Adoption termination is known in Australia as “discharging an adoption order.” Legislation exists in several Australian states for allowing this on a limited basis (thus, still discriminating against the adopted person). The purpose of this page is to collect references to relevant state legislation and individual accounts from former adoptees who have used this method to terminate their adoptions. which permits If you can provide any contributions to this page, please email to info @adoptingback.com.
Note: it is important to obtain professional legal advice before pursuing any action.
Australian Capital Territory | New South Wales | | Northern Territory | Queensland | South Australia | Tasmania | Victoria | Western Australia
Australian Capital Territory (ACT), Adoption Act 1993
Part 3 Adoptions under this Act, Division 3.6 Proceedings for an adoption order
39L Discharge of adoption order
(1) On application by a prescribed person, the court may make an order
(a discharging order) discharging an adoption order if the court considers that—
(a) the adoption order, or any consent to the adoption, was obtained by fraud, duress or other improper means; or (b) there are other circumstances that justify the discharging order.
(2) For subsection (1) (b), a breakdown in the relationship between the adopted person and the adoptive parents must not be taken to constitute a circumstance justifying a discharging order.
(3) A discharging order must not be made if it appears to the court that the making of the order would be prejudicial to the best interests of the adopted person.
(4) On an application under subsection (1), the court may require the director-general to investigate the matter and to provide a written report to the court.
(5) A discharging order must not be made unless the applicant has, not later than 28 days before the return date for the application, served written notice of the application and its return date on—
(a) if the adopted person is 12 years old or older—the adopted person; and
(b) each adoptive parent; and
(c) each person whose consent to the adoption was required.
Note If a form is approved under the Court Procedures Act 2004, s 8 for an
application, the form must be used.
(6) On application, the court may dispense with the requirement to serve notice under subsection (5).
(7) If the court makes a discharging order, the court may, at the same time or subsequently, make any consequential or ancillary orders it thinks fit to promote the best interests of the adopted person, or otherwise in the interests of justice, including orders relating to—
(a) the person’s name; or
(b) the ownership of property; or
(c) if the person is a child or young person—
(i) guardianship or custody of the person; or
(ii) the place of residence of the person.
(8) Subject to any order made under subsection (7) and to section 43 (3), the rights, privileges, obligations, liabilities and relationships under the law of the Territory of the person and of all other people are, on the making of a discharging order, the same as if the adoption order had not been made, but without prejudice to—
(a) anything lawfully done while the adoption order was in force;
or
(b) the consequences of anything unlawfully done while the adoption order was in force; or
(c) any right or interest that became vested in any person while the adoption order was in force.
(9) If an adoption order that has been discharged was made under a general consent, then, unless the court otherwise orders, that consent remains effective for the purpose of a further application for an adoption order about the same person.
(10) In this section: prescribed person, in relation to an application for a discharging order for a person, means the Minister, the director-general, the public advocate, the adopted person, an adoptive parent or a person whose consent to the adoption was required.
New South Wales, Adoption Act 2000 No 75
Part 10 Procedures after application dealt with
93 Discharge of adoption orders
(1) In this section: concerned person means the Attorney General, or any party to an adoption.
(2) A concerned person may apply to the Court for an order discharging an adoption order (a discharge order).
(3) The Court is to give each concerned person (other than the applicant for the discharge order) notice of the application.
(4) The Court may make a discharge order if it is satisfied that:
(a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or
(b) there is some other exceptional reason why the adoption order should be discharged.
(5) The Court must not make a discharge order if it appears to the Court that:
(a) the making of the order would be prejudicial to the best interests of the child, or
(b) if the application for the order is made by the child—the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child’s access to information or contact with a person under Chapter 8 (Adoption information).
(6) If the Court makes a discharge order respecting a general consent, that consent remains effective for the purpose of a further application for an adoption order in relation to the same child, unless the Court orders otherwise.
(7) If the Court makes a discharge order, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the best interests of the child, including orders relating to the following:
(a) the name of the child,
(b) the ownership of property,
(c) the parental responsibility for the child,
(d) the domicile of the child.
