This Act establishes how adoption in Western Australia is to be managed: who may consent, how consents are given and revoked, how parental responsibility is allocated, and the roles of the CEO, the adoption applications committee and the courts. It also regulates private adoption and contact/mediation services, records and access to adoption information, and creates offences and penalties. It affects birth parents, adoptees, prospective adoptive parents, licensed agencies and the Department by setting administrative steps, licensing and legal remedies for adoption-related decisions.
The Adoption Act 1994 (WA) is the principal Western Australian statute governing the adoption of children. It establishes the legal framework for adoption agency licensing (Part 2), the adoption process including domestic and intercountry adoptions (Part 3), access to adoption information (Part 4), review and appeals (Part 5), offences (Part 6), and miscellaneous matters (Part 7).
The Act operates from the foundational principle that adoption is a service for children who need permanent alternative care, not a mechanism for prospective parents to obtain children. Adoption is positioned as a last resort: it should only occur when there is no other appropriate alternative for the child.
Main concepts
Paramount considerations (section 3). Three paramount considerations govern the entire administration of the Act: (a) the welfare and best interests of the child; (b) that adoption is a service for the child; and (c) that adoption should occur only when there is no other appropriate alternative. A separate acknowledgment in section 3(2) recognises that adoption is not part of Aboriginal or Torres Strait Islander culture, meaning adoption of Aboriginal or Torres Strait Islander children must be treated with additional caution and should occur only as a true last resort.
Adoption agency (Part 2). An adoption agency is a body approved to facilitate adoptions. Only approved adoption agencies, and the Director General (CEO), may facilitate adoptions. The approval process requires agencies to satisfy prescribed criteria regarding suitability, staffing, and practices. Division 2 of Part 2 governs the licensing of private adoption agencies under section 9.
Current sections
Direct links to the current provisions in Adoption Act 1994.
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Part 1
Preliminary
Part 1 — Preliminary
Short title 2
Commencement 2
Paramount considerations when administering Act etc. 2
Terms used 2
4A. Presumptions of parentage in Family Court Act 1997, when applicable 8
Crown bound 8
Part 2
Adoption agencies
Part 2 — Adoption agencies
Div 1
Authority to conduct adoption services
Division 1 — Authority to conduct adoption services
Adoption services, conduct of by CEO or delegate 9
Adoption services, conduct of by birth parent to facilitate adoption by step-parent 9
Unauthorised adoption services, offences as to 9
Div 2
Private adoption agencies
Division 2 — Private adoption agencies
Private adoption agencies, licensing of 10
Regulations as to licensing private adoption agencies 10
Pretending to be etc. private adoption agency, offence 11
Div 3
Adoption applications committee
Division 3 — Adoption applications committee
Appointment of committee 12
Functions of committee 12
Membership of committee 13
15A. CEO may give committee general directions 13
Procedure etc. of committee 13
Part 3
The adoption process
Part 3 — The adoption process
Division 1 — Preliminary matters
Birth parent wanting to have child adopted, CEO’s duties as to 15
16A. Aboriginal or Torres Strait Islander child, CEO’s duties as to prospective adoption of 16
Division 2 — Consent to adoption
Persons whose effective consent is required 16
Effective consent, meaning of 17
Prospective adoptive parent, who can be specified as in consent 19
Man who may be prospective adoptee’s father to be notified of consent etc. 19
Revoking consent, time limit for 21
Revoking consent, formalities for 22
Division 3 — Court applications as to consents to adoption and notices
Consent requirement (s. 17), Court may dispense with 22
Service of notice requirements (s. 21), Court’s powers as to 24
Parenting order application (s. 21), Court’s powers as to 25
Div 3A
Court applications for determinations of parentage
Division 3A — Court applications for determinations of parentage
26A. Terms used 25
26B. Application of this Division 26
26C. Determination of parentage, application for 26
26D. Application under s. 26C, Court’s powers as to 27
26E. Parentage testing order, ancillary orders for 27
26F. Adult contravening parentage testing order, consequences of 28
26G. Parentage testing order against child, execution and contravention of 29
26H. Person testing child under parentage testing order, liability of 29
26I. Report for this Division, receipt of by Court as evidence etc. 30
26J. Revoking consent after s. 26C application made 30
Div 4
Parental responsibility for prospective adoptees
Division 4 — Parental responsibility for prospective adoptees
Who has parental responsibility after consent requirements met 30
Who has parental responsibility where consent requirements not met etc. 31
When parental responsibility ceases 32
CEO having parental responsibility, duties of if not possible or desirable to place child for adoption 33
CEO having parental responsibility, powers of as to care of child 33
Person with parental responsibility, duties of 34
CEO with parental responsibility, when may renounce or transfer responsibility 34
Corresponding officer with parental responsibility, when CEO may request transfer etc. of responsibility 35
Removing child from WA without consent, offence 36
Div 5
Court applications as to parental responsibility for children awaiting adoption
