Version No. 010
Adoption Regulations 1998
S.R. No. 13/1998
Version incorporating amendments as at 6 May 2004
table of provisions
RegulationPage
1
RegulationPage
Part 1—Preliminary
1.Objective
2.Authorising provision
3.Commencement
4.Revocation
5.Definitions
Part 2—Adoption Agencies, Accredited Bodies, Overseas Jurisdictions and Counsellors
Division 1—Approved Adoption Agencies
6.Application for approval or renewal of approval of adoption agency
7.Qualifications of principal officer
Division 2—Approved Agencies for Overseas Adoptions
8.Prescribed organisations for overseas adoptions
9.Permitted arrangements with overseas agencies
10.Agencies not to be authorised by Secretary in certain circumstances
Division 2A—Accredited Bodies for Hague Convention Adoptions
10A.Application for accreditation
10B.Additional criteria for accreditation
10C.Code of conduct for accredited bodies and staff
Division 2B—Prescribed Overseas Jurisdictions
10D.Overseas jurisdiction
Division 3—Approved Counsellors
11.Secretary to keep list of approved counsellors
Part 3—Revoked7
12–15.Revoked7
Part 4—Consents to Adoption
Division 1—Counselling
16.Approved counsellors
17.Information to be provided by counsellor
Division 2—Parental Wishes
18.Wishes of parent in relation to race, ethnic background, religionetc.
19.Wishes of parent with respect to receiving notice of certain events
Division 3—Procedures for Consenting to Adoption
20.Form of consent to adoption
21.Conduct of discussions
22.Persons who may witness consent
23.Matters to be complied with before statement signed
24.Offence to accept a fee for being present at a consent to
adoption
25.Documents to be given to person consenting to adoption
26.Certificate of compliance
27.Consent to adoption by guardian of non-citizen child
28.Notification to parent of inability to place child
Division 4—Additional provisions applying to adoption of Aboriginalchildren
29.Expression of wishes at time of giving consent
30.Conditions of access to Aboriginal child
31.Notices to be given if condition of consent cannot be met
Division 6—Revocation and extension of time for revocation of consent
32.Extension of period for revoking consent
33.Notice of revocation of consent
Part 5—Care of Children Awaiting Adoption
34.Care of child before guardianship effective
Part 6—Applications for Adoptions
Division 1—Prescribed requirements for applicants
35.Requirements to be satisfied by applicants for adoption of a
child
Division 1A—Approval of Persons to Adopt Children
35A.Application for approval as a fit and proper person
35B.Requirements to be satisfied by applicants for approval as fit andproper persons to adopt a child
Division 2—Register of Adoptions
36.Registration of Adoption Orders
37.Details of adoptions to be provided to the Secretary by approvedagencies
Part 7—Birth Certificates
38.Form of application for birth certificate
39.Fees payable
Part 8—General
40.Financial assistance
41.Time to comply with request for information
Part 9—Savings and Transitional
42.Pending applications and consents
43.Persons deemed to be fit and proper
______
SCHEDULES
SCHEDULE 1—Regulations Revoked
SCHEDULE 2—Information to be Contained in an Application for Approval of Adoption Agency
SCHEDULE 3—Prescribed Persons or Organisations for Intercountry Adoption Arrangements
SCHEDULE 3A—Code of Conduct for Accredited Bodies and their
Staff
SCHEDULE 4—Information to be Provided in Application for
Approval asFit and Proper Person to Adopt a Child
SCHEDULE 5—Statement of Personal Details Required to be
Submitted with an Application for Approval as a Fit
and Proper Person to Adopt a Child
SCHEDULE 6—Notice to Parent Considering Placing a Child for Adoption
SCHEDULE 7—Record of Wishes of Parent
Form 1—Wishes of Natural Parent with Respect to Religion, Race
or Ethnic Background of Adoptive Parents
Form 2—Wishes of Natural Parent after Consent is Given with Respect to Information about a Child and Access to a Child
SCHEDULE 8—Wishes of Natural Parent with Respect to Receipt of Information after Consent is Given
SCHEDULE 9—Forms of Consent to the Adoption of a Child
Form 1—General Consent to Adoption
Form 2—Consent by Parent to Child being Adopted by Spouse of the Parent
Form 3—Consent by Parent to Child being Adopted by the Spouse
of the Other Parent, or by a Relative of the Child or by the Spouse of a Relative of the Child
Form 4—Additional Statements Relating to the Wishes and Conditions of a Parent with Respect to the Adoption of a Child within the Aboriginal Community
SCHEDULE 10—Prescribed Statements of Persons Present when Consentis given to an Adoption within Australia
SCHEDULE 11—Prescribed Statements of Persons Present when Consent to Adoption is given in a Country other than Australia
