Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 144(2)]
[Heading amended by No. 19 of 2010
s. 4.]
In this
Schedule —
commencement means the commencement of Part 3
of this Act;
order of adoption means an order of adoption
within the meaning of and made under the repealed Act —
(a)
subsisting immediately before commencement; or
(b) made
after commencement under clause 4 or 5;
repealed Act means the Adoption of Children
Act 1896 .
2. Interpretation Act 1984 not affected
The provisions of this
Schedule do not prejudice or affect the application of the
Interpretation Act 1984 to and in relation to the repeal effected by
section 144(1).
Section 8 of the
repealed Act continues to apply to the dispositions of property mentioned
in section 8(1)(a) and (b) of the repealed Act and the agreements
and instruments mentioned in section 8(2) of the repealed Act as if
the repealed Act had not been repealed.
4. Application for order of adoption
Subject to
clause 8, an application for an order of adoption filed before
commencement continues to be governed by the repealed Act, despite the repeal
of that Act.
5 . Child placed with a view to adoption under
repealed Act
Subject to
clause 8, where immediately before commencement, a child had been placed
in a person’s care under the repealed Act for or towards or with a
view to the child’s adoption by the person, an application for the
child’s adoption continues to be governed by the repealed Act, despite
the repeal of that Act.
6 . Consent given but child not placed under
repealed Act
Where a person has
consented to a child’s adoption under the repealed Act, but before
commencement the child had not been placed in a person’s care under the
repealed Act for or towards or with a view to the child’s adoption,
the person’s consent is to be treated as a consent for the purposes of
section 18(1) of this Act but otherwise, the child’s adoption
is to be governed by this Act.
7. Waiting lists under repealed Act of
prospective adoptive parents
On commencement, a
list maintained by the CEO for the purposes of the repealed Act, and in
existence immediately before commencement, of the persons who are candidates
for assessment for adoptive parenthood or candidates accepted for assessment,
is to be treated as being a register of names under section 44(1) of this
Act.
[Clause 7 amended by No. 34 of 2004
Sch. 2 cl. 2(8).]
8 . Some provisions of this Act to apply to
adoptions under repealed Act
(1) Subject to
clause 9, sections 75 and 77 and Parts 4 to 7 of this Act apply in
relation to —
(a) an
order of adoption; and
(b) a
party to an adoption under an order of adoption,
and for the purposes
of this Act, an order of adoption is to be treated as an adoption order under
this Act, and a party to an adoption under an order of adoption is to be
treated as a party to an adoption under this Act.
(2) A reference in
Parts 4 to 7 of this Act to a party to an adoption includes a reference
to a person presumed under section 4A to be the father of an adoptee
under an order of adoption, even where the father’s consent to the
adoption was not required under the repealed Act.
(3) Where an order of
adoption is made after commencement under clause 4 or 5, section 78
applies to the order of adoption as if it were an adoption order under this
Act.
[Clause 8 amended by No. 8 of 2003
s. 86(1).]
9 . Some provisions of this Act as to access
to information not to apply to adoptions under repealed Act
(1)
Paragraphs (a) and (b) of section 84(1) do not apply in relation to
an adoptee or a birth parent of an adoptee under an order of adoption, and in
that case, the following paragraphs apply in substitution for those
paragraphs —
“
(a) the adoptee, if he or she
is —
(i)
18 or more years of age; or
(ii)
less than 18 years of age and an adoptive parent or
guardian of the adoptee, and each of the adoptee’s birth parents who
consented to the adoption, consent to the adoptee having access to the
information;
(b) a
birth parent of the adoptee, if —
(i)
the adoptee is 18 or more years of age; or
(ii)
the adoptee is less than 18 years of age and an
adoptive parent or guardian of the adoptee consents to the birth parent having
access to the information, after having due regard to the wishes of the
adoptee;
”.
(2) Paragraph (c)
of section 84(1) does not apply in relation to an adoptive parent under
an order of adoption, and in that case, the following paragraph applies in
substitution for that paragraph —
“
(c) an
adoptive parent of the adoptee, if —
(i)
the adoptee is 18 or more years of age; or
(ii)
the adoptee is less than 18 years of age and each of
the adoptee’s birth parents who consented to the adoption, consent to
the adoptive parent having access to the information; and
”.
(3) Section 84(3)
does not apply in relation to an adoptive parent under an order of adoption,
and in that case, the following subsection applies in substitution for
that subsection —
“
(3) Nothing in
subsection (1) prevents an adoptive parent from obtaining a record of the
order of adoption.
”.