(8) On the making of a discharge order, but subject to any order made under subsection (6) and to section 95 (4), the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made, but without prejudice to:
(a) anything lawfully done, or
(b) the consequences of anything unlawfully done, or
(c) any proprietary right or interest that became vested in any person, while the adoption order was in force.
94 Investigation of application for discharge
The Court may require the Director-General to investigate the circumstances of any application for a discharge order and report to it.
Northern Territory, Adoption of Children Act
Part 3–Adoptions Under This Act, Division 6 — Adoption orders
44 Discharge of Adoption Orders
(2) The Court shall not make an order discharging an order for adoption under this section if it is satisfied that:
(a) the child has attained the age of 18 years …
Queensland, Australia, Adoption Act 2009 No. 29
Part 9–Adoption orders, Division 7–Discharge of final adoption order
219 Grounds for discharge
(1) A final adoption order may be discharged on any of the following grounds–
(a) the order was made or something was done for the purpose of making the order–
(i) because of a false or misleading document or representation; or
(ii) because a person acted fraudulently or used undue influence on another person; or
(iii) in another improper way;
(b) a consent required for the adoption was not given freely and voluntarily by a person with capacity to give the consent;
(c) there are other exceptional circumstances that warrant the discharge.
(2) For this section, a person used undue influence on another person if the first person–
(a) used or threatened to use force or restraint against the other person; or
(b) caused or threatened to cause injury to the other person; or
(c) caused or threatened to cause any other detriment to the other person.
220 Who may apply
Any of the following persons may apply for a final adoption order to be discharged–
(a) the adopted person, if he or she is an adult;
(b) a birth parent of the adopted person;
(c) an adoptive parent of the adopted person;
(d) the chief executive.
221 How to apply
(1) An application for the discharge of a final adoption order must be made to the Supreme Court.
(2) The application must state the ground on which it is made.
(3) As soon as practicable after filing the application in the court, the applicant must serve a copy of it on each party to the adoption and, if the applicant is not the chief executive, on the chief executive.
(4) A served copy must state where and when the application is to be heard.
(5) A copy served on a person who is a party to the adoption, other than the adopted person, must also state that the application may be heard and decided even though the person does not appear in court.
(6) The court may dispense with the requirement to serve a copy of the application on a person who is a party to the adoption, other than the adopted person, if the court is satisfied the applicant–
(a) can not establish the person’s identity after making all reasonable enquiries; or
(b) can not locate the person after making all reasonable enquiries.
222 Respondent
(1) A person, other than the chief executive, served with a copy of the application is a respondent in the proceeding.
(2) If the chief executive is not the applicant, the chief executive may apply to the court to be included as a respondent in the proceeding.
223 Hearing not to be in public
(1) The hearing for the proceeding is not open to the public.
(2) However, the court may permit a person to be present during the hearing if the court is satisfied it is in the interests of justice.
224 Hearing of application in absence of party
(1) The court may not hear or decide the application unless the adopted person or a lawyer representing the adopted person appears in the proceeding.
(2) Otherwise, the court may hear and decide the application in the absence of a person who is a party to the adoption only if–
(a) the person has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or
(b) the court dispenses with the requirement to serve a copy of the application on the person under section 221(6).
(3) Subsections (1) and (2) do not limit the court’s jurisdiction to exclude a person from a proceeding.
225 Court orders
(1) The court may discharge the final adoption order only if satisfied of a ground mentioned in section 219.
(2) If the applicant is not the adopted person, the court must not discharge the order if it considers the discharge is likely to be contrary to the adopted person’s wellbeing and best interests.
(3) The order may be discharged even if the adopted person is an adult.
(4) If the adopted person is a child and has any views about the proposed discharge and is able to express the views, having regard to the child’s age or ability to understand, the court must consider the views.
(5) If the court makes an order discharging the final adoption order, it may also make any other order it considers appropriate in the interests of justice or to ensure the adopted person’s wellbeing and best interests including, for example, an order about–
(a) the ownership of property; or
(b) the adopted person’s name; or
(c) if the adopted person is a child, custody or guardianship of the child.
