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.

Legal