Division 5 — Court applications as to parental responsibility for children awaiting adoption
Parental responsibility etc., Court’s powers as to 36
Div 6
Prospective adoptive parents
Division 6 — Prospective adoptive parents
CEO to inform etc. prospective adoptive parents 37
Applying to be prospective adoptive parent 38
Who can apply under s. 38(1) 38
Assessment report for s. 38(1) applicant, CEO to arrange 40
41A. CEO may conduct checks of s. 38(1) applicant 41
Assessment report to be given to adoption applications committee etc. 41
Committee may review own decision 41
Committee’s decision, CEO to advise applicant of etc. 42
Register of s. 38(1) applicants etc., CEO’s functions as to 42
Div 7
Placement of prospective adoptees
Division 7 — Placement of prospective adoptees
Person consenting to child’s adoption, CEO to seek wishes of etc. as to prospective adoptive parents 43
Adoption plan, negotiation and content of etc. 44
Adoption plan, CEO’s duties as to 45
After adoption plan agreed, CEO to place child 45
Adoption plan not agreed, CEO’s powers in case of 46
Dispute in negotiating adoption plan, Court’s powers as to 46
Medical report on child required before placed for adoption 47
Prerequisites for CEO placing child for adoption 47
Placing child who cannot be placed under s. 52 50
Child’s welfare etc. during placement, CEO to arrange supervision of 50
Div 8
Adoptions by step‑parents, relatives or carers
Division 8 — Adoptions by step‑parents, relatives or carers
55A. Placement of child with relative or carer, approval of by CEO 50
55B. CEO may conduct checks of s. 55A(1) applicant 51
55C. When application by relative or carer for adoption order can be made 52
Adoption plan required for adoption by step‑parent, relative or carer 52
Div 9
Applications for adoption orders
Division 9 — Applications for adoption orders
When application for adoption order can be made 53
Court may override s. 56 53
CEO to be notified of intention to apply for adoption order etc. 53
Relatives etc. to be notified of intention to apply for adoption order if birth parent deceased or cannot be found 53
Court may vary or override s. 58(1) or 59(2) 55
Report for Court, CEO to arrange after receipt of s. 58(1) notice 55
Application for adoption order, filing formalities for 56
Intervention by CEO or others in adoption order proceedings 56
Evidence on application for adoption order 57
Div 10
Adoption orders
Division 10 — Adoption orders
Residential etc. prerequisites to making adoption order 57
Who may be adopted 58
Who may adopt 58
Adoption order for child, preconditions for making etc. 59
Adoption order for adult, preconditions for making etc. 62
Adoption plan, Court may allow added parties to 64
Court’s other powers on adoption applications 64
Adoption plan, Court approval of required; enforcement of 64
Adoption plan, Court may dispense with requirement for 65
Name of adoptee, Court to declare 65
Effect of adoption order 66
Adoption plan, varying 68
Discharge of adoption order 69
Court to notify Registrar of adoption order etc. 71
Div 11
Adoption of a child in Western Australia who is to live in a Convention country
Division 11 — Adoption of a child in Western Australia who is to live in a Convention country
78A. Adoption order for WA resident child by Convention country person, prerequisites for making etc. 72
78B. Adoption compliance certificate for s. 78A order, issue of for Hague Convention 73
Part 4
Adoptions information
Part 4 — Adoptions information
Division 1 — Adoption information services
CEO’s duties as to adoption information services 74
Death of party to adoption etc., CEO to notify certain persons 76
Division 2 — Access to adoptions information
Terms used and application of Division 2 77
Access to certain information, application for and grant by CEO of 78
Court may prevent CEO granting access under s. 82(2) etc. 78
Court records of adoption proceedings, who has right of access to 79
Registration of adoptee’s birth, who has right of access to 80
Portion of registration of birth not referring to adoption, Registrar may issue copy of 81
Non‑identifying information held by adoption agency, who has right of access to 82
Death of party to adoption, who has right of access to information in case of 82
If adoptee cannot be found, who has right of access to information in case of 84
Division 3 — Exchange and preservation of adoptions information
Court to give CEO information 85
Registrar to give CEO information 85
Persons conducting etc. adoption services, CEO may direct to give CEO information 86
Records of adoptions etc., preservation of 86
Division 4 — Contact vetoes
Register of contact vetoes, CEO to maintain 88
Duration of contact vetoes 88
Confirming, cancelling and varying veto 89
Undertaking not to contact person who has lodged contact veto required before access to information granted 89
Division 5 — Private contact and mediation licensees
Contact and mediation agencies to be licensed 90
Licence to conduct contact and mediation services, grant of 90
Regulations as to contact and mediation agencies 91
Contact and mediation agencies bound by contact veto 91
Division 6 — Updating non‑identifying information
CEO, on request, to attempt to obtain current information 92
Part 5
Review of decisions and appeals
Part 5 — Review of decisions and appeals
Division 1 — Review by CEO
Review by CEO of certain decisions, application for 94
Nature of review by CEO and evidence 94
CEO’s powers on review 95
Division 2 — Review by State Administrative Tribunal
Review by SAT of CEO’s decision under s. 112(1)(a) or (b) 95
Part 6
Offences
Part 6 — Offences
Terms used 97
Territorial application of s. 122 to 125 98
Making or receiving payment for adoption, adoption service etc. 98
Advertising child for adoption etc. 99
Publishing identity of party to adoption etc. 100
