Tasmania act

Adoption Act 1988

In ForceTAS

Jurisdiction

Tasmania

Act Number

41 of 1988

Collection

act

Plain English Summary

8/10 complexity

The Adoption Act 1988 creates Tasmania’s legal framework for arranging, approving and making adoptions: who may adopt or be adopted, consent and counselling rules, court and Secretary powers, approved agencies’ duties, and record‑keeping. It protects confidentiality via an Adoption Information Register, sets recognition rules for overseas adoptions, and makes unauthorised arranging and related conduct offences.

It affects children and adoptive/natural parents, approved welfare agencies, the Secretary, courts and registrars — shaping procedural burdens, privacy trade‑offs and administrative discretion.

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What it does

The Adoption Act 1988 (Tas) establishes a comprehensive statutory framework for the legal transfer of parental responsibility from birth parents (or guardians) to adoptive parents in Tasmania. At its core, the Act prioritises the welfare and interests of the child or adopted person as the paramount consideration (s 8). It does this by regulating every stage of the adoption process: from the arrangement of adoptions exclusively by the Secretary of the Department or approved agencies (s 9), through to the making of adoption orders by the Magistrates Court (Children's Division) (s 6, definition of "court" in s 3(1)), and the ongoing management of information exchange between adopted persons and their natural families.

The Act is structured in seven Parts. Part I contains preliminary provisions, including an expansive interpretation section (s 3) that defines key concepts such as "adopted person", "natural parent", "natural relative", "approved agency", "contact veto", "convention country" and "non-citizen child". These definitions explicitly incorporate references to the Hague Convention, bilateral agreements, the Immigration (Guardianship of Children) Act 1946 (Cth), the Births, Deaths and Marriages Registration Act 1999 and the Relationships Act 2003. Sections 3A and 4 elaborate on convention countries and the approval of counsellors.

Part II governs adoptions under the Act. Division 1 regulates approved agencies (ss 10-17), requiring welfare organisations to obtain Ministerial approval, maintain principal officers, keep records and act in the child's best interests. Division 2 sets the criteria for adoption orders (ss 18-28), including residency requirements (s 6), the paramountcy of the child's welfare (s 8), the wishes of the child (s 23), and specific rules for who may be adopted (s 19) and in whose favour orders may be made (ss 20-22). It prohibits orders where the applicant is the child's mother, father or certain guardians (s 20(3)) and imposes age differentials (s 22). Consents are addressed in Division 3 (ss 29-38A), mandating written consents in prescribed form before approved counsellors (ss 30-31), with detailed rules for revocation within 30 days (s 35), defective consents (s 36) and court dispensation (s 37). Division 4 deals with interim care and guardianship (ss 39-45), while Division 5 addresses non-citizen children (ss 46-48).

Current sections

Direct links to the current provisions in Adoption Act 1988.

141

Part I

Preliminary

Part I Preliminary

Short title

1 Short title

This Act may be cited as the Adoption Act 1988 .

Commencement

2 Commencement

(1) This section and sections 1 and 3 shall commence on the day on which this Act receives the Royal Assent.

(2) Except as provided in subsection (1) , the several provisions of this Act shall commence on such day or days as may be fixed by proclamation.

Interpretation

3 Interpretation

(1) In this Act, unless the contrary intention appears –

adopted person means a person –

(a) an order for whose adoption was made under this Act or any corresponding previous enactment; or

(b) an order for whose adoption was made, whether before or after the commencement of this section, in a place outside Tasmania if the birth of that person has been registered in Tasmania;

adoption order means an order for the adoption of a person made under this Act;

agency means a welfare organization that is, or has been at any time, an approved agency;

[Section 3 Subsection (1) amended by No. 14 of 1999, s. 4, Applied:30 Apr 1999] agreement country means a prescribed overseas jurisdiction within the meaning of the Family Law (Bilateral Agreements–Intercountry Adoption) Regulations 1998 of the Commonwealth, as amended from time to time;

approved agency means –

(a) a welfare organization approved by the Minister as an adoption agency under Division 1 of Part II ; or

(b) a welfare organization that, immediately before the commencement of this section, was approved as a private adoption agency within the meaning of the repealed Act –

so long as that approval is not revoked or suspended under section 13 ;

approved counsellor means a person who is for the time being approved as a counsellor under section 4 , and includes a person who is for the time being approved as a counsellor under a law of another State or a Territory corresponding to this Act;

child means –

(a) a person who has not attained the age of 18 years; or

(b) a person who has attained that age in respect of whom an adoption order is sought;

[Section 3 Subsection (1) amended by No. 47 of 1998, s. 4, Applied:18 Jun 1999] contact veto means a contact veto referred to in section 90(3)(c) ;

[Section 3 Subsection (1) amended by No. 14 of 1999, s. 4, Applied:30 Apr 1999] convention country has the meaning given by section 3A ;

[Section 3 Subsection (1) amended by No. 14 of 1999, s. 4, Applied:30 Apr 1999] country includes a territorial unit or other part of a country;

[Section 3 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000]

[Section 3 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] court means the Magistrates Court (Children's Division);

[Section 3 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000]

disposition of property includes the grant or exercise of a power of appointment in respect of property;

the former register of adoptions means the register of adoptions formerly kept by the Registrar-General for the purposes of the Adoption of Children Act 1920;

function includes duty;

guardian, in relation to a child, includes –

(a) a person who under a law of the Commonwealth or a State or Territory, is, or is deemed to be, the guardian of the child, to the exclusion of, or in addition to, a parent or other guardian; and

(b) in the case of a guardian of a non-citizen child under the Immigration (Guardianship of Children) Act 1946 of the Commonwealth, a person to whom the performance or exercise of any functions or powers as a guardian are delegated under that Act;

[Section 3 Subsection (1) amended by No. 14 of 1999, s. 4, Applied:30 Apr 1999] Hague convention means the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption made at The Hague on 29 May 1993, as amended from time to time;

interim order means –

(a) an interim order made and in force under Division 3 of Part III ; or

(b) an interim order made under the repealed Act and in force immediately before the commencement of section 120 ;

natural parent, in relation to an adopted person, means –

(a) a person who is named in the entry relating to the adopted person in a register of births, whether in Tasmania or in a place outside Tasmania, as a parent of the adopted person;

(b) [Section 3 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] a man who is declared to be the father of the adopted person under a declaration of paternity in force under section 10 of the Status of Children Act 1974 , if a copy of the declaration is filed in the office of the Registrar under section 9 (3) of that Act ;

(c) [Section 3 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003]

(d) [Section 3 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] a man who is named in an instrument filed in the office of the Registrar under section 9 (1) of the Status of Children Act 1974 that acknowledges that he is the father of the adopted person; or

(e) in relation to an application under section 83 , 84 , or 90 , a man who satisfies a relevant authority that there is evidence that the man is the father of the adopted person;

[Section 3 Subsection (1) amended by No. 24 of 1994, s. 4(1) ][Section 3 Subsection (1) amended by No. 47 of 1998, s. 4, Applied:18 Jun 1999] natural relative, in relation to an adopted person, means a grandparent, brother, sister, uncle, aunt or lineal descendant of the adopted person, where the relationship is of the whole blood or half-blood;

non-citizen child has the same meaning as in the Immigration (Guardianship of Children) Act 1946 of the Commonwealth;

[Section 3 Subsection (1) amended by No. 14 of 1999, s. 4, Applied:30 Apr 1999] non-convention or non-agreement country means a country other than –

(a) Australia; and

(b) New Zealand; and

(c) a convention country; and

(d) an agreement country;

principal officer, in relation to an approved agency, means the person nominated in an application made by the agency under section 10 or under the repealed Act as its principal officer and includes the person, if any, nominated as the deputy principal officer of that agency in any such application;

property includes an interest in property;

[Section 3 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] register means the register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1999 ;

[Section 3 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000]

[Section 3 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] Registrar means the Registrar of Births, Deaths and Marriages;

relative, in relation to a child, means a grandparent, brother, sister, uncle, or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity and notwithstanding that the relationship depends on the adoption of a person;

relevant authority, in relation to an application under Part VI , means –

(a) [Section 3 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the Secretary; or

(b) where the application relates to information contained in records, or a copy of a birth certificate, in the possession, or under the control, of an agency, that agency;

the repealed Act means the Adoption of Children Act 1968;

[Section 3 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Secretary means the Secretary of the Department;

the special record means the special record formerly kept under section 22F of the Registration of Births and Deaths Act 1895 and continued in force under section 63 (1) of this Act;

[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse includes the other party to a significant relationship which is the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003 ;

[Section 3 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] Territory means a Territory of the Commonwealth.

[Section 3 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000]

(2) The definitions of "natural parent" and "natural relative" in subsection (1) are not affected by the provisions of this Act relating to the effect of adoption orders.

(3) Where –

(a) an adoption order has been made in favour of one person as mentioned in section 19 , 20 , or 21 ; or

(b) an application under this Act for such an order has been made, or is proposed –

references in this Act to adoptive parents or prospective adoptive parents shall be read as including references to an adoptive parent or prospective adoptive parent, as the case may require.

(4) [Section 3 Subsection (4) inserted by No. 14 of 1999, s. 4, Applied:30 Apr 1999] A reference in this Act to an article of the Hague convention is a reference to that convention as made on 29 May 1993.

Meaning of "convention country"

3A Meaning of "convention country"

[Section 3A Inserted by No. 14 of 1999, s. 5, Applied:30 Apr 1999]

(1) A convention country is a country for which the Hague convention has entered into force under article 46 of the Hague convention, other than –

(a) Australia; and

(b) New Zealand; and

(c) a country to whose accession Australia has raised an objection under article 44 of the Hague convention.

(2) Subsection (1) applies to a country subject to a declaration under article 45 of the Hague convention.

Approved counsellors

4 Approved counsellors

(1) [Section 4 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] *[Section 4 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ]*Subject to subsection (2) , the Secretary may, by notice in writing, approve a person as a counsellor for the purposes of this Act and may, by notice in writing, revoke any such approval.

(2) [Section 4 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] *[Section 4 Subsection (2) amended by No. 5 of 1990, s. 3 and Sched. 1 ]*The Secretary shall not approve a person as a counsellor under subsection (1) unless the person is –

(a) [Section 4 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] an officer of the Department or a person who is temporarily employed in that Department; or

(b) employed by an approved agency; or

(c) [Section 4 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] if he is not such an officer or so employed, a person who, in the opinion of the Secretary, has such qualifications and experience as are appropriate for a counsellor for the purposes of this Act.

5.

