The Nature of Family Law (HSC SSCE Legal Studies): Revision Notes

The Nature of Family Law

The concept of family law

Family law is a comprehensive area of law that governs behaviour within family contexts. It addresses rights and responsibilities concerning children and the distribution of property when marriages end.

The primary function of family law is to ensure care and protection of family members. The law ensures that people in family relationships are financially secure and that children are properly cared for.

Evolution of family structures

Traditionally, family relationships were based on marriage. However, modern Australian society reflects significant diversity in domestic arrangements, including:

• Aboriginal and Torres Strait Islander (ATSI) customary marriages
• De facto relationships (partners acting as a married couple but not legally married)
• Same-sex relationships
• Single-parent families
• Blended families (created when a parent remarries, including stepparents and stepchildren)
• Extended families (including individuals related through marriage or parentage beyond the nuclear unit)

Family law continues to evolve to extend protection to members of all these alternative family structures.

Constitutional basis

Under s 51(xxi) of the Australian Constitution, the federal government has exclusive power to make laws governing marriage and divorce.

Key Commonwealth legislation includes:

• Marriage Act 1961 (Cth) – establishes legal requirements for valid marriages
• Family Law Act 1975 (Cth) – sets out legal duties and obligations created by marriage

Referral of powers

Previously, only state parliaments could legislate on de facto relationships. However, most states have now referred their powers to the Commonwealth through the referral of powers mechanism (pursuant to s 51(xxxvii) of the Constitution).

After the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), matters concerning property division and spousal maintenance for de facto couples are determined under federal law.

Philosophical approach

Family law emphasises reconciliation and compliance rather than sanctions or coercion. This reflects the law's focus on protecting family relationships and encouraging parties to meet their obligations voluntarily.

Legal requirements of marriage

Marriage is a legal institution with specific requirements and consequences. When two people marry, they make a promise before witnesses to provide and care for one another.

The legal definition of marriage

Australian legislation bases its definition on the English case Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130.

Lord Penzance defined marriage as: "the voluntary union for life of one man and one woman, to the exclusion of all others"

This definition establishes marriage as a formal, monogamous and heterosexual union comprising three essential elements:

1. Voluntary entry

• Marriage must be freely entered into without force or deception
• If either party was forced or tricked, the marriage is not legally binding

2. For life

• Marriage is intended to be permanent
• However, couples retain the right to divorce before death of either party

3. One man and one woman

• Parties must be of different sexes
• Polygamous marriages (having multiple spouses) are not recognised and are void if entered into in Australia

Requirements for a valid marriage

The Marriage Act 1961 (Cth) specifies several requirements:

Gender

In 2004, the Commonwealth Government added the definition of marriage to the Act through the Marriage Amendment Act:

• Section 5(1) defines marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life"
• Section 88EA explicitly states that same-sex marriages solemnised in foreign countries are not recognised in Australia

Marriageable age

• Minimum age: $18$ years (s 11)
• Persons aged $16$–$17$ may marry only with:
  • A court order from a judge or magistrate (s 12)
  • Granted only in "exceptional and unusual" circumstances
  • Examples: parental consent, demonstrated maturity and financial independence
  • Pregnancy alone is insufficient
• No person under $16$ can marry

Prohibited relationships

Individuals cannot marry someone closely related by:

• Consanguinity (blood relations)
• Affinity (marriage relations)

Cannot marry:

• Descendants or ancestors (children, grandchildren, parents, grandparents)
• Siblings (including half-siblings and adopted siblings)
• Adopted descendants or ancestors

Can marry:

• Uncles/aunts, nieces/nephews
• First cousins

Notice of marriage

A Notice of Intended Marriage form must be given to an authorised celebrant (person authorised to perform civil or religious marriage ceremonies):

• No earlier than $18$ months before the marriage
• No later than $1$ month and $1$ day before the marriage
• Must be in writing and signed by both parties before a witness

Approved witnesses include:

• Marriage celebrants
• Justices of the peace
• Police officers
• Solicitors
• Doctors

Required documentation:

• Proof of age (usually birth certificate)
• If previously married: evidence that the marriage ended (death certificate or divorce papers)

Requirements for a valid marriage ceremony

The ceremony must satisfy conditions in Parts IV and V of the Marriage Act 1961 (Cth):

Essential requirements:

• Performed by an authorised marriage celebrant
• Two witnesses present, both aged over $18$
• No formal requirements for attire, structure, or specific words

Marriage certificate:

• Issued by the celebrant after the ceremony
• Legal proof that the ceremony occurred according to law
• Three copies provided, signed by celebrant, spouses, and two witnesses
• One copy must be lodged at the state Registry of Births, Deaths and Marriages within $14$ days

Void marriages

A marriage can be declared void (invalid) through nullification or annulment (declaration that the marriage never legally existed) if:

It fails to meet the definition of marriage:

• Parties were of the same sex
• Consent was not freely given
• One or both parties were already married to someone else

It fails to meet statutory criteria:

• One or both parties were too young
• Parties are too closely related by blood or marriage
• The marriage did not meet requirements in the Marriage Act 1961 (Cth)

Legal consequences and responsibilities of marriage

Marriage creates legally binding mutual duties and obligations between spouses. The law intervenes primarily when marriages break down or when parties fail to fulfil their responsibilities.

Mutual duties of husband and wife

Spouses are mutually responsible to one another. While the law does not dictate how partners carry out their duties during a functioning marriage, general expectations include:

• Financial support
• Emotional support
• Fidelity (though no legal enforcement exists)

Legal clarifications:

• No law against adultery (no longer grounds for divorce)
• No automatic right to sexual relations (non-consensual sex is a crime regardless of marital status)

Maintenance

Maintenance is a financial payment made by one spouse to contribute to the care and welfare of the other spouse and/or children of the marriage.

Under s 72 of the Family Law Act 1975 (Cth), a spouse must provide maintenance if the other cannot support themselves due to:

• Having care and control of a child under $18$ years
• Being unable to work due to age or physical/mental incapacity

Property rights

Property ownership in marriage follows specific principles:

Marital home:

Couples can purchase property as:

• Joint tenants – equal shares; surviving spouse inherits entire property
• Tenants in common – unequal shares possible; shares can be left to others (e.g., children from previous relationships)

Individual property:

• Property purchased by one spouse during marriage remains that person's property
• Property owned before marriage continues to belong to that person after marriage
• Marriage does not automatically change property ownership

Determining ownership:

However, upon marriage breakdown, the court considers:

• Length of marriage
• Financial contributions by each party
• Non-financial contributions (e.g., homemaking, childcare)
• Any improvements made to property

Contract and agency

Individual contracting:

• Marriage does not alter an individual's ability to enter contracts
• Spouses are not automatically authorised as agents for each other in contractual situations

Individual liability:

• Spouses cannot be held liable for each other's debts
• Debts in one person's sole name remain that person's responsibility

Court intervention:

• Only upon marriage breakdown can the court make orders altering property interests under Family Law Act 1975 (Cth) s 79
• Spouses can sue each other in contract or tort (s 119)

Wills

A will is a document stating how a person intends to distribute property after death.

Probate process:

• The executor must obtain a grant of probate (legal document certifying the will is valid)
• Probate authorises the executor to administer the estate (release monies and assets)

Intestacy:

When a person dies without a valid will (intestacy), state laws determine property distribution:

• Generally, the entire property goes to the surviving spouse (minus probate costs)
• If there are children, spouse and children may share the estate
• Other family members (parents, siblings) may inherit if no spouse exists
• In NSW, distribution follows a predetermined formula under the Succession Act 2006 (NSW) as amended by the Succession Amendment (Intestacy) Act 2009 (NSW)

Effect of marriage on wills:

• Marriage automatically cancels any pre-existing will (unless made in anticipation of marriage) – Succession Act 2006 (NSW) s 12
• Divorce or annulment cancels provisions favouring the divorced spouse – Succession Act 2006 (NSW) s 13

Alternative family relationships

Aboriginal and Torres Strait Islander peoples' customary law marriages

ATSI relationships are governed by traditions and enforced through customary law:

• Children may be betrothed at an early age
• Parents or elders typically arrange marriages
• Generally do not conform to Marriage Act 1961 (Cth) requirements
• Not legally recorded or registered
• Do not have formal legal standing under Australian law

Recognition efforts

The 1986 Australian Law Reform Commission report recommended that traditional ATSI marriages should be recognised to:

• Ensure legitimacy of children
• Provide child protection under adoption and welfare laws
• Protect inheritance rights of surviving spouses dying intestate
• Allow compensation claims (e.g., workers' compensation)
• Provide evidentiary protections in court proceedings
• Enable tax benefits equivalent to de facto or married couples

Federal government response (1995):

• Suggested most recommendations are more appropriate for state implementation
• However, ATSI children's circumstances are specifically addressed in federal legislation

State recognition:

State parliaments have addressed some recommendations, including limited recognition of traditional marriages.

Child protection:

Children of ATSI relationships (whether traditional marriages or not) are protected under:

• Family Law Act 1975 (Cth)
• Status of Children Act 1996 (NSW)

If an ATSI customary marriage breaks down, the Family Court determines parenting orders based on:

• The "best interests" of the child
• The child's need to maintain connection with ATSI lifestyle, culture, and traditions

Single-parent families

Growth factors:

• Increased divorce rates
• Changing social attitudes
• Improved welfare state
• Greater financial independence of women

Statistics (2006-07):

• Australia had $5.9$ million families
• $14\%$ ($808{,}000$) were single-parent families
• One in five children live in single-parent families
• $87\%$ of single-parent families with children under $15$ were headed by women (2006)

Legal challenges

Single parents may face difficulties:

• Accessing legal advice
• Pursuing rights in court
• Obtaining adequate legal protection
• High costs may discourage court action

Child Support Scheme

Introduced in 1988 to enforce maintenance orders on non-resident parents:

Key features:

• Originally part of the Australian Taxation Office
• Now part of the Commonwealth Department of Human Services
• Automatically deducts payments from the supporting parent's wage

Legislation:

• Child Support (Registration and Collection) Act 1988 (Cth) – shifted collection from courts to administrative system
• Child Support (Assessment) Act 1989 (Cth) – introduced formula for calculating child support

Blended families

A blended family is created when a parent remarries, combining:

• The parent and their children from a former marriage/relationship
• Another parent and their children in similar circumstances
• Stepmother/stepfather and stepchildren

Context:

• One-third of registered marriages in 2008 involved individuals marrying for the second time
• Many divorced couples choose to cohabit rather than remarry

Legal position of step-parents

Limited automatic rights:

Step-parents do not have the same legal responsibilities as biological parents:

No automatic rights to:

• Discipline the partner's child
• Make day-to-day decisions about health and welfare
• Financial maintenance or support of the partner's child

Financial obligations remain with the child's biological parents.

Court-ordered support:

A court may order a step-parent to pay financial support if satisfied the step-parent has a duty to maintain the child (Family Law Act 1975 (Cth) ss 66D, 66M, 66N).

Circumstances creating financial responsibility:

• Long-term family relationship
• Natural parent is dead or cannot be found

Adoption by step-parents

Process:

1. Apply to the Family Court (Family Law Act s 60G)
2. Upon approval, apply to state Supreme Court for adoption order

Requirements in NSW (Adoption Act 2000 (NSW) s 30):

• Step-parent must have lived with the child and natural/adoptive parent for at least $2$ years
• Child must be at least $5$ years old

Effect of adoption:

Adopted children have the same legal rights as children born naturally into the relationship.