(4)
Paragraphs (a) and (c) of section 85(1) do not apply to the original
registration under the Registration of Births, Deaths and Marriages
Act 1961 6 of an adoptee under an order of adoption, and in that
case, the following paragraphs apply in substitution for those
paragraphs —
“
(a) the
adoptee, if he or she is —
(i)
18 or more years of age; or
(ii)
less than 18 years of age and an adoptive parent or
guardian of the adoptee, and each of the adoptee’s birth parents who
consented to the adoption, consent to the adoptee having access to the
information;
”;
and
“
(c) an
adoptive parent of the adoptee, if —
(i)
the adoptee is 18 or more years of age; or
(ii)
the adoptee is less than 18 years of age and each of
the adoptee’s birth parents who consented to the adoption, consent to
the adoptive parent having access to the information.
”.
(5) Paragraph (b)
of section 85(1) does not apply to —
(a) the
re-registration under section 12A of the repealed Act of the birth
of an adoptee under an order of adoption; or
(b) the
registration under section 13A of the repealed Act of the birth of
an adoptee under an order of adoption,
and in those cases,
the following paragraph applies in substitution of that
paragraph —
“
(b) a birth parent of the adoptee,
if —
(i)
the adoptee is 18 or more years of age; or
(ii)
the adoptee is less than 18 years of age and an
adoptive parent or guardian of the adoptee consents to the birth parent having
access to the information, after having due regard to the wishes of the
adoptee; and
”.
(6) Paragraph (a)
of section 88 does not apply to an adoptee under an order of adoption and
in that case, the following paragraph applies in substitution for that
paragraph —
“
(a) the adoptee, if he or she
is —
(i)
18 or more years of age; or
(ii)
less than 18 years of age and an adoptive parent or
guardian of the adoptee consents to the adoptee having access to the
information;
”.
[Clause 9 amended by No. 8 of 2003
s. 86(2)-(5).]
10 . Consent not required if person to consent is
deceased
A person’s
consent in relation to access to information under this Act, as affected by
clause 9, is required only if the person is living, and lack of consent
because of the person being deceased is not to prevent access to the
information where it would otherwise be available under this Act.
11 . If adoptee incapable of giving consent
If an adoptee’s
consent for access to information is required by this Act, as affected by
clause 9, but the adoptee is mentally incapable of understanding the
nature and effect of the consent required, the consent may be given by the
adoptee’s guardian appointed under the Guardianship and Administration
Act 1990 , or if such a guardian has not been appointed and where
relevant, the adoptee’s parent or guardian.
12 . If adoptive or birth parents incapable of
giving consent
If the consent of an
adoptive or birth parent is required by this Act, as affected by
clause 9, for another person’s access to information but the
adoptive or birth parent is mentally incapable of understanding the nature and
effect of the consent required, in that case the consent of the adoptive or
birth parent to the access to the information is not required.
13. Adoptee under 18 who cannot obtain all
required consents
(1) Where an adoptee
under an order of adoption is less than 18 years of age and wishes to
have access to information which requires the consent of a person who has not
given consent under section 84, 85 or 88 as affected by clause 9 the
adoptee may apply to the CEO to give his or her authority under
section 82(2) for the adoptee to have access to the information.
(2) On an application
under subclause (1) the CEO may give his or her authority for the adoptee
to have access to the information if the CEO is satisfied
that —
(a) an
adoptive parent or guardian of the adoptee is unreasonably withholding
consent, or cannot be found or contacted after reasonable enquiries; or
(b)
there has been a breakdown in the adoption relationship and attempts to
resolve the matter have not been successful,
and the adoptee is
mature enough to receive the information.
[Clause 13 amended by No. 34 of 2004
Sch. 2 cl. 2(8).]
14 . Record of Court proceedings under repealed
Act
A reference in this
Act to the record of proceedings in a court, includes a reference, where
the proceedings were under the repealed Act, to the record kept by the
registrar of the Court, whether the proceedings were in the Court or the
Supreme Court and whether before or after commencement, and includes a
certified copy or a memorandum of an order of adoption mentioned in
section 13A(2) of the repealed Act.
15. Original and re-registrations of birth under
repealed Act
A reference in this
Act to the registration of the birth of an adoptee under an order of
adoption, includes a reference, where the order of adoption was made before
commencement, unless the contrary intention appears, to —
(a) the
registration of the adoptee’s birth under the
Registration of Births, Deaths and Marriages Act 1961 6 ;
(b) the
re-registration of the adoptee’s birth under section 12A of the
repealed Act; or
(c) the
registration of the adoptee’s birth under section 13A of the
repealed Act,
or more than one of
those, as is relevant to the individual case.
[Schedule 4 omitted under the Reprints Act 1984 s. 7(4)(e).]