Threat against person to induce consent etc. 101
Harassing etc. party to adoption etc. 102
127A. False etc. information in application etc. 102
127B. Party to proposed adoption etc. to notify CEO of certain information etc. 103
Disclosure etc. of information restricted 103
Prosecutions, who can commence and time limit for 104
Evidentiary matters 105
Part 7
Miscellaneous
Part 7 — Miscellaneous
Division 1 — Delegation and protection
Delegation by CEO 107
130A. Delegation by State Central Authority 107
Protection from personal liability 107
Distribution of property by trustee etc. without notice of adoption order 108
Division 2 — Proceedings
Court etc. proceedings to be in private 109
Child, representation of 109
Div 2A
State Central Authority
Division 2A — State Central Authority
134A. Minister is Central Authority for WA for Hague Convention etc. 110
134B. Functions of the State Central Authority 111
Division 3 — Non‑Western Australian adoptions
Arrangements with other States and Territories, Minister may make 111
Recognition of other Australian adoptions 112
136A. Recognition in WA of adoption in Convention country of child resident in that country by Australian resident 112
136B. Court may terminate relationship of child and parent of certain adopted children 113
136C. Recognition in WA of adoption of child resident in Convention country by person resident in another such country 114
136D. Recognition under s. 136A, effect of 114
136E. Recognition in WA of decision in Convention country to convert adoption under Hague Convention Art. 27 116
136F. Court may declare recognition under s. 136A or 136C of no effect in WA 116
136G. Adoption compliance certificate, evidential value of 117
136H. Person wishing to adopt child in Convention country, State Central Authority to report on 118
Arrangements with other countries, Minister may make 118
Recognition in WA of foreign country adoptions 118
138A. Recognition in WA of adoption in overseas jurisdiction of child resident in that jurisdiction by Australian resident 121
138B. Recognition under s. 138A, effect of 122
138C. Adoption certificate, evidential value of 123
138D. Person wishing to adopt child in overseas jurisdiction, CEO may report on 123
Certain children in WA adopted outside Australia, CEO’s powers to supervise welfare etc. of 124
Division 4 — Financial assistance and payment for services
Financial assistance, CEO’s powers to provide 124
Services provided by CEO, payments for 125
Division 5 — Rules and regulations
Rules of Court 126
Regulations 126
Division 6 — Repeal, transitional and savings, consequential amendments and review
Adoption of Children Act 1896 repealed and transitional etc. provisions for (Sch. 3) 128
Adoption Amendment Act 2012, transitional provisions for 129
Review of Act 129
Sch 1
Effective consent
Schedule 1 — Effective consent
Information and counselling required before consent given 131
Witness to form of consent, who can be 132
Preconditions to witnessing form of consent 133
More sections below
Source text: opening excerpt
Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.
Western Australia
Adoption Act 1994
Western Australia
Adoption Act 1994
Contents
Part 1 — Preliminary
Short title 2
Commencement 2
Paramount considerations when administering Act etc. 2
Terms used 2
4A. Presumptions of parentage in Family Court Act 1997, when applicable 8
Crown bound 8
Part 2 — Adoption agencies
Division 1 — Authority to conduct adoption services
Adoption services, conduct of by CEO or delegate 9
Adoption services, conduct of by birth parent to facilitate adoption by step-parent 9
Unauthorised adoption services, offences as to 9
Division 2 — Private adoption agencies
Private adoption agencies, licensing of 10
Regulations as to licensing private adoption agencies 10
Pretending to be etc. private adoption agency, offence 11
Division 3 — Adoption applications committee
Appointment of committee 12
Functions of committee 12
Membership of committee 13
15A. CEO may give committee general directions 13
Procedure etc. of committee 13
Part 3 — The adoption process
Division 1 — Preliminary matters
Birth parent wanting to have child adopted, CEO’s duties as to 15
16A. Aboriginal or Torres Strait Islander child, CEO’s duties as to prospective adoption of 16
Division 2 — Consent to adoption
Persons whose effective consent is required 16
Effective consent, meaning of 17
Prospective adoptive parent, who can be specified as in consent 19
Man who may be prospective adoptee’s father to be notified of consent etc. 19
Adoptee. A person who is adopted under an adoption order. The Act applies to the adoption of children, and a person may only be adopted as a child. Section 66 sets out who may be adopted: generally a person who is a child and has not been married or in a de facto relationship, although section 66(2) permits a person aged 18 or older to be adopted by a relative or a person who was their carer or step-parent immediately before they turned 18.
Consent (sections 17 to 23 and Schedule 1). Consent by the birth parents (and by the child if of sufficient maturity) is generally required before an adoption order can be made. Section 18 sets out the requirements for effective consent: the consent must be given at least 28 days after the birth of the child, at least 28 days after the consenting person receives required information and counselling (Schedule 1, clause 1), in writing in the approved form, witnessed in accordance with Schedule 1 clause 2, and delivered to the CEO. A consent is not effective if obtained by fraud, duress or material inducement (section 18(5)). Section 22 provides that consent may be revoked during a revocation period. The Family Court may dispense with consent requirements under section 24 in prescribed circumstances.
