My ex pays minimum child support for my two children, aged…

Thank you for your query.

Intrafamily adoption is the adoption of a child who lives in NSW by a step parent or relative.

Step parent adoption is where the parent caring for the child (custodial parent) has remarried or established a stable de facto relationship and applies, with their partner, to adopt the child in their care.

The NSW Adoption Act 2000 has recently been amended to simplify the adoption process for step-parents or relatives seeking to adopt. This includes removing the need for the direct involvement of Community Services in most cases.

Generally, the NSW Adoption Act 2000 (the Act) allows for intrafamily adoption, that is, the adoption of a stepchild or the adoption of a relative child. The overriding principle of the Act, which applies to all adoptions, is that the making of the adoption order should promote the child's best interests better than any other alternative for the child's care.

The Act and the NSW Adoption Regulation 2003 (the Regulation) set out requirements for adoption applications made in respect of children by their step-parents. Adoption applications are heard and determined by the NSW Supreme Court.

The Act only relates to the adoption of a child who is currently in NSW as the Act in section 23(2) states:

"The Court must not make an adoption order unless, when the application for the order is filed:

1. the child is present in the State, and
2. the applicant, or if the application is a joint application, each of the applicants resides, or is domiciled in the State.

And section 107(3) states: "The Court must not make the order if the child is not in Australia".

Section 30 of the Act states that where the child is under the age of 18 years: "The Court must not make an adoption order in favour of a step parent of a child unless:

(a) the child is at least 5 years old, and

(b) the step parent has lived with the child and the child's birth or adoptive parent for

a continuous period of not less than 2 years immediately before the application

for the adoption order, and

(c) specific consent to the adoption of the child by the step parent has been given in

accordance with this Act by the appropriate persons, and

(d) the Court is satisfied that the making of the adoption order is clearly preferable in

the best interests of the child to any other action that could be taken by law in

relation to the child."

Where there is a matter currently in the Family Law Court, the Supreme Court is reluctant to make an adoption order unless leave from the Family Court has been obtained.

A person considering adopting a step-child can lodge an adoption application directly at the NSW Supreme Court in accordance with the requirements set out in the Act and Regulation. The Supreme Court provides information on their website to assist in the preparation of your application or you may choose to seek the services of a private solicitor. You may wish to contact the Law Society of NSW who can provide names of lawyers in your region. Their website address is: www.lawsociety.com.au or phone is 02 9926 0333.

The Supreme Court's website is:

Section 91 of the Act refers to the requirement for a written report to the Court concerning the proposed adoption of the child where the child is under 18 years of age.

Should you require a report pursuant to this section, this must be provided by an ‘approved assessor'.

An adoption application must include the consent of the required persons. Division 1 entitled ‘Who must consent to an adoption?' of Part 5 of the Act outlines who must consent. Generally consent is required from all parents and anyone with parental responsibility, with some exceptions. Also, children over the age of 12 years must ordinarily consent to their adoption. Section 60 outlines at what time consents are to be given.

A person or child consenting to a child's adoption must be provided with the Mandatory written information prior to giving their consent.

I trust that this has been of assistance.