the information to the chief executive; and (c) the consequence under subsection (7) if the information is not given to the chief executive by the due day. Reprint 1E effective 17 September 2012 Page 55
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 82] (4) The due day must be reasonable and, in any case, at least 14 days after the notice is given. (5) The chief executive may withdraw the requirement, or part of the requirement, at any time. (6) On or before the due day for giving particular information, the chief executive may give the person a further notice substituting a later due day for giving the information if the chief executive is satisfied it would be reasonable in all the circumstances to do so. (7) The following applies if the person does not give required information by its due day— (a) if the person’s name has not been entered in the expression of interest register, the person’s expression of interest lapses; (b) if the person’s name is in the expression of interest register, the chief executive may remove the name under section 80(2)(a); (c) if the person’s name is in the suitable adoptive parents register, the chief executive may remove the name under section 146(2)(b). (8) In this section— due day , for giving information, means the day stated in the notice under subsection (3)(b) or any later day substituted by notice under subsection (6). information includes a document. 82 Obligation to notify chief executive of changed or new information relevant to eligibility (1) This section applies if— (a) the person has given information about a matter to the chief executive under this part or part 6; and (b) the person becomes aware that the information has changed or becomes aware of new information relating to the matter; and Page 56 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 83] (c) the changed or new information is relevant to whether the person is eligible to have his or her name entered or remain in the expression of interest register. (2) The person must immediately give the chief executive a notice of the changed or new information. 83 Inclusion in register does not confer entitlement Inclusion of a person’s name in the expression of interest register does not confer an entitlement on the person to be assessed, or to be selected for assessment, for suitability to be an adoptive parent. Division 4 Closing and re-opening expression of interest register 84 Chief executive may close register (1) The chief executive may close the expression of interest register, or a part of the register, if satisfied the number of persons listed in the register, having regard to their profiles, is significantly higher than the number needed to meet the anticipated need for adoptive parents. (2) The chief executive may act under subsection (1) in relation to— (a) the whole of the register; or (b) a part of the register relating to— (i) local adoptions; or (ii) intercountry adoptions; or (iii) intercountry adoptions from a stated country; or (iv) adoptions of children with stated characteristics. (3) The reference in subsection (1) to the anticipated need for adoptive parents includes, for intercountry adoptions from a particular country, the extent to which applications or Reprint 1E effective 17 September 2012 Page 57
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 85] expressions of interest from Australian couples are being received at the relevant time by the country’s competent authority. 85 Notice of closure (1) At least 30 days before closing the expression of interest register or a part of the register, the chief executive must publish, in a newspaper circulating throughout the State, notice of— (a) the extent of the closure; and (b) the reason for the closure; and (c) the last day for giving an expression of interest to the chief executive before the closure. (2) The notice may include any other information the chief executive considers appropriate. Example If there is a time at which the chief executive anticipates the register or part of the register will be re-opened, the notice may state that time. (3) The chief executive may also publish the notice in other ways the chief executive considers appropriate. 86 Periodic review of closure From time to time while the expression of interest register or a part of the register is closed, at intervals of not more than 6 months, the chief executive must consider whether the closure remains appropriate. 87 Re-opening the register (1) The chief executive may re-open the expression of interest register or part of the register if satisfied it would be appropriate to do so, having regard to the matters stated in section 84. Page 58 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 88] (2) The chief executive must publish notice of the re-opening in a newspaper circulating throughout the State and in any other way the chief executive considers appropriate. Division 5 Selections for assessment 88 Selection to meet anticipated future need (1) From time to time, the chief executive must select persons from the expression of interest register to be assessed for suitability to be an adoptive parent. (2) The purpose of selections under this section is to ensure the likely future need for adoptive parents identified in planning under division 1 may be met. (3) The chief executive must select appropriate numbers of persons, with appropriate profiles, according to the likely need relating to local adoptions and the likely need relating to intercountry adoptions for each relevant country. (4) The chief executive must be satisfied the persons selected are, based on their profiles, likely to meet the anticipated placement needs of children to be adopted. Note The placement needs of children to be adopted by an intercountry adoption are determined having regard to matters that include the requirements of the competent authority for the country that apply to prospective adoptive parents of children from the country. See schedule 3, definition placement needs , paragraph (c). (5) Subject to subsection (4), the chief executive may, in deciding whom to select, give priority to— (a) a person with the same ethnic background as children to be adopted; or (b) a person who has previously adopted a child with similar placement needs as children to be adopted; or (c) a person with the earliest relevant expression of interest. (6) In this section— Reprint 1E effective 17 September 2012 Page 59
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 89] relevant expression of interest , for a person, means— (a) if the person’s name has previously been removed from the expression of interest register under section 79(1)(a), the expression of interest for which the person’s name had been entered in the register; or (b) otherwise, the person’s current expression of interest. 89 Selection to meet needs of particular child (1) This section applies if the chief executive anticipates a particular child will need an adoptive placement. (2) To ensure the child’s placement needs are met, the chief executive may select 1 or more persons under this section to be assessed for suitability to be an adoptive parent of the child. (3) If the child has an approved carer, the chief executive may select the approved carer. (4) If a sibling of the child has been adopted, the chief executive may select a person who adopted the sibling. (5) If the chief executive considers there is no-one listed in the suitable adoptive parents register who is likely to meet the anticipated placement needs of the child, the chief executive may select anyone who the chief executive considers is likely to meet the anticipated placement needs of the child. Examples of persons who may be likely to meet the anticipated placement needs of a child for a child with a disability, a person who has previously expressed an interest in adopting a child with a disability for an Aboriginal or Torres Strait Islander child, a person from the child’s community or language group (6) A person may be selected under this section even if the person— (a) does not have a conforming expression of interest; or (b) is not listed in the expression of interest register; or (c) does not have a spouse. Page 60 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 4 Recruitment and selection of prospective adoptive parents [s 90] (7) However— (a) the chief executive may select a person listed in the expression of interest register who does not have a conforming expression of interest only if the person agrees to being selected; and (b) the chief executive may select a person who is not listed in the expression of interest register only if— (i) the person agrees to being selected; and (ii) the person is an adult; and (iii) the person is an Australian citizen or has a spouse who is an Australian citizen; and (iv) the person is resident or domiciled in Queensland; and (v) for a person who has a spouse— (A) the spouse is not the same gender as the person; and (B) the person and the spouse are living together. (8) In this section— conforming expression of interest , in relation to a child, means a current expression of interest that— (a) relates to a local adoption or an intercountry adoption from a particular country, whichever is relevant to the child; and (b) contains preferences that are consistent with the child’s characteristics. 90 Joint selection of spouses If a person has a spouse, the chief executive may only select the person for assessment jointly with the person’s spouse. Reprint 1E effective 17 September 2012 Page 61
Adoption Act 2009 Part 5 Application by person wishing to adopt stepchild [s 91] 91 Notice of selection and fees (1) Immediately after selecting a person for assessment, the chief executive must give the person a notice of the selection. (2) The notice must include information about the fees payable under section 112. Part 5 Application by person wishing to adopt stepchild Division 1 Making an application 92 Who may apply (1) A person may apply to the chief executive to arrange an adoption by the person of a stated child if— (a) the person is the spouse of a parent of the child; and (b) the person, the person’s spouse and the child are living together; and (c) paragraphs (a) and (b) have applied for a continuous period of at least 3 years up to the time of the application; and (d) the person has been granted leave under the Family Law Act 1975 (Cwlth), section 60G(1); and (e) the person is an adult; and (f) the person or the person’s spouse is an Australian citizen; and (g) the person is resident or domiciled in Queensland; and (h) the person’s spouse is not the same gender as the person; and (i) the child is at least 5 years old and has not yet turned 17. Page 62 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 5 Application by person wishing to adopt stepchild [s 93] (2) Despite subsection (1)(i), the chief executive may accept an application relating to a child who has turned 17 if the chief executive considers— (a) there is enough time to complete the adoption process before the child turns 18; and Note An adult may not be adopted. See section 10(3). (b) the grounds for making an adoption order in favour of the applicant are likely to exist. (3) In this section— parent does not include guardian. 93 Requirements for application The application must be— (a) in the approved form; and (b) signed by the applicant, the applicant’s spouse and each adult member of the applicant’s household; and (c) accompanied by the fee prescribed under a regulation. 94 Refusal of application (1) The chief executive must refuse an application made, or purportedly made, by a person under section 92 if the chief executive is satisfied— (a) the person may not make the application under that section; or (b) if relevant, the application should not be accepted under section 92(2). (2) If the chief executive proposes to refuse the application, the chief executive must give the person a notice (a show cause notice ) stating— (a) why it is proposed to refuse the application; and Reprint 1E effective 17 September 2012 Page 63