Adoption plan (sections 46 to 50 and section 73). An adoption plan is a written agreement between birth and adoptive families governing ongoing contact and information sharing. The plan is negotiated before placement (section 46) and must be approved by the Court under section 72 before an adoption order is made. The Court may dispense with the plan requirement under section 73. Adoption plans may be varied by the Court under section 76 after the adoption order is made.
Intercountry adoption. The Act creates a framework for the adoption of children from overseas jurisdictions, operating alongside the Hague Convention on Intercountry Adoption (reproduced in Schedule 2B) where Australia and the relevant country are parties. Section 134A designates the Minister as the State Central Authority for WA under the Hague Convention. Sections 136A to 136H govern recognition of Convention country adoptions, and sections 138 to 138D govern recognition of adoptions in non-Convention overseas jurisdictions.
Adoption information (Part 4). Adoptees, adoptive parents, birth parents and siblings have rights of access to adoption records and identifying information, subject to contact veto arrangements and other conditions. The Act reflects the move away from closed adoption records toward greater openness. Division 4 of Part 4 establishes a register of contact vetoes maintained by the CEO (section 99). Breaching a contact veto arrangement is an offence under Part 6.
Who it affects
Children who are or may be adopted: The child's welfare is paramount. The Act gives children of sufficient maturity the right to participate in decisions.
Birth parents: Must give informed consent to adoption (except where dispensed with). Have ongoing rights to receive information about the adoption and to manage contact arrangements.
Prospective adoptive parents: Must be assessed and approved before being matched with a child. The assessment process is extensive and includes character, financial stability, health, parenting capacity and cultural competency (section 40(2)).
Adoption agencies: Must be approved and must operate in accordance with the Act's requirements. The CEO also facilitates adoptions directly.
Aboriginal and Torres Strait Islander children and communities: The Act's explicit acknowledgment that adoption is not part of Aboriginal culture requires consultation with Aboriginal communities and the exhaustion of kinship and other culturally appropriate alternatives before an Aboriginal child is adopted. Schedule 2A sets out the Aboriginal and Torres Strait Islander children placement for adoption principle.
Registrar of the Family Court: The Family Court has jurisdiction to make adoption orders.
Key obligations
Last resort principle. Adoption should only proceed where there is no other appropriate alternative. Before an adoption order is made, the responsible authority must be satisfied that all appropriate alternatives have been considered.
Eligibility requirements for prospective adoptive parents (sections 39 and 40). An applicant must be at least 18 years of age, an Australian citizen (with limited exceptions), resident or domiciled in WA, and must not have been convicted of a Class 1 offence after turning 18. Joint applicants must have been married to or in a de facto relationship with each other for at least three years. Assessment under section 40 requires evidence that the applicant is physically and mentally able to care for and support a child to age 18, is of good repute, and (for joint applicants) has a stable relationship.
Placement prerequisites (section 52). The CEO must not place a child for adoption unless: the prospective adoptive parent is named on the register under section 44, meets the child's expressed wishes where relevant, satisfies the age differential requirement (generally the younger of joint adoptive parents must not be more than 45 years older than the child), and (for Aboriginal or Torres Strait Islander children) the placement accords with Schedule 2A. Where siblings are relinquished simultaneously, all reasonable steps must be taken to place them with the same prospective adoptive parent (section 52(1)(d)).
Cultural appropriateness. For Aboriginal and Torres Strait Islander children, the Act requires consideration of cultural issues and consultation with the community before adoption proceeds, as reflected in section 16A and Schedule 2A.
Information obligations. Adoption agencies must maintain proper records of all adoptions and provide access to information as required by Part 4.
Consent. Birth parents must give free and informed consent to adoption, in the prescribed form, after the prescribed period from the birth of the child. Consents given too early are invalid.
Powers and discretions
The CEO of the department has broad powers including approving adoption agencies, managing the adoption process for non-agency adoptions, and making decisions about the suitability of prospective adoptive parents. The CEO may also delegate functions under section 130 and may revoke or transfer parental responsibility in prescribed circumstances (sections 33 and 34). The Family Court makes adoption orders and has jurisdiction to dispense with consent in prescribed circumstances (section 24), to vary or override notification requirements (section 60), to make orders about parental responsibility (section 36), and to approve and enforce adoption plans (section 72).
Under section 110, the CEO may review certain decisions. Further review by the State Administrative Tribunal (SAT) of CEO decisions on review is available under Part 5, Division 2 (section 113).
Penalties and enforcement
Part 6 creates a detailed set of offences with graduated penalties:
Making or receiving payment for adoption (section 122): A person must not make, give or receive, or agree to make, give or receive, any payment or reward for or in consideration of a child's adoption or proposed adoption, for the giving of consent to adoption, or for conducting an adoption service in relation to a child. The penalty is a fine of $25,000 and imprisonment for 2 years. Permitted payments include legal expenses, authorised medical and hospital expenses, and charges made by the CEO or approved agencies for services under the Act.
