Victorian Consolidated Legislation

Adoption Act 1984 - SECT 46

Guardianship of child awaiting adoption

46. Guardianship of child awaiting adoption



(1) Where each person whose consent to the adoption of a child is required
under section 33 has consented to the adoption of the child or the consent has
been dispensed with under this Act, the Secretary or, where an approved agency
is authorized to make arrangements with a view to the adoption of the child,
the principal officer of that agency, shall be the guardian of the child for
all purposes (other than the purposes of section 33) to the exclusion of all
other persons until-

   (a)  an adoption order is made in respect of the child;

   (b)  the Secretary or principal officer renounces guardianship of the child
        under subsection (4);

   (c)  the Secretary or principal officer by writing under the hand of the
        Secretary or principal officer releases the child to the parents or to
        one of the parents of the child;

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

   (e)  where the Secretary or principal officer has given notice under
        section 38 to each person who has given consent, at the expiration of
        140 days after the Secretary or principal officer gave the notice or
        notices; or

   (f)  the Court, by order, makes other provision for the guardianship of the
        child.

(2) Except where a child is on placement with a view to adoption, a release in
writing of a child under subsection (1) to the parents or to one of the
parents of the child revokes any consent given by the parents or either of
them to the adoption of the child.

(3) Subsection (1) does not apply to or in relation to-

   (a)  a child the adoption of whom by a spouse or de facto spouse of a
        parent of the child or by a relative, or by a relative and the spouse
        or de facto spouse of the relative, of the child is being negotiated
        or arranged; or

   (b)  a child who is the subject of a guardianship to Secretary order or
        long-term guardianship to Secretary order within the meaning of the
        Children, Youth and Families Act 2005 or who is under the guardianship
        of a person by reason of provisions of an Act of another State or of a
        Territory corresponding to the provisions of the
        Children, Youth and Families Act 2005 by reason of which a child may
        be such a ward.





(4) Where the Secretary or a principal officer of an approved agency receives
from an officer in another State or a Territory whose powers, functions and
duties correspond with those of the Secretary or principal officer under this
Act-

   (a)  a notice that application will be made in that State or Territory
        under provisions corresponding with this Act for the adoption of a
        child who is under the guardianship of the Secretary or a principal
        officer by virtue of the provisions of subsection (1); and

   (b)  a request that the Secretary or principal officer renounce
        guardianship of the child-

the Secretary or principal officer may, if the consent has become irrevocable
and the Secretary or principal officer thinks it in the best interests of the
child so to do, by instrument in writing signed by the Secretary or principal
officer renounce guardianship of the child.

(5) Forthwith after signing an instrument of renunciation under subsection
(4), the Secretary or principal officer shall send the instrument by certified
mail to the officer in the other State or Territory together with the consent
to adoption executed in Victoria with respect to the child by virtue of which
the Secretary or principal officer is the guardian of the child and shall
thereupon cease to be guardian of the child for the purposes of this Act.

(6) Where 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 provisions corresponding with the provisions of this
Division whose powers, functions and duties correspond with those of the
Secretary under this Act or of the principal officer of an approved agency,
the Secretary or principal officer may notify such officer or person of the
application and request the officer or person in writing to renounce
guardianship of the child and to forward to the Secretary or principal officer
for use in the proceedings on the application the consent executed in that
State or Territory with respect to the child.

(7) Upon receiving from any such officer or person an instrument in writing
executed by such officer or person renouncing the guardianship of a child
referred to in subsection (6) the Secretary or principal officer shall become
and be the guardian of the child in all respects as if the consent to adoption
executed in that State or Territory and forwarded with the instrument of
renunciation were a consent given in accordance with Division 3 in Victoria on
the day the consent purports to have been signed and attested in that State or
Territory.