Adoption Act 2009 Part 5 Application by person wishing to adopt stepchild [s 95] (b) that the person may give the chief executive a written response within a stated time of at least 28 days. (3) The chief executive must consider any response given by the person within the time stated in the show cause notice before deciding whether to refuse the application. (4) If the chief executive decides to refuse the application, the chief executive must give the person an information notice for the decision. 95 Obligation to notify chief executive of changed or new information relevant to application (1) This section applies if— (a) the person has given information about a matter to the chief executive under this part or part 6; and (b) the person becomes aware that the information has changed or becomes aware of new information relating to the matter; and (c) the changed or new information is relevant to a matter stated in section 92(1). (2) The person must immediately give the chief executive a notice of the changed or new information. Division 2 How chief executive must deal with accepted application 96 Definitions for div 2 In this division— consent means consent to the proposed adoption given under part 2. dispensation application means an application under part 2, division 6, for an order dispensing with the need for a parent’s consent. Page 64 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 5 Application by person wishing to adopt stepchild [s 97] parent , of a child, does not include a person if, under section 39, a court has dispensed with the need for the person’s consent to the child’s adoption. 97 Application of div 2 This division applies to an application made under division 1 unless the chief executive decides under section 94 to refuse the application. 98 Obtaining consents (1) The chief executive must take steps to obtain the consent of each parent. (2) If the chief executive obtains the consent of each parent, the chief executive must assess the applicant under part 6. 99 All consents not obtained (1) This section applies if the chief executive— (a) becomes aware that a parent does not wish to give his or her consent; or (b) can not establish the identity of a parent after making all reasonable enquiries; or (c) can not locate a parent after making all reasonable enquiries. (2) The chief executive must notify the applicant that, for the relevant reason mentioned in subsection (1)(a) to (c), the chief executive has not obtained the consent of each parent. (3) Then the chief executive must not deal further with the application unless— (a) the chief executive becomes aware that the parent wishes to give the consent, or identifies the parent, or locates the parent, whichever is relevant; or (b) the applicant makes a dispensation application. Reprint 1E effective 17 September 2012 Page 65
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 100] (4) If the applicant makes a dispensation application, the chief executive may proceed to assess the applicant under part 6, pending the result of the dispensation application, as if each consent had been obtained. 100 Lapsing of application (1) If an application under this part has been inactive for 6 months, the application lapses. (2) For subsection (1), an application is inactive if the chief executive is not dealing with it and, under section 99, must not deal further with it or, under section 114(6)(b), is not required to deal further with it. Part 6 Assessment of prospective adoptive parents Division 1 Preliminary 101 Who is assessed (1) The chief executive must assess a person under this part if— (a) the person is selected for assessment under part 4, division 5; or (b) the assessment is required under section 98(2). (2) Subsection (1) applies subject to section 112(4). (3) The chief executive must not assess a person under this part unless the assessment is required under subsection (1) or allowed under section 99(4) or division 8. Page 66 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 102] 102 Suitable adoptive parents register The chief executive must keep a register (the suitable adoptive parents register ) for this part. 103 This part applies despite the Criminal Law (Rehabilitation of Offenders) Act 1986 This part applies to a person despite anything in the Criminal Law (Rehabilitation of Offenders) Act 1986 . Division 2 Purpose and scope of assessment 104 Purpose of assessment The purpose of assessing a person is to decide if he or she is suitable to be an adoptive parent. 105 Scope of assessment—persons selected to meet anticipated future need (1) This section applies to a person selected for assessment under section 88. (2) The chief executive must decide the person’s suitability to be an adoptive parent generally. (3) If the chief executive considers it appropriate, the chief executive may also decide the person’s suitability to be an adoptive parent of a child with particular characteristics. (4) In deciding whether it would be appropriate to make a decision mentioned in subsection (3), the chief executive must consider— (a) the person’s current expression of interest; and (b) the likely future need for adoptive parents. Reprint 1E effective 17 September 2012 Page 67
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 106] 106 Scope of assessment—persons selected to meet needs of particular child (1) This section applies to a person selected for assessment under section 89 in relation to the anticipated placement needs of a particular child (the relevant child ). (2) The chief executive must decide the person’s suitability to be an adoptive parent of the relevant child. (3) If the chief executive considers it appropriate, the chief executive may also decide— (a) the person’s suitability to be an adoptive parent of a child with particular characteristics other than those of the relevant child; or (b) the person’s suitability to be an adoptive parent generally. (4) In deciding whether it would be appropriate to make a decision mentioned in subsection (3), the chief executive must consider— (a) the person’s current expression of interest, if any; and (b) the likely future need for adoptive parents. 107 Scope of assessment—persons wishing to adopt stepchild (1) This section applies to the assessment of a person who has made an application under part 5. (2) The chief executive must decide the person’s suitability to be an adoptive parent of the child whom the person wishes to adopt. Division 3 Assessment process 108 Joint assessment of a couple (1) If a person being assessed has a spouse, the assessment must be made of the person and the person’s spouse jointly. Page 68 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 109] (2) Subsection (1) does not apply to a person being assessed after making an application under part 5. 109 Assessment process (1) To assess a person, the chief executive must— (a) obtain relevant information under division 4; and (b) assess the person’s suitability on the bases stated in division 5; and (c) prepare a preliminary report about the person’s suitability; and (d) give to the person— (i) a copy of the report; and (ii) a notice inviting the person to give the chief executive, within a stated period of at least 28 days, a written response to the report, including corrections or comments about the matters stated in the report; and (e) after considering the person’s response, if any, decide whether the person is suitable. Note See division 6 for the steps following the chief executive’s decision. (2) If, in the course of carrying out the assessment mentioned in subsection (1)(b), the chief executive is satisfied there is an unacceptable risk mentioned in section 121, the chief executive must prepare a preliminary report stating that the person is unsuitable without any further assessment under division 5. (3) If, in carrying out the assessment mentioned in subsection (1)(b), the chief executive is satisfied the person is unsuitable on any of the other bases stated in division 5 (for example, because the person does not have the health required under section 122), the chief executive may prepare a preliminary report stating that the person is unsuitable without any further assessment under division 5. Reprint 1E effective 17 September 2012 Page 69
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 110] (4) The chief executive must comply with subsection (1)(d) and (e) even if the scope of the assessment is limited under subsection (2) or (3). 110 Timing and pace of assessment The chief executive may assess a person over the period, and at the rate of progress, that the chief executive considers appropriate, having regard to— (a) the need to carry out the assessment efficiently, thoroughly, to a high standard and in compliance with this Act; and (b) the need to be fair to the person; and (c) whether it would be appropriate to repeat a stage of the assessment process; and (d) the timing of a possible application for an adoption order in favour of the person if the person is decided to be suitable. 111 Consent of household members to assessment (1) The assessment of a person under this part includes an assessment of certain matters relating to members of the person’s household. Note Under section 121, a person may be unsuitable because of the risk posed by a member of the person’s household. (2) An adult member of the person’s household may give written consent to being assessed under this part by signing the person’s expression of interest or by signing the person’s application under part 5 or in another way. (3) If an adult member of the person’s household has not given written consent to being assessed under this part— (a) the chief executive may not ask the police commissioner under section 116 for information, or access to the Page 70 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 112] police commissioner’s records, relating to the household member; and (b) the chief executive may not ask the chief executive (transport) under section 117 for a written report about the household member’s traffic history. (4) If an adult member of the person’s household refuses to give written consent to being assessed under this part, section 114(6) applies as if the person had failed to give information required under that section within the required time. 112 Fees (1) A regulation may prescribe fees for an assessment under this part. (2) A person being, or to be, assessed under this part must pay a prescribed fee, or part of a prescribed fee, (the required amount ) when required by the chief executive. (3) The requirement must be written and must state— (a) the reasonable time within which the required amount must be paid; and (b) the consequences of non-payment under this section and section 80(1)(b). (4) The chief executive need not assess the person, or continue assessing the person, until the required amount is paid. (5) The chief executive must not enter the person’s name in the suitable adoptive parents register if the required amount is not paid. (6) An amount stops being a required amount to the extent the chief executive waives payment of it. Reprint 1E effective 17 September 2012 Page 71
