Adoption in Australia

ADOPTION LAWS

3.1 Comparison by State Legislation of the Restriction of Rights.jpg

TOPIC 3.1 | Comparison by State Legislation of the Restriction of Rights

The Following Information is located on Adoptee Rights Australia .Inc website

In Australia, adoption is governed by state and territory laws, and as a result, the restrictions on rights around adoption can vary between states. However, the following is a summary of the general restrictions in place regarding adoption discharge, notification requirements, powers to seal records, and gag laws:

Discharge: In Australia, adult adoptees are eligible to apply for the discharge of their adoption orders. However, birth parents and adoption agencies do not have the right to apply for the discharge of adoption orders. Discharge is an extremely costly high court process and is also very emotionally taxing. It is also subject to the personal biases of the presiding judge and there is no guarantee of a favourable outcome. Additionally, no state or territory in Australia offers access to a simple, no-fault, no-fee discharge process.
Notification Requirements: Adoption notification laws in Australia vary by state and territory. Some states have laws that require adopted persons, birth parents, and adoptive parents to be notified if an application for the discharge of an adoption order is made. Other states do not have such laws.
Powers to Seal Records: In Australia, adoption records may be sealed, which means that access to the information is restricted. The laws surrounding the sealing of records vary by state and territory, and some states may have provisions that allow for the unsealing of records under certain circumstances.
Gag Laws: "Gag laws" refer to laws that restrict access to information about an adoption. In Australia, adoptees and birth parents may face restrictions on accessing information about their adoption due to "gag laws". These laws vary by state and territory and can limit the information that can be disclosed about an adoption.

It is important to note that these restrictions are subject to change and may vary depending on the state and territory in question. It is always recommended to verify information with relevant government agencies for the most up-to-date information and to seek professional advice if necessary.

Adoptee Rights Australia

Grounds for a discharge of adoption – Comparison by State Legislation

Notification Requirements - Comparison by State - Discharges

Powers to Seal Birth Records Forever - Comparison by State

Status of Person - Comparison by State - after Discharge is made

Adoption Gag Laws Comparison State by State

Discharge Laws By State

Australian Capital Territory

Because there have been very few to no previous cases in the ACT it is very difficult to obtain information on how to apply for a discharge. It is advised that you engage a lawyer to make Application to the Supreme Court on your behalf by lodging Form 3.35 Application for discharge of adoption order Court Procedures Rules 2006 (see r 3190 (Discharging order—application) and any other documents In the Supreme Court of the Australian Capital Territory.

https://www.courts.act.gov.au/supreme/corporate/contact_us

Legal Aid ACT 1300 654 314

https://www.legalaidact.org.au/contact-legal-aid

ACT Adoption Act 1993 A1993-20

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;

(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:

Adoption order includes an order for the adoption of a person made under a repealed law.

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.

Repealed law means any of the following Acts or an Ordinance repealed by any of the following Acts:

(a) Adoption of Children Act 1965;

(b) Adoption of Children Act 1974;

(c) Adoption of Children (Amendment) Act 1979;

(d) Adoption of Children (Amendment) Act 1983;

(e) Adoption of Children (Amendment) Act 1988;

(f) Adoption of Children (Amendment) Act 1991.

New South Wales

NSW discharge enquiries – Some options:

Post Adoption Resource Centre (PARC) – who may also suggest contacting Public Advocacy Resource Centre (PIAC) which is a community legal service. The best contacts for PARC are: 02 9504 6788 , 1300 659 814 and parc@benevolent.org.au.

Adoption orders are heard in the Supreme Court of NSW so further information may be available from there. Possibly information may be available at the Adoption Information Unit NSW Family & Community Services, but no information is showing on their website at this stage.

Discharge Grounds:

(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).

It is recommended applicants engage independent legal advice.

Click here to Search for Legal Aid in NSW

Current NSW ADOPTION ACT 2000 – SECT 93

Discharge of adoption orders

93 DISCHARGE OF ADOPTION ORDERS

(cf AC Act s 25)

(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.

Northern Territory

Northern Territory DISCHARGE NOT ALLOWED if you are 18 years and over.

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

An application for the discharge of a final adoption order must be made to the Supreme Court. The application must state the ground on which it is made. 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.

Grounds for discharge

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—

because of a false or misleading document or representation; or
because a person acted fraudulently or used undue influence on another person; or
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.

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.

For assistance contact Adoption Services at the Department of Child Safety, Youth and Women.

Address:
Work Level 1, 111 George Street, BRISBANE QLD 4000
Postal address:
GPO Box 806, BRISBANE QLD 4001
Phone: (07) 3097 5100 or 1800 647 983 (free call within Queensland)
Fax: (07) 3006 4065
Email: ads@communities.qld.gov.au

It is recommended applicants engage independent legal advice.

Click here to Search for Legal Aid in Queensland

South Australia

Grounds

(1) An eligible person may apply to the Court for an order discharging an adoption order (a discharge 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 it is in the best interests of the adopted person, taking into account the rights and welfare of the adopted person, for the discharge order to be made.

What is the process for applying for the discharge of an adoption order?

A formal application needs to be made to the Court. Application forms are available from the Court Administration Authority website.

During the adoption proceedings, the Court may require the Department for Child Protection to conduct an investigation about the application and prepare a report for the Court’s consideration.

If you want to talk to someone from Adoption Services in the Department for Child Protection about having your adoption Order discharged, you can call (08) 8463 3666.