Inheritance rights

Stepchildren have no automatic claim to their step-parent's estate if the step-parent dies intestate.

To claim against the estate, stepchildren must prove:

• Financial dependence on the step-parent
• May apply for a family provision order under s 58 of the Succession Act 2006 (NSW)

De facto relationships

Definition

Section 4AA of the Family Law Act 1975 (Cth) defines a de facto relationship as one where:

• Partners are not legally married to each other
• Neither is the parent, child, descendant, or sibling of the other
• They have a relationship as a couple living together on a genuine domestic basis

Statistics:

Over $70\%$ of couples who married (as of 2008) had lived together prior to marriage.

Legal framework

Following states referring powers to the federal government, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) governs:

• Property settlements for separating de facto couples
• Maintenance orders

Same-sex relationships

State legislation

Property (Relationships) Act 1984 (NSW):

• Originally the De Facto Relationships Act 1984 (NSW)
• Amended and renamed by the Property (Relationships) Legislation Amendment Act 1999 (NSW)
• Recognises same-sex relationships as having the same legal standing as heterosexual de facto relationships

Section 4 definition:

A de facto relationship is "a relationship between two adult persons who live together as a couple, and who are not married to one another or related by family"

Application to succession law:

This definition applies to:

• Applications for family provision under Succession Act 2008 (NSW)
• Entitlements under intestacy laws (amended by Succession Amendment (Intestacy) Act 2009 (NSW))

Same-sex partners have the same entitlements as if married.

Property settlements:

Section 4AA(5) of the Family Law Act 1975 (Cth) states that de facto relationships exist whether persons are of the same or different sexes. Therefore, federal law governs property settlements between separating same-sex couples.

Federal legislation

Evidence protection:

Under s 18 of the Evidence Act 1995 (Cth) and NSW/Victorian Evidence Acts:

• A de facto partner (same-sex or opposite-sex) cannot be compelled to give evidence against their partner in certain criminal proceedings
• Note: Not all states have such provisions

2008 federal amendments:

In response to the Australian Human Rights Commission's report Same-Sex: Same Entitlements (2007), the federal government amended 84 Commonwealth Acts in 2008 to remove differential treatment of same-sex couples.

Areas covered:

• Tax
• Superannuation
• Medicare
• Aged care
• Veterans' entitlements
• Workers' compensation
• Employment entitlements
• Family law
• Child support

Same-sex marriage

While same-sex couples now have most of the same rights as de facto heterosexual couples, same-sex marriage remains prohibited.

Attempted reform:

• Marriage Equality Amendment Bill 2009 introduced by the Greens
• Would have amended the Marriage Act 1961 (Cth) definition
• Defeated in the Senate in February 2010

Polygamous marriages

Definition:

A polygamous marriage involves an individual marrying more than one person simultaneously.

Australian position:

• Not legal in Australia
• Some cultures and religions permit polygamous marriages overseas

Limited recognition:

Under s 6 of the Family Law Act 1975 (Cth), polygamous marriages entered into overseas are deemed marriages for specific purposes:

Available remedies if relationship breaks down:

• Child maintenance orders
• Spousal maintenance orders
• Property division
• Parenting plans
• Domestic violence orders

Legal rights and obligations of parents and children

Children are considered the most vulnerable family members and require the greatest legal protection. Their rights are paramount within family law.

Legislative framework

Federal law:

Family Law Act 1975 (Cth) governs:

• Divorce or annulment proceedings
• Maintenance and property proceedings (married or separating parties)
• Part VII – proceedings relating to children, particularly parenting arrangements

State/territory law:

Most laws relating to care and protection of children operate at state/territory level.