226 Effect of discharge
(1) On the making of an order discharging the final adoption order (the discharge order), the rights, privileges, duties, liabilities and relationships of the child and all other persons are the same as if the final adoption order had not been made.
(2) However, the making of the discharge order does not affect–
(a) anything lawfully done, or the consequences of anything lawfully done, while the final adoption order was in force; or
(b) a right, privilege or liability acquired, accrued or incurred while the final adoption order was in force.
(3) The discharge order does not affect a consent given to the child’s adoption unless the court decides otherwise.
(4) For the purpose of a law relating to a sexual offence for which relationships are relevant, a relationship between a child and another person that existed immediately before the making of the discharge order continues, despite the discharge order, in addition to other relationships that exist because of the discharge order.
(5) This section applies subject to an order under section 225(5).
South Australia Adoption Act 1988
Part 2—Adoption orders, Division 1—Powers of the Court
14 Discharge of adoption orders on ground of fraud
14—Discharge of adoption orders on ground of fraud
1) The Court may discharge an adoption order if it appears that the order was obtained by fraud, duress or other improper means.
(2) The Court may, on discharging an adoption order, make any consequential orders that may be necessary or desirable in the circumstances of the case.
Tasmania Adoption Act 1988
PART II – ADOPTIONS UNDER THIS ACT, Division 2 – General
28. Discharge of adoption orders
28. Discharge of adoption orders
(1) In this section –
adoption order includes an adoption order made under the repealed Act or any corresponding previous enactment;
eligible person means the adopted person to whom an adoption order relates, a natural parent of the adopted person, an adoptive parent of the adopted person, the Secretary, or the principal officer of an approved agency by which the adoption was arranged –
and a reference to special circumstances includes a reference to an irretrievable breakdown of the relationship between the adoptive parents and the adopted person.
(2) An eligible person may apply to the court for an order discharging an adoption order on the grounds –
(a) that the adoption order or a consent for the purposes of the adoption order was obtained by fraud, duress, or other improper means; or
(b) that special circumstances exist in relation to the welfare and interests of the person why the adoption order should be discharged.
(3) Where an application is made under subsection (2), the court shall, if satisfied that there may be grounds on which an order may be made, direct that an investigation be made into the circumstances under which the application is made.
(4) An investigation under subsection (3) shall be made by the Secretary and, where the court so directs, by a person nominated by the Attorney-General.
(5) If, after consideration of a report of an investigation carried out under subsection (3), the court is satisfied that the adoption order should be discharged, the court shall make an order for the discharge of the adoption but shall not make such an order if it appears to the court that it would be prejudicial to the welfare and interests of the adopted person to do so.
(6) Where the court makes an order discharging an adoption order, any consent given under this Act for the purposes of the adoption of the person to whom the adoption order relates ceases to have effect unless the court otherwise orders.
(7) Where the court makes an order under this section in respect of an adopted person, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or the welfare and interests of the person, including orders relating to –
(a) the name of the person; and
(b) the ownership of property; and
(c) the care, control, custody, or guardianship of the person; and
(d) the domicile of the person.
(8) On the making of an order under this section discharging an adoption order, but subject to an order made under subsection (7) and to section 50(2), the rights, privileges, duties, liabilities, and relationships of the person to whom the adoption order relates and of all other persons shall be the same as if that order had not been made, but without prejudice to –
(a) anything lawfully done; or
(b) the consequences of anything unlawfully done; or
(c) a proprietary right or interest that became vested in a person –
while the adoption order was in force.
Victoria Adoption Act 1984
Authorised Version No. 062, PART II—ADOPTIONS UNDER THIS ACT, Division 1—General
19 Discharge of adoption orders
(1) An eligible person may apply to the Court for an order discharging an order for the adoption of a child made under this Act or any corresponding previous enactment on the grounds—
(a) that the adoption order or a consent for the purposes of the adoption order was obtained by fraud, duress or other improper means; or
(b) that special circumstances exist why the adoption order should be discharged.