Advertising a child for adoption (section 123): Publishing material indicating that a person wishes to have a child adopted, wishes to adopt a child, or conducts adoption services, without approval of the CEO or a private adoption agency, carries a penalty of a fine of $10,000 and imprisonment for 12 months.
Publishing identity of party to adoption (section 124): Publishing material that identifies or is likely to identify a person as a party to an adoption or proposed adoption carries a penalty of a fine of $10,000 and imprisonment for 12 months.
Threatening a person to induce consent (section 125): Using or threatening force, restraint, injury or detriment to induce another person to consent or refrain from consenting to an adoption, or to influence the negotiation of an adoption plan, carries a penalty of a fine of $10,000 and imprisonment for 12 months.
Harassing parties to adoption (section 126): Acts intended or likely to harass, intimidate, embarrass or ridicule a party to an adoption by reason of being such a party carry a penalty of a fine of $10,000 and imprisonment for 12 months.
Providing false information (section 127A): Giving false or misleading information in or in relation to an application, report or other document prepared for the purposes of the Act carries a penalty of a fine of $6,000.
Failing to notify CEO of relevant changes (section 127B): A party to a proposed adoption who becomes aware of information relevant to identification of a consent-giver, or of circumstances affecting the effectiveness of a consent, must notify the CEO within 28 days. A person on the register who becomes aware of changes affecting their suitability as a prospective adoptive parent must also notify the CEO within 28 days. The penalty for both obligations is a fine of $10,000 and imprisonment for 12 months.
Restricted disclosure of information (section 127): Unauthorised recording, use or disclosure of information held by the department, a private adoption agency or a contact and mediation licensee, relating to an adoption or proposed adoption, carries a penalty of a fine of $10,000 and imprisonment for 12 months.
All prosecutions under Part 6 must be instituted by, or with the written consent of, the Attorney General, the CEO or the Commissioner of Police (section 128(1)(a)), and must be commenced within 12 months of evidence sufficient to justify proceedings coming to the knowledge of that person (section 128(1)(b)).
Process and timelines
The adoption process under Part 3 proceeds through distinct stages with prescribed timeframes:
Pre-consent (sections 16 and 16A): The CEO must inform a birth parent who wants to have a child adopted of alternatives to adoption and of the nature of the adoption process. For Aboriginal or Torres Strait Islander children, section 16A imposes additional duties to consider the principles in Schedule 2A.
Consent (sections 17 to 23): Effective consent requires that at least 28 days have elapsed since the birth of the child and since the required information and counselling was received. A consent may be revoked during a revocation period (section 22). After the revocation period expires, consent cannot be revoked without leave of the Family Court.
Assessment and registration of prospective adoptive parents (sections 38 to 44): Applications are made to the CEO, an assessment report is prepared by a suitably qualified person (section 40), the adoption applications committee reviews the assessment (section 41), and approved applicants are placed on the register (section 44).
Placement (sections 45 to 54): Once the adoption plan is negotiated and agreed (section 46), and all prerequisites in section 52 are satisfied, the CEO places the child with the prospective adoptive parent (section 48). The CEO is required to supervise the child's welfare during placement (section 54).
Application for adoption order (sections 56 to 64): A person is not to file an application for an adoption order before the expiration of six months after the day on which the child was placed (section 56). At least 60 days before filing, the prospective adoptive parent must notify the CEO of the intention to apply (section 58(1)).
Adoption order (sections 65 to 78): The Family Court considers the application. The order cannot be made unless the residential prerequisites in section 65 are satisfied and the preconditions in section 68 are met. Section 75 sets out the full legal effect of an adoption order: the adoptee is treated as the child of the adoptive parent, and the relationship with the birth parents is terminated (subject to exceptions for step-parent adoptions).
Intercountry adoptions involve additional processes through the relevant overseas authority and the State Central Authority, as well as Commonwealth immigration and citizenship requirements.
Interactions with other law
Family Court Act 1997 (WA): The Family Court makes adoption orders. The Act's definition of "Family Court Act" refers to this Act. Section 4A sets out when parentage presumptions under the Family Court Act 1997 apply.
Children and Community Services Act 2004 (WA): The children's welfare system interfaces with adoption where children are in care.
Commonwealth migration law: Intercountry adoptions require immigration processing for the adopted child to enter Australia. Interaction with visa and citizenship requirements is significant.
Hague Convention on Intercountry Adoption (Schedule 2B): Australia is a party to this Convention, which governs intercountry adoptions with other Convention countries, and the Minister is designated as the State Central Authority for WA under section 134A.
Aboriginal Communities Act 1979 (WA): Aboriginal community consultation requirements.
Adoption of Children Act 1896 (WA) (repealed): The 1896 Act was repealed by the 1994 Act. Schedule 3 contains transitional and savings provisions for adoptions effected under the 1896 Act, including modified access-to-information provisions (Schedule 3, clauses 9 to 13).
Gotchas
Adoption is not routine. The Act's last resort principle means that adoption will not be approved simply because prospective adoptive parents want a child. The system prioritises reunification with birth family, kinship care, and foster care before adoption.