Ground (b) was passed in the Review of the SA Adoption Act in December 2016, but only commenced on 15th December 2018, after extensive guidelines were developed which are being challenged by SA adoptees due to their intrusive nature and lack of relation to the legislation.

https://www.childprotection.sa.gov.au/adoption/changes-discharging-adoption-orders

It is recommended applicants engage independent legal advice.

Click here to Search for Legal Aid in South Australia

Tasmania

Who to Contact

The first point of contact is obtaining a General Application and Affidavit Forms (online or over the counter from Magistrates Court – Burnie, Launceston and Hobart).

Magistrates Court of Tasmania
https://www.magistratescourt.tas.gov.au/contact

Hobart Magistrates Court
Opening hours – Monday to Friday – 9am to 5pm
Street Address: – 25 Liverpool Street, Hobart Tasmania 7000
Write: GPO Box 354, Hobart Tasmania 7001
Telephone: 03 616 57136 – Civil – option 3
Fax : 03 6173 0221
Email: registry.hobart@justice.tas.gov.au

Past Adoption Information Services
https://www.dhhs.tas.gov.au/children/adoption/past_adoption_services

Adoptions & Permanency Services
Email: adoption.service@dhhs.tas.gov.au
Phone: (03) 6166 042
Street Address:
Wingfield Building, St Johns Park, NEW TOWN, Tasmania, 7008
Postal Address: PO Box 538, Hobart Tasmania 7001

NOTE: There are no support organisations in TASMANIA who have experience with Discharges for adoptees. It is recommended applicants engage independent legal advice.

Click here to Search for Legal Aid in Tasmania

NOTE – Tasmanian Past Adoption information Services state that the process in the first instance is to contact Adoptions and After Care Support to discuss the situation. If there is deemed to be grounds and Adoptions and After Care support are able to assist, they charge no fees.

**Any decision about whether there are grounds for discharge is to be made by the court itself.

There is no mention of any external agency in the Act.

Adoptees, definitely should have the OPTION to seek support in the process of application but there does not seem to be any subordinate legislation that REQUIRES adoptees to take the pathway proposed by Adoptions, Permanency and After Care Support Services Communities Tasmania.

TASMANIA ADOPTION ACT 1988 – SECT 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

An adopted person can apply to the Victorian County Court for a discharge of an adoption order made under section 19(1) of the Adoption Act 1984. There are two grounds under which an application can be made, these are:

(a) That the adoption order or 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 (this includes a reference to an irretrievable breakdown of the relationship between the adoptive parents and the adopted person).

It is also advisable to contact FIND who can explain to you the process and fees involved:

adoptionrecords@justice.vic.gov.au

1800 130 225 (toll free)
findduty@dhhs.vic.gov.au
PO Box 588, Collins Street West
Melbourne Victoria 3000

It is recommended applicants engage independent legal advice.

Click here to Search for Legal Aid in Victoria

Current Victorian ADOPTION ACT 1984 – SECT 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)—

19(2)(a) amended by No. 46/1998
s. 7(Sch. 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.

19(4) amended by Nos 69/1989 s. 11(1)(a), 46/1998
s. 7(Sch. 1), 32/2015 s. 5.

(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 and Regulation.

19(5) amended by No. 32/2000 s. 14(1).

(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.

19(5A) inserted by No. 32/2000 s. 14(2).

(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 of anything unlawfully done; or

(c) any proprietary right or interest that became vested in any person—

whilst the adoption order was in force.

19(9) inserted by No. 32/2000 s. 14(3).

(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

The Family Court of Western Australia may make an order to discharge an adoption if satisfied there are sufficient grounds to do so. There are limited people who can apply to have an adoption discharged including the adult adoptee, the Attorney General and the Chief Executive Officer of the Department for Child Protection.

Persons who wish to make an application are required to advise the Chief Executive Officer of the Department of this intention in writing. Further information about the grounds for a discharge can be obtained by contacting Past Adoption Information & Services on 1800 182 178.

Applicants may wish to seek independent legal advice.

How do I contact Past Adoption Information & Services?

GROUND FLOOR 189 ROYAL STREET EAST PERTH WA 6004
Postal address: PO Box 6334 EAST PERTH WA 6892
Telephone: (08) 9286 5200, Free call: 1800 182 178, Fax: (08) 9385 1920
Email: adoptions@cpfs.wa.gov.au Website: www.childprotection.wa.gov.au

NOTE: Support organisations in WA have very little experience with Discharges for adoptees. It is recommended applicants engage independent legal advice.

Click here to Search for Legal Aid in WA

Current WA ADOPTION ACT 1994 – SECT 77

Discharge of adoption order

(1) The following persons may apply to the Court for an order to discharge an adoption order —

(a) The Attorney General;
(b) the CEO;
(c) An adult adoptee who has notified the CEO of the adoptee’s intention to so apply.

(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; or
(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 exceptional reason why the order should be made.

(3) The Court is not to make an order under subsection (2) —

(a) if to do so would not be for the welfare and in the best interests of the adoptee; and
(b) unless the Court is satisfied that reasonable efforts have been made to notify all the parties to the adoption of the application.

(3a) Any person may apply for leave to intervene in an application under subsection (1) and the Court may make an order entitling the person to intervene in the application.

(3b) A person who, under subsection (3a), intervenes in an application under subsection (1), is to be treated as a party to the application with all the rights, duties and liabilities of a party, unless the Court orders otherwise.

(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; or
(b) the ownership or possession of property; or
(c) any matter affecting parental responsibility for 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; or
(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 211(3) of the Family Court Act 1997 .