[Section 5 Repealed by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000]

Requirements for making adoption orders

6 Requirements for making adoption orders

(1) The court shall not make an order for the adoption of a child unless –

(a) at the time of the filing in the court of the application for the order –

(i) each of the prospective adoptive parents was resident or domiciled in Tasmania; and

(ii) the child was present in Tasmania; or

(b) [Section 6 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the child was born in Tasmania and at the time of the filing in the court of that application was under the guardianship of the Secretary.

(2) For the purposes of subsection (1) , where the court is satisfied that –

(a) [Section 6 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] the prospective adoptive parents were resident or domiciled in Tasmania; or

(b) a child was present in Tasmania; or

(c) [Section 6 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] a child was under the guardianship of the Secretary –

on a date within 21 days before the date on which an application was filed in the court, the court may, in the absence of evidence to the contrary, presume that –

(d) [Section 6 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] the prospective adoptive parents were resident or domiciled in Tasmania; or

(e) the child was present in Tasmania; or

(f) [Section 6 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] the child was under the guardianship of the Secretary –

as the case may be, at the time of the filing of the application in the court.

Rules of private international law not to apply

7 Rules of private international law not to apply

The jurisdiction of the court to make an adoption order is not dependent on any fact or circumstance not expressly specified in this Act.

Welfare and interests of child to be paramount

8 Welfare and interests of child to be paramount

In the administration of this Act, the welfare and interests of the child or adopted person concerned shall be regarded as the paramount consideration at all times.

Part II

Adoptions under this Act

Part II Adoptions under this Act

Division 1

Arrangement of adoptions

Division 1 Arrangement of adoptions

Adoptions may be arranged by Secretary or by approved agency

9 Adoptions may be arranged by Secretary or by approved agency

(1) [Section 9 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] For the purposes of this Act, arrangements or negotiations for, towards, or with a view to the making of an adoption order in favour of any persons may be made by, or on behalf of, the Secretary or by, or on behalf of, an approved agency.

(2) [Section 9 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Except as otherwise provided in this Act, an order shall not be made for the adoption of a child unless arrangements or negotiations for, towards, or with a view to, the adoption of the child have been made by, or on behalf of, the Secretary or by, or on behalf of, an approved agency.

Application for approval of adoption agency

10 Application for approval of adoption agency

(1) In this section,

welfare organization means an organization, whether corporate or unincorporate, formed or carried on primarily or principally for religious, charitable, benevolent, philanthropic, or welfare purposes, but does not include an organization formed or carried on for the purpose of trading or securing a pecuniary profit to its members.

(2) A welfare organization desiring to carry on the activity of conducting negotiations, or making arrangements, with a view to the adoption of children may apply in writing to the Minister for approval as an adoption agency.

(3) An application under this section –

(a) [Section 10 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] shall contain such information relating to the organization as is prescribed; and

(b) [Section 10 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] shall specify the address of the principal office in Tasmania of the organization; and

(c) shall nominate a person resident in Tasmania to be the principal officer of the organization; and

(d) may nominate a person resident in Tasmania to be the deputy principal officer of the organization for the purposes of this Act.

(4) Where the Minister receives an application under this section, he shall publish notice of the application in the Gazette.

Minister may grant or refuse to grant application

11 Minister may grant or refuse to grant application

(1) The Minister may, as he thinks fit, grant or refuse to grant an application under section 10 and in particular, without limiting the generality of this section, may refuse to grant the application if it appears to him –

(a) that the applicant is not a welfare organization within the meaning of that section; or

(b) that the applicant is not suited to making arrangements with a view to the adoption of children, having regard to all relevant considerations, including the qualifications, experience, character, and number of the persons taking part, or proposing to take part, in the management or control of the organization, or engaged or proposed to be engaged, on behalf of the organization, in the making of arrangements with a view to the adoption of children.

(2) Where the Minister approves an adoption agency under this section, the approval –

(a) shall be subject to such conditions and requirements as may be prescribed; and

(b) may be granted subject to such additional conditions and requirements as the Minister thinks fit and specifies by notice in writing given to the principal officer of that adoption agency.

Principal officer of approved agency

12 Principal officer of approved agency

(1) Anything done by the principal officer of an approved agency, or with his approval, shall, for the purposes of this Act but without prejudice to any personal liability of the principal officer, be deemed to be done by the approved agency.

(2) [Section 12 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] An approved agency shall, within 7 days after the occurrence of a vacancy in the office of its principal officer, appoint a person resident in Tasmania to fill the vacancy, either temporarily or permanently, and shall give notice in writing to the Secretary of the appointment.

(3) For the purposes of subsection (2) , the office of principal officer shall be deemed to become vacant if the person holding the office ceases to be resident in Tasmania.

Revocation or suspension of approval

13 Revocation or suspension of approval

(1) The Minister may at any time, by notice in writing served personally or by certified mail on the principal officer of an approved agency, revoke or suspend for a specified period the approval of the agency under this Division –

(a) [Section 13 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] at the request of the approved agency concerned; or

(b) in the case of a revocation or suspension of approval under section 11 , on the ground that the approved agency is no longer a suitable organization to conduct negotiations or make arrangements with a view to the adoption of children, having regard to all relevant considerations including the matters referred to in that section; or

(c) on the ground that the approved agency has contravened, or failed to comply with, a provision of this Act that is applicable to it.

(2) Where the approval of a welfare organization as an approved agency is revoked or suspended under subsection (1) , the organization shall not commence or continue arrangements or negotiations for the adoption of a child under this Act.

Effect of cessation or suspension, &c., of approval

14 Effect of cessation or suspension, &c., of approval

Where a welfare organization ceases to be an approved agency or the approval of a welfare organization as an approved agency is revoked or suspended under section 13 (1) –

(a) [Section 14 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] all records and other documents held by it or under its control relating to the arrangement or negotiation of adoptions shall become the property of the Secretary or, if the welfare organization has with his approval entered into an agreement with an approved agency that the approved agency be the successor of the welfare organization, the property of that approved agency; and

(b) [Section 14 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the arrangements or negotiations being undertaken by the first-mentioned approved agency immediately before the cessation, revocation, or suspension shall be continued by the Secretary or the principal officer of the approved agency that is the successor of the first-mentioned approved agency, as the case may be.

Expiration of suspension of approval or authority

15 Expiration of suspension of approval or authority

On the expiration of the period of suspension of the approval of a welfare organization as an approved agency –

(a) [Section 15 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the Secretary may return to the approved agency such documents and records as, by virtue of section 14 (a) , become his property on the suspension; and

(b) [Section 15 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the Secretary may authorize the approved agency to continue such arrangements and negotiations being undertaken by him as he thinks fit, if the arrangements or negotiations are such as, but for the suspension, would have been carried on by the approved agency.

Duty to keep records of adoptions

16 Duty to keep records of adoptions

(1) [Section 16 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The Secretary shall keep records in respect of each adoption negotiated or arranged by him or on his behalf.

(2) The principal officer of an approved agency shall keep records of each adoption negotiated or arranged by the approved agency or on its behalf.

Duties of Secretary and principal officers

17 Duties of Secretary and principal officers

[Section 17 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] In all matters relating to the exercise of their powers and the performance of their duties under this Act, the Secretary and the principal officer of an approved agency shall have regard to adoption as a service for the child concerned.

Division 2

General

Division 2 General

Adoption order to be made on application by Secretary or principal officer

18 Adoption order to be made on application by Secretary or principal officer

(1) [Section 18 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Subject to subsection (2) , an application for an adoption order shall be made by the Secretary or the principal officer of an approved agency on behalf of the prospective adoptive parents.

(2) [Section 18 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where –

(a) a prospective adoptive parent is a spouse of a natural parent or of an adoptive parent of the child proposed to be adopted; or

(b) a prospective adoptive parent is a person who is, or whose spouse is, a relative of the child proposed to be adopted –

only the Secretary is competent to make the application on behalf of the prospective adoptive parent.

Who may be adopted

19 Who may be adopted

(1) [Section 19 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] On application by the Secretary or the principal officer of an approved agency but subject to this Act, the court may make an order for the adoption of a child who –

(a) had not attained the age of 18 years before the date on which the application was filed in the court; or

(b) has been brought up, maintained, and educated by –

(i) the prospective adoptive parent or either of the prospective adoptive parents; or

(ii) the prospective adoptive parent and his or her deceased spouse –

as the child of that parent or, as the case may be, of that parent and his or her spouse –

but the court shall not make an order for the adoption of a child who is, or has been, married.

(2) An order may be made under this Act for the adoption of a child notwithstanding that the child had, whether before or after the commencement of this section, and whether in Tasmania or elsewhere, previously been adopted.

(3) [Section 19 Subsection (3) inserted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] In this section,

spouse includes the person with whom a prospective adoptive parent had a significant relationship which was the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003 , which deed was revoked by the death of the person.

Persons in whose favour adoption orders may be made

20 Persons in whose favour adoption orders may be made

(1) [Section 20 Subsection (1) substituted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] An order for the adoption of a child may be made in favour of two persons who, for a period of not less than 3 years before the date on which the order is made, have been married to each other or have been the parties to a significant relationship which is the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003 .

(2) [Section 20 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 20 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 20 Subsection (2) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] The period of 3 years referred to in subsection (1) may include a period during which the two persons resided together in a stable continuous relationship immediately before their marriage or the registration of the deed of relationship.

(2A) [Section 20 Subsection (2A) inserted by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 20 Subsection (2A) omitted by No. 25 of 2013, s. 4, Applied:18 Jul 2013] . . . . . . . .

(3) [Section 20 Subsection (3) substituted by No. 25 of 2013, s. 4, Applied:18 Jul 2013] The court is not to make an adoption order in favour of a person who is, or persons either of whom is –

(a) the mother of the child; or

(b) [Section 20 Subsection (3) amended by No. 7 of 2019, s. 4, Applied:08 May 2019] a man who, under section 29(2) or (3) , is an appropriate person to give consent to the adoption of the child; or

(c) a woman who, under section 29(4A) , is an appropriate person to give consent to the adoption of the child.

(4) Subject to this section, where the court is satisfied that exceptional circumstances exist in relation to the welfare and interests of the child which make it desirable to do so, the court may make an adoption order in favour of one person.

(5) The court shall not make an adoption order in favour of one person –

(a) [Section 20 Subsection (5) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] if that person is married or in a significant relationship referred to in subsection (1) , unless that person is living separately and apart from his or her spouse; or

(b) [Section 20 Subsection (5) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] if that person is married or in a significant relationship referred to in subsection (1) and is living with his or her spouse, except with the consent of that spouse.

(6) Subject to subsection (7) , an adoption order may be made in favour of the spouse of a natural parent, or of an adoptive parent, of the child concerned.