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 113] Division 4 Information to assess suitability 113 Application of div 4 This division applies to a person— (a) being assessed under this part; or (b) whose name is in the suitable adoptive parents register; or (c) for whom an interim order is in force. 114 Chief executive may require information (1) The person must give the chief executive any relevant information that the chief executive reasonably requires to assess the person’s suitability. Examples of relevant information 1 a report about the person’s health, in the approved form, completed by a doctor who has examined the person 2 a further report or opinion, from a specialist or other doctor, about a stated medical condition or other stated aspect of the person’s health 3 a copy of a bench charge sheet, trial transcript or other document containing information relating to a charge or conviction of the person or a member of the person’s household (2) The chief executive may give the person a notice stating— (a) the information that the chief executive requires; and (b) the day by which the person must give the information to the chief executive; and (c) the consequence under subsection (6) if the person does not give the information to the chief executive by the due day. (3) The due day must be reasonable and, in any case, at least 14 days after the requirement is made. (4) The chief executive may withdraw the requirement, or part of the requirement, at any time. Page 72 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 115] (5) On or before the due day for giving particular information, the chief executive may give the person a further notice substituting a later due day for giving the information if the chief executive is satisfied it would be reasonable in all the circumstances to do so. (6) The following applies if the person does not give required information by its due day— (a) if the person’s name is in the expression of interest register, the chief executive may revoke the selection of the person for assessment and remove the name from the register under section 80(2)(a); (b) if the person is an applicant under part 5, the chief executive is not required to deal further with the application; (c) if the person’s name is in the suitable adoptive parents register, the chief executive may remove the name from the register under section 146(2)(b); (d) if an interim order for the person is in force, the chief executive may have regard to the non-compliance in making a decision about an application to the court relating to the interim order or a final adoption order. (7) In this section— due day , for giving information, means the day stated in the notice under subsection (2)(b) or any later day substituted by notice under subsection (5). information includes a document. 115 Obligation to notify chief executive of changed or new information relevant to eligibility or suitability (1) This section applies if— (a) the person has given information about a matter to the chief executive under this part or part 4 or 5; and Reprint 1E effective 17 September 2012 Page 73
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 116] (b) the person becomes aware that the information has changed or becomes aware of new information relating to the matter; and (c) the changed or new information is relevant to the person’s suitability to be an adoptive parent. (2) The person must immediately give the chief executive a notice of the changed or new information. (3) Without limiting subsection (1), the person must give notice of a change in— (a) the person’s personal history; or (b) the membership of the person’s household; or (c) information of which the person is aware, or that the person reasonably suspects, about the personal history of an adult member of the person’s household. (4) A reference in this section to a change in a person’s personal history includes, for a person with no personal history, the acquisition of a personal history. 116 Police information (1) The chief executive may ask the police commissioner for information, or for access to the police commissioner’s records, to enable the chief executive to learn what police information exists, if any, in relation to the person or an adult member of the person’s household. (2) If there is police information about the person or household member, the chief executive may ask the police commissioner for a brief description of— (a) the circumstances of a conviction, charge or order mentioned in the police information; or (b) investigative information mentioned in the police information. (3) The police commissioner must comply with a request under subsection (1) or (2). Page 74 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 117] (4) However, the duty imposed on the police commissioner to comply with a request for information applies only to information in the police commissioner’s possession or to which the police commissioner has access. (5) The police commissioner need not give investigative information, or give access to a record containing investigative information, about the person or household member to the chief executive under this section if the police commissioner is reasonably satisfied that giving the information or access may do any of the following— (a) prejudice the investigation of a contravention or possible contravention of the law in a particular case; (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; (c) endanger a person’s life or physical safety; (d) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. (6) In this section— police information , about a person, means the following— (a) the person’s criminal history; (b) investigative information about the person; (c) the person’s domestic violence history; (d) information as to whether the person is or has been— (i) the subject of a disqualification order; or (ii) the respondent for an offender prohibition order. 117 Traffic information (1) The chief executive may ask the chief executive (transport) for a written report about the traffic history of the person or an adult member of the person’s household. Reprint 1E effective 17 September 2012 Page 75
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 118] (2) The chief executive (transport) must comply with the request despite the Transport Operations (Road Use Management) Act 1995 , section 77. 118 Consultation with appropriate Aboriginal or Torres Strait Islander person (1) This section applies if the person is being assessed for suitability to be an adoptive parent of a child who is, or children who include, an Aboriginal or Torres Strait Islander child. (2) The chief executive must consult with an appropriate Aboriginal or Torres Strait Islander person about— (a) Aboriginal tradition or Island custom relating to the child; and (b) the person’s suitability. 119 Other information gathering The chief executive may make enquiries and gather information in other ways the chief executive considers appropriate, including any of the following— (a) talking with the person; (b) asking the person to attend and participate in a workshop or similar educational activity conducted by the department; (c) visiting the person’s home; (d) talking with members of the person’s family or household; (e) talking with referees nominated by the person; (f) talking with anyone else with information relevant to the person’s suitability; (g) obtaining expert advice about relevant health, psychological or social matters; Page 76 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 120] (h) asking the person to prepare documents, for example, a profile of the person’s family; (i) lawfully obtaining information from the department or other departments. Division 5 Bases for deciding suitability 120 Application of div 5 This division states how the chief executive must decide whether a person is suitable to be an adoptive parent. 121 Unacceptable risk of harm (1) The chief executive must decide if the person or any member of the person’s household would pose an unacceptable risk of harming a child adopted by the person. (2) The chief executive must consider, in particular, any personal history of the person or of an adult member of the person’s household. (3) The chief executive must decide there is an unacceptable risk for subsection (1) if the person or an adult member of the person’s household— (a) has been convicted of a disqualifying offence for which an imprisonment order was imposed; or (b) is subject to— (i) reporting obligations under the Child Protection (Offender Prohibition Order) Act 2008 ; or (ii) an offender prohibition order; or (iii) a disqualification order; or (c) has been convicted of a serious offence. (4) Subsection (3)(c) does not apply if the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of a child to be adopted by the person. Reprint 1E effective 17 September 2012 Page 77
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 121] (5) Subject to subsection (3), if the chief executive is aware that the person or a member of the person’s household has been convicted of, or charged with, an offence, the chief executive must have regard to the following— (a) in relation to the commission, or alleged commission, of an offence by the person or household member— (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to adopting children; and (v) in the case of a conviction—the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order, the court’s reasons for its decision; (b) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the risk mentioned in subsection (1). (6) If the chief executive is aware of investigative information about the person or a member of the person’s household, the chief executive must have regard to the following— (a) when the acts or omissions constituting the alleged offence to which the investigative information relates were committed; (b) anything else relating to the commission of the acts or omissions that the chief executive reasonably considers relevant to the assessment of the risk mentioned in subsection (1). Page 78 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 122] 122 Health (1) The chief executive must be satisfied the person has good health to provide stable, high level care for a child until adulthood. (2) Without limiting subsection (1), the person does not have good health for subsection (1) if the person has a disqualifying condition. (3) If the person has a condition other than a disqualifying condition, the chief executive must have regard to— (a) its effect on the level of care the person will be able to provide to an adopted child, without help from someone else, and the time for which the person is likely to be able to provide the care; and (b) whether the person needs a carer or is likely to need a carer in the future; and (c) whether the condition is likely to have an adverse impact on an adopted child’s wellbeing or best interests. (4) In this section— condition means— (a) a disability or impairment; or (b) an illness or anything else that affects a person’s health. disqualifying condition means a condition prescribed under a regulation to be a disqualifying condition for this section. health means physical, psychological and mental health. 123 Guiding principles The chief executive must have regard to the guiding principles under section 6. 124 Capacity to be adoptive parent generally The chief executive must have regard to the person’s capacity to be an adoptive parent, including— Reprint 1E effective 17 September 2012 Page 79
