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Consent from parents

Information about who must give consent for adoption to happen and the circumstances when consent may be waived.

  • The law changed on 6 May 2024
  • This content will be updated as soon as is possible

In the interim please consult the Federal Circuit and Family Court of Australia website or the Victoria Legal Aid Website.

Generally the court must not make an order for the adoption of a child unless satisfied that the biological parents (or others with parenting responsibilities) give their consent to the adoption. Two authorised witnesses must observe the consent being given and the person consenting must have been fully informed of the consequences of an adoption order being made. The person consenting must also have received counselling. Furthermore, the consent must not have been revoked.

Who needs to know about an adoption application?

It is the responsibility of the applicant to notify:

  • any person whose consent to the adoption is required
  • any guardian of the child, and
  • anyone who lives with or has care or custody of the child.

See s. 16(1)—Adoption Act 1984 (Vic)(opens in a new window).

Generally the court must not make an adoption order unless satisfied that consent has been given by appropriate person(s).

The court requires consents from the following people in relation to a child:

  • Both parents if they were married when the child was either conceived or born.
  • If unmarried at either of those times, then the child's mother(s) or a man who:
    • is named on the child's birth certificate, or other document filed with the Registrar acknowledging paternity
    • has been declared the father of the child under a declaration of paternity
    • has ever been liable to pay for the maintenance of the child
    • has given evidence of paternity to DHS or to another approved agency, or
    • has been granted access to, or custody or guardianship of the child.
  • If the child has been adopted before, then any adoptive parents of the child.
  • If the child does not have citizenship, the Minister for Department of Immigration and Border Protection.

Consent is not needed where the person to be adopted is an adult.

See s. 33—Adoption Act 1984 (Vic)(opens in a new window) and Immigration (Guardianship of Children) Act 1946 (Cth)(opens in a new window).

The person who is consenting has to sign the prescribed form in the presence of two authorised people.

One witness must be someone who is authorised by the Secretary of the Department of Human Services DHS (or approved adoption agency). The other witness may:

  • an authorised court official (prothonotary or deputy prothonotary, registrar or deputy register)
  • principal administrative officer of an interstate court
  • any person who has been authorised and declared in the Government Gazette.

These two witnesses must sign a prescribed statement that attests to the fact that they were present and watched the person giving their consent to the adoption and that the person giving consent:

  • had been given counselling and other prescribed information (usually at least 7 days and not ever less than 24 hours before consenting)
  • had seen and read the certificate of compliance set out in Schedule 1, Form 9 of the Adoption Regulations 2019 (Vic)(opens in a new window).
  • understood the effect the adoption order will have
  • did not express any wishes about access to, or information about the child, and
  • had been given forms to fill out if they change their mind and want to revoke their consent.

See s. 34—Adoption Act 1984 (Vic)(opens in a new window) and Schedule 1, Forms, 6, 9—Adoption Regulations 2019 (Vic)(opens in a new window).

Two witnesses must also sign a statement witnessing that consent is given to an adoption outside Australia. In this situation both of the witness have to be:

  • an Australian diplomatic officer
  • a judge of a court in that country, or
  • a magistrate in that country.

The witnesses have to attest to the fact that:

  • they were present when consent was given
  • the effect of the adoption was explained to the person giving consent
  • they believe that the person giving consent understood the effect of an adoption order in Victoria and had thought about the alternatives to adoption in Victoria
  • the parent(s) had been given a copy of the consent form and also a copy of the forms to use to revoke their consent.

See s. 34(3)—Adoption Act 1984 (Vic)(opens in a new window) (opens in a new window) and rr. 14, 15, Schedule 1, Forms 7, 9, 10—Adoption Regulations 2019 (Vic)(opens in a new window).

A person may ask the court in writing for this notification to be dispensed with. The court can dispense with the need for consent if that person:

  • can't be found (after reasonable inquiry as set out in s. 43(2))
  • is not capable of properly considering whether they should give consent (and this situation is unlikely to change)
  • has abandoned, deserted, persistently neglected, or ill-treated the child
  • has seriously ill-treated the child to the extent that the child would be unlikely to accept or be accepted into the family of that person
  • has failed to discharge their obligations as parent of the child
  • is so physically or mentally or otherwise disabled that they would not be able to meet the needs of that child.

