Step-Parent Adoptions

In this video, Page Provan Director and award-winning surrogacy lawyer Stephen Page, talks about step-parent adoptions.

Transcript

G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers, and I’m talking about the vex topic of step-parent adoptions. So I’ve been talking in recent videos about adoptions, and why I talk about adoptions is there’s not much out there, and I’ve been doing adoptions for the best part of 30 years.

It’s one year blends into another. Most family lawyers, and I’m not been critical of other family lawyers, don’t do adoptions. But I do, and I have done for many years and I’ve talked in recent videos about adopting from Hague countries, and those are countries that, like Australia, are parties to the 1993, Hague Inter-Country Adoption Convention.

Adoptions from bilateral countries, these are two jurisdictions, which are South Korea and Taiwan. Adoptions from non-Hague countries that are not bilateral countries, for example, Singapore, and adoption and surrogacy.

But in this video, I’m going to talk about step-parent adoptions. Now, they fall into two broad categories from my experience. One is where the couple have had a child through surrogacy, and only one of the parents is recognised on the birth certificate as a parent.

Go and look at my video about adoption and surrogacy about that, because that’s what really that video is about. This one is the circumstance that happens more commonly, where a couple have a child. When I talk about a couple, I’m talking typically a man and a woman, and something goes wrong.

When I say a couple, not necessarily living together, they might have been married, they might have been in de facto relationship, or in fact, they just had a one-night stand, and by accident, a child was conceived. I’m certainly not one to judge others. How children are conceived, the fact that a child exists, is unique to that individual.

But nevertheless, the child is there, the father is known, and what happens is that the mother may be in a violent relationship with the father and leave him, and then discover that he doesn’t want to pay child support, or she might be in a loveless relationship where he really didn’t want to be dad.

The child was born by accident, for example and after they split up, he’s not terribly interested in the child. He doesn’t really see himself as dad, or if he does, he’s got more important things to do, such as fishing.

In the meantime, she’s fallen in love with someone else and I think the longest one of these that I saw, they’d been together for about twelve years, certainly a very long time. And this other bloke, and of course, I’m talking in general terms, what I’ve seen is heterosexual relationships, this bloke has been seen by the child as dad.

What hasn’t happened is there hasn’t been that legal recognition of parentage because whilst the child or children know this bloke as dad, that’s not what the law says.

The law says that the genetic father, biological father, is the parent, even though the biological father is having nothing to do with the child.

Of course, like all my videos, I’m talking in general terms, every case depends on its own facts and depends on where you live. Our adoption laws are a bit of a mishmash.

We’ve got some requirements under the Family Law Act, which is federal legislation, and then in Western Australia, we’ve also got the Family Court Act, we’ve got to navigate.

Then in the rest of the country and in Western Australia, we’ve got to look at the State or Territory Adoption Act. But typically, with a step parent adoption, there is a two-step process. Step one is you don’t actually go and adopt, you get what is called leave to adopt.

And from where I’m sitting, it’s two buildings away, at least in Brisbane, and that’s you go to the Federal Circuit and Family Court of Australia. And you get leave to adopt because the Family Law Act says you do so, and why that’s there is because adoption is a state and Territory responsibility, not federal.

Whereas family law concerning children generally is considered to be federal, and what was happening back in the 1980s, there were two or three cases where this happened, was that Mum and Dad split up, mum re-partnered, and she really didn’t want dad to have much to do with the child.

So her partner was then going through the adoption process under the state or territory laws and of course, the aim was, if I get an adoption order, therefore I am the parent and you, the biological father, are not, so cut that out real quick. So they ended up in court.

It was a bit of controversy and federal parliament changed that and said, You don’t get to do your adoption order and get parental responsibility from that unless you turn up here first, which is now the Federal Circuit and Family Court of Australia, and get from a judge leave to adopt so that this parent doesn’t get cut out of the equation.

You can understand why they did that, but it just means it’s a double-barrelled process that you’ve got to go through. You first got to go off to get leave to adopt.

In most states, there isn’t a requirement under state legislation to do it, but in Queensland, it’s quite specific that you must get that leave to adopt. But the general acceptance is that you must get the leave to adopt first.

Then second, you apply for adoption, and the adoption order is made in a state court. For example, the Supreme or County Court in Victoria, or the Supreme Court in New South Wales, or the Children’s Court in Queensland, to give some examples.

So you go through the Federal Circuit and Family Court of Australia process first to obtain leave, and second, you go through the state adoption process. Now, a couple of states, and I’ll just talk about New South Wales and Victoria.

If the child has already turned 18, you can then apply to adopt the child if the child has been raised as your own. So for example, you’ve been a carer or you’re a relative, and this is really your child, and since that, the strong bond is between the child and you, and this child, 18, full of autonomy, wants to be recognised.

Because I think one of the special things about adoption, and some policymakers miss this because we have rightly all this guilt about what happened to children who were stolen from their mums back in the ’60s and ’70s, is that adoption is transformative.

It is, if done well, convert someone who is a legal stranger to the child to be their parent, and in an effective sense, it’s irreversible, you have this. So, it’s not just getting an order under the Family Law Act to say that someone’s got parental responsibility it’s more than that, because those orders finish at the age of 18.

Or get what’s sometimes called a long-term guardianship order or a similar order under state law, child protection laws. They finish at the age of 18, whereas an adoption order, except when there’s been some fraud, for example, is permanent, it’s there forever.

So if you are looking at doing a step-parent adoption order, process, then what you should be looking at is getting legal advice at the beginning and this doesn’t mean that you’re going to be tied to a lawyer all the way through, but you’ve got to understand the landscape.

So in your state or territory, and know that first we’ve got to do this, which is typically to go off to get leave to adopt, and second, we therefore go through the option process what all the bells and whistles of that process are.

Thank you.