Division 5 of Part III of the Adoption of Children Act (Chapter 275) allows the Court to take a decision in stages.
(1) On an application for an adoption order, the Court may postpone the determination of the application and make an interim order for the custody of the child in favour of the applicants.
(2) An interim order may be subject to such terms and conditions relating to the maintenance, education and welfare of the child as the Court thinks proper.
(3) The Court may not make an interim order in favour of any persons unless it could lawfully make an adoption order for that child by those persons.
(4) While an interim order is in force, the persons in whose favour it is made are entitled to the care and custody of the child.
The purpose of an interim order
An adoption order is permanent and irreversible in practical terms. Section 28 makes the child a child of the adopters as if born to them in lawful wedlock, and ends the relationship with the birth family for the purpose of all laws.
Section 33 lets the Court see how the placement works before taking that step. The child lives with the applicants, who hold lawful custody under subsection (4), while the Court reserves the final decision.
It also gives the Director’s written report under section 9(1) something concrete to describe — the actual placement, rather than a proposal.
An interim order may only be made in favour of persons in whose favour the Court could lawfully make an adoption order.
So all the Part III gateways must already be satisfied: section 6 (who may be adopted), section 7 (a husband and wife jointly, or one person on exceptional circumstances), and section 8 (the ages of the adopters).
An interim order is not a way around the requirements. It is a pause before the final step, not a lower standard.
Subsection (2) — the conditions
The Court may impose terms and conditions relating to the maintenance, education and welfare of the child.
Typical conditions include which school the child attends, arrangements for medical care, contact with siblings or relatives, and reporting to the Director.
The applicants have care and custody under subsection (4), but they are not the child’s parents. The Director’s guardianship under section 23 continues — it ends only on the events listed in section 23(1)(c) to (h), of which an interim order is not one.
And section 23(8) provides that the Director’s guardianship does not affect the liability of any other person to provide adequate means of support. A birth parent’s duty to maintain under section 8 of the Lukautim Pikinini Act 2015 is not displaced by an interim order.
Section 34 — one year, two years maximum
(1) An interim order remains in force for such period, not exceeding one year, as the Court specifies, and for such further periods (if any) as the Court from time to time orders.
(2) An interim order shall not be in force for periods exceeding in the aggregate two years.
| Limit | Effect |
|---|---|
| One year per order | The Court must revisit the matter at least annually |
| Two years in aggregate | An absolute ceiling — the Court must then decide |
A child cannot be left indefinitely in a provisional placement, belonging fully to neither the birth family nor the adopters.
At the end of two years the Court must either make the adoption order or refuse the application — and if it refuses, section 12 requires it to make such order for the child’s care and control as it thinks proper.
The same anti-drift concern appears in section 23(4), which requires the Director to report to the Court where his guardianship has lasted a year, and in section 52(3) of the Lukautim Pikinini Act 2015, on settled and permanent living arrangements.
Section 35 — ending an interim order
(1) The Court may, at any time, make an order discharging an interim order — whether made under this Division or under the provisions in force immediately before the commencement date — and may make such order for the care and custody of the child as it thinks proper.
(2) An interim order ceases to have effect on the making of an order for the adoption of the child, whether made in the country or in Australia.
“At any time” — the Court is not confined to the annual review points. Where the placement is not working, or new information emerges, the order may be discharged at once, with immediate provision for the child’s care and custody.
“Or in Australia” — subsection (2) recognises that an adoption may be completed elsewhere. That connects with Division 3, under which the Director may renounce guardianship where a child is to be adopted in a reciprocating state (a State or Territory of Australia declared under section 25), and with section 37 on the recognition of Australian adoptions.
Throughout, section 5 governs: for all purposes of Part III, the welfare and interest of the child concerned shall be regarded as the paramount consideration. That is the test for making an interim order, for extending it, and for discharging it.
Sources
- Adoption of Children Act (Chapter 275) — ss 5–9, 12, 23–28, 33–35, 37
- Lukautim Pikinini Act 2015 — ss 8, 52
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.