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 125] (a) the person’s psychological capacity and other personal qualities; and (b) the person’s financial stability and other financial capacity; and (c) the person’s willingness and ability to ensure a child’s safety and wellbeing; and (d) anything else relevant to the person’s capacity to provide for a child’s emotional, physical, educational, recreational and social needs. 125 Good character The chief executive must be satisfied the person is of good character. 126 Attitudes to children and parenting The chief executive must have regard to the person’s attitudes to, and understanding of— (a) children and their physical and emotional development; and (b) the responsibilities and duties of parenthood. 127 Adoptive parenting The chief executive must have regard to the person’s attitudes to, and understanding of, the issues relevant to adoptive parenting, including— (a) issues about informing a child of his or her adoption; and (b) the significance to an adopted child of his or her birth parents and their families; and (c) the importance of developing and maintaining relationships with an adopted child’s birth parents and their families, through an open adoption arrangement, so far as this is possible and in the child’s best interests. Page 80 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 128] 128 Quality of relationship with spouse If the person has a spouse, the chief executive must have regard to the quality of the person’s relationship with his or her spouse, including the duration and stability of the relationship. 129 Infertility If the person is infertile or has a spouse who is infertile, the chief executive must have regard to the person’s adjustment to, and acceptance of, the infertility. 130 Matters relating to step-parent (1) This section applies if the person is being assessed because the person has made an application under part 5 relating to the proposed adoption of a child of whom the person is a step-parent. (2) The chief executive must have regard to the nature, closeness and quality of the child’s relationship with the person and members of the person’s household. 131 Aboriginal or Torres Strait Islander children (1) This section applies if the chief executive is making a decision about the person’s suitability to be an adoptive parent of a child who is, or children who include, an Aboriginal or Torres Strait Islander child. (2) The chief executive must have regard to the person’s ability and willingness to— (a) help the child to maintain contact with the child’s community or language group; and (b) help the child to develop and maintain a connection with the child’s Aboriginal tradition or Island custom; and (c) preserve and enhance the child’s sense of Aboriginal or Torres Strait Islander identity. Reprint 1E effective 17 September 2012 Page 81
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 132] (3) If the chief executive is making a decision about the person’s suitability to be an adoptive parent of a particular Aboriginal or Torres Strait Islander child, the chief executive must have regard to the person’s links with, and standing in, the child’s community or language group. 132 Other cultural matters (1) This section applies if the chief executive is making a decision about the person’s suitability to be an adoptive parent of a child who is, or children who include, a child of a particular ethnic or other cultural background. (2) The chief executive must have regard to the person’s ability and willingness to— (a) understand the child’s background; and (b) help the child to maintain contact with the child’s community or language group; and (c) help the child to develop and maintain a connection with the child’s ethnicity or culture; and (d) preserve and enhance the child’s sense of ethnic or cultural identity. (3) If the person has a current expression of interest that relates to an intercountry adoption from a particular country, the chief executive must have regard to— (a) the person’s attitudes to, and understanding of, the country and its culture; and (b) the person’s ability and willingness, if the person adopted a child from the country, to— (i) continue to learn about the country and its culture; and (ii) help the child learn about the country and its culture. Page 82 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 133] 133 Other prescribed matters The chief executive must have regard to any other matters prescribed under a regulation. Division 6 Action following decision 134 Application of div 6 This division applies after the chief executive decides whether a person is suitable to be an adoptive parent. 135 Chief executive must give notice of decision (1) The chief executive must give to the person a notice of the decision. (2) The notice must state the reasons for the decision and the information on which it is based. (3) For a person assessed jointly with the person’s spouse, the notice must include the decisions for both the person and the person’s spouse. (4) If the chief executive decides the person is not suitable to be an adoptive parent, the chief executive must give the person an information notice for the decision. 136 Removal from expression of interest register If the person’s name is in the expression of interest register, the chief executive must remove the name from that register. 137 Entry in suitable adoptive parents register (1) This section applies if— (a) the person was assessed after being selected under part 4, division 5; and (b) the decision is that the person is suitable; and Reprint 1E effective 17 September 2012 Page 83
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 138] (c) for a person assessed jointly with the person’s spouse, the decision is that the person’s spouse is suitable. (2) The chief executive must enter the person’s name in the suitable adoptive parents register. 138 Preparation of report (1) This section applies if— (a) the person was assessed after making an application under part 5; and (b) the decision is that the person is suitable. (2) The chief executive must prepare a report for the Childrens Court stating— (a) that the person has been assessed as suitable; and (b) whether the chief executive considers— (i) an order for the child’s adoption by the person would better serve the child’s interests than an order under the Family Law Act 1975 (Cwlth), any other court order or no court order; and (ii) there are exceptional circumstances that warrant the making of the order. (3) In deciding a matter under subsection (2)(b), the chief executive must consider— (a) the circumstances in which the child came to be living with the person; and (b) the likely effect on the child, both through childhood and the rest of his or her life, of permanently ending the parent-child relationship between the child’s biological parents and the child (even if the biological parents are no longer living) or another parent-child relationship that would be ended by the making of an adoption order. (4) The chief executive must give the person a copy of the report. Page 84 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 139] (5) In this section— suitable means suitable to be an adoptive parent of the child whom the person wishes to adopt. Division 7 Interstate register 139 Registration of person on interstate register (1) This section applies if— (a) a person gives the chief executive a signed application in the approved form to have the person’s name entered in the suitable adoptive parents register; and (b) at the time the application is given, the person’s name is in an interstate register; and (c) the person is eligible under section 76 to have his or her name entered in the expression of interest register. (2) The chief executive must enter the person’s name in the suitable adoptive parents register. (3) This Act applies in relation to the person as if— (a) the person’s application under subsection (1)(a) were the person’s current expression of interest; and (b) the chief executive assessed the person, after selecting the person from the expression of interest register under section 88 and decided the person was suitable to be an adoptive parent generally. (4) In this section— interstate register means a register kept under a law of another State substantially corresponding to the suitable adoptive parents register. Reprint 1E effective 17 September 2012 Page 85
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 140] Division 8 Re-assessment of person listed in suitable adoptive parents register 140 When a person may be re-assessed (1) This section applies to a person listed in the suitable adoptive parents register. (2) The chief executive may re-assess the person if— (a) the chief executive becomes aware of further information about the person or a member of the person’s household, or of a change in the person’s circumstances, that may be relevant to the person’s suitability; or (b) because of the time that has passed since the person’s assessment, the chief executive considers it would be appropriate to re-assess the person; or (c) the re-assessment is required to meet the requirements for an intercountry adoption from a country to which the person’s current expression of interest relates; or (d) the chief executive is considering selecting the person under part 7 as a child’s prospective adoptive parent but considers it would be appropriate to first assess the person’s suitability to be an adoptive parent of a child with particular characteristics. 141 Conduct of re-assessment Subject to this division, this part applies to the re-assessment as if it were an original assessment of the person. 142 Re-assessment may be limited Having regard to the reason for the re-assessment, the chief executive must decide whether the matters relating to the person’s suitability that are to be considered in the re-assessment are— Page 86 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 143] (a) all matters that would be considered if the re-assessment were an original assessment of the person; or (b) only particular matters relevant to the reason for the re-assessment. 143 Notice of re-assessment Before starting the re-assessment, the chief executive must give the person a notice stating— (a) that the person is being re-assessed; and (b) the reasons for the re-assessment; and (c) the matters relating to the person’s suitability that are to be considered in the re-assessment. Division 9 Removal from suitable adoptive parents register 144 Automatic removal from register The chief executive must remove a person’s name from the suitable adoptive parents register if— (a) a final adoption order is made in favour of the person under this Act; or (b) the person is selected from the suitable adoptive parents register as a prospective adoptive parent by the competent authority for another country, under arrangements made between the chief executive and the competent authority, and an adoption order is made in favour of the person in the other country; or (c) the person gives the chief executive a written request to remove the person’s name from the register. Reprint 1E effective 17 September 2012 Page 87