Early consent is invalid. Section 18(1)(a) and (b) provide that consent given by a birth parent before 28 days after the birth of the child, or before 28 days after receiving required information and counselling, is not effective. This protects birth parents from decisions made in the immediate post-birth period when they may not be in the best position to make long-term decisions.
Age differential requirement. Section 52(3) sets out specific age differential requirements: the younger of prospective joint adoptive parents must generally be not more than 45 years older than the child (or 50 years in prescribed circumstances). This requirement reflects the Act's concern for the long-term welfare of the child.
Class 1 offence disqualification. Under section 39(1)(d), a person who has been convicted of a Class 1 offence after the age of 18 is not eligible to apply as a prospective adoptive parent. The definition of Class 1 offences in the Act captures serious sexual and violent offences. This is an absolute disqualification, not a discretionary one.
Contact vetoes. Under Part 4 Division 4, parties can place contact vetoes on adoption records, restricting who can access identifying information or make contact. A breach of a contact veto arrangement is an offence under section 127 or related provisions. Sections 102 to 103 govern confirming, cancelling and varying vetoes, and require undertakings from persons seeking access.
Intercountry adoption complexity. The Act's intercountry adoption framework operates alongside bilateral arrangements between Australia and specific countries. Not all countries are available for intercountry adoption, and the process is determined by which countries Australia has bilateral arrangements with at any given time.
The adoption plan is mandatory. Section 72 requires Court approval of an adoption plan before an adoption order can be made, unless the Court dispenses with the requirement under section 73. A plan that has not been approved cannot be enforced, and a Court-approved plan can be enforced as a Court order.
Practical examples
Domestic infant adoption. A birth mother who cannot care for her newborn contacts an approved adoption agency. After the 28-day waiting period and counselling (Schedule 1), she provides written informed consent in the approved form witnessed in accordance with Schedule 1 clause 2. The agency matches the child with approved prospective adoptive parents from the register. The adoption plan is negotiated between birth and adoptive families and approved by the Family Court. After a supervised placement period of at least six months, the prospective adoptive parents file an application for an adoption order. The Family Court makes the order under section 68. Section 75 then provides that the adoptee is the child of the adoptive parents and no longer the child of the birth parents. All parties may subsequently access adoption records and information subject to any contact veto arrangements under Part 4 Division 4.
Aboriginal child's adoption considered. A child is in long-term foster care. Adoption is proposed. Because the child is Aboriginal, section 16A and Schedule 2A apply. The CEO must give effect to the placement for adoption principle in Schedule 2A, which requires prioritisation of placement with Aboriginal family members, then with members of the child's Aboriginal community. The department must consult with the Aboriginal community. Only if no suitable kinship or community placement exists and adoption is genuinely in the child's best interests would the process continue.
Adoptee seeking information. An adult who was adopted seeks access to records about their birth parents. Under Part 4, the adoptee has rights of access to certain identifying and non-identifying information (sections 82, 84 and 85), subject to whether a contact veto has been placed on the records. If a contact veto exists, the CEO is prevented from providing the identifying information without first obtaining an undertaking that the person will not breach the veto (section 103).
Step-parent adoption. The biological father of a child has no contact with the child for several years. The child's mother has been in a stable de facto relationship for more than three years with a person who wishes to adopt the child. Under section 67, the prospective adoptive step-parent may adopt the child. An adoption plan must be prepared and approved. The birth father's consent is required under section 17 unless the Court dispenses with it under section 24. If adoption is ordered, section 75(2) provides that the existing relationship between the child and the birth mother (who is married to or in a de facto relationship with the adoptive step-parent) is not terminated.
Division 3 — Court applications as to consents to adoption and notices
Consent requirement (s. 17), Court may dispense with 22
Service of notice requirements (s. 21), Court’s powers as to 24
Parenting order application (s. 21), Court’s powers as to 25
Division 3A — Court applications for determinations of parentage
26A. Terms used 25
26B. Application of this Division 26
26C. Determination of parentage, application for 26
26D. Application under s. 26C, Court’s powers as to 27
26E. Parentage testing order, ancillary orders for 27
26F. Adult contravening parentage testing order, consequences of 28
26G. Parentage testing order against child, execution and contravention of 29
26H. Person testing child under parentage testing order, liability of 29
26I. Report for this Division, receipt of by Court as evidence etc. 30
26J. Revoking consent after s. 26C application made 30
Division 4 — Parental responsibility for prospective adoptees
Who has parental responsibility after consent requirements met 30
Who has parental responsibility where consent requirements not met etc. 31
When parental responsibility ceases 32
CEO having parental responsibility, duties of if not possible or desirable to place child for adoption 33
CEO having parental responsibility, powers of as to care of child 33
Person with parental responsibility, duties of 34