(7) Where an application is made for an adoption order in favour of the spouse of a parent, or of an adoptive parent, of a child and there is an appropriate person within the meaning of section 29 to give consent to the adoption, the court shall not make an adoption order unless it is satisfied that –

(a) [Section 20 Subsection (7) amended by No. 17 of 1996, Applied:23 Jan 2002] the making of an order by a court of competent jurisdiction for the custody or guardianship of the child would not make adequate provision to serve the welfare and interests of the child; and

(b) an order for the adoption of the child would better serve the welfare and interests of the child; and

(c) special circumstances exist which warrant the making of the adoption order.

(8) On the making of an adoption order under subsection (7) relating to a child, the spouse shall be deemed to be a parent of the child jointly with that parent or adoptive parent as if the spouse and that parent or adoptive parent had been married to each other at the time the child was born but, notwithstanding section 50 –

(a) [Section 20 Subsection (8) amended by No. 17 of 1996, Applied:23 Jan 2002] the child is not to be treated in law as if the child were not the child of that parent or adoptive parent; and

(b) [Section 20 Subsection (8) amended by No. 17 of 1996, Applied:23 Jan 2002] that parent or adoptive parent is not to be treated in law as if the parent or adoptive parent were not a parent of that child; and

(c) [Section 20 Subsection (8) amended by No. 17 of 1996, Applied:23 Jan 2002] the relationship between the child and that parent or adoptive parent is not terminated; and

(d) if that parent or adoptive parent is the guardian of the child, the order does not terminate the guardianship; and

(e) if, immediately before the adoption order is made, the child was the adopted child of that adoptive parent, the order does not terminate that adoption.

Orders in favour of relatives

21 Orders in favour of relatives

The court shall not make an order for the adoption of a child in favour of a person who, or whose spouse, is a relative of the child or in favour of 2 persons who are relatives, or one of whom is a relative, of the child unless the court is satisfied that –

(a) [Section 21 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 21 Amended by No. 17 of 1996, Applied:23 Jan 2002] the making of an order under the Children, Young Persons and Their Families Act 1997 for the custody or guardianship of the child would not make adequate provision for the welfare and interests of the child; and

(b) an order for the adoption of the child would better serve the welfare and interests of the child; and

(c) special circumstances exist which warrant the making of the adoption order.

Age of adoptive parents

22 Age of adoptive parents

(1) [Section 22 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The court shall not make an order for the adoption of a child in favour of a person who, or 2 persons either of whom, is less than 18 years older than the child unless the court, on the recommendation of the Secretary or the principal officer of an approved agency, considers that there are circumstances relating to the needs of the child which make it desirable to make the adoption order.

(2) Subsection (1) does not apply in relation to the proposed adoption of a child –

(a) who has attained the age of 18 years; or

(b) by a spouse of a natural parent of the child, by a person who is, or whose spouse is, a relative of the child, or by 2 persons who are relatives of the child.

Wishes of child

23 Wishes of child

Subject to this Division, an order for the adoption of a child shall not be made unless the court is satisfied that, so far as practicable, the wishes and feelings of the child have been ascertained and due consideration given to them, having regard to the age and understanding of the child.

Court to be satisfied as to certain matters

24 Court to be satisfied as to certain matters

(1) [Section 24 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The court shall not make an order for the adoption of a child unless the court has received a report in writing on behalf of the Secretary or the principal officer of an approved agency concerning the proposed adoption and, after considering the report and any other evidence before it, the court is satisfied that –

(a) [Section 24 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] [Section 24 Subsection (1) amended by No. 47 of 2007, s. 4, Applied:29 Nov 2007] the prospective adoptive parents –

(i) satisfy the prescribed requirements relating to approval of adoptive parents; or

(ii) satisfy those prescribed requirements as varied by the Secretary under subsection (6) ; and

(b) [Section 24 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 24 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] [Section 24 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] the Secretary or principal officer has given consideration so far as practicable to any wishes expressed by a parent of the child, particularly in relation to the religion, marital status, sexual orientation, race, or ethnic background of the prospective adoptive parents of the child; and

(c) [Section 24 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the Secretary or principal officer has given consideration to –

(i) any wishes expressed by a parent of the child at the time when consent to the adoption was given or dispensed with about access to, or information about, the child, including notification in the event of the death of the child; and

(ii) any arrangements agreed between a parent of the child and the prospective adoptive parents of the child for access to the child or for the giving of information about the child; and

(d) the welfare and interests of the child will be promoted by the adoption.

(2) Subsection (1) does not apply in relation to an order under section 19 for the adoption of a child who has attained the age of 18 years before the making of the order but the court shall not make an adoption order in such a case unless it is satisfied that special circumstances exist in relation to the welfare and interests of the child which make it desirable that the child should be adopted.

(3) [Section 24 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] [Section 24 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The report on behalf of the Secretary or the principal officer of an approved agency may be made by the Secretary or the principal officer of an approved agency or by a person authorized by the Secretary or principal officer in writing, either generally or in any particular case.

(4) [Section 24 Subsection (4) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] Except in the case of an adoption referred to in subsection (5) , the court shall not make an order for the adoption of a child unless the court has received a report in the prescribed form as to the physical and mental condition of the child, signed by a medical practitioner who examined the child not more than 60 days before the date on which the application for the order was filed in the court.

(5) Subsection (4) does not apply in relation to the proposed adoption of a child –

(a) who has attained the age of 18 years; or

(b) by a spouse of a natural parent of the child, by a person who is, or whose spouse is, a relative of the child, or by 2 persons who are relatives of the child.

(6) [Section 24 Subsection (6) inserted by No. 47 of 2007, s. 4, Applied:29 Nov 2007] At his or her own discretion or on written application by a principal officer, the Secretary in writing may vary the prescribed requirements relating to approval of particular prospective adoptive parents, by altering or omitting any one or more of those prescribed requirements, if the Secretary is satisfied that there are special circumstances relevant to the needs of a particular child.

Notice of application for adoption orders

25 Notice of application for adoption orders

(1) [Section 25 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The court shall not make an order for the adoption of a child unless not less than 28 days' notice of the application has been given by the Secretary or the principal officer of an approved agency –

(a) [Section 25 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] to any person whose consent to the adoption of the child is required under section 29 but whose consent has not been given, whether or not that consent has been dispensed with under section 37 ; or

(b) to any person who is not a parent of a child but is a guardian of the child; or

(c) to any person, other than one of the prospective adoptive parents, with whom the child resides or who has the care, custody, or control of the child unless the consent of that person to the adoption of the child is required under section 29 .

(2) A notice referred to in subsection (1) shall not specify the names of the prospective adoptive parents or otherwise identify them.

(3) [Section 25 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The court may, on application in writing, by the Secretary or the principal officer of an approved agency, dispense with the giving of a notice under subsection (1) .

(4) Where it appears to the court to be necessary in the interests of justice so to do, the court may direct that notice of an application for an adoption order be given to any person.

Parties to proceedings for adoption order

26 Parties to proceedings for adoption order

Where an application is made to the court for an order for the adoption of a child, the court may permit such persons as the court thinks fit to be joined as parties to the proceedings for the purpose of opposing the application or of opposing an application to dispense with the consent of a person.

Custody, &c., after refusal of application for adoption order

27 Custody, &c., after refusal of application for adoption order

(1) Where the court refuses an application for an order for the adoption of a child, the court may make such order for the care, custody, and control of the child as it thinks fit.

(2) [Section 27 Subsection (2) substituted by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Without limiting the order that a court may make under subsection (1) , the court under that subsection may make an order placing the child under the guardianship of the Secretary for the period specified in the order.

(3) [Section 27 Subsection (3) omitted by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] . . . . . . . .

Discharge of adoption orders

28 Discharge of adoption orders

(1) In this section –

adoption order includes an adoption order made under the repealed Act or any corresponding previous enactment;

[Section 28 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 28 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] eligible person means the adopted person to whom an adoption order relates, a natural parent of the adopted person, an adoptive parent of the adopted person, the Secretary, or the principal officer of an approved agency by which the adoption was arranged –

and a reference to special circumstances includes a reference to an irretrievable breakdown of the relationship between the adoptive parents and the adopted person.

(2) An eligible person may apply to the court for an order discharging an adoption order on the grounds –

(a) that the adoption order or a consent for the purposes of the adoption order was obtained by fraud, duress, or other improper means; or

(b) that special circumstances exist in relation to the welfare and interests of the person why the adoption order should be discharged.

(3) Where an application is made under subsection (2) , the court shall, if satisfied that there may be grounds on which an order may be made, direct that an investigation be made into the circumstances under which the application is made.

(4) [Section 28 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] An investigation under subsection (3) shall be made by the Secretary and, where the court so directs, by a person nominated by the Attorney-General.

(5) If, after consideration of a report of an investigation carried out under subsection (3) , the court is satisfied that the adoption order should be discharged, the court shall make an order for the discharge of the adoption but shall not make such an order if it appears to the court that it would be prejudicial to the welfare and interests of the adopted person to do so.

(6) Where the court makes an order discharging an adoption order, any consent given under this Act for the purposes of the adoption of the person to whom the adoption order relates ceases to have effect unless the court otherwise orders.

(7) Where the court makes an order under this section in respect of an adopted person, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or the welfare and interests of the person, including orders relating to –

(a) [Section 28 Subsection (7) amended by No. 17 of 1996, Applied:23 Jan 2002] the name of the person; and

(b) [Section 28 Subsection (7) amended by No. 17 of 1996, Applied:23 Jan 2002] the ownership of property; and

(c) the care, control, custody, or guardianship of the person; and

(d) the domicile of the person.

(8) On the making of an order under this section discharging an adoption order, but subject to an order made under subsection (7) and to section 50 (2) , the rights, privileges, duties, liabilities, and relationships of the person to whom the adoption order relates and of all other persons shall be the same as if that order had not been made, but without prejudice to –

(a) [Section 28 Subsection (8) amended by No. 17 of 1996, Applied:23 Jan 2002] anything lawfully done; or

(b) the consequences of anything unlawfully done; or

(c) a proprietary right or interest that became vested in a person –

while the adoption order was in force.

Division 3

Consents to adoptions

Division 3 Consents to adoptions

Consents required to adoption

29 Consents required to adoption

(1) Subject to this Division, the court shall not make an order for the adoption of a child unless the court is satisfied –

(a) that consent to the adoption has been given in accordance with this Division by the appropriate person or persons ascertained in accordance with this section, that the consent has not been revoked, and that the requirements of section 31 have been complied with; or

(b) that there is not an appropriate person within the meaning of this section to give consent to the adoption –

or unless the court dispenses with any such consent.

(2) [Section 29 Subsection (2) amended by No. 7 of 2019, s. 5, Applied:08 May 2019] In the case of a child whose mother was married to a man at the time of its birth or at or after the time of its conception but before its birth and who has not previously been adopted, the appropriate persons are the mother and the father of the child.

