Understanding Adoption in NSW

Syllabus Topic

Option 3: Family

The nature of family law

• adoption

Introduction

Adoption, a crucial aspect of family law, is predominantly governed by state legislation in Australia. In New South Wales (NSW), the process is regulated by the Adoption Act 2000 (NSW). Despite its focus on the child’s best interests, the adoption system presents challenges, especially regarding Indigenous children. This article explores the complexities of adoption law, the impact of socio-economic factors, and the advocacy efforts aimed at addressing these issues.

Legal Framework for Adoption in NSW

Adoption in NSW is governed by the Adoption Act 2000 (NSW), which emphasizes the child’s best interests as a priority in decision-making. Section 60C of the Family Law Act (FLA) and sections 7 and 8 of the Adoption Act outline that the child's well-being should be the primary consideration in adoption cases.

Indigenous Children and Adoption

A significant issue within the adoption system is the overrepresentation of Indigenous children in foster care and adoption processes. Despite the Adoption Act’s emphasis on kinship care, unconscious biases and prejudices can affect decisions regarding Aboriginal children’s custody. The current system often prioritizes economic indicators of 'best interests' over the child’s cultural and social well-being.

For example, under the Family Law Amendment (Shared Parental Responsibility) Act 2006, the principle that both parents are entitled to equal time with their child can sometimes misrepresent the child’s true needs. This can lead to decisions that prioritize economic factors over the child’s cultural and social needs.

State vs. Federal Jurisdiction

A key concern is the governance of adoption largely by state law, despite the need to reflect federal standards. This disparity can result in inconsistencies in parental obligations and the rights afforded to children, creating challenges in ensuring uniform protection and recognition of children's rights across Australia.

Advocacy and Reform: Grandmothers Against Removal

The group Grandmothers Against Removal highlights the overrepresentation of Indigenous children in out-of-home care and adoption. Their advocacy focuses on preventing the forced removal of Indigenous children from their families and addressing the ongoing damage caused by policies akin to the Stolen Generations.

Their perspective is rooted in the intergenerational trauma inflicted by previous policies that removed Indigenous children from their families. They argue that the current foster care system perpetuates this trauma, systematically removing children from their cultural communities and denying their cultural identity.

Law Reform and Guiding Principles

In response to these concerns, Grandmothers Against Removal contributed to the development of the “Guiding Principles for Strengthening the Participation of Local Aboriginal Community in Child-Protection Decision Making.” These principles, created in collaboration with the NSW Ombudsman’s office and the New England Department of Communities and Justice (DCJ) District Office, aim to enhance the involvement of Aboriginal communities in decisions affecting their children.

SOURCES

NSW Legislation Register: Adoption Act 2000

AUSTLII: Family Law Act 1975

Australian Human Rights Commission – AHRC: Bringing them Home - Chapter 21

AUSTLII: Family Law Amendment (Shared Responsibility) Act 2006        

SBS: Grandmothers Against Removals

NSW Department of Communities and Justice: Grandmothers Against Removal – Guiding principles