CEO with parental responsibility, when may renounce or transfer responsibility 34
Corresponding officer with parental responsibility, when CEO may request transfer etc. of responsibility 35
Removing child from WA without consent, offence 36
Division 5 — Court applications as to parental responsibility for children awaiting adoption
Parental responsibility etc., Court’s powers as to 36
Division 6 — Prospective adoptive parents
CEO to inform etc. prospective adoptive parents 37
Applying to be prospective adoptive parent 38
Who can apply under s. 38(1) 38
Assessment report for s. 38(1) applicant, CEO to arrange 40
41A. CEO may conduct checks of s. 38(1) applicant 41
Assessment report to be given to adoption applications committee etc. 41
Committee may review own decision 41
Committee’s decision, CEO to advise applicant of etc. 42
Register of s. 38(1) applicants etc., CEO’s functions as to 42
Division 7 — Placement of prospective adoptees
Person consenting to child’s adoption, CEO to seek wishes of etc. as to prospective adoptive parents 43
Adoption plan, negotiation and content of etc. 44
Adoption plan, CEO’s duties as to 45
After adoption plan agreed, CEO to place child 45
Adoption plan not agreed, CEO’s powers in case of 46
Dispute in negotiating adoption plan, Court’s powers as to 46
Medical report on child required before placed for adoption 47
Prerequisites for CEO placing child for adoption 47
Placing child who cannot be placed under s. 52 50
Child’s welfare etc. during placement, CEO to arrange supervision of 50
Division 8 — Adoptions by step‑parents, relatives or carers
55A. Placement of child with relative or carer, approval of by CEO 50
55B. CEO may conduct checks of s. 55A(1) applicant 51
55C. When application by relative or carer for adoption order can be made 52
Adoption plan required for adoption by step‑parent, relative or carer 52
Division 9 — Applications for adoption orders
When application for adoption order can be made 53
Court may override s. 56 53
CEO to be notified of intention to apply for adoption order etc. 53
Relatives etc. to be notified of intention to apply for adoption order if birth parent deceased or cannot be found 53
Court may vary or override s. 58(1) or 59(2) 55
Report for Court, CEO to arrange after receipt of s. 58(1) notice 55
Application for adoption order, filing formalities for 56
Intervention by CEO or others in adoption order proceedings 56
Evidence on application for adoption order 57
Division 10 — Adoption orders
Residential etc. prerequisites to making adoption order 57
Who may be adopted 58
Who may adopt 58
Adoption order for child, preconditions for making etc. 59
Adoption order for adult, preconditions for making etc. 62
Adoption plan, Court may allow added parties to 64
Court’s other powers on adoption applications 64
Adoption plan, Court approval of required; enforcement of 64
Adoption plan, Court may dispense with requirement for 65
Name of adoptee, Court to declare 65
Effect of adoption order 66
Adoption plan, varying 68
Discharge of adoption order 69
Court to notify Registrar of adoption order etc. 71
Division 11 — Adoption of a child in Western Australia who is to live in a Convention country
78A. Adoption order for WA resident child by Convention country person, prerequisites for making etc. 72
78B. Adoption compliance certificate for s. 78A order, issue of for Hague Convention 73
Part 4 — Adoptions information
Division 1 — Adoption information services
CEO’s duties as to adoption information services 74
Death of party to adoption etc., CEO to notify certain persons 76
Division 2 — Access to adoptions information
Terms used and application of Division 2 77
Access to certain information, application for and grant by CEO of 78
Court may prevent CEO granting access under s. 82(2) etc. 78
Court records of adoption proceedings, who has right of access to 79
Registration of adoptee’s birth, who has right of access to 80
Portion of registration of birth not referring to adoption, Registrar may issue copy of 81
Non‑identifying information held by adoption agency, who has right of access to 82
Death of party to adoption, who has right of access to information in case of 82
If adoptee cannot be found, who has right of access to information in case of 84
Division 3 — Exchange and preservation of adoptions information
Court to give CEO information 85
Registrar to give CEO information 85
Persons conducting etc. adoption services, CEO may direct to give CEO information 86
Records of adoptions etc., preservation of 86
Division 4 — Contact vetoes
Register of contact vetoes, CEO to maintain 88
Duration of contact vetoes 88
Confirming, cancelling and varying veto 89
Undertaking not to contact person who has lodged contact veto required before access to information granted 89
Division 5 — Private contact and mediation licensees
Contact and mediation agencies to be licensed 90
Licence to conduct contact and mediation services, grant of 90
Regulations as to contact and mediation agencies 91
Contact and mediation agencies bound by contact veto 91
Division 6 — Updating non‑identifying information
CEO, on request, to attempt to obtain current information 92
Part 5 — Review of decisions and appeals
Division 1 — Review by CEO
Review by CEO of certain decisions, application for 94
Nature of review by CEO and evidence 94
CEO’s powers on review 95
Division 2 — Review by State Administrative Tribunal
Review by SAT of CEO’s decision under s. 112(1)(a) or (b) 95
Part 6 — Offences
Terms used 97
Territorial application of s. 122 to 125 98
Making or receiving payment for adoption, adoption service etc. 98
Advertising child for adoption etc. 99
Publishing identity of party to adoption etc. 100
Threat against person to induce consent etc. 101
Harassing etc. party to adoption etc. 102
127A. False etc. information in application etc. 102
127B. Party to proposed adoption etc. to notify CEO of certain information etc. 103
Disclosure etc. of information restricted 103
Prosecutions, who can commence and time limit for 104
Evidentiary matters 105
Part 7 — Miscellaneous
