Victorian Consolidated Legislation

Adoption Act 1984 - SECT 11

Persons in whose favour adoption orders may be made

11. Persons in whose favour adoption orders may be made



(1) An adoption order may be made in favour of a man and a woman-

   (a)  who are married to each other and have been so married for not less
        than two years; or

   (b)  whose relationship is recognized as a traditional marriage by an
        Aboriginal community or an Aboriginal group to which they belong and
        has been so recognized for not less than two years; or

   (c)  who are living in a de facto relationship and have been so living for
        not less than 2 years; or

   (d)  who have been living with each other in any combination of the
        relationships referred to in paragraphs (a) to (c) and have been so
        living for not less than 2 years-

before the date on which the order is made.

(1A) The Court must not make an adoption order under subsection (1) in
relation to a man and woman living in a de facto relationship unless the Court
is satisfied that neither the man nor the woman is married to another person
at the time that the order is made.

(2) The Court shall not make an adoption order in favour of a person who is,
or persons either of whom is, the mother of the child or a man who, under
section 33(3), is an appropriate person to give consent to the adoption of the
child.

(3) Subject to this section, where the Court is satisfied that special
circumstances exist in relation to the child which make it desirable so to do,
the Court may make an adoption order in favour of one person.

(4) The Court shall not make an adoption order in favour of one person-

   (a)  if that person is married unless that person is living separately and
        apart from his or her spouse; or

   (b)  if that person is married and is living with his or her spouse, except
        with the consent of that spouse; or

   (c)  if that person is living in a de facto relationship and has been so
        living for not less than 2 years, except with the consent of that
        person's de facto spouse.

(5) The spouse or de facto spouse of a parent or of an adoptive parent of a
child may make an application to the Court under this Act for an order for the
adoption of the child by that spouse or de facto spouse.

(6) Where an application is made under subsection (5) by the spouse or de
facto spouse of a parent or of an adoptive parent of a child, the Court must
not make an order for the adoption of the child solely by that spouse or de
facto spouse unless it is satisfied that-





   (a)  the making of an order in relation to the guardianship or custody of
        the child under the Family Law Act 1975 of the Commonwealth as amended
        and in force for the time being in relation to the child would not
        make adequate provision for the welfare and interests of the child;
        and

   (b)  exceptional circumstances exist which warrant the making of an
        adoption order; and

   (c)  an order for the adoption of the child would make better provision for
        the welfare and interests of the child than an order referred to in
        paragraph (a); and

   (d)  in the case of an order in favour of a de facto spouse, neither that
        spouse nor his or her de facto spouse is married to another person at
        the time that the order is made.

(7) If an order for the adoption of a child is made under subsection (6), the
spouse or de facto spouse shall be deemed to be a parent of the child jointly
with that parent or adoptive parent as if the spouse or de facto spouse and
that parent or adoptive parent had been married to each other at the time the
child was born but notwithstanding anything in section 53-

   (a)  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)  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)  the relationship between the child and that parent or adoptive parent
        is not terminated; and

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

   (e)  if the child were the adopted child of that adoptive parent, the order
        does not terminate that adoption.