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Michelle McDermott

Adoption can be described as the process whereby a person or persons accepts a child, who is not biologically or legally their own, into their family and assumes all parental rights and responsibilities for that child.

The process of adoption of New South Wales (“NSW”) is governed by the Adoption Act 2000 (NSW) (“the Adoption Act”).

In NSW, a person may apply to either the Supreme Court of NSW or, with leave, to the Family Court of Australia.

According to Section 26 of the Adoption Act, a person may apply to adopt a child in NSW wither solely or jointly as a couple. In Australia, according to Section 60F(1)(a) of the Family Law Act 1975 (Cth) a child who is adopted by a married couple, or by either the husband or the wife during the course of the marriage (with the consent of their spouse), is considered to be child of the marriage.

In NSW, pursuant to the Adoption Act, the Court may make an adoption Order if:

  • The child in question is less than 18 years of age;
  • The child in present in NSW; and
  • The applicant/s (person/s seeking to adopt the child) reside in NSW.

According to Section 8 of the Adoption Act, in making a decision about the adoption of a child, the following principles are to be taken into account:

  • The best interests of the child, both in childhood and in later life, must be the paramount consideration,
  • Adoption is to be regarded as a service for the child,
  • No adult has a right to adopt the child,
  • If the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,
  • The child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, noting that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare,
  • If the child is Aboriginal-the Aboriginal child placement principles are to be applied, and
  • If the child is a Torres Strait Islander-the Torres Strait Islander child placement principles are to be applied.

The Court may also make an adoption Order in relation to a child in aged more than 18 years of age if that child has been cared for by the applicant/s as his/her child prior to the child reaching 18 years of age.

There are five main types of adoption in NSW (and Australia more largely):


Local adoption involves adopting a child from NSW whose biological parents have elected for their child to be adopted. Persons seeking to adopt a child need not be related or known to child.


Intercountry adoption is the process whereby an Australian citizen or permanent or resident, who is residing in Australia, adopts a child from overseas. In NSW, Family and Community Services (“FACS”) is the only agency which can legally arrange intercounty adoption. There are typically long waiting time associated with intercounty adoptions.


Special needs adoption involves a adopting a child who has additional care needs, such as children with intellectual and/or physical disabilities. Children with special need are often in needs of adoption as their biological parents are unable to meet their complex care needs. Married, couples, de facto couples and single persons are all eligible to adopt a child with special needs.


Intrafamily adoption involves the adoption of a child by a relative or step-parent.

The Adoption Act defines a relative of a child as grandparent, son, daughter, grandchild, brother sister, uncle or aunt of a person by blood, marriage or adoption.

A step parent can be the husband or wife of the biological parent or their de facto partner. The Court may make an Order in favour of a step parent if:

  • The child is at least 5 years old;
  • The step-parent has lived with the child and the child’s birth or adoptive parent for a continuous period of at least 2 years immediately before the application is made to adopt the child;
  • Appropriate persons (i.e. the biological parents or persons with parental responsibility for the child) have consented to the adoption; and
  • The adoption is in the best interests of the child and preferable to any other alterative form of legal action.


Out-of-home care adoption involves locally adopting a child who is in some form of out-of-home care, such as foster care.

If you need assistance with an adoption please contact our family law team who will be able to guide you through the process.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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