(3) *[Section 29 Subsection (3) amended by No. 24 of 1994, s. 5 ]*In the case of a child whose parents were not so married to each other and who has not previously been adopted, the appropriate persons are the mother of the child and a man –

(a) [Section 29 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] whose name is entered in the entry relating to the child in a register of births, whether in Tasmania or in a place outside Tasmania, as the father of the child, so long as that entry was made before the expiration of a period of 30 days commencing on the day when consent to the adoption was given in accordance with this Division by the mother of the child (the last day of which period is in this subsection referred to as "the relevant day"); or

(b) [Section 29 Subsection (3) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 29 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] [Section 29 Subsection (3) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] who is declared to be the father of the child under a declaration of parentage in force under section 10 of the Status of Children Act 1974 , if before the relevant day a copy of the declaration is filed in the office of the Registrar under section 9 (3) of that Act; or

(c) [Section 29 Subsection (3) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 29 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] [Section 29 Subsection (3) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] . . . . . . . .

(d) [Section 29 Subsection (3) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] who is named in an instrument filed before the relevant day in the office of the Registrar under section 9 (1) of the Status of Children Act 1974 that acknowledges that he is the father of the child; or

(da) [Section 29 Subsection (3) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] with whom the mother was in a significant relationship, within the meaning of the Relationships Act 2003 , at the time of its birth or at or after the time of its conception but before its birth; or

(e) [Section 29 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] who has before the relevant day lodged with the Secretary or with the approved agency by which the arrangements for the adoption are being made evidence that –

(i) [Section 29 Subsection (3) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] he is conclusively presumed to be a parent of the child under section 8B(1) of the Status of Children Act 1974 ; or

(ii) he is, or has at any time been, liable, under an order of the Family Court of Australia for the maintenance of the child; or

(iia) he is, or has at any time been, liable for child support for the child under the Child Support (Assessment) Act 1989 of the Commonwealth; or

(iii) he has at any time, under an order of the Family Court of Australia, been granted access to, or custody or guardianship of, the child.

(4) Where there is evidence that a particular man is not the father of a child, that man is not, by reason only of paragraph (e) of subsection (3) , an appropriate person for the purposes of that subsection in the case of that child.

(4A) [Section 29 Subsection (4A) amended by No. 7 of 2019, s. 5, Applied:08 May 2019] [Section 29 Subsection (4A) amended by No. 7 of 2019, s. 5, Applied:08 May 2019] [Section 29 Subsection (4A) amended by No. 7 of 2019, s. 5, Applied:08 May 2019] [Section 29 Subsection (4A) inserted by No. 73 of 2009, Sched. 1, Applied:01 Jan 2010] In the case of a child whose mother was married to, or in a significant relationship, within the meaning of the Relationships Act 2003 , with, a woman at the time of the child's birth or at or after the time of its conception but before its birth and the child has not previously been adopted, the appropriate persons are the parties to that marriage or relationship if –

(a) [Section 29 Subsection (4A) amended by No. 7 of 2019, s. 5, Applied:08 May 2019] the child was born as a result of a fertilization procedure to which the female partner in the marriage or significant relationship with the mother had given consent; or

(b) there is no man required to give consent under subsection (3) .

(5) In the case of a child who has previously been adopted, the appropriate persons are the adoptive parents of the child.

(6) In the case of a child who is a non-citizen child, the appropriate person is –

(a) the person who, under the Immigration (Guardianship of Children) Act 1946 of the Commonwealth, is the guardian of the child; or

(b) where that guardian has, under that Act, delegated his powers and functions as guardian to another person, that other person.

(7) This section does not apply in relation to a person who has attained the age of 18 years before the making of the adoption order.

Manner of giving consent

30 Manner of giving consent

(1) Subject to this Division, a consent by a person, except a guardian as mentioned in section 29 (6) , is given in accordance with this Division where –

(a) the person has signed the prescribed form of consent in the presence of –

(i) a prescribed person; and

(ii) [Section 30 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] a person approved for the purpose by the Secretary or the principal officer of an approved agency; and

(b) the persons in whose presence the form of consent was signed have signed the prescribed statements.

(2) If a consent by a person is given in a country outside Australia, the consent is given in accordance with this Division where –

(a) the person has signed the prescribed form of consent in the presence of 2 persons each of whom is –

(i) [Section 30 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] an Australian Diplomatic Officer within the meaning of the Consular Fees Act 1955 of the Commonwealth; or

(ii) [Section 30 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] a judge of a court in that country; or

(iii) a magistrate in that country; or

(iv) a notary public in that country; and

(b) the 2 persons in whose presence the form of consent was signed have signed the prescribed statements.

Requirements to be complied with

31 Requirements to be complied with

(1) Before a consent is given for the purposes of this Division by a person who is not a guardian as mentioned in section 29 (6) –

(a) [Section 31 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 31 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the person shall receive counselling from a person approved for the purpose by the Secretary or the principal officer of an approved agency; and

(b) not less than 24 hours before the consent is given, the person by whom that counselling was given shall give the person information in writing in the prescribed form about the effect of an adoption order, the alternatives to adoption, and the provisions of this Act relating to revocation of consent; and

(c) [Section 31 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 31 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 31 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] notice in writing shall be given to the person that the person may, at any time before an adoption order is made, apply subject to, and in accordance with, the Births, Deaths and Marriages Registration Act 1999 for a certified copy of, or extract from, an entry in the register relating to the child.

(2) [Section 31 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The Secretary or the principal officer of an approved agency shall, as soon as practicable after receiving a consent given for the purposes of this Division, give a copy of that consent to the person who signed it.

(3) [Section 31 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] A certificate signed by the Secretary or the principal officer of an approved agency to the effect that the requirements referred to in subsection (1) have been complied with is evidence of that fact.

(4) Where a consent is given in a place outside Tasmania, the requirements referred to in subsections (1) and (2) do not apply.

Consent by guardian under section 29 (6)

32 Consent by guardian under section 29 (6)

A consent by a person who is a guardian, or the delegate of a guardian, of a non-citizen child as mentioned in section 29 (6) is given in accordance with this Division where the person has signed the prescribed form of consent and a declaration that the person believes on reasonable grounds that the child was given for adoption in accordance with the law of the country in which the child was residing at the time when it was placed in the care of the prospective adoptive parents.

Consents to be construed as general consents

33 Consents to be construed as general consents

(1) Subject to subsection (2) , a consent to the adoption of a child shall, for the purposes of this Act, be construed as a consent to the adoption of the child by persons in whose favour an adoption order may be made under this Act in respect of the child and is a valid consent notwithstanding that an application in respect of the child has not been made or contemplated or, if an application has been so made, that the person giving the consent does not know the identity of the prospective adoptive parents.

(2) A consent to the adoption of a child by a relative of the child, or by a spouse of a parent of the child, shall be construed as a consent to the adoption of the child by that relative or spouse only.

Consents given under law of another State or a Territory

34 Consents given under law of another State or a Territory

Where –

(a) a person whose consent to the adoption of a child is required by section 29 has, in accordance with the law of another State or of a Territory, duly signed an instrument of consent to the adoption of the child; and

(b) the consent evidenced by the instrument of consent has not been revoked in accordance with the law of that other State or Territory –

that instrument of consent shall, for the purposes of this Act, be deemed to be an instrument executed in accordance with this Division evidencing a consent, in accordance with section 29 (1) , to the adoption of the child.

Revocation of consents

35 Revocation of consents

(1) [Section 35 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] A consent to the adoption of a child given for the purposes of this Act by a person may be revoked by notice in writing served on the Secretary before the expiration of 30 days after the date on which the instrument of consent was signed and not otherwise.

(2) [Section 35 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Service of a notice on the Secretary under subsection (1) shall be effected by delivering it personally or be sending it to him by certified mail.

(3) [Section 35 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] On receiving notice in writing of the revocation of a consent to the adoption of a child, the Secretary shall, if it appears to him that the consent was given to the principal officer of an approved agency, forthwith deliver or send by post a copy of the notice to that officer.

(4) [Section 35 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where the Secretary releases a child to the parents or to one of the parents of the child as mentioned in section 40 (1) (c) , any consent given to the adoption of that child, is, by force of this subsection, revoked.

Defective consents

36 Defective consents

(1) The court shall not make an adoption order in reliance on a consent given or purporting to have been given by a person if it appears to the court that –

(a) [Section 36 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the consent was not given in accordance with this Act; or

(b) [Section 36 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the consent was obtained by fraud, duress, or other improper means; or

(c) [Section 36 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the consent was revoked at a time when it was lawful to do so; or

(d) [Section 36 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the instrument of consent has been altered in a material particular without authority; or

(e) the person giving or purporting to give the consent was not, when the instrument of consent was signed, in a fit condition to give the consent or did not understand the nature of the consent; or

(f) the instrument of consent was signed before the birth of the child to whom it relates.

(2) A court shall not make an adoption order in reliance on an instrument of consent signed by the mother of the child to whom it relates on, or within 7 days after, the day on which the child was born unless it is proved that, at the time the instrument was signed, the mother was in a fit condition to give the consent.

(3) [Section 36 Subsection (3) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] For the purposes of subsection (2) , a certificate of a medical practitioner stating that, at the time when an instrument of consent was signed by the mother of the child to whom it relates, the mother was in a fit condition to give the consent is evidence of that fact.

Court may dispense with consents

37 Court may dispense with consents

(1) [Section 37 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] Where, on application by the Secretary or the principal officer of an approved agency, the court is satisfied –

(a) [Section 37 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] that a person whose consent to the adoption of a child is required under this Division cannot, after reasonable inquiry, be found; or

(b) [Section 37 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] [Section 37 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] by a certificate signed by not less than 2 medical practitioners, that any such person is, and is unlikely to cease to be, incapable on psychiatric or other medical grounds of properly considering the question whether the person should give consent; or

(c) [Section 37 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] that any such person has abandoned, deserted, persistently neglected, or ill-treated the child; or

(d) [Section 37 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] that any such person has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within, the family of that person; or

(e) [Section 37 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] that any such person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child; or

(f) [Section 37 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] that any such person has such a physical or mental disability or is otherwise so impaired that the person is unable to meet the needs of the child; or

(g) that for any reason the child is unlikely to be accepted into, or to accept, a family relationship with any such person; or

(h) that there are any other special circumstances by reason of which, in the interests of the welfare of the child, the consent of any such person may properly be dispensed with –

the court may dispense with the consent of that person to the adoption of the child unless that person is a guardian of the child as mentioned in section 29 (6) .