Key NSW Acts concerning children:

Legislation	Coverage
Adoption Act 2000 (NSW)	Adoption procedures; access to adoption information
Child Protection (Offenders Registration) Act 2000 (NSW)	Registration requirements for persons convicted of offences against children
Children (Criminal Proceedings) Act 1987 (NSW)	Criminal proceedings against children and young persons
Children (Protection and Parental Responsibility) Act 1997 (NSW)	Parental responsibility for children's behaviour; police powers regarding children
Children and Young Persons (Care and Protection) Act 1998 (NSW)	Responsibilities of Community Services and agencies regarding children at risk
Children's Court Act 1987 (NSW)	Establishment and jurisdiction of Children's Court of NSW
Status of Children Act 1996 (NSW)	Equal rights of ex-nuptial children; parentage establishment via DNA testing
Young Offenders Act 1997 (NSW)	Alternative procedures for child offenders (conferences, cautions, warnings)

Child obligations:

Children must obey the law like adults, though enforcement procedures differ from adult legal mechanisms.

Parental care

Rights derived from international law

The United Nations Convention on the Rights of the Child (CROC) protects children's rights:

• Adopted by the UN in 1989
• Ratified by all but two member states (as of March 2010)
• Declares persons under $18$ must be protected from violence, discrimination, exploitation, and neglect

Implementation:

• CROC is not binding at domestic level (not enforceable in Australian courts)
• No federal legislation implements it directly
• Commonwealth left implementation to state governments' discretion
• Many CROC principles are embedded in state child protection legislation

Key CROC principles reflected in Australian law:

Article 3 – Best interests:

Children's best interests should be a primary consideration in decisions concerning them (reflected in federal and state legislation).

Article 12 – Right to be heard:

Children have the right to express opinions and be heard in proceedings affecting them, with views given weight according to age and maturity.

Preamble – Cultural values:

Recognition of traditions and cultural values in child protection and development.

NSW implementation: Sections 11, 12, and 13 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) specifically prescribe taking an Indigenous child's culture into account.

Article 2 – Protection from discrimination:

Children must be protected against discrimination based on parents' or family members' status, activities, or beliefs.

NSW implementation: Section 202 requires those providing children's services to have regard to the Anti-Discrimination Act 1977 (NSW).

Parental responsibility under the Family Law Act 1975 (Cth)

Part VII objectives:

Ensure the best interests of children are met – the chief factor in making children's orders.

Best interests (s 60B) include:

• Benefits of meaningful involvement in their lives by both parents
• Protection from physical or psychological harm (abuse, neglect, violence)
• Adequate and proper parenting to help children achieve full potential

Legislative evolution:

• Family Law Reform Act 1995 (Cth) introduced emphasis on responsibilities shared equally by both parents
• Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) further emphasised child's right to meaningful family relationships over parents' "rights"

Parenting plans:

Introduced by the Family Law Reform Act 1995 (Cth):

• Written agreements voluntarily agreed to by parents
• Can address any aspect of child's care and welfare:
  • Living arrangements
  • Time spent with each parent
  • Educational, cultural, and religious needs
  • Process for making changes or resolving disagreements
• If parents cannot agree, courts issue parenting orders (court-imposed decisions)

Parental responsibilities:

Not specifically defined in legislation, but include:

• Providing adequate food and shelter
• Providing access to education
• Consenting to medical treatment
• Providing discipline
• Protecting child from harm and illegal activities
• Ensuring child does not harm others

Consequences of parental neglect under state laws

Neglect is continued failure by a parent to provide basic needs for proper development (food, shelter, hygiene, medical/dental care, supervision, emotional security).

Criminal offences:

• Children and Young Persons (Care and Protection) Act 1998 (NSW) s 228 – fines up to $22{,}000
• Crimes Act 1900 (NSW) s 43A – imprisonment up to $5$ years

Foster care:

• Usually temporary
• Involves a couple taking parental responsibility for caring for and controlling the child
• Alternative: "group homes" under adult supervision (youth workers, child counsellors)

Tort liability:

Parents may be held liable in tort for damage or injury their child causes and forced to pay compensation (monetary payment to make amends for loss, injury, or property damage).