(2) In subsection (1)—
(a) eligible person means the adopted child to whom the adoption order relates, a natural
parent of the adopted child, an adoptive parent of the adopted child, the Secretary or
the principal officer of the approved agency by which the adoption was arranged; and
(b) a reference to special circumstances includes a reference to an irretrievable breakdown of the relationship between the adoptive parents and the adopted person.
(3) Where an application is made under subsection (1), the Court shall, if satisfied that there may be grounds on which an order may be made, direct that an investigation be made into the circumstances under which the application is made.
(4) An investigation under subsection (3) shall be made by the Secretary and, where the Court so
directs, by a person nominated by the Secretary to the Department of Justice.
(5) The Court shall, after consideration of a report of an investigation carried out under subsection (3), if it is satisfied that the adoption order should be discharged, make an order for the discharge of the adoption order.
(5A) The Court shall not make an order for the discharge of an adoption order unless the Court is
satisfied that the welfare and interests of the child would be promoted by the discharge of the
adoption order.
(6) Where the Court makes an order discharging an adoption order, then, unless the Court otherwise orders, any consent given under this Act for the purposes of the adoption of the child ceases to have effect.
(7) Where the Court makes an order under this section, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or the welfare and interests of the child, including orders relating to—
(a) the name of the child;
(b) the ownership of property;
(c) the custody or guardianship of the child; or
(d) the domicile of the child.
(8) Upon the making of an order under this section discharging an order for the adoption of a
child, but subject to any order made under subsection (7) and to section 53(2), the rights,
privileges, duties, liabilities and relationships of the child and of all other persons shall be the same as if the adoption order had not been made, but without prejudice to—
(a) anything lawfully done;
(b) the consequences
(c) any proprietary right or interest that became vested in any person— whilst the adoption order was in force.
(9) The Court may allow any of the following persons to appear and to address the Court (either personally or by a legal practitioner) at the hearing of an application for the discharge of an order for the adoption of a child—
(a) the child;
(b) a natural parent of the child;
(c) an adoptive parent of the child;
(d) the Secretary;
(e) if the adoption was arranged by an adoption agency, the principal officer of that agency;
(f) any other person whom the Court determines has a sufficient interest in the matter.
Western Australia Adoption Act 1994
PART 3 — THE ADOPTION PROCESS
Division 10 — Adoption orders
77. Discharge of adoption order
(1) The Director-General or the Attorney General may apply to the Court for an order to discharge an adoption order.
(2) On an application under subsection (1), the Court may make an order to discharge an adoption order if it is satisfied that —
(a) the adoption order was obtained by fraud, duress or other improper means;
(b) a consent relied on for the making of the adoption order was not an effective consent because it was
obtained by fraud, duress or material inducement; or
(c) there is some
3) The Court is not to make an order under subsection (2) if to do so would not be for the welfare and in the best interests of the adoptee.
(4) Where an order is made under subsection (2) in relation to an adoption in which the adoptive parent was not specified in the forms of consent to the adoption, the consents to the adoption continue to have effect unless the Court orders otherwise.
(5) Where an order is made under subsection (2), the Court may make such consequential or ancillary orders as it thinks fit in the interests of justice or the welfare and best interests of the adoptee, including orders relating to —
(a) the name of the adoptee;
(b) the ownership or possession of property;
(c) the guardianship or custody of the adoptee; or
(d) the domicile of the adoptee.
(6) Where an order is made under subsection (2), the rights, duties, liabilities and relationships of persons under the law of the State are to be as if the adoption order had not been made.
(7) Subsection (6) —
(a) is subject to orders made under subsection (5) and to section 75 (5); and
(b) does not otherwise affect —
(i) anything lawfully done;
(ii) the consequences of anything lawfully done; or
(iii) any proprietary right or interest that became vested in any person while the adoption order was in force.
(8) An adoption order cannot be appealed against, reviewed, called in question or affected by any court on any account, except —
(a) under this section; or
(b) under section 81 (2a) of the Family Court Act 1975.