(2) [Section 37 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] For the purposes of subsection (1) (a) , where, for the purposes of obtaining the consent of a person to the adoption of a child, the court is satisfied that –

(a) [Section 37 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] a letter seeking that consent has been sent by certified mail addressed to that person at his last known place of residence; and

(b) [Section 37 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 37 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] a letter seeking that consent has been sent by certified mail addressed to that person at the address of such other person (if any) as the Secretary or the principal officer of an approved agency believes may know where the first-mentioned person may be found; and

(c) [Section 37 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] the address of that person cannot be found on a roll of electors under the Commonwealth Electoral Act 1918 of the Commonwealth; and

(d) notice to that person that consent of that person is sought has been published in a newspaper circulating generally in the area where the last known place of residence of that person is situated; and

(e) inquiries have been made of such persons, bodies, agencies, and government departments as might reasonably be expected to have known where that person may be found –

and the court is also satisfied that the Secretary or principal officer has been unable to find that person and that such other inquiries as the court may determine have been made, the court shall determine that reasonable inquiry has been made for that person and that the person cannot be found.

(3) [Section 37 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The court shall not make an order under subsection (1) dispensing with the consent of a person to the adoption of a child unless the court has received and taken into consideration a report from the Secretary or the principal officer of an approved agency as to –

(a) the circumstances in which the application for dispensation is made and the grounds for the application; and

(b) whether the dispensation of consent and the proposed adoption would serve the welfare and interests of the child concerned.

(4) [Section 37 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] An order under subsection (1) dispensing with consent may, on application by, or on behalf of, the Secretary, the principal officer of an approved agency, or the person whose consent was dispensed with, be revoked by the court at any time before the making of the adoption order concerned.

Person who gives consent to be given notice of certain events

38 Person who gives consent to be given notice of certain events

(1) [Section 38 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where a person, except a guardian as mentioned in section 29 (6) , has given consent for the purposes of this Division, the Secretary or the principal officer of an approved agency shall, as soon as practicable after the occurrence of any of the following events, give notice in writing to the person of that event:

(a) the placement of the child to whom the consent relates with the prospective adoptive parents;

(b) the termination of such a placement;

(c) [Section 38 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the renunciation by the Secretary of guardianship of the child;

(d) the making of an adoption order relating to the child;

(e) where the child to whom the consent relates dies before an adoption order is made, the death of the child.

(2) [Section 38 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where the Secretary or the principal officer of an approved agency is of opinion that placement of the child as mentioned in subsection (1) (a) is no longer possible, he shall, as soon as practicable, give notice in writing of his opinion to any person who has given consent for the purposes of this Division.

(3) [Section 38 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Except in the case of renunciation of guardianship, the Secretary or principal officer is not required to give notice under subsection (1) or (2) to a person who has, in writing, whether in the instrument of consent or otherwise, expressed the wish not to be given notice of an event or opinion mentioned in either of those subsections.

(4) [Section 38 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where the Secretary or the principal officer of an approved agency is notified of the death of an adopted person, he shall take such steps as are reasonably practicable to transmit that notification to each parent of the person who gave consent to the adoption.

38A

Validation of consents

38A Validation of consents

[Section 38A Inserted by No. 13 of 1999, s. 4, Applied:30 Apr 1999] A consent to an adoption purported to have been given in accordance with section 30(1)(a) in the period from 15 May 1992 to 27 December 1995 is not invalid by reason only of the fact that a person in whose presence the consent was given was not at the time approved by the Director under section 30(1)(a)(ii) .

Division 4

Care of child pending adoption

Division 4 Care of child pending adoption

Care of child pending adoption

39 Care of child pending adoption

(1) [Section 39 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The Secretary or the principal officer of an approved agency may, in accordance with this section, exercise rights of custody in respect of a child who is proposed to be adopted.

(2) [Section 39 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where –

(a) the consent of a person to the adoption of a child has been given but an adoption order in respect of that child can not be made unless the consent of another person is given or dispensed with under this Act; or

(b) [Section 39 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] it appears to the Secretary or the principal officer of an approved agency that a person whose consent is required under this Act to the adoption of a child proposes to give that consent –

a person who has the custody or guardianship of the child may, in writing, authorize the Secretary or principal officer to exercise any rights of custody in respect of the child.

(3) [Section 39 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] An authority given under subsection (2) ceases –

(a) [Section 39 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 39 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] on the expiration of a period of 6 months after the authority is given or, if that period is extended for a further period of 6 months by an agreement in writing between the person who gave the authority and the Secretary or principal officer, on the expiration of that further period; or

(b) [Section 39 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] if a person who has given consent to the adoption revokes that consent; or

(c) [Section 39 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] when all consents required for the adoption have been given or dispensed with; or

(d) if the person who gave the authority revokes it; or

(e) if the person who gave the authority ceases to be entitled to custody or guardianship of the child –

whichever first occurs, and on the cessation of that authority pursuant to paragraph (a) , (b) , (d) , or (e) , the Secretary or principal officer shall –

(f) deliver the child to a person who at that time is entitled to the custody or guardianship of the child; or

(g) [Section 39 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] where such a person cannot after reasonable inquiry be found, apply under the Children, Young Persons and Their Families Act 1997 for a care and protection order granting guardianship of the child to the Secretary.

Guardianship of child awaiting adoption

40 Guardianship of child awaiting adoption

(1) [Section 40 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where each person whose consent to the adoption of a child is required under section 29 has consented to the adoption of the child or the consent has been dispensed with under this Act, the Secretary shall be the guardian of the child for all purposes other than the purposes of that section to the exclusion of all other persons until –

(a) [Section 40 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] an adoption order is made in respect of the child; or

(b) [Section 40 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 40 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the Secretary renounces guardianship of the child under section 41 ; or

(c) [Section 40 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 40 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the Secretary, by writing under his hand, releases the child to the parents or to one of the parents of the child; or

(d) in the case of any consent so given, the instrument of consent is lawfully revoked; or

(e) a court of competent jurisdiction, by order, makes other provision for the guardianship of the child.

(2) Subsection (1) does not apply to, or in relation to –

(a) [Section 40 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] a child the adoption of whom by a spouse of a parent of the child or by a relative, or by a relative and the spouse of the relative, of the child is being negotiated or arranged; or

(b) [Section 40 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] a child who is under the guardianship of the Secretary by reason of –

(i) a care and protection order made under the Children, Young Persons and Their Families Act 1997 ; or

(ii) the assumption of guardianship under section 76 of that Act; or

(c) a child unless and until –

(i) [Section 40 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the Secretary has received notice in writing that a general consent to the adoption of the child has been given; and

(ii) [Section 40 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the Secretary has signified his acceptance of the guardianship of the child.

Renunciation of guardianship for adoption of child in another State

41 Renunciation of guardianship for adoption of child in another State

(1) [Section 41 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 41 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 41 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where the Secretary receives from an officer in another State or a Territory whose powers, functions, and duties correspond with those of the Secretary under this Act –

(a) [Section 41 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] notice that an application will be made in that State or Territory under a law corresponding with this Act for the adoption of a child who is under the guardianship of the Secretary by virtue of section 40 ; and

(b) [Section 41 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] a request that the Secretary renounce guardianship of the child –

the Secretary may, if consent to the adoption has become irrevocable or has been dispensed with under section 37 and he is satisfied that it is in the best interests of the child to do so, by instrument in writing under his hand, renounce guardianship of the child.

(2) [Section 41 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] On signing an instrument of renunciation under subsection (1) , the Secretary shall send it by certified mail to the officer of the other State or Territory from whom the notice referred to in that subsection was received, together with the consent to adoption executed in Tasmania in respect of the child by virtue of which the Secretary is the guardian of the child unless that consent has been dispensed with by an order under section 37 .

(3) [Section 41 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] On the posting of an instrument of renunciation under subsection (2) together with the consent to adoption of the child (if any) affected by the renunciation, the Secretary ceases to be the guardian of that child for the purposes of this Act.

(4) [Section 41 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where an application is to be made under this Act for the adoption of a child who is under the guardianship of some officer or person in another State or in a Territory pursuant to any law corresponding with this Act whose powers, functions, and duties correspond with those of the Secretary under this Act, the Secretary may notify that officer or person of the application and request him to renounce in writing guardianship of the child and to forward to the Secretary for use in the proceedings on the application the consent executed in that State or Territory with respect to the child.

(5) [Section 41 Subsection (5) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] On receiving from any such officer or person an instrument in writing executed by him renouncing the guardianship of a child referred to in subsection (4) , the Secretary shall become the guardian of the child in all respects as if the consent to adoption executed outside Tasmania and forwarded with the instrument of renunciation were a consent given in accordance with Division 3 in Tasmania on the day when the consent purports to have been signed and attested outside Tasmania.

(6) [Section 41 Subsection (6) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where an application is to be made under this Act for the adoption of a child who, pursuant to the law of another State or a Territory corresponding with this Division, is under the guardianship of an officer in that State or Territory whose powers, functions, and duties correspond with those of the Secretary under this Act, but the consent to adoption has been dispensed with under a law corresponding with section 37 , the requirement of a consent to adoption under this Part is deemed to have been dispensed with under that section.

Guardianship of non-citizen child

42 Guardianship of non-citizen child

(1) [Section 42 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 42 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where –

(a) a non-citizen child is present in Tasmania;

(b) [Section 42 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the Secretary is authorized to make arrangements with a view to the adoption of the child; and

(c) [Section 42 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] it appears to the Secretary that there is not a person in Australia who is a guardian of the child –

the Secretary may make application to the court for an order that the Secretary shall be the guardian of the child.

(2) [Section 42 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where the court, on an application under subsection (1) , makes an order that the Secretary shall be the guardian of a child, the Secretary shall be the guardian of the child for all purposes to the exclusion of all other persons as if the Secretary had become the guardian of the child by reason of the operation of section 40 and shall cease to be the guardian in the same manner as he would cease to be a guardian of a child under that section or section 41 .

Miscellaneous provisions as to care, control, placement, &c., of child

43 Miscellaneous provisions as to care, control, placement, &c., of child

(1) [Section 43 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 43 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where the Secretary has become and remains for a period of 12 months the guardian of a child under section 40 or 42 or the Secretary continues to be the guardian of a child as mentioned in subsection (2) –

(a) [Section 43 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the Secretary shall make a report in writing to the court concerning the welfare and interests of the child; and

(b) the court shall make such order for the care, control, and custody of the child as it thinks fit.

(2) [Section 43 Subsection (2) substituted by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Without limiting the orders the court may make under subsection (1)(b) , the court may make a care and protection order under the Children, Young Persons and Their Families Act 1997 .

(3) [Section 43 Subsection (3) omitted by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] . . . . . . . .

(4) [Section 43 Subsection (4) omitted by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] . . . . . . . .

(5) [Section 43 Subsection (5) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The fact that the Secretary is the guardian of a child under this Division does not affect the liability of any other person to provide adequate means of support for the child.