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 145] 145 Removal after re-assessment The chief executive must remove a person’s name from the suitable adoptive parents register if, on a re-assessment under division 8, the chief executive decides the person is unsuitable. Note Under section 135(4), the person is given a notice of the decision stating the person’s right to a review of the decision. 146 Other grounds for removal (1) The chief executive must remove a person’s name from the suitable adoptive parents register if— (a) for a person who was selected for assessment from the expression of interest register—the person is not eligible to have his or her name remain in the expression of interest register under section 76; or (b) for a person selected for assessment under section 89—the person is not a person mentioned in section 89(7)(b)(ii) to (v). (2) The chief executive may remove a person’s name from the suitable adoptive parents register if— (a) the person gives information to the chief executive for this Act that is false or misleading in a material particular; or (b) the person does not comply with a notice under section 114 by the due day for the notice; or (c) the person contravenes section 115. (3) Before removing a person’s name from the register under this section, the chief executive must give the person a notice (a show cause notice ) stating— (a) that the chief executive proposes to remove the name; and (b) the reason for the proposed removal; and Page 88 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 147] (c) that the person may, within a stated time of at least 28 days, give the chief executive a written response to the proposed removal. (4) The chief executive must consider any response given by the person within the time stated in the show cause notice before deciding whether to remove the person’s name. (5) If the chief executive decides not to remove the person’s name, the chief executive must give the person notice of the decision. (6) If the chief executive decides to remove the person’s name, the chief executive must give the person an information notice for the decision. (7) For subsection (1)(a), a woman does not become ineligible to have her name remain in the expression of interest register under section 76 on the ground of being pregnant unless she is at least 14 weeks pregnant. Division 10 Investigative information 147 Police commissioner may decide that information about a person is investigative information (1) The police commissioner may decide under this section that information about a person (the investigated person ) is investigative information if— (a) there is or was evidence of acts or omissions that, at the time of the acts or omissions, constituted a disqualifying offence (the alleged offence ) by the investigated person against a child or a person who was a child at the time of the offence (each of whom is a complainant ); and (b) the police investigated the alleged offence and the investigated person was formally notified about the investigation, including— Reprint 1E effective 17 September 2012 Page 89
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 148] (i) by participating in an interview, or by being asked to participate in an interview, about the alleged offence; or (ii) by otherwise being given an opportunity to answer allegations about the alleged offence; and (c) there was sufficient evidence available that was capable of establishing each element of the alleged offence but a decision was made not to charge the investigated person because— (i) the complainant died before the charge was brought; or (ii) either or both of the following applied— (A) the complainant was unwilling to proceed; (B) an adult who, at the relevant time, was the complainant’s parent decided that, in the interests of the complainant, the matter should not proceed. (2) Evidence of acts or omissions includes information from a third party if the complainant did not make a formal complaint at or about the time of the investigation. (3) Despite the Police Service Administration Act 1990 , section 4.10, the police commissioner may not delegate the police commissioner’s powers under this section to anyone other than a police officer of at least the rank of superintendent. 148 Appeal from decision that information is investigative information (1) This section applies if the police commissioner decides that information about the investigated person is investigative information and gives the information to the chief executive under section 116. (2) The police commissioner must give notice to the investigated person that— Page 90 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 6 Assessment of prospective adoptive parents [s 149] (a) the police commissioner has decided that information about the person is investigative information; and (b) investigative information has been given to the chief executive. (3) Within 28 days after being given the notice, the investigated person may appeal to a Magistrates Court about the decision that the information is investigative information. (4) The chief executive and police commissioner must be given a copy of the notice of appeal. (5) QCAT does not have jurisdiction to review a decision of the police commissioner that information about a person is investigative information or that information that is investigative information may be given to the chief executive. 149 Court to decide matters afresh (1) A Magistrates Court hearing an appeal under section 148 is to decide afresh whether the information given to the chief executive as investigative information about the investigated person is investigative information. (2) A person who is the relevant complainant under section 147 must not be asked or called on by the investigated person to give evidence in person before the court. (3) Subsection (2) does not prevent documentary evidence being tendered and received in evidence by the court. (4) After hearing the appeal, the court may confirm or set aside the decision. (5) For subsection (4), the court must have regard to the matters the police commissioner was required to have regard to under this Act when the police commissioner made the decision. (6) The clerk of the court must give notice of the decision to the investigated person and the chief executive. Reprint 1E effective 17 September 2012 Page 91
Adoption Act 2009 Part 7 Selection of prospective adoptive parents [s 150] 150 Consequence of successful appeal (1) This section applies if, on appeal, a Magistrates Court sets aside the police commissioner’s decision under section 147 that information given to the chief executive about the investigated person (the relevant information ) is investigative information. (2) If the chief executive has decided the person is not suitable, the chief executive must set aside that decision and re-assess the person under this part. (3) An assessment of the person under this part must be carried out without regard to the relevant information. Part 7 Selection of prospective adoptive parents Division 1 Requirement to select persons as prospective adoptive parents 151 Application of div 1 for initial selection for local adoptions This division applies to a child if the chief executive is the child’s guardian under section 57 and all consents required for the child’s adoption have been given. 152 Application of div 1 when further selection required (1) This division applies to a child (whether or not the child is an intercountry adoption child) if— (a) the chief executive selects the child’s prospective adoptive parents under division 2; and (b) an interim order is made in favour of the prospective adoptive parents; and Page 92 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 7 Selection of prospective adoptive parents [s 153] (c) the interim order is discharged. (2) This division applies to an intercountry adoption child if the persons who were the child’s prospective adoptive parents stop having custody of the child because— (a) the chief executive, as the child’s guardian under a delegation from the responsible Minister under the Immigration (Guardianship of Children) Act 1946 (Cwlth), removes the child from their custody; or (b) the Childrens Court makes an order under section 194(1)(a). (3) A reference in this section to a child’s prospective adoptive parents includes, for a proposed adoption by a single person, that person. (4) In this section— intercountry adoption child means a child brought to Queensland from another country to be adopted under arrangements made between the chief executive and the competent authority for the other country. 153 Chief executive must select prospective adoptive parents (1) The chief executive must select a couple or single person from the suitable adoptive parents register to be the child’s prospective adoptive parents or parent. (2) The chief executive must select a couple unless satisfied that, in the particular circumstances, it would best promote the child’s wellbeing and best interests to select a particular person from the suitable adoptive parents register who is a single person. Note A single person may be selected for assessment under section 89 and subsequently entered in the suitable adoptive parents register. Reprint 1E effective 17 September 2012 Page 93