Consent may also be waived if the child is unlikely to be accepted into a family relationship with that person or if there are any other special circumstances why it is in the interests of the child that the consent should be dispensed with.

See ss. 16(2), 43—Adoption Act 1984 (Vic)(opens in a new window).

Role of an independent children's lawyer

Under some circumstances an independent children's lawyer may be appointed where one of the parties does not consent to the adoption.

See Independent children's lawyer—Appointing an ICL.

If parent changes their mind

After a parent gives their consent to their child being adopted, they may change their minds and withdraw consent. They have 28 days to do this plus a further 14 days if they apply for an extension of time.

To withdraw consent, the parent has to let the Registrar know in writing. The forms for withdrawing consent and for extending the period for withdrawing consent must have been handed to the parent at the time that their consent was given.

See s. 41 and Schedules 17,18—Adoption Act 1984 (Vic)(opens in a new window).

Discharge of adoption orders

The court has the power to discharge adoption orders if they have not been properly made or if they are not working out. They will not discharge an adoption order unless satisfied this would be in the best interests and welfare of the child. If the adoption order is discharged, it will be as though it was never made in the first place.

See s 19(5A), 42—Adoption Act 1984 (Vic)(opens in a new window).

If an adoption order has been made and it later becomes clear that consent was obtained by fraud, duress or by other improper means, a biological parent, other adoptive parent, the Secretary of the Department of Human Services or the principle officer of an approved adoption agency.

See s. 42—Adoption Act 1984 (Vic)(opens in a new window).

Special circumstances

The adoption order may be discharged if there are special circumstances to support this discharge. This could include an irretrievable breakdown in the relationship between the adoptive parents and the child.

See s. 19—Adoption Act 1984 (Vic)(opens in a new window).

More information

Legislation

Adoption Act 1984 (Vic)

  • s. 5—who can be an approved counsellor
  • s. 16(1)—responsibility of the applicant to notify anyone whose consent is required according to the rules of the court
  • s. 16(2) court's power to dispense with notification
  • s. 19—when an adoption order may be discharged
  • Div 3—Consents to adoptions
  • s. 33—whose consents are required
  • s. 34—manner of giving consent
  • s. 35—requirements to be complied with before consent is given
  • s. 41—revoking consent
  • s. 42—defective consents

See Adoption Act 1984 (Vic)(opens in a new window).

Adoption Regulations 2019 (Vic)

  • r. 12—arrangements for the adoption in Victoria of non-citizen children
  • r. 14—form of statement by witnesses to consent
  • r. 13—form of consent to adoption
  • r. 15—witnesses to consent
  • r. 16—conduct of discussions by witnesses to consent
  • r. 17—documents to be provided to person giving consent
  • r. 21—consent to adoption by guardian of non-citizen child
  • s. 23—notices to be given if consent cannot be met
  • r. 25—revocation of consent
  • Schedule 1, Form 5—consent to adoption
  • Schedule 1, Form 6—statement of witnesses when consent is given to an adoption within Australia
  • Schedule 1, Form 7—statement of witnesses in whose presence the form of consent is given to an adoption in a country outside Australia
  • Schedule 1, Form 9—certification under s. 35(3) of the Adoption Act 1984
  • Schedule 1, Form 10—consent by guardian or delegate of guardian to adoption of a non-citizen child
  • Schedule 1, Form 14—notice revoking consent to adoption
  • Schedule 1, Form 15—extension of period for revoking consent to adoption

See Adoption Regulations 2019 (Vic)(opens in a new window).

Immigration (Guardianship of Children) Act 1946 (Cth)

  • s. 4AA—defines a non-citizen child (as on who arrives in Australia intending to stay and seeks permanent residency but is not in the care of a parent, relative or person who intends to adopt that child
  • s. 6—the Minister is the guardian of every non-citizen child

See Immigration (Guardianship of Children) Act 1946 (Cth)(opens in a new window).

Updated