Duty of principal officer to report to Secretary

44 Duty of principal officer to report to Secretary

[Section 44 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where –

(a) an approved agency has made, or is making, arrangements or negotiations for, towards, or with a view to, the adoption of a child; and

(b) [Section 44 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] a period of 9 months has elapsed since the Secretary has signified his acceptance of guardianship of the child –

the principal officer of that approved agency shall, within 14 days after the expiration of that period, furnish the Secretary with a report in writing concerning the welfare and interests of the child.

Natural parent's right of access after consent

45 Natural parent's right of access after consent

(1) [Section 45 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] A parent of the child who has given consent to the adoption of the child may, notwithstanding that the Secretary is the guardian of the child under this Division but subject to subsection (2) , visit the child during the period during which the consent may be revoked.

(2) [Section 45 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The Secretary or the principal officer of an approved agency may, by notice in writing given to a parent who has given consent to the adoption of a child, restrict the occasions on which or times at which that parent may, under this section, visit the child.

Division 5

Adoption of non-citizen children

Division 5 Adoption of non-citizen children

Orders for adoption of non-citizen children

46 Orders for adoption of non-citizen children

The court shall not make an order for the adoption of a non-citizen child unless the court is satisfied as to the matters referred to in section 24 and is also satisfied –

(a) [Section 46 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] that the persons in whose favour the order is made are persons both of whom were approved by the Secretary as persons suitable to adopt a non-citizen child before the child came into, or was placed in, the care of those persons and that the placement of the child with a view to adoption by those persons has been approved by the Secretary; or

(b) [Section 46 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] that the child has been in the care of the persons in whose favour the order is made for the preceding 12 months and that, during that period, the Secretary has supervised the welfare and interests of the child.

Supervision of certain children adopted overseas

47 Supervision of certain children adopted overseas

(1) [Section 47 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Subject to subsection (2) , where –

(a) [Section 47 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] a child is adopted in a country, other than New Zealand, outside Australia, whether or not the adoption has, under this Act, the same effect as an adoption order under this Act; and

(b) [Section 47 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the adoption in relation to the child has been in force for a period not exceeding 12 months; and

(c) either of the adoptive parents of the child had not been resident in the country in which the order was made for a continuous period of 12 months immediately before the making of that order; and

(d) the child is present in Tasmania –

the Secretary may supervise the welfare and interests of the child –

(e) for a period not exceeding 12 months commencing on the date of the arrival of the child in Tasmania; and

(f) if, on the expiration of that period, the child remains subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth, until an adoption order is made in respect of the child or the child otherwise ceases to be subject to that Act.

(2) [Section 47 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The Secretary may exempt a child to whom subsection (1) would otherwise apply from the application of that subsection.

Supervision of certain non-citizen children

48 Supervision of certain non-citizen children

(1) [Section 48 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Subject to subsection (2) , where a non-citizen child is in the care of prospective adoptive parents with a view to adoption by them, the Secretary may supervise the welfare and interests of the child –

(a) [Section 48 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] for a period not exceeding 12 months commencing on the date on which the Secretary is notified of the placement of the child in their care; and

(b) if, on the expiration of that period, the child remains subject to the Immigration (Guardianship of Children) Act 1946 of the Commonwealth, until an adoption order is made in respect of the child or the child otherwise ceases to be subject to that Act.

(2) [Section 48 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The Secretary may exempt a child to whom subsection (1) would otherwise apply from the application of that subsection.

(3) [Section 48 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] A person authorized by the Secretary for the purpose has a right of access to a child referred to in section 47 (1) or in subsection (1) of this section at all reasonable times during the period when the Secretary may supervise the welfare and interests of the child.

Part III

Adoption Orders

Part III Adoption Orders

Certificates of adoption

49 Certificates of adoption

On making an adoption order, the court shall issue to the persons in whose favour the order is made a certificate stating the date on which the order was made, the name of the adoptive parents, the name that, under the order, is the name of the adopted person, the place and date of birth of that person and such other matters as the court determines.

General effect of adoption orders

50 General effect of adoption orders

(1) Subject to this Act and to any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, on the making of an adoption order –

(a) [Section 50 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the adopted person shall be treated in law as a child of the adoptive parents and the adoptive parents shall be treated in law as the parents of the adopted person; and

(b) [Section 50 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the adopted person shall be treated in law as if the adopted person were not a child of any person who was a parent (whether natural or adoptive) of the adopted person before the making of the adoption order, and any such person shall be treated in law as if the person were not a parent of the adopted person; and

(c) [Section 50 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] the relationship to one another of all persons, including the adopted person and an adoptive parent or former parent of the adopted person, shall be determined in accordance with this section; and

(d) any guardianship of the adopted person ceases to have effect; and

(e) any previous adoption of the adopted person, whether effected under the law of Tasmania or otherwise, ceases to have effect.

(2) Notwithstanding subsection (1) , where the relationship between persons is relevant for the purposes of any law relating to a sexual offence –

(a) an adoption order, or the discharge of an adoption order, does not cause the cessation of a relationship that would have existed if the adoption order, or the discharge of an adoption order, as the case may be, had not been made; and

(b) any such relationship shall be deemed to exist in addition to any relationship that exists by virtue of the application of that subsection in relation to that adoption order or by virtue of the discharge of that adoption order.

Effect of orders in relation to dispositions of property

51 Effect of orders in relation to dispositions of property

(1) Subsection (1) of section 50 has effect in relation to dispositions of property, whether by will or otherwise, and whether made before or after the commencement of the repealed Act, except that that subsection does not affect –

(a) a disposition of property by a person who, or by persons any of whom, died before that commencement; or

(b) a disposition of property that took effect in possession before that commencement.

(2) Section 50 (1) does not apply to, or in relation to, an agreement or instrument made or executed before the commencement of the repealed Act, unless the agreement or instrument effects a disposition of property.

(3) Where –

(a) [Section 51 Subsection (3) amended by No. 17 of 1996, Applied:23 Jan 2002] before the commencement of the repealed Act, a person made a disposition of property by an instrument other than a will; and

(b) the disposition had not taken effect in possession before that commencement; and

(c) it did not appear from the instrument that it was the intention of that person to include adopted children as objects of the disposition –

that person may, notwithstanding that the instrument could not, but for this subsection or a corresponding previous enactment, be revoked or varied, by a similar instrument vary the first-mentioned instrument to exclude adopted children, whether adopted under this Act or otherwise, from participation in any right, benefit, or privilege under the instrument.

(4) In relation to a disposition of property by a person who, or by persons any of whom, died before the commencement of the repealed Act, an adoption order made under that Act or this Act has effect as if the Adoption of Children Act 1920 were still in force.

(5) Nothing in section 50 or in this section affects the operation of any provision in a will or other instrument, whether made or coming into operation before or after the commencement of the repealed Act, distinguishing between adopted children and children other than adopted children.

Bequest by will to unascertained adopted person

52 Bequest by will to unascertained adopted person

(1) *[Section 52 Subsection (1) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*Where, under a will made after the commencement of this section –

(a) [Section 52 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] a disposition of property is expressed to be made by the testator to a person who is not named but who is described as a child of the testator or of a spouse, parent, child, brother, or sister of the testator; and

(b) the person so described was adopted by another person; and

(c) the personal representative of the testator is unable to ascertain the name and address of the adopted person –

the personal representative shall give to The Public Trustee a copy of the will and a statement that he is unable to ascertain the name and address of the adopted person.

(2) [Section 52 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] *[Section 52 Subsection (2) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*Where The Public Trustee is given a copy of a will under subsection (1) , The Public Trustee shall, by notice in writing given to the Secretary, request the Secretary to make arrangements for ascertaining, and giving to The Public Trustee, the name and address of the adopted person.

(3) [Section 52 Subsection (3) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where the Secretary receives a request under subsection (2) , he shall cause such reasonable inquiries to be made of records in his possession as will show the name and enable the address or, if the adopted person has died, the date of the death, of the adopted person to be ascertained or, if it appears that the information cannot be obtained from inquiries of those records, seek to obtain the information from inquiries of an agency, other body, or person.

(4) [Section 52 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] *[Section 52 Subsection (4) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*If the Secretary ascertains the name of the adopted person, he shall take such steps as are reasonably practicable to ascertain the address or, if the adopted person has died, the date of death of the adopted person and shall inform The Public Trustee of that name and address or date.

(5) [Section 52 Subsection (5) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] *[Section 52 Subsection (5) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*If the Secretary is unable to ascertain the name of the adopted person, he shall so inform The Public Trustee.

(6) [Section 52 Subsection (6) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] *[Section 52 Subsection (6) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*After receiving information from the Secretary under this section, The Public Trustee shall give notice in writing to the personal representative of the testator stating whether or not the name and address of the adopted person has been ascertained or, if the adopted person has died, the date of death of the adopted person.

(7) *[Section 52 Subsection (7) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*Unless the adopted person predeceased the testator or, for any other reason known to the personal representative, is not entitled to an interest under the will, The Public Trustee shall be deemed to be a trustee for the adopted person on the trusts specified in, or arising under, the will and, if the personal representative transfers the property to The Public Trustee as trustee for the adopted person, the personal representative shall be deemed to have transferred the property to the adopted person.

(8) *[Section 52 Subsection (8) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*Where The Public Trustee –

(a) is, under subsection (7) , deemed to be a trustee for an adopted person who is a beneficiary under a will; and

(b) gives the personal representative of the testator under that will a statement in writing to the effect that the adopted person has disclaimed the property to which the adopted person was entitled under that will –

that statement is, for the purposes of the administration of the estate by the personal representative, conclusive evidence that the adopted person has disclaimed the property.

Adoption order not to affect distribution of property by trustees or personal representatives unless notice given

53 Adoption order not to affect distribution of property by trustees or personal representatives unless notice given

(1) Notwithstanding any other provision of this Act, trustees or personal representatives may, subject to this section, convey, transfer, or distribute real or personal property to, or among, the persons appearing to be entitled to the property without having ascertained whether or not an adoption has been effected by virtue of which a person is, or is not, entitled to an interest in the property.

(2) A trustee or personal representative conveying, transferring, or distributing real or personal property in the manner referred to in subsection (1) is not liable to a person claiming directly or indirectly by virtue of an adoption unless the trustee or personal representative has notice of the claim before the time of the conveyance, transfer, or distribution.

(3) Nothing in this section prejudices the right of a person to follow property into the hands of a person, other than a purchaser for value, who has received it.

Names of adopted person

54 Names of adopted person

(1) On the making of an adoption order –

(a) the surname of the adopted person shall be –

(i) [Section 54 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] where there is one adoptive parent, the surname of the adoptive parent; or

(ii) where there are 2 adoptive parents who have the same surname, that surname; or

(iii) where there are 2 adoptive parents who have different surnames, one or both of those surnames –

where that surname or each of those surnames, as the case may be, was specified in the application for the adoption order as the proposed surname of the person and is approved by the court or such other surname as the court approves in the adoption order; and

(b) the forename or forenames of the adopted person shall be such name or names as the court, in the adoption order, approves on the application of the adoptive parents.

