Australian Adoption Guidelines: State by State

Updated as of 28 November, 2010.

Every State and Territory has a different set of rules as to who can adopt. This guide does not cover overseas adoptions or adoptions by expatriate Australians.

New South Wales

Legislation: Adoptions Act 2000

The people who can adopt are:

 

• a couple who have been married for two years;
• a heterosexual or homosexual de facto couple, who have been together for two years;
• singles- if either they are at least 21, plus at least 18 years older than the child or in the special circumstances of the case the Supreme Court gives permission.

The Supreme Court cannot grant permission to one person to adopt if they have a spouse- husband or wive or heterosexual or homosexual de facto relationship, and the spouse gives permission.

An adoption by a relative can occur, but only if the Supreme Court is satisfied that it is preferable to any other action, which may be a considerable hurdle.

An adoption by a step-parent can occur, but only if leave to adopt has occurred under the Family Law Act and the child is at least 5, and the consent of the parent is given or dispensed with, and only if the Supreme Court is satisfied that it is preferable to any other action.

Although recommendations by a NSW Parliamentary Committee to allow same-sex adoptions were rejected by the State Government, following both sides being allowed a conscience vote, the Adoptions Act was amended, taking effect on 15 September, 2010. Both the Premier Kristina Keneally and the Opposition Leader Barry O’Farrell spoke in favour of the bill. Adoption agencies can opt out of providing adoptions for same sex couples if they so wish, which overcomes (for adoptions) a court case  involving the Uniting Church and gay would be fostercarers.

Australian Capital Territory

Legislation: Adoptions Act 1993

People who can adopt:

• a couple, including a married couple, living together for 3 years.

There is a strong preference in the Adoptions Act 1993 to make guardianship and custody orders in matters involving stepparents and relatives rather than adoption orders.

Same sex couples can adopt.

Victoria

Legislation: Adoptions Act 1984

People who can adopt:

• a married or heterosexual couple who have been together for 2 years;
• a couple in an Aboriginal traditional marriage who have been together for 2 years.
• single people in special circumstances.

Same sex couples cannot adopt. The Victorian Law Reform Commission has recommended that this be changed, but it has not.

Tasmania

Legislation: Adoptions Act 1988

People who can adopt:

• married couples, and people in de facto relationships, who have been together 3 years.
• single people in special circumstances.

Qualifier: De facto couples, including same sex couples can adopt, but only if they have a registered relationship. Only married couples can adopt a child that is not a stepchild or relative (subject to the special circumstances for single people).

South Australia

Legislation: Adoption Act 1988

People who can adopt:

• couples who have been married for 5 years;
• couples in heterosexual de facto relationships for 5 years;
• single people in special circumstances.

Same sex couples cannot adopt.

Western Australia

Legislation: Adoption Act 1994

People who can adopt:

• is a step-parent of the child and has been married to, or in a de facto relationship with, a parent of the child for at least 3 years;
• is a carer of the child;
•  has, under the Adoption Act, had the child placed in his or her care with a view to the child’s adoption by him or her.

Same sex couples are able to adopt, due to the definition of de facto relationship. The country’s only documented same sex adoption occurred in WA.

Northern Territory

Legislation: Adoption of Children Act

People who can adopt:

• a couple who have been married for 2 years.
• a couple in an Aboriginal traditional marriage of  2 years.
• a husband or wife of a parent of the child;
• a relative of the child.
• single people in exceptional circumstances.

De facto (unless in an Aboriginal traditional marriage) and same sex couples cannot adopt.

Queensland

Legislation: Adoption Act 2009

People who can adopt:

• a couple who have been married for 2 years.
• a heterosexual de facto couple who have been together for 2 years.
• a step-parent when the couple have been married or in a heterosexual de facto relationship for 3 years and the child has lived with them over that time;
• the child is between 5 and 17 years old (or there is enough time between 17 and 18 to complete the process).

Same sex couples and single people cannot adopt. Premier Anna Bligh and the Government made plain that same sex couples need not apply. The previous 1964 Act preserved the inherent jurisdiction of the Supreme Court which may have allowed these adoptions. It is not known whether that inherent jurisdiction remains.