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Communtity Law Manual | Disability rights | Decisions about adoption, sex and relationships

Decision making: When others can legally make decisions for you

Decisions about adoption, sex and relationships

Adoption decisions

Adoption Act 1955, s 8(1)(b)

Usually a child can’t be adopted unless the birth parents have agreed to this. But the law says that a parent’s agreement (consent) isn’t needed if because of “any physical or mental incapacity” the parent is “unfit” to have the care and control of the child and this is likely to continue indefinitely. A Family Court judge would decide this. The parent has to be given reasonable notice of the application for the adoption order. If you’re a birth parent and you get one of these notices, you can go to your local Community Law Centre for free legal advice.

Sex and relationships

If you have an impairment that prevents you being able to understand and make an informed decision, the law says you will not be capable of giving consent to sex.

Crimes Act 1961, ss 128, 135, 138

If you have an intellectual or physical impairment that significantly affects your ability to understand about sex or to communicate your decisions about sex, it’s a criminal offence if another person takes advantage of your impairment to get you to have sex with them.

It’s against the law for anyone to touch you without your consent or to sexually molest or assault you.

Marriage Act 1955, ss 2, 17, 18; Civil Union Act 2004, ss 7, 19, 20

You can get married or enter into a civil union if you’re able to understand what you’re doing and what the consequences will be. You have to be at least 18, or 16 or 17 if you have a Family Court judge’s permission.

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