Adoption Act 2009 Part 7 Selection of prospective adoptive parents [s 154] Division 2 How selection must be made 154 Application of div 2 This division states how, in compliance with a requirement under section 153, the chief executive must decide who to select. 155 Child’s wellbeing and best interests generally The chief executive must make the selection that will best promote the child’s wellbeing and best interests. 156 Child’s particular needs The chief executive must have regard to the needs of the child to be adopted, including any needs relating to the following matters— (a) the child’s age and gender; (b) any Aboriginal, Torres Strait Islander or other cultural background of the child; (c) any existing or possible future medical condition or disability of the child; (d) the child’s education; (e) whether the child has a sibling who has been adopted or is proposed to be adopted; (f) the child’s social background. 157 Preferences of parents (1) The chief executive must have regard to any preferences of the child’s parents including, for example, preferences about— (a) the child’s religious upbringing; or (b) the characteristics of the child’s adoptive parents and adoptive family; or Page 94 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 7 Selection of prospective adoptive parents [s 158] (c) the degree of openness in the adoption. (2) Subsection (1) does not apply to a preference that the chief executive considers is likely to be contrary to the child’s wellbeing or best interests. 158 Characteristics of persons who may be selected (1) The chief executive must have regard to any of the characteristics of the persons the chief executive is considering selecting that are relevant to— (a) their willingness and ability to parent a child with the needs of the child to be adopted; or (b) the extent to which they meet the preferences of the child’s parents being considered under section 157. (2) In this section— characteristics , of a person, includes the matters relating to the person’s suitability decided by the chief executive on an assessment under part 6. 159 Eligibility (1) The chief executive must be satisfied a person to be selected as a prospective adoptive parent is still eligible. (2) For subsection (1), a person is still eligible if— (a) for a person selected for assessment from the expression of interest register—the person is still eligible to have his or her name entered or remain in the expression of interest register under section 76; or (b) for a person selected for assessment under section 89—the person still complies with section 89(7)(b)(ii) to (v). (3) For subsection (2)(a), a woman does not become ineligible to have her name remain in the expression of interest register under section 76 on the ground of being pregnant unless she is at least 14 weeks pregnant. Reprint 1E effective 17 September 2012 Page 95
Adoption Act 2009 Part 7 Selection of prospective adoptive parents [s 160] 160 Placement with sibling The chief executive must have regard to the consideration that it would ordinarily be in a child’s best interests to be placed with the same family as any sibling of the child who is also to be adopted or has previously been adopted. 161 Other children in adoptive family (1) The chief executive must have regard to the considerations that it would ordinarily be in a child’s best interests— (a) to be the youngest child in the adoptive family, by at least 2 years, at the time of the placement; and (b) for no other children to join the adoptive family for at least 1 year after the placement, whether by birth, adoption, placement under the Child Protection Act 1999 or in another way. (2) Subsection (1) applies to children in the adoptive family other than any sibling of the child placed with the same family. 162 Initial period of full-time personal care by adoptive parents The chief executive must have regard to the consideration that it would ordinarily be in a child’s best interests to receive full-time care, provided personally by one or both of the persons with whom the child is placed, for at least 1 year after the placement. 163 Additional provisions relating to Aboriginal or Torres Strait Islander children (1) This section applies if the child to be adopted is an Aboriginal person or Torres Strait Islander. (2) The chief executive must consult with an appropriate Aboriginal or Torres Strait Islander person about the selection decision. Page 96 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 7 Selection of prospective adoptive parents [s 164] (3) The chief executive must give proper consideration to selecting, in order of priority— (a) a member of the child’s community or language group; or (b) another Aboriginal person or Torres Strait Islander who is compatible with the child’s community or language group; or (c) another Aboriginal person or Torres Strait Islander. (4) This section does not limit the application of the other provisions of this division to the selection of prospective adoptive parents for the child. Division 3 Facilitating matters between parents and selected persons 164 Facilitating agreement or adoption plan (1) This section applies after the chief executive has selected the child’s prospective adoptive parents under division 2. (2) The chief executive must act as intermediary between the child’s parents and the prospective adoptive parents to— (a) facilitate an agreement between them about the degree of openness there will be in the adoption; and (b) facilitate preparation of an adoption plan, if a plan is required under this Act or is proposed by any of them. Reprint 1E effective 17 September 2012 Page 97
Adoption Act 2009 Part 8 Adoption plans [s 165] Part 8 Adoption plans Division 1 General 165 What is an adoption plan (1) An adoption plan is a written plan, agreed to by the parties to the plan, about anything relating to the adopted child’s wellbeing or interests. (2) An adoption plan may, for example, address any of the following matters— (a) the degree of openness there will be in the adoption, including— (i) when a party will communicate with another party; and (ii) how a party will communicate with another party, including whether the communication will be through the mailbox service or in another way that does not identify the first party; and (iii) the matters about which information will be exchanged; Examples of matters about which information may be exchanged the child’s development important events in the child’s life a medical condition of the child the medical history of the child’s biological family (b) the adoptive parents’ commitment to telling the child about the adoption and helping the child understand the circumstances of the adoption; (c) if the child is an Aboriginal or Torres Strait Islander child, how the adoptive parents will— Page 98 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 8 Adoption plans [s 166] (i) help the child to maintain contact with the child’s community or language group; and (ii) help the child to develop and maintain a connection with the child’s Aboriginal tradition or Island custom; and (iii) preserve and enhance the child’s sense of Aboriginal or Torres Strait Islander identity; (d) if the child has a particular ethnic or other cultural background, how the adoptive parents will— (i) help the child to maintain contact with the child’s community or language group; and (ii) help the child to develop and maintain a connection with the child’s ethnicity or culture; and (iii) preserve and enhance the child’s sense of ethnic or cultural identity. 166 Parties (1) The parties to an adoption plan are the prospective adoptive parents or adoptive parents and any birth parent who wishes to be a party. (2) The parties to an adoption plan may also include— (a) the child, if the chief executive considers it would be appropriate having regard to all the circumstances including the child’s age and maturity; or (b) a representative for the child; or (c) for an intercountry adoption—the competent authority for the relevant country, the chief executive or another appropriate entity. (3) The chief executive (child safety) must be a party to an adoption plan required under section 171. Reprint 1E effective 17 September 2012 Page 99
Adoption Act 2009 Part 8 Adoption plans [s 167] (4) If no birth parent wishes to be a party to an adoption plan required under section 172, the chief executive must be a party to the plan. 167 Purpose The purpose of an adoption plan is to contribute to the success of the adoption by ensuring parties to the adoption— (a) properly consider— (i) the matters that may affect the child’s wellbeing and interests; and (ii) the consequences of entering into the particular arrangements for the adoption (for example, the degree of openness); and (b) commit to practical ways to address the matters mentioned in paragraph (a). 168 Nature of plan and limitations on operation (1) An adoption plan— (a) is not enforceable; and (b) does not limit the primary responsibility of the adoptive parents for the child’s upbringing; and (c) does not entitle a member of the child’s birth family or anyone else to interfere in the child’s upbringing or the relationship between the child and adoptive parents. (2) An adoption plan may not include anything that purports to prevent, restrict or otherwise control the movement of a party. (3) An adoption plan has no effect once the child becomes an adult. 169 Chief executive to help (1) On request by the parties to a proposed adoption or adoption, the chief executive must help them to prepare an adoption Page 100 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 8 Adoption plans [s 170] plan, for example, by making an officer of the department available to act as an intermediary. (2) If an adoption plan is required under section 172, the chief executive must arrange for an appropriate Aboriginal or Torres Strait Islander person to be available to help the parties to prepare the plan. Division 2 When is plan required 170 In-person contact between child and birth family (1) This section applies if a birth parent and a prospective adoptive parent have advised the chief executive that they wish there to be in-person contact, after the adoption, between the child and the child’s birth family. (2) An adoption plan must be agreed to, between the birth parent and prospective adoptive parents, that addresses how the contact will happen and the nature and frequency of the contact. 171 Child protection order (1) This section applies if a child protection order is, or has been, in force for the child. (2) An adoption plan must be agreed to that addresses the matters stated in section 165(2)(a). 172 Particular Aboriginal or Torres Strait Islander placements (1) This section applies if the child is an Aboriginal or Torres Strait Islander child and the prospective adoptive parents are not from the child’s community or language group. (2) An adoption plan must be agreed to that addresses the matters stated in section 165(2)(c). Reprint 1E effective 17 September 2012 Page 101
Adoption Act 2009 Part 9 Adoption orders [s 173] 173 Adoption plans otherwise not compulsory Unless required under sections 170 to 172, an adoption plan need not be prepared. Part 9 Adoption orders Division 1 General matters 174 Court may make adoption orders On an application under this part, the Childrens Court may make an adoption order for the adoption of a child by the person or persons named in the application. 175 Consents and pre-consent counselling and information (1) This section does not apply to a parent if the need for the parent’s consent to the child’s adoption has been dispensed with under section 39. (2) The court must not make an adoption order unless it is satisfied each parent has given consent to the adoption, under part 2, at least 30 days before the making of the order. (3) A court must not make an adoption order unless the following documents for each parent are produced to the court— (a) a document, sworn by an officer of the department, stating that the officer gave a document containing the prescribed information to the parent under section 23 on a stated day; (b) a document, sworn by a counsellor, stating that the counsellor counselled the parent under section 24 on a stated day or days; Page 102 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 176] (c) if the parent is not an adult or section 29(3)(b) applies—a document, sworn by a qualified person, stating that— (i) the qualified person assessed the parent on a stated day or days; and (ii) in the qualified person’s opinion, the parent had capacity to give the consent; (d) if section 29(2) applies to the parent—a declaration by QCAT that the parent has capacity to give the consent; (e) if the chief executive made an application mentioned in section 29(3)(a)—a declaration made on the application that the parent has capacity to give the consent. (4) Subsections (2) and (3) do not apply to the making of a final adoption order if an interim order is in force for the child. (5) Also, subsection (3) does not apply to a parent for whom a complying interstate consent under section 42 is in force. (6) This section does not apply to an intercountry adoption. 176 Particular documents not to be served on prospective adoptive parents (1) In a proceeding under this part— (a) the chief executive must not serve, on a prospective adoptive parent, a copy of a document mentioned in section 175(3); and (b) a party must not serve, on a prospective adoptive parent, a copy of a document relating to the giving of consent by a parent of the child. (2) Subsection (1) applies despite a rule of court or other law. 177 Proceedings about whether parents have consented (1) The chief executive may apply to the Childrens Court for a declaration that a parent (the relevant parent ) of a child has given consent under part 2 to the child’s adoption. Reprint 1E effective 17 September 2012 Page 103