Related legislation:

• Children and Young Persons (Care and Protection) Act 1998 (NSW) – addresses family problems in terms of child's needs and care
• Children (Protection and Parental Responsibility) Act 1997 (NSW) – deals with prevention of juvenile crime
• Children (Criminal Proceedings) Act 1987 (NSW) – addresses criminal process for persons under $18$

Education

The right to education is enshrined in:

• Education Act 1900 (NSW) (object of the Act)
• UN Convention on the Rights of the Child (CROC)

State duty:

The Education Act imposes on the state the duty to ensure every child receives adequate education.

Parental rights and duties:

• Parents cannot refuse their child an education
• Parents have the right to choose where their child is educated

Educational options:

• State school
• Approved non-government or private school
• Home education (with government consent)
• Distance education

All education must follow curricula approved by the state Board of Studies.

Compulsory education in NSW:

• Attendance required from age $6$ until minimum school-leaving age
• Minimum school-leaving age: $17$ years or completion of Year 10
• 2009 changes to Education Act 1900 (NSW): Every young person who has completed Year 10 must be in education, training, or employment until age $17$

Discipline

Parents have the right to discipline children using physical force to correct behaviour, but force must be "reasonable, having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances" (Crimes Act 1900 (NSW) s 61AA).

Defence of "lawful correction":

Not available in criminal proceedings for assault (criminal offence involving infliction or threat of physical force) if physical force was not reasonable.

Cultural variation:

What is considered reasonable and acceptable discipline varies across cultures, but Australian courts apply consistent standards.

Medical treatment

Parents are responsible for ensuring appropriate medical and dental care for minor children. However, consent must be given before treatment.

Consent requirements:

Consent implies understanding of the procedure and acceptance of risks.

Age-based consent framework (Minors (Property and Contracts) Act 1970 (NSW) s 49):

• Under 14: Parent or guardian consent required
• 14–16: Either child's consent OR parent's consent required
• 16–17: Young person's consent required

Autonomy of children

Autonomy refers to freedom of the will, self-government, and the ability to act without outside interference.

Children are considered to lack:

• Fully developed cognitive abilities
• Capacity to understand consequences of actions
• Ability to make fully informed decisions

To protect children, the law prohibits certain activities. A child's legal capacity changes as they mature.

Age distinctions:

Some laws distinguish between:

• Children – persons under $16$ years (Children and Young Persons (Care and Protection) Act 1987 (NSW))
• Young persons – persons aged $16$ or older but under $18$ years

Legal autonomy by area:

Area	Legal position
Alcohol and cigarettes	Illegal for persons under $18$ to purchase, possess, or consume
Arrest	Police can only question children in presence of an adult (parent/guardian)
Civil law	Children can be sued for damage/injury caused; parents may be held responsible
Contracts	Child can only enter contracts if an adult acts as guarantor; must benefit the child
Criminal responsibility	Under $10$: not criminally responsible (presumed incapable of understanding right from wrong) $10$–$14$: prosecution must prove child understood act was illegal $14$+: considered responsible for criminal actions
Driving	Learner's permit at $16$; probationary licence at $17$
Employment	No minimum age in NSW; those under $15$ leaving school for full-time work need Department of Education approval; those completing Year 10 but under $17$ must enrol in training/education or undertake apprenticeship
Evidence	Can give evidence at any age if they understand the nature and consequences of oath/affirmation
Leaving home	No minimum age in NSW; persons over $16$ will not normally be forced to return if they have safe accommodation and can support themselves
Marriage	Under $16$: cannot marry $16$–$18$: can marry only with court permission in exceptional circumstances
Sexual intercourse	Legal age for consensual sex is $16$; offence to have sexual intercourse with child under $16$

Ex-nuptial children

Historical position:

Ex-nuptial children (born outside marriage) had no legal status and therefore no legal rights.

Legitimacy:

Legitimacy provides children with rights including inheritance and maintenance.

Traditional automatic legitimacy existed for children:

• Born during marriage (nuptial children)
• Ex-nuptial but whose parents later married
• Adopted

Establishing parentage:

The Act allows:

• Certain presumptions about a child's parentage
• Evidence to disprove presumptions
• Parentage establishment through DNA analysis of blood sample
• Voluntary recognition of the child by the parent

Succession rights:

• Family Provision Act 1982 (NSW) removed the concept of "illegitimacy"
• Succession Act 2006 (NSW) permits any child to apply for a family provision order (whether nuptial or ex-nuptial)
• A testator (person making a will) wanting to exclude children must explicitly state this (e.g., by listing only children intended to inherit)

Adoption

Adoption is the legal process of transferring parental rights and responsibilities from biological parents to adoptive parents.

The aim is to ensure the best and most appropriate parents are found for the child. The needs of adults are secondary to the child's needs. Adoption recreates the legal relationship between child and parents.

Legal requirements and process

Adoption is a state responsibility. In NSW, governed by the Adoption Act 2000 (NSW).

Consent requirements

Birth parents' consent:

• If married or in de facto relationship: both parents must consent
• Single mother: only mother need consent (father must be notified with $14$ days to respond)
• Children aged over $12$: must consent to their own adoption
• Birth mother cannot consent within $3$ days of child's birth
• 30-day cooling-off period after consent during which parents can change their minds

Requirements for adoptive parents

Strict guidelines reflect the law's focus on children's rights:

Eligible applicants:

• Married couples
• Long-term, stable de facto relationships (at least $2$ years, including same-sex couples)
• Single individuals (no distinction between heterosexual and homosexual applicants)

Age requirements:

• Applicants must be over $21$ years but under $51$ years
• Prospective male parent must be at least $18$ years older than child
• Prospective female parent must be at least $16$ years older than child

Character requirements:

• Person of good repute
• Fit and proper parent
• Able to fulfil responsibilities of good and caring parent

Selection process:

After meeting criteria, prospective parents are placed on a waiting list. Decision based on:

• Best interests of the child
• Whether child's overall welfare will improve

Legal effects of adoption

Once birth parents agree and the court makes an adoption order:

New birth certificate:

• Registrar of Births, Deaths and Marriages issues new certificate in adopted name
• Includes family details of adoptive family (names, dates of birth of adoptive parents and their other children)

Transfer of rights and obligations:

• Birth parents no longer have any rights or obligations concerning child
• Adopting parents have legal responsibility for care and well-being
• Child is legally their child

Inheritance rights:

• Adopted child's rights of inheritance from biological parents are removed (unless specifically mentioned in a will)
• Adopted child has automatic right to inherit from adoptive parents' estate

Overseas adoptions

Increasing numbers of Australian couples apply to adopt children born overseas.

Governing framework:

• Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption
• Bilateral agreements with countries that have not ratified the Convention

Privately arranged adoption:

Possible if adoptive parents prove:

• Living in overseas country for more than $12$ months prior to application
• Authorities in overseas country approved child's departure

Immigration requirements:

• Australian Department of Immigration and Citizenship can refuse entry visa
• Child must meet migration standards

Access to information

Historical position:

Previously, personal information of parents and children could only be released by the Reunion and Information Register, and only if both parties placed information on the register.

Current framework (Adoption Act 2000 (NSW)):

Relinquishing parents and adopted children have the right to request personal identifying information from Community Services to contact one another and other family members.

Adopted children over 18:

May apply to Community Services for a "supply authority" containing:

• Identifying information of birth parents
• Allows access to further information from adoption records

Relinquishing parents:

Can ask for "supply authority" allowing them to obtain:

• Copy of child's amended birth certificate (prepared after adoption)
• Information about adoptive family

Penalties:

Breaching a contact veto may result in fine and/or imprisonment.

Reunion and Information Register:

Both relinquishing parents and adopted children wanting to make contact can enter their names.

Remember!