It is permissible to adopt your partner’s child in Queensland, provided the process prescribed by law is followed.

In Queensland the governing legislation is the state Adoption Act 2009 (Qld) (“AA”) and the Commonwealth Family Law Act 1975 (Cth) (“FLA”). The adoption process is conducted in the Family Court of Australia, a Queensland Magistrates Court (“Children’s Court”) and via the government department, Adoption Service Queensland – Department of Communities, Child Safety and Disability Services (“DOCS”).

The effect of step-parent adoption is a person assumes parental responsibility and becomes a parent for the child of their married or de facto partner, while the biological parent ceases being a parent and ceases to have parental responsibility under the FLA. Any parenting orders that previously existed cease to be in force.

What is the adoption process?

The adoption process starts with an application filed in the Family Court for leave (i.e. permission) to enter your name in the expression of interest registrar with DOCS to adopt the subject child, and then make an application to the State Magistrates Court.

Section 60G FLA provides:

Family Court may grant leave for adoption proceedings by prescribed adopting parent:

Subject to subsection (2)…the Family Court… may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

The requirements of this section were examined by Murphy J in Lowe and Anor & Clayton [2011] FamCA 1024. In this case the application was heard ex parte as the subject child’s biological father couldn’t be located. His Honour noted of the process, “It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter’s ordinary jurisdiction. Nevertheless, that is the consequence of the provisions of the Family Law Act 1975.

1. FLA section 60HA(3)(a) and 60F(4)(a)
2. FLA section 61E
3. FLA section 65J
4. Lowe and Anor & Clayton [2011] FamCA 1024 at 3

In dealing with the ex parte application His Honour considered evidence from the mother as to the biological father’s whereabouts, her efforts to contact him, past history of significant family violence, his history of psychiatric illness and made an Order dispensing with the requirement for service.

What are the requirements for leave to adopt a step child?

Section 60G requires that the court consider granting leave only if it is in the best interests of the child to do so, and having regard to:

In considering leave for the adoption proceedings to be commenced, best interests must be looked at in light of the fact the child will cease to be a child of the marriage for the purposes the FLA Section 4 FLA defines “child of the marriage” by reference to section 60F(1) to (4) as children to which children the FLA applies. The effect of this is a biological parent is effectively removed from being a person with standing (i.e. a person who is able) to bring an application in relation to the child for a parenting order This also applies to children of de facto relationships.
The court must consider that parental responsibility will be re allocated to another person.
The Court must consider the effect of existing parenting orders no longer being in effect after adoption.
The note to the section makes it clear that “best interests” is determined by reference to the matters that are typically considered by the court exercising jurisdiction pursuant to Part VII FLA in making a parenting order.

In the decision referred to above Murphy J went on to hold that as an application pursuant to section 60G was “a child related proceeding”, Division 12A FLA also applied, which allows the judge to determine whether strict rules of evidence apply in conducting the hearing. Further, His Honour observed that also these applications are child related proceedings that section 96ZN ought to apply, which requires the court to consider the impact of the conduct of the proceeding on the child, and that the court actively direct and manage the proceeding to avoid undue delay, technicality and form.

While the Family Court is not required to consider the matters to be determined by the Sate Magistrates Court these matters do bear upon whether the decision to grant leave is in the best interests of the child.

Her Honour Hogan J said in Hurst and Anor & Chapman [2014] FamCA 506 that in considering section 208 AA the Family Court should not grant leave if appeared proceedings in a State court were doomed to fail because of non-compliance with mandatory prerequisites.

Another requirement of the AA section 16 and 175 is that the biological parent consents to the adoption. In the two cases referred to consent was not available because in one the biological parent was deceased, and in the other couldn’t be located.

After leave to adopt has been granted

Once leave has been granted the process commences with the adopting parent’s name being entered in the expression of interest registrar with DOCS – Adoption Services Queensland.

This commences a process which culminates in a “suitability report” being produced which is put before the Children’s Court in ultimately determining the final adoption application. An approved form, known as a Form 7 commences this process.

5. Lowe and Anor & Clayton [2011] FamCA 1024 at 32
6. FLA section 60F(4)(a)
7. However, section 65C(c) may allow a person with an interest in the care, welfare or development of a child standing to bring an application.
8. FLA section 60HA(3)(a)
9. FLA section 61E
10. FLA section65J
11. Lowe and Anor & Clayton [2011] FamCA 1024 at 15
12. Lowe and Anor & Clayton [2011] FamCA 1024 at 16
13. AA section 208
14. Lowe and Anor & Clayton [2011] FamCA 1024 at 20 to 22
15. Hurst and Anor & Chapman [2014] FamCA 506 at 8
16. AA sections 138 and 203
17. AA sections 92 and 93

To be eligible to adopt the following must be established:

The applicant is a spouse (or de facto spouse) of a parent of the child.
The applicant has lived with the spouse parent and the child for a continuous period of at least 3 years.
Leave has been granted by the Family Court (as above).
The applicant is an adult and resident or domiciled within Australia.
The applicant and spouse are Australian citizens.
The subject child is agreed between 5 years and 17 years (an application for a child who is 17 can be made if the process can be completed before the child turns 18 and the grounds for the adoption are likely to exist.)

Consent of the biological parent

The general position is that the child’s parents must consent before the adoption can take place in Queensland. The AA provides for counselling to take place as part of this process.

In some circumstances the requirements for consent can be dispensed with, such as:

Applicant can’t establish the identity of the parent.
The applicant cannot locate the parent after all reasonable enquiries.
The parent is a lineal relative of the mother.
The conception was as a result of an offence by the relevant parent.
There would be unacceptable risk of harm to the child or mother if the relevant parent were made aware of the birth or proposed adoption.
Other special circumstances for giving dispensation.

The term “exceptional circumstances” is referred to in section 208(f) (requirements for making a final Order) and the example given is “a parent of the child has died or cannot be located after making all reasonable enquiries.”

18. 18. AA section 92
19. AA section 16 and 175
20. AA section 36(4)

Children’s Court

After the permission from the Family Court is granted to commence the adoption and all of the assessments have been made, an Application is filed in the Queensland Magistrates Court (sitting as the Children’s Court) for a final Order.

The final Order is made pursuant to section 208 AA and the requirements are:

The child is present in Queensland.
The step-parent is an adult resident or domiciled in Queensland.
The step-parent or their spouse is an Australia Citizen.
The suitability matters (referred to above) are satisfied.
An Order for the adoption would promote the child’s well being and best interests other than could be achieved via a Parenting Order made pursuant to the Family law Act 1975.
There are exceptional circumstances that warrant making an Order (such as death of the biological parent).

If you are considering adopting a step-child Hooper Mill Family Lawyers can guide you through the process and requirements.

Peter Hooper – Hooper Mill Family Lawyers Gold Coast and Brisbane – We are Family Law specialists, providing Expert Family Law advice and representation.