Adoption Act 2009 Part 9 Adoption orders [s 177] (2) The application may be made before or at the same time as an application is made for an adoption order for the child. (3) If the court is hearing an application for an interim adoption order under division 2, or for a final adoption order under section 188, and the court considers a proceeding about the issue of consent should first be heard and decided under this section, the court may direct the chief executive to make an application under this section. (4) The chief executive must serve a copy of the application on the relevant parent. (5) However, the court may dispense with the requirement to serve a copy of the application on the relevant parent if the court is satisfied the chief executive can not locate the relevant parent after making all reasonable enquiries. (6) A copy of the application served on the relevant parent must state that the application may be heard and decided even though the relevant parent does not appear in court. (7) The prospective adoptive parents are not respondents in the proceeding and must not be served with a copy of the application. (8) The court must hear and decide the application, in the absence of the prospective adoptive parents, separately to a proceeding in which the court hears and decides an application for an adoption order for the child. (9) The court may hear and decide the application in the absence of the relevant parent only if— (a) the relevant parent has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or (b) the court dispenses with the requirement to serve a copy of the application on the relevant parent under subsection (5). (10) Subsections (8) and (9) do not limit the court’s jurisdiction to exclude a person from a proceeding. Page 104 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 178] 178 Child subject to child protection order (1) This section applies if the child is in the custody or guardianship of the chief executive (child safety) or someone else under the Child Protection Act 1999 . (2) The court must not make an adoption order unless a document, signed by the chief executive (child safety), is produced to the court stating that the chief executive (child safety) considers the adoption is an appropriate way of meeting the child’s need for long-term stable care. 179 Child able to form and express views (1) This section applies in relation to a child who is able to form and express views about his or her adoption. (2) The court must consider the child’s views before deciding whether to make an adoption order for the child. Note Under sections 235 and 236, someone may be appointed to give separate legal representation or support to the child. (3) For an adoption other than an intercountry adoption, the court may make an adoption order only if the following documents have been produced to the court— (a) a document, sworn by an officer of the department, stating that the officer gave the information under section 44 to the child on a stated day; (b) a document, sworn by a counsellor under section 45, stating that the counsellor counselled the child under that section on a stated day or days. (4) Subsection (3) does not apply to the making of a final adoption order if an interim order is already in force for the child. Reprint 1E effective 17 September 2012 Page 105
Adoption Act 2009 Part 9 Adoption orders [s 180] 180 References to prospective adoptive parents A reference in this part to a child’s prospective adoptive parents includes, for a proposed adoption by a single person, that person. Division 2 Local adoptions 181 Application of div 2 This division applies if the chief executive is a child’s guardian under section 57 and has selected the child’s prospective adoptive parents under part 7. 182 Application for interim order (1) The chief executive may apply to the Childrens Court for an interim order for the adoption of the child by the prospective adoptive parents. (2) The chief executive must serve a copy of the application on the prospective adoptive parents. (3) The chief executive must give notice of the application to each person who has given consent to the child’s adoption under part 2. (4) Subsection (3) does not apply to a person whom the chief executive can not locate after making all reasonable enquiries. (5) The prospective adoptive parents are respondents in the proceeding. (6) A person who has given consent to the child’s adoption but wishes to contest the application may apply to the court to be included as a respondent in the proceeding. 183 Requirements for making interim order (1) The court may make an interim order only if it is satisfied of the following matters— Page 106 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 184] (a) the child is present in Queensland; (b) the proposed order will promote the child’s wellbeing and best interests; (c) the chief executive selected the prospective adoptive parents in compliance with part 7, division 2; (d) each of the prospective adoptive parents— (i) is an adult; and (ii) is an Australian citizen or has a spouse who is an Australian citizen; and (iii) is resident or domiciled in Queensland; and (iv) is suitable, having regard to the matters stated in part 6, division 5; (e) for a female prospective adoptive parent, she is not pregnant; (f) any adoption plan required under part 8, division 2— (i) has been agreed; or (ii) has been substantially developed. (2) This section does not apply if the prospective adoptive parents are habitually resident in a convention country. Note For the matters applying if the prospective adoptive parents are habitually resident in a convention country, see section 213. 184 Period of operation of interim order An interim order remains in force until the Childrens Court discharges it or makes a final adoption order for the child. 185 Effect of interim order (1) While an interim order is in force for the adoption of a child by a person, the person has custody of the child. Reprint 1E effective 17 September 2012 Page 107
Adoption Act 2009 Part 9 Adoption orders [s 186] (2) An interim order does not affect the chief executive’s guardianship of the child. (3) While an interim order is in force, the chief executive must supervise the child’s wellbeing and interests. 186 Discharge of interim order (1) The chief executive may apply to the Childrens Court to discharge an interim order. (2) The chief executive must serve a copy of the application on the prospective adoptive parents. (3) The court may discharge an interim order for a child— (a) on an application under subsection (1); or (b) on an application under section 187 for a final adoption order for the child. (4) The court may discharge the interim order if satisfied it would be contrary to the child’s wellbeing or best interests to be adopted by the prospective adoptive parents, having regard to the relevant matters. (5) Also, on an application under section 187 for a final adoption order, the court may discharge the interim order if the court— (a) is not satisfied of the relevant matters; and (b) considers the relevant matters are not likely to be satisfied within an appropriate time. (6) The discharge of an interim order does not affect the chief executive’s guardianship of the child. (7) In this section— relevant matters means the matters under section 189 of which the court must be satisfied before it may make a final adoption order. Page 108 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 187] 187 Application for final adoption order if interim order is in force (1) This section applies if an interim order is in force and the child has been in the custody of the prospective adoptive parents under the order for at least 1 year. (2) The chief executive may apply to the Childrens Court for a final adoption order for the adoption of the child by the prospective adoptive parents. (3) The chief executive must serve a copy of the application on the prospective adoptive parents. (4) The prospective adoptive parents may apply to the court for a final adoption order if— (a) the child has been in their custody under the interim order for at least 1 year and 30 days; and (b) the chief executive has neither applied for a final adoption order nor applied to discharge the interim order. (5) If the prospective adoptive parents apply for a final adoption order, they must serve a copy of the application on the chief executive. (6) A person served with a copy of the application under subsection (3) or (5) is a respondent in the proceeding. 188 Application for final adoption order in favour of approved carers (1) This section applies if the child’s prospective adoptive parents are, and have been for at least 1 year, approved carers of the child. (2) The chief executive may apply to the Childrens Court for a final adoption order for the adoption of the child by the prospective adoptive parents. (3) The chief executive must serve a copy of the application on the prospective adoptive parents. Reprint 1E effective 17 September 2012 Page 109