SCHEDULE 12—Certificate of Compliance
SCHEDULE 13—Consent of Guardian or Delegate to Adoption of
Non-citizen Child Resident in Victoria
SCHEDULE 14—Notice to Parent that an Adoptive Placement can not beFound for a Child
SCHEDULE 15—Notice to Parent of an Aboriginal Child of Inability
to Place a Child Under Parent's Condition
SCHEDULE 16—Notice Varying a Condition of Consent to Adoption
of an Aboriginal Child
SCHEDULE 17—Extension of Period for Revoking Consent to
Adoption
SCHEDULE 18—Notice Revoking Consent to Adoption
SCHEDULE 19—Child Care Agreement—Child Awaiting Adoption
SCHEDULE 20—Extension of Child Care Agreement—Child Awaiting Adoption
SCHEDULE 21—Memorandum of an Adoption Order
SCHEDULE 22—Application for Copy of Birth Certificate
═══════════════
ENDNOTEs
1. General Information
2. Table of Amendments
3. Explanatory Details
INDEX83
1
Version No. 010
Adoption Regulations 1998
S.R. No. 13/1998
Version incorporating amendments as at 6 May 2004
1
Adoption Regulations 1998
S.R. No. 13/1998
Part 1—Preliminary
1.Objective
The objective of these Regulations is to prescribe matters authorised to be prescribed by, and to ensure the effective implementation of, the Adoption Act 1984.
2.Authorising provision
These Regulations are made under section 130 of the Adoption Act 1984.
3.Commencement
These Regulations come into operation on 3March 1998.
4.Revocation
The Regulations listed in Schedule 1 are revoked.
5.Definitions
In these Regulations—
"Aboriginal agency" has the same meaning as in section 50(3) of the Act;
"principal officer" has the same meaning as in the Act;
"spouse" includes de facto spouse;
"the Act" means the Adoption Act 1984;
"the Department" means the Department of Human Services.
r. 5
______
Pt 2 (Heading) amended by S.R. No. 116/2001 reg.5.
Part 2—Adoption Agencies, Accredited Bodies, Overseas Jurisdictions and Counsellors
Division 1—Approved Adoption Agencies
Reg. 6 amended by S.R. No. 116/2001 reg.15.
6.Application for approval or renewal of approval of adoption agency
r. 6
An application to the Secretary by a welfare organisation—
(a)for the approval of the organisation as an approved agency under section 21 of the Act; or
(b)for the renewal of approval as an approved agency under section 26 of the Act—
must contain the information set out in Schedule2.
7.Qualifications of principal officer
A welfare organisation must not nominate a person as its principal officer or deputy principal officer for the purposes of section 21(2) of the Act, and an approved agency must not permit a person to act as, or to exercise the powers and functions of, a principal officer unless that person—
(a)has a tertiary qualification in social work or in an appropriate social science; and
(b)is experienced in the provision of child and family services.
Division 2—Approved Agencies for Overseas Adoptions
8.Prescribed organisations for overseas adoptions
For the purposes of sections 23 and 115(2) of the Act, the prescribed persons or organisations or classes of persons or organisations in places outside Australia for the adoption in Victoria of non-citizen children are those persons or organisations listed in Schedule 3.
Reg. 9 amended by S.R. No. 116/2001 reg.15.
9.Permitted arrangements with overseas agencies
r. 8
The Secretary must not make arrangements with any person or organisation referred to in regulation8 unless the Secretary is satisfied—
(a)after receiving written evidence, that the person or organisation is authorised in the country concerned to arrange for the overseas adoption of children in or from that country; and
(b)the person or organisation is able to ensure that—
(i)children and natural parents are not being exploited when arrangements are being made for the adoption of children in or from that country; and
(ii)consents to adoption of such children are not obtained by fraud or under duress; and
(iii)natural parents have an adequate opportunity to give informed consent to adoption of such children; and
(iv)arrangements for the adoption of children from that country are subject to the requirements of natural or substantial justice.
Reg. 10 amended by S.R. No. 116/2001 reg.15.
10.Agencies not to be authorised by Secretary in certain circumstances
The Secretary must not authorise an approved agency to make arrangements under section 23 of the Act with a person or organisation referred to in regulation 8 if the government of, or a government welfare body in, the place outside Australia has notified the Secretary that the overseas adoption of children from that country has been prohibited by that country.
Pt 2 Div. 2A (Heading and regs 10A–10C) insertedby S.R. No. 116/2001 reg.6.
Division 2A—Accredited Bodies for Hague Convention Adoptions
Reg. 10A inserted by S.R. No. 116/2001 reg.6.