Division 1 — Delegation and protection
Delegation by CEO 107
130A. Delegation by State Central Authority 107
Protection from personal liability 107
Distribution of property by trustee etc. without notice of adoption order 108
Division 2 — Proceedings
Court etc. proceedings to be in private 109
Child, representation of 109
Division 2A — State Central Authority
134A. Minister is Central Authority for WA for Hague Convention etc. 110
134B. Functions of the State Central Authority 111
Division 3 — Non‑Western Australian adoptions
Arrangements with other States and Territories, Minister may make 111
Recognition of other Australian adoptions 112
136A. Recognition in WA of adoption in Convention country of child resident in that country by Australian resident 112
136B. Court may terminate relationship of child and parent of certain adopted children 113
136C. Recognition in WA of adoption of child resident in Convention country by person resident in another such country 114
136D. Recognition under s. 136A, effect of 114
136E. Recognition in WA of decision in Convention country to convert adoption under Hague Convention Art. 27 116
136F. Court may declare recognition under s. 136A or 136C of no effect in WA 116
136G. Adoption compliance certificate, evidential value of 117
136H. Person wishing to adopt child in Convention country, State Central Authority to report on 118
Arrangements with other countries, Minister may make 118
Recognition in WA of foreign country adoptions 118
138A. Recognition in WA of adoption in overseas jurisdiction of child resident in that jurisdiction by Australian resident 121
138B. Recognition under s. 138A, effect of 122
138C. Adoption certificate, evidential value of 123
138D. Person wishing to adopt child in overseas jurisdiction, CEO may report on 123
Certain children in WA adopted outside Australia, CEO’s powers to supervise welfare etc. of 124
Division 4 — Financial assistance and payment for services
Financial assistance, CEO’s powers to provide 124
Services provided by CEO, payments for 125
Division 5 — Rules and regulations
Rules of Court 126
Regulations 126
Division 6 — Repeal, transitional and savings, consequential amendments and review
Adoption of Children Act 1896 repealed and transitional etc. provisions for (Sch. 3) 128
Adoption Amendment Act 2012, transitional provisions for 129
Review of Act 129
Schedule 1 — Effective consent
Information and counselling required before consent given 131
Witness to form of consent, who can be 132
Preconditions to witnessing form of consent 133
Schedule 2 — Rights and responsibilities to be balanced in adoption plans
Infancy 134
Childhood 134
Adolescence 135
Adulthood 135
Schedule 2A — Aboriginal and Torres Strait Islander children — placement for adoption principle
Schedule 2B — The Hague Convention
Schedule 3 — Transitional and savings
Terms used 153
Interpretation Act 1984 not affected 153
Further savings 153
Provisions of this Act that apply to adoptions under 1896 Act 153
Access to information, modified versions of s. 84, 85 and 88 apply to adoptions under 1896 Act 154
Access to information, effect of death of person required to consent 157
Access to information, effect of adoptee being mentally incapable of consenting 157
Access to information, effect of adoptive or birth parents being mentally incapable of consenting 157
Access to information, CEO may grant access to adoptee under 18 who cannot obtain required consents 158
Reference to record of Court proceedings includes record of proceedings under 1896 Act 158
Reference to registration of birth includes certain other registrations 158
Notes
Compilation table 160
Uncommenced provisions table 163
Other notes 163
Defined terms
Western Australia
Adoption Act 1994
An Act to make provision for the adoption of persons and for the parties to adoptions and their relatives to have access to information about the parties, to repeal the Adoption of Children Act 1896, and for related purposes.
Part 1 — Preliminary
1. Short title
This Act may be cited as the Adoption Act 1994.
2. Commencement
The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation.
3. Paramount considerations when administering Act etc.
(1) The paramount considerations to be taken into account in the administration of this Act are —
(a) the welfare and best interests of a child who is an adoptee or a prospective adoptee; and
(b) the principle that adoption is a service for a child who is an adoptee or a prospective adoptee; and
(c) the adoption of a child should occur only in circumstances where there is no other appropriate alternative for the child.
(2) It is acknowledged that adoption is not part of Aboriginal or Torres Strait Island culture and that therefore the adoption of a child who is an Aboriginal person or a Torres Strait Islander should occur only in circumstances where there is no other appropriate alternative for that child.
[Section 3 inserted: No. 8 of 2003 s. 4.]
4. Terms used
(1) In this Act, unless the contrary intention appears —
Aboriginal person means a person who is a descendant of Aboriginal people of Australia;
access, in relation to information, includes the inspection of a document containing the information and the receipt of a document or extract or copy of a document that contains the information;
adoptee means a person who is adopted under an adoption order;
adoption applications committee means the committee appointed under section 12;
adoption authority means a person, body or office in an overseas jurisdiction responsible for approving the adoption of children;
adoption certificate, in relation to an adoption, means a certificate or other document issued by an adoption authority in the overseas jurisdiction in which the child to whom the certificate relates was habitually resident before being adopted, stating that —
(a) the adoption took place in accordance with the laws of that overseas jurisdiction; and
(b) the CEO, or a person or a delegate of a person whose functions in another State or a Territory correspond with those
This is an opening excerpt, not the complete document.