Adoption Act 2009 Part 9 Adoption orders [s 189] (4) The chief executive must give notice of the application to each person who has given consent to the child’s adoption under part 2. (5) Subsection (4) does not apply to a person whom the chief executive can not locate after making all reasonable enquiries. (6) The prospective adoptive parents are respondents in the proceeding. (7) If no interim order is in force, a person who has given consent to the child’s adoption but wishes to contest the application may apply to the court to be included as a respondent in the proceeding. 189 Requirements for making final adoption order (1) The court may make a final adoption order for the child only if it is satisfied of the following matters— (a) the child is present in Queensland; (b) the proposed order will promote the child’s wellbeing and best interests; (c) each of the prospective adoptive parents— (i) is an adult; and (ii) is an Australian citizen or has a spouse who is an Australian citizen; and (iii) is resident or domiciled in Queensland; and (iv) is suitable, having regard to the matters stated in part 6, division 5; (d) any adoption plan required under part 8, division 2 has been agreed; (e) while the child has been in their custody, the prospective adoptive parents have demonstrated— (i) their willingness and ability to meet the child’s needs; and Page 110 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 190] (ii) their commitment to any adoption plan mentioned in paragraph (d); and (iii) if the child has a particular ethnic or other cultural background, their willingness and ability to— (A) help the child to maintain contact with the child’s community or language group; and (B) help the child to develop and maintain a connection with the child’s ethnicity or culture; and (C) preserve and enhance the child’s sense of ethnic or cultural identity. (2) Also, if an interim order is not in force for the child, the court must be satisfied that the chief executive selected the prospective adoptive parents in compliance with part 7, division 2. (3) This section does not apply if the prospective adoptive parent is a person habitually resident in a convention country. Note For the matters applying if the prospective adoptive parents are habitually resident in a convention country, see section 213. 190 Notice of order (1) As soon as practicable after an adoption order is made, the chief executive must— (a) give to the parties to the proceeding— (i) a copy of the order; and (ii) a notice explaining its terms and effect; and (b) give to each person who consented to the adoption under part 2 a notice stating that the order has been made and explaining its terms and effect. (2) Subsection (1)(b) does not apply to a person whom the chief executive can not locate after making all reasonable enquiries. Reprint 1E effective 17 September 2012 Page 111
Adoption Act 2009 Part 9 Adoption orders [s 191] Division 3 Intercountry adoptions 191 Application of div 3 This division applies if— (a) a child is brought to Queensland from another country to be adopted under arrangements made between the chief executive and the competent authority for the other country; and (b) the child’s prospective adoptive parents, whose names were on the suitable adoptive parents register, were selected— (i) by the competent authority, under the arrangements; or (ii) by the chief executive, in the circumstances mentioned in section 152(2). 192 Custody and guardianship if no guardian under Commonwealth Act (1) This section applies if there is no guardian of the child under the Immigration (Guardianship of Children) Act 1946 (Cwlth). (2) From the child’s arrival in Queensland— (a) the chief executive has guardianship of the child; and (b) the prospective adoptive parents have custody of the child, subject to an order under section 194. 193 Custody and guardianship if interim order in force (1) This section applies if an interim order is made in favour of the prospective adoptive parents under this division. (2) While the interim order is in force, the prospective adoptive parents have custody of the child. Page 112 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 194] (3) The interim order does not affect the chief executive’s guardianship of the child. 194 Order ending custody or discharging interim order (1) The chief executive may apply to the Childrens Court for either of the following orders— (a) if the child is in the custody of the prospective adoptive parents under section 192—an order ending their custody of the child; or (b) if an interim order in favour of the prospective adoptive parents is in force under this division—an order discharging the interim order. (2) The chief executive must serve a copy of the application on the prospective adoptive parents. (3) The court may make the relevant order if satisfied it would be contrary to the child’s wellbeing or best interests to be adopted by the prospective adoptive parents, having regard to the relevant matters. Note The court may also make an order discharging the interim order under section 201. (4) An order under this section does not affect the chief executive’s guardianship of the child. (5) In this section— relevant matters means the matters under section 200 of which the court must be satisfied before it may make a final adoption order. 195 Application for interim order (1) This section applies if— (a) the Childrens Court makes an order under section 194(1); and Reprint 1E effective 17 September 2012 Page 113
Adoption Act 2009 Part 9 Adoption orders [s 196] (b) the chief executive selects new prospective adoptive parents from the suitable adoptive parents register. Note See section 152(2). (2) The chief executive may apply to the Childrens Court for an interim order for the adoption of the child by the prospective adoptive parents. (3) The chief executive must serve a copy of the application on the prospective adoptive parents and the competent authority. (4) The prospective adoptive parents are respondents in the proceeding. 196 Requirements for making interim order The court may make an interim order only if it is satisfied of the following matters— (a) the child is present in Queensland; (b) the child is not prevented from residing permanently in Australia— (i) under a law of the Commonwealth or a State; or (ii) by an order of a court of the Commonwealth or a State; (c) the competent authority has advised the chief executive that arrangements for the adoption have been made— (i) under the law of the country; and (ii) if the country is a convention country, under the Hague convention; (d) the competent authority for the country has agreed to the adoption; (e) the proposed adoption order will promote the child’s wellbeing and best interests; Page 114 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 197] (f) if the prospective adoptive parents were selected by the chief executive, they were selected in compliance with part 7, division 2; (g) each of the prospective adoptive parents— (i) is an adult; and (ii) is an Australian citizen or has a spouse who is an Australian citizen; and (iii) is resident or domiciled in Queensland; and (iv) is suitable, having regard to the matters stated in part 6, division 5; (h) for a female prospective adoptive parent, she is not pregnant. 197 Period of operation of interim order An interim order remains in force until the Childrens Court discharges it or makes a final adoption order for the child. 198 Chief executive to supervise child’s wellbeing and interests (1) This section applies while the child is in the custody of the prospective adoptive parents— (a) under section 192; or (b) because an interim order in favour of the prospective adoptive parents is in force under this division; or (c) because the chief executive, as the child’s guardian under a delegation from the responsible Minister under the Immigration (Guardianship of Children) Act 1946 (Cwlth), placed the child in their custody. (2) The chief executive must supervise the child’s wellbeing and interests. Reprint 1E effective 17 September 2012 Page 115
Adoption Act 2009 Part 9 Adoption orders [s 199] (3) The chief executive may, by written notice, require the prospective adoptive parents to pay the fee prescribed under a regulation for the supervision. (4) The notice must state the time, not less than 30 days after the notice is given, by which the fee must be paid. 199 Application for final adoption order (1) This section applies if the child has been in the custody of the prospective adoptive parents, for at least 1 year, as mentioned in section 198(1). (2) The chief executive may apply to the Childrens Court for a final adoption order for the adoption of the child by the prospective adoptive parents. (3) The chief executive must serve a copy of the application on the prospective adoptive parents. (4) The prospective adoptive parents may apply to the court for a final adoption order if— (a) the child has been in their custody, as mentioned in section 198(1), for at least 1 year and 30 days; and (b) the chief executive has neither applied for a final adoption order nor applied for an order under section 194. (5) If the prospective adoptive parents apply for a final adoption order, they must serve a copy of the application on the chief executive. (6) A person served with a copy of the application under subsection (3) or (5) is a respondent in the proceeding. 200 Requirements for making final adoption order The court may make a final adoption order only if it is satisfied of the following matters— (a) the child is present in Queensland; Page 116 Reprint 1E effective 17 September 2012
Adoption Act 2009 Part 9 Adoption orders [s 200] (b) the child is not prevented from residing permanently in Australia— (i) under a law of the Commonwealth or a State; or (ii) by an order of a court of the Commonwealth or a State; (c) the competent authority has advised the chief executive that arrangements for the adoption have been made— (i) under the law of the country; and (ii) if the country is a convention country, under the Hague convention; (d) the competent authority for the country has agreed to the adoption; (e) the proposed adoption order will promote the child’s wellbeing and best interests; (f) each of the prospective adoptive parents— (i) is an adult; and (ii) is an Australian citizen or has a spouse who is an Australian citizen; and (iii) is resident or domiciled in Queensland; and (iv) is suitable, having regard to the matters stated in part 6, division 5; (g) while the child has been in their custody, the prospective adoptive parents have demonstrated— (i) their willingness and ability to meet the child’s needs; and (ii) if the child has a particular ethnic or other cultural background, their willingness and ability to— (A) help the child to maintain contact with the child’s community or language group; and (B) help the child to develop and maintain a connection with the child’s ethnicity or culture; and Reprint 1E effective 17 September 2012 Page 117
Adoption Act 2009 Part 9 Adoption orders [s 201] (C) preserve and enhance the child’s sense of ethnic or cultural identity. 201 Discharge of interim order on application for final order (1) This section applies if, on an application for a final adoption order, the court is not satisfied of the relevant matters and considers the relevant matters are not likely to be satisfied within an appropriate time. (2) The court may make an order discharging the interim order in favour of the prospective adoptive parents. (3) In this section— relevant matters means the matters under section 200 of which the court must be satisfied before it may make a final adoption order. 202 Notice of order As soon as practicable after an adoption order is made, the chief executive must— (a) give to the parties to the proceeding— (i) a copy of the order; and (ii) a notice explaining the terms and effect of the order; and (b) give a copy of the order to the competent authority. Division 4 Adoptions by step-parent 203 Meaning of suitability report In this division— suitability report means a report prepared for the Childrens Court by the chief executive under section 138(2). Page 118