Tasmania: Adoption Act 1988 (Tas)

Adoption Act 1988 An Act to amend and consolidate the law relating to adoption, to repeal the Adoption of Children Act 1968 , and to make consequential amendments to the Registration of Births and Deaths Act 1895 [Royal Assent 10 November 1988] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Adoption Act 1988 . 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. 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; 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before the commencement of this section, was approved as a private adoption agency within the meaning of the repealed Act – so long as that approval is not revoked or suspended under section 13 ; approved counsellor means a person who is for the time being approved as a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; contact veto means a contact veto referred to in section 90(3)(c) ; convention country has the meaning given by section 3A ; country includes a territorial unit or other part of a country; court means the Magistrates Court (Children's Division); 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; 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) 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) (d) 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; 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; 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; register means the register maintained under Part 7 of the Births, Deaths and Marriages Registration Act 1999 ; 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) 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 ; 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; 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 ; Territory means a Territory of the Commonwealth. (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) A reference in this Act to an article of the Hague convention is a reference to that convention as made on 29 May 1993. 3A. Meaning of "convention country" (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. 4. Approved counsellors (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) The Secretary shall not approve a person as a counsellor under subsection (1) unless the person is– (a) an officer of the Department or a person who is temporarily employed in that Department; or (b) employed by an approved agency; or (c) 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. . . . . . . . . 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) 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) the prospective adoptive parents were resident or domiciled in Tasmania; or (b) a child was present in Tasmania; or (c) 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) the prospective adoptive parents were resident or domiciled in Tasmania; or (e) the child was present in Tasmania; or (f) 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. 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. 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 Division 1 - Arrangement of adoptions 9. Adoptions may be arranged by Secretary or by approved agency (1) 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) 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. 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) shall contain such information relating to the organization as is prescribed; and (b) 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. 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. 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) 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. 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) 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. 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) 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) 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. 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) 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) 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. 16. Duty to keep records of adoptions (1) 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. 17. Duties of Secretary and principal officers 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 18. Adoption order to be made on application by Secretary or principal officer (1) 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) 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. 19. Who may be adopted (1) 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) 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. 20. Persons in whose favour adoption orders may be made (1) 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) 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) . . . . . . . . (3) 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) 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) 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) 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) 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) 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 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. 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) 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. 22. Age of adoptive parents (1) 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. 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. 24. Court to be satisfied as to certain matters (1) 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) 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) 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) 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) 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) 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) 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. 25. Notice of application for adoption orders (1) 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) 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) 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. 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. 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) 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) . . . . . . . . 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; 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) 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) the name of the person; and (b) 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) 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 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) 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) 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) 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) 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) . . . . . . . . (d) 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) 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) 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) 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) 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) 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. 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) 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) an Australian Diplomatic Officer within the meaning of the Consular Fees Act 1955 of the Commonwealth; or (ii) 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. 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) 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) 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) 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) 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. 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. 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. 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. 35. Revocation of consents (1) 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) 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) 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) 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. 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) the consent was not given in accordance with this Act; or (b) the consent was obtained by fraud, duress, or other improper means; or (c) the consent was revoked at a time when it was lawful to do so; or (d) 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) 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. 37. Court may dispense with consents (1) Where, on application by the Secretary or the principal officer of an approved agency, the court is satisfied– (a) that a person whose consent to the adoption of a child is required under this Division cannot, after reasonable inquiry, be found; or (b) 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) that any such person has abandoned, deserted, persistently neglected, or ill-treated the child; or (d) 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) 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) 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) 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) a letter seeking that consent has been sent by certified mail addressed to that person at his last known place of residence; and (b) 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) 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) 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) 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. 38. Person who gives consent to be given notice of certain events (1) 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) 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) 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) 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) 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 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 39. Care of child pending adoption (1) 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) 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) 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) An authority given under subsection (2) ceases– (a) 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) if a person who has given consent to the adoption revokes that consent; or (c) 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) 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. 40. Guardianship of child awaiting adoption (1) 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) an adoption order is made in respect of the child; or (b) the Secretary renounces guardianship of the child under section 41 ; or (c) 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) 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) a child who is under the guardianship of the Secrtary 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) the Secretary has received notice in writing that a general consent to the adoption of the child has been given; and (ii) the Secretary has signified his acceptance of the guardianship of the child. 41. Renunciation of guardianship for adoption of child in another State (1) 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) 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) 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) 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) 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) 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) 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) 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. 42. Guardianship of non-citizen child (1) Where– (a) a non-citizen child is present in Tasmania; (b) the Secretary is authorized to make arrangements with a view to the adoption of the child; and (c) 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) 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 . 43. Miscellaneous provisions as to care, control, placement, &c., of child (1) 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) 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) 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) . . . . . . . . (4) . . . . . . . . (5) 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. 44. Duty of principal officer to report to Secretary 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) 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. 45. Natural parent's right of access after consent (1) 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) 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 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) 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) 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. 47. Supervision of certain children adopted overseas (1) Subject to subsection (2) , where– (a) 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 thi