(2) Where, before the making of an adoption order, the adopted person has been generally known by a particular surname, the court may, in the adoption order, order that the person shall have that name as his surname.

(3) The court shall not approve a name as a surname or forename of an adopted person unless the court is satisfied that, so far as practicable, the wishes and feelings of the person have been ascertained and due consideration given to them having regard to the age and understanding of the person.

(4) Nothing in this section prevents the changing of a name of an adopted person, after the making of the adoption order, in accordance with any other Act or law.

Effect of adoption order on domicile

55 Effect of adoption order on domicile

The domicile of an adopted child shall be determined in accordance with the Domicile Act 1980 .

Making of interim orders

56 Making of interim orders

(1) On an application to the court for an order for the adoption of a child, the court may postpone the determination of the application and make an interim order for the custody of the child in favour of the prospective adoptive parents.

(2) An interim order may be subject to such terms and conditions relating to the maintenance, education, and welfare of, and access to, the child as the court thinks fit.

(3) The court shall not make an interim order in respect of a child in favour of any person unless the court could lawfully make an order for the adoption of that child by that person.

(4) While an interim order remains in force in respect of a child, a person in whose favour the order is made is entitled to the care, control, and custody of the child.

Duration of interim orders

57 Duration of interim orders

(1) Subject to this Division, an interim order remains in force for such period, not exceeding 12 months, as the court specifies in the order and for such further periods, if any, as the court may from time to time order.

(2) An interim order shall not be in force for periods exceeding in the aggregate 2 years.

Discharge of interim orders

58 Discharge of interim orders

(1) The court may, at any time, make an order discharging an interim order and may make such order as it thinks fit for the care, control, and custody of the child to whom the interim order relates.

(2) An interim order ceases to have effect on the making of an order for the adoption of the child to whom it relates, whether made in Tasmania, in another State, or in a Territory.

Part IV

Recognition of Adoptions

Part IV Recognition of Adoptions

Recognition of Australian and certain foreign adoptions

59 Recognition of Australian and certain foreign adoptions

[Section 59 Substituted by No. 14 of 1999, s. 6, Applied:30 Apr 1999]

(1) In this section,

prescribed place means –

(a) another State; and

(b) a Territory; and

(c) New Zealand; and

(d) a convention country; and

(e) an agreement country.

(2) The adoption of a person which occurred –

(a) before or after the commencement of this section; and

(b) in a place that was a prescribed place at the time of the adoption; and

(c) in accordance with the law of that place at that time –

has, so long as the adoption has not been rescinded under the law in force in that place, the same effect as an adoption order made under this Act and has no other effect.

Recognition of foreign adoptions

60 Recognition of foreign adoptions

(1) [Section 60 Subsection (1) amended by No. 14 of 1999, s. 7, Applied:30 Apr 1999] For the purposes of the law of Tasmania, the adoption of a person, whether before or after the commencement of this section, in a non-convention or non-agreement country that is an adoption to which this section applies, has, so long as it has not been rescinded under the law of that country, the same effect as an adoption order made under this Act.

(2) [Section 60 Subsection (2) amended by No. 14 of 1999, s. 7, Applied:30 Apr 1999] This section applies to an adoption in a non-convention or non-agreement country if –

(a) [Section 60 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] the adoption was effective according to the law of that country; and

(b) [Section 60 Subsection (2) amended by No. 17 of 1996, Applied:23 Jan 2002] that country was the usual place of residence of each of the adoptive parents at the time of the commencement of the legal proceedings that resulted in the adoption and for a continuous period of a least 12 months before that time; and

(c) in consequence of the adoption, the adoptive parents had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that country, a right superior to that of any natural parent of the adopted person in respect of the custody of the adopted person; and

(d) under the law of that country the adoptive parents were, by the adoption, placed generally in the position of parents in relation to the adopted person.

(3) [Section 60 Subsection (3) amended by No. 14 of 1999, s. 7, Applied:30 Apr 1999] The production of a document purporting to be the original or a certified copy of an order or record of adoption made by a court or a judicial or public authority in a non-convention or non-agreement country shall, in the absence of proof to the contrary, be sufficient evidence –

(a) that the adoption was made in that country and is effective according to the law of that country; and

(b) that the adoption has not been rescinded.

(4) Notwithstanding this section, a court, including the Supreme Court hearing an application under section 61 , may refuse to recognize an adoption as being an adoption to which this section applies if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.

(5) Where, in any proceedings before a court, including the Supreme Court hearing an application under section 61 , the question arises whether an adoption is one to which this section applies, it shall be presumed, unless the contrary appears from the evidence, that the adoption complies with the requirements of subsection (2) and has not been rescinded.

(6) [Section 60 Subsection (6) amended by No. 14 of 1999, s. 7, Applied:30 Apr 1999] Except as provided in this section, the adoption of a person, whether before or after the commencement of this section, in a non-convention or non-agreement country does not have effect for the purposes of the law of Tasmania.

(7) Nothing in this section affects any right that was acquired by, or became vested in, a person before the commencement of the repealed Act.

Declarations of validity of foreign adoptions

61 Declarations of validity of foreign adoptions

(1) In this section,

the Court means the Supreme Court.

(2) [Section 61 Subsection (2) amended by No. 14 of 1999, s. 8, Applied:30 Apr 1999] A person specified in subsection (4) may apply to the Court for an order declaring that an adoption of a person was effected, whether before or after the commencement of this section, under the law of a non-convention or non-agreement country and that the adoption is an adoption to which section 60 applies.

(3) The Court may hear and determine an application under subsection (2) and, if it thinks fit, make an order accordingly.

(4) The persons who may make an application under subsection (2) in relation to an adoption are the adopted person, either or both of the adoptive parents, or a person tracing a relationship, by virtue of the adoption, through or to the adopted person.

(5) [Section 61 Subsection (5) amended by No. 17 of 1996, Applied:23 Jan 2002] Where an application is made to the Court under this section, the Court shall direct that notice of the application be given to the Secretary and may –

(a) [Section 61 Subsection (5) amended by No. 17 of 1996, Applied:23 Jan 2002] direct that notice of the application be given to such other persons, who may include the Attorney-General, as the Court thinks fit; or

(b) direct that a person be made a party to the application; or

(c) [Section 61 Subsection (5) amended by No. 17 of 1996, Applied:23 Jan 2002] permit the Secretary or any other person having an interest in the matter to intervene in, and become a party to, the proceedings.

(6) Where the Court makes an order on an application under this section –

(a) it may include in the order such particulars in relation to the adoption, the adopted person, and the adoptive parents as the Court finds to be established; and

(b) it shall issue to the adoptive parents a certificate stating the date on which the order was made, the name of the adoptive parents, the name of the adopted person, and such other matters as the Court determines.

(7) For the purposes of the law of Tasmania, an order under this section binds the Crown in right of Tasmania, but, except as provided in subsection (8) , does not affect –

(a) the rights of another person unless that person was –

(i) a party to the proceedings for the order or a person claiming through such a party; or

(ii) a person to whom notice of the application for the order was given or a person claiming through such a person; or

(b) an earlier judgment, order, or decree of a court of competent jurisdiction.

(8) In proceedings in any court relating to the rights of a person other than a person referred to in subsection (7) (a) (i) or (ii) , the production of a copy of an order made under this section, certified by the Registrar of the Court to be a true copy, is evidence that an adoption was effected in accordance with the particulars contained in the order and that the adoption is an adoption to which section 60 applies.

Part V

Registration of Orders

Part V Registration of Orders

Memorandum of adoption order, &c., to be sent to the Registrar

62 Memorandum of adoption order, &c., to be sent to the Registrar

[Section 62 Amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 62 Amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] As soon as is reasonably practicable after the making of an adoption order or of an order for the discharge of an adoption order, the court shall cause a memorandum of the order in accordance with the prescribed form to be sent to the Registrar.

Record of adoptions and endorsements, &c., to be made in birth registers in relation to adopted person

63 Record of adoptions and endorsements, &c., to be made in birth registers in relation to adopted person

(1) [Section 63 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] The special record formerly kept under section 22F of the Registration of Births and Deaths Act 1895 shall, notwithstanding the amendments made by section 121 , continue in force for the purposes of this Part and shall be kept by the Registrar.

(2) [Section 63 Subsection (2) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] Where the Registrar receives –

(a) a memorandum of an adoption order under section 62 in respect of a person whose birth is registered in Tasmania; or

(b) a memorandum under a law of another State or a Territory corresponding to section 66 relating to the making in that State or Territory of an order for the adoption of any such person –

the Registrar shall re-register the birth in accordance with this section and the particulars specified in that memorandum.

(3) [Section 63 Subsection (3) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] Where –

(a) a person whose birth is registered in Tasmania has been adopted in a place outside Australia; and

(b) the order for adoption is an order to which section 60 applies –

the Registrar shall –

(c) on application by the adopted person or a person in favour of whom the order was made; and

(d) on production of a document purporting to be the relevant adoption order or some other document relating to an adoption order in respect of that person made in a place outside Australia –

re-register the birth in accordance with this section and the particulars specified in that document.

(4) A re-registration of the birth of an adopted person for the purposes of this section shall be made –

(a) by an entry in the prescribed form in the special record and by endorsing that entry with –

(i) a reference to this section; and

(ii) [Section 63 Subsection (4) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 63 Subsection (4) amended by No. 17 of 1996, Applied:23 Jan 2002] a reference in the prescribed form identifying the entry of birth of that person as shown in the register; and

(b) [Section 63 Subsection (4) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] by endorsing the entry of the birth of the adopted person as shown in the register with –

(i) a reference to this section; and

(ii) a reference in the prescribed form identifying the entry made relating to that person in the special record; and

(c) if there is a previous entry relating to the adopted person in the special record or in the former register of adoptions, by endorsing it with a reference in the prescribed form to the entry of the birth of that person as re-registered under this section.

(5) [Section 63 Subsection (5) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 63 Subsection (5) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] Where, before the commencement of the repealed Act, an order for the adoption of a person whose birth is registered in Tasmania was registered in the former register of adoptions, the Registrar may, on application by that person or an adoptive parent of that person, cause to be made, in relation to that person, in the special record and in the register the same entries and endorsements as would be required by this section if the order for the adoption of that person had been made under this Act.

(6) [Section 63 Subsection (6) omitted by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] . . . . . . . .

Record of adoptions of persons born outside Australia

64 Record of adoptions of persons born outside Australia

(1) [Section 64 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] The Registrar shall, on receipt of a memorandum under section 62 in relation to the making of an adoption order for the adoption of a person born in a place outside Australia, cause an entry in the prescribed form to be made in the special record.