10A.Application for accreditation
r. 10
For the purposes of section 69N(2)(a) of the Act, the prescribed information is—
(a)the name and address of the approved agency or, if not yet approved, the name of the organisation and location of the proposed agency for which approval has been sought;
(b)a written statement to the effect that the agency has accommodation available for its use and that the accommodation does not form part of, and is not adjacent to, accommodation that is used by an aid organisation or an organisation that represents adoptive parents;
(c)a written statement to the effect that the agency is not associated with the collection and disbursement of aid to an overseas country.
Reg. 10B inserted by S.R. No. 116/2001 reg.6.
10B.Additional criteria for accreditation
r. 10B
For the purposes of section 69O(1)(b)(ii) of the Act, the prescribed criteria are—
(a)the body must be an incorporated non profit body;
(b)the body must not be a party to negotiations or an agreement for the establishment of adoption arrangements with overseas countries;
(c)the body must have a principal officer who has social science qualifications and experience in adoption, substitute care or family services to supervise the adoption arrangements undertaken by the body;
(d)the body must be financially viable;
(e)the body must have accommodation available for its use that—
(i)is suitable for the conduct of assessment, interviews, training and support for adoption arrangements;
(ii)does not form part of, and is not adjacent to, accommodation that is used by an aid organisation or an organisation that represents adoptive parents;
(f)the body must not be associated with the collection and disbursement of aid to an overseas country;
(g)the body must have suitable facilities for the confidential storage of records.
Reg. 10C inserted by S.R. No. 116/2001 reg.6.
10C.Code of conduct for accredited bodies and staff
r. 10C
For the purposes of section 69O(2)(c) of the Act, the prescribed code of conduct is the code of conduct for accredited bodies and their staff set out in Schedule 3A.
Pt 2 Div. 2B (Heading and reg. 10D) inserted by S.R. No. 116/2001 reg.6.
Division 2B—Prescribed Overseas Jurisdictions
Reg. 10D inserted by S.R. No. 116/2001 reg.6.
10D.Overseas jurisdiction
The People's Republic of China is prescribed as an overseas jurisdiction for the purposes of Part IVB of the Act.
Division 3—Approved Counsellors
11.Secretary to keep list of approved counsellors
Reg. 11(1) amended by S.R. No. 116/2001 reg.15.
(1)The Secretary must keep a list of persons currently approved under section 5 of the Act as approved counsellors.
Reg. 11(2) amended by S.R. No. 116/2001 reg.15.
(2)The Secretary must ensure that the list is readily accessible to approved agencies.
______
Pt 3
(Heading and regs 12–15) revokedby S.R. No. 116/2001 reg.7.
*****
______
Part 4—Consents to Adoption
Division 1—Counselling
Reg. 16 amended by S.R. No. 116/2001 reg.15.
16.Approved counsellors
r. 16
For the purposes of section 35(1) of the Act, a person approved by the Secretary or the principal officer must be an approved counsellor.
17.Information to be provided by counsellor
(1)The person approved to provide counselling for the purposes of section 35(1) of the Act must provide the person proposing to give consent to the adoption of his or her child written information about the following matters in a language readily understood by that person—
(a)procedures and provisions applying to the giving of consent including specific consents by relatives or the spouse of a relative and conditional consents applying to Aboriginal children;
(b)procedures and provisions relating to extending the period for revoking consent and the process for revoking consent within the period for revoking consent;
(c)procedures and provisions applying to revoking consent within the period for revoking consent;
(d)procedures and provisions applying once consent can no longer be revoked but before an adoption order is made;
(e)information about support services in the community and different arrangements that may be made to care for the child;
(f)the effect of an adoption order;
(g)the person's right to obtain a copy of his or her child's original birth certificate.
(2)For the purposes of section 35(1)(b) and 35(1)(c) of the Act, the information in writing to be given by a counsellor, and the notice to be given in writing to the person receiving counselling, must be in the form of Schedule 6.
(3)A form is still in the form of Schedule 6 even if the words in the form are divided into sections and placed in relevant parts of a document and provided to the person considering giving consent with other information relating to adoption and other notices required to be given in writing.
Division 2—Parental Wishes
18.Wishes of parent in relation to race, ethnic background, religionetc.
r. 18
Reg. 18(1) amended by S.R. No. 116/2001 reg.15.
(1)For the purposes of determining the wishes of a parent under section 15(1)(b) of the Act, the Secretary or principal officer must ensure that a parent giving consent to adoption has been given the opportunity of expressing in writing his or her wishes about the religion, race, or ethnic background of proposed adoptive parent or adoptive parents of the child.
(2)A record of the wishes of the parent under section 15(1)(b) of the Act must—
Reg. 18(2)(a) amended by S.R. No. 116/2001 reg.15.
(a)be made by the Secretary or principal officer; and
(b)contain the information set out in Form 1 of Schedule 7.
Reg. 18(3) amended by S.R. No. 116/2001 reg.15.
(3)For the purpose of determining the wishes of a parent under section 15(1)(c) of the Act, the Secretary or principal officer must ensure that after consent is given, an opportunity is made available to the parent to express in writing his or her wishes about access to the child and information about the child.
(4)A record of the wishes of the parent under section 15(1)(c) of the Act must—
Reg. 18(4)(a) amended by S.R. No. 116/2001 reg.15.
(a)be made by the Secretary or principal officer; and
(b)contain the information set out in Form 2 of Schedule 7.
19.Wishes of parent with respect to receiving notice of certain events
r. 19
Reg. 19(1) amended by S.R. No. 116/2001 reg.15.
(1)To enable the Secretary or principal officer to determine whether or not a person who has given consent to adoption wishes to receive notice of any event listed in section 44(1) of the Act (other than sub-section (1)(d)), the Secretary or the principal officer must ensure that an opportunity is given to the parent at the time of giving consent to adoption to express a wish not to be given notice of any particular event.
(2)A record of the wishes of the parent must—
Reg. 19(2)(a) amended by S.R. No. 116/2001 reg.15.
(a)be made by the Secretary or principal officer; and
(b)contain the information set out in Schedule8.
Reg. 19(3) amended by S.R. No. 116/2001 reg.15.
(3)At the time the record is made, the Secretary or principal officer must ensure that the parent is advised that changes to his or her wishes about being notified about any particular event may be made at any time by notifying the Secretary or principal officer in writing.
Reg. 19(4) amended by S.R. No. 116/2001 reg.15.
(4)The Secretary or principal officer must ensure that a person giving consent to an adoption is notified in writing of any event listed in section 44(1).
Division 3—Procedures for Consenting to Adoption
20.Form of consent to adoption
r. 20
For the purposes of section 34(1) and 34(3) of the Act—
(a)the form of consent is in the prescribed form if—
(i)in the case of a general consent—it contains the information prescribed in Form 1 of Schedule 9;
(ii)in the case of consent by a person to the adoption of his or her child by his or her spouse—it contains the information prescribed in Form 2 of Schedule 9;
(iii)in the case of consent by a person to the adoption of his or her child by the spouse of the child's other parent or to adoption by a relative of the child (whether by blood or marriage)—it contains the information prescribed in Form 3 of Schedule 9;
(b)the prescribed statements are—
(i)in the case where a person gives consent in Australia—the statements set out in Schedule 10;
(ii)in the case where a person gives consent to adoption in a country outside Australia—the statements set out in Schedule 11.
21.Conduct of discussions
r. 21
When a parent gives consent to the adoption of a child, the persons in whose presence consent is given must conduct their discussions in a sensitive manner and in a setting that ensures dignity, privacy and confidentiality.
22.Persons who may witness consent
Reg. 22(1) amended by S.R. No. 116/2001 reg.15.
(1)For the purposes of section 34(1)(a)(ii) of the Act, the person approved by the Secretary or principal officer must be—
(i)the person who gave the counselling for the purposes of section 35(1)(a); or
(ii)if the person who gave the counselling is unavailable, or, because of the particular circumstances, it is impracticable for that person to be present, a person who has a detailed knowledge of adoption practice especially in relation to the effects of an adoption order, the procedure for extending the period for revoking consent and the procedure for revoking consent.
(2)For the purposes of section 34(2) of the Act, the prescribed officials of a court are—
(a)the Prothonotary or Deputy Prothonotaries of the Supreme Court;
(b)the Registrar or Deputy Registrars of the County Court approved by the Registrar for the purposes of the section;
(c)the Registrar of the venues of the Magistrates' Court in the Melbourne metropolitan area authorised for the purposes of the section by the Secretary to the Department of Justice;
(d)the Registrar of the venues of the Magistrates' Court outside the Melbourne metropolitan area.
23.Matters to be complied with before statement signed
r. 23
A person must not sign a statement referred to in regulation 20(b) unless the person believes that the person giving consent understands the effect of an adoption order, and the procedures for revoking consent, and for extending the period for revoking consent, to the adoption.
24.Offence to accept a fee for being present at a consent to adoption
A person must not solicit, or accept, a fee for being present when a consent to adoption is given under section 34 of the Act.
Penalty:5 penalty units.
25.Documents to be given to person consenting to adoption
At the time consent to adoption is given, the person referred to in section 34(2) of the Act must—
(a)hand the following forms to the person giving consent to adoption—