(2) [Section 64 Subsection (2) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] Where, before the commencement of this section –

(a) an order for the adoption of a person born in a place outside Australia was made under the repealed Act; or

(b) an order for the adoption of a person born in any such place was registered in the former register of adoptions –

the Registrar may, on application by that person or an adoptive parent of that person, cause to be made in relation to that person the same entry in the special record as he would have made if the order for the adoption of that person had been made under this Act after the commencement of this section.

Discharge of adoption orders

65 Discharge of adoption orders

(1) [Section 65 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] On receipt of a memorandum under section 62 or a memorandum under a law of another State or a Territory corresponding to that section, in relation to the discharge of an order for the adoption of a person, the Registrar shall –

(a) [Section 65 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] cause the entry made in relation to that person in the special record to be cancelled; and

(b) [Section 65 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 65 Subsection (1) amended by No. 17 of 1996, Applied:23 Jan 2002] cause the endorsement made pursuant to section 63 (4) (b) on the entry of the birth of that person in the register to be cancelled.

(c) [Section 65 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] . . . . . . . .

(2) [Section 65 Subsection (2) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] On receipt of a memorandum under section 62 in relation to the discharge of an order for the adoption of a person who was born in a place other than Tasmania or another State or a Territory, the Registrar shall cause the entry made in relation to that person in the special record to be cancelled.

Sending of memoranda of orders to other States, &c.

66 Sending of memoranda of orders to other States, &c.

(1) [Section 66 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] Where –

(a) an adoption order or an order for the discharge of an adoption order has been made under this Act; and

(b) [Section 66 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] the Registrar has reason to believe that the birth of the person to which the order relates is registered in another State or in a Territory –

the Registrar shall, as soon as practicable, cause a memorandum in accordance with the prescribed form of the adoption order or a copy of the order for the discharge of an adoption order, as the case may be, certified in writing by him to be a true memorandum or copy, to be sent to an officer of that State or Territory having functions in relation to the registration of births who is prescribed by the regulations.

(2) [Section 66 Subsection (2) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] Where –

(a) an adoption order or an order for the discharge of an adoption order has been made under this Act; and

(b) [Section 66 Subsection (2) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] the Registrar has reason to believe that the birth of the person adopted under the order is registered in a country other than Australia –

the Registrar shall, on application in writing by the persons in whose favour the order was made or of the person adopted under the order, cause a memorandum in accordance with the prescribed form of the adoption order, or a copy of the order for the discharge of an adoption order, as the case may be, certified in writing by him to be a true memorandum or copy, to be sent to an officer in that country who is prescribed by the regulations.

Entries in registers of births not to be disclosed

67 Entries in registers of births not to be disclosed

(1) [Section 67 Subsection (1) omitted by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] . . . . . . . .

(2) [Section 67 Subsection (2) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 67 Subsection (2) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 67 Subsection (2) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] The Registrar shall not, except in accordance with this Act or an order of the Supreme Court, open for inspection, or issue an extract from, or copy of, an entry relating to an adopted person in the register.

(3) [Section 67 Subsection (3) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 67 Subsection (3) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] The Registrar shall, on an application in writing by a natural parent of an adopted person, issue to the natural parent an extract from, or copy of, an entry in the register relating to the adopted person.

(4) [Section 67 Subsection (4) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 67 Subsection (4) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] Where an order has been made for the adoption of a person whose birth has been registered in Tasmania, the adopted person may apply to the Registrar for the issue of an extract from, or a certified copy of, the entry in the register relating to the adopted person.

(5) An application under subsection (4) by an adopted person may be made whether before or after he has attained the age of 18 years and whether the order for his adoption was made before or after the commencement of this section but, except in a case where the adoption order has been made after the commencement of this section in favour of –

(a) a spouse of a natural parent of the adopted person; or

(b) another person who, or whose spouse, is a relative of the adopted person, or 2 persons who are relatives of the adopted person –

the application shall be accompanied by a certificate given to the adopted person under section 80 .

(6) [Section 67 Subsection (6) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 67 Subsection (6) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] On an application made in accordance with this section, the Registrar shall issue in accordance with the application an extract from, or certified copy of, the entry in the register relating to the adopted person to whom the application relates.

(7) [Section 67 Subsection (7) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 67 Subsection (7) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] An extract from, or certified copy of, an entry in the register issued under subsection (6) is subject to the same terms, conditions, and regulations as to payment of fees and otherwise as are applicable under the Births, Deaths and Marriages Registration Act 1999 .

(8) [Section 67 Subsection (8) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 67 Subsection (8) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] Where, pursuant to this section, the Registrar issues an extract from, or certified copy of, an entry in the register to an adopted person, the extract or certified copy shall contain a statement specifying the surname taken by the adopted person on the making of the order for his adoption.

Former register of adoptions and memoranda of adoption orders not open for search

68 Former register of adoptions and memoranda of adoption orders not open for search

(1) Except as provided in this section –

(a) the former register of adoptions and a memorandum of an adoption order under section 55 of the repealed Act or section 62 of this Act are not open for inspection or search; and

(b) a person shall not be furnished with an extract from, or certified copy of, an entry in that register or with a certified copy of any such memorandum of an adoption order.

(2) [Section 68 Subsection (2) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 68 Subsection (2) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] [Section 68 Subsection (2) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] On application by an adopted person, the Registrar shall issue, subject to subsection (3) and to the same terms, conditions, and regulations as to payment of fees and otherwise as are applicable under the Births, Deaths and Marriages Registration Act 1999 in relation to the register –

(a) an extract from, or certified copy of, an entry in the former register of adoptions relating to the adopted person; or

(b) a certified copy of a memorandum of an adoption order under section 55 of the repealed Act or section 62 of this Act relating to the adopted person.

(3) An application by an adopted person under subsection (2) shall be accompanied by a certificate given to him under section 80 .

Copies of entries in the special record

69 Copies of entries in the special record

(1) [Section 69 Subsection (1) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] [Section 69 Subsection (1) amended by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000] On application, the Registrar shall issue, subject to the same terms, conditions, and regulations as to payment of fees and otherwise as are applicable under the Births, Deaths and Marriages Registration Act 1999 , an extract from, or certified copy of, an entry in the special record.

(2) [Section 69 Subsection (2) amended by No. 58 of 1999, Sched. 2, Applied:01 Nov 2000] In the case of an application under this Part by an adopted person particulars of whose adoption are entered in the former register of adoptions, the Registrar may re-register the birth of that person in the special record and exercise his powers under, and in accordance with, subsection (1) .

(3) An extract from, or a certified copy of an entry in, the special record shall not contain a reference to any matter referred to in section 63 (4) (a) .

70.

[Section 70 Repealed by No. 58 of 1999, Sched. 1, Applied:01 Nov 2000]

Part VI

Access to Information

Part VI Access to Information

Restriction on access to records and reports

71 Restriction on access to records and reports

(1) Except as provided in this Act and without derogating from the powers of the Ombudsman under the Ombudsman Act 1978 –

(a) [Section 71 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] records of, or in the possession or under the control of, the Secretary or an agency relating to an adoption negotiated or arranged by the Secretary or an agency or a part of any such records; and

(b) a report to a court under section 24 (1) or a corresponding previous enactment and the records of a court of, or relating to, proceedings, other than an order or decision of a court, under this Act or a corresponding previous enactment –

shall not be made available to, or be open for inspection by, any person.

(2) Subsection (1) has effect notwithstanding that a copy of a report referred to in that subsection or of a part of any such report may be contained in records from which information may be available under this Part.

Duties of relevant authorities to provide information

72 Duties of relevant authorities to provide information

(1) Where a relevant authority receives an application for information under this Part, the relevant authority shall, subject to and in accordance with this Part –

(a) so far as the information to which the application relates is contained in records in the possession or under the control of the relevant authority, give the information to the applicant if the information is such as may be given to him under this Part; and

(b) [Section 72 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] where the relevant authority is the Secretary and the information to which the application relates is not contained in records in his possession or under his control, request any agency, body, or person from which or from whom the information may be available –

(i) [Section 72 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] to give the information to the Secretary; or

(ii) where the applicant agrees and the request so states, to give the information to the applicant, so far as the information may be given to him under this Part.

(2) [Section 72 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] On receipt of information under subsection (1) , the Secretary shall give the information to the applicant, so far as it may be given to him under this Part.

(3) Where information sought under this Part is not contained in any records referred to in subsection (1) , a relevant authority shall –

(a) make such reasonable inquiries as in all the circumstances of the case ought to be made for the purposes of obtaining the information; and

(b) on obtaining the information, give it to the applicant, so far as it may be given to him under this Part.

(4) [Section 72 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] Where an application has been made under this Part to a relevant authority other than the Secretary for information that is not contained in records in the possession, or under the control, of that relevant authority –

(a) [Section 72 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] the relevant authority shall notify the Secretary of that fact; and

(b) [Section 72 Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] on receipt of a notification under paragraph (a) , the Secretary shall request any agency, body, or person from which or from whom the information may be available to give the information to the Secretary.

(5) [Section 72 Subsection (5) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] On receipt of information sought under subsection (4) , the Secretary shall give the information to the relevant authority referred to in that subsection.

(6) On receipt of information under subsection (5) , a relevant authority shall give the information to the applicant, so far as it may be given to him under this Part.

Secretary may obtain information from the court

73 Secretary may obtain information from the court

(1) [Section 73 Subsection (1) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] For the purposes of this Part, the Secretary may apply to the court for such information from its records relating to proceedings as a result of which an adoption order was made by that court as will enable the Secretary to seek or obtain information that, under this Part, the Secretary may give to a person who makes an application under this Part.

(2) [Section 73 Subsection (2) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] The court shall give to the Secretary information in its possession or under its control to which an application under subsection (1) applies.

Counselling services

74 Counselling services

(1) A relevant authority shall not provide a document or information to an applicant under this Part unless the applicant has received counselling from an approved counsellor.

(2) Where a relevant authority receives an application under this Part, the relevant authority shall inform the applicant in writing of the place or places at which counselling services are available and that information cannot be supplied under this Part unless the applicant has attended an interview with an approved counsellor.

(3) This section does not apply if the relevant authority is satisfied that –

(a) the adopted person and all other persons referred to in the original birth certificate relating to the adopted person have previously exchanged information which may identify a natural parent or natural relative of the adopted person; or

(b) the applicant under this part is not resident in Tasmania.

Protection of privacy

75 Protection of privacy

A person shall not, under this Part, give to an applicant under this Part, and an applicant under this Part is not entitled to obtain, information relating to the personal affairs of a person, whether living or dead, other than the applicant or from which another person may be identified, whether directly or indirectly, except subject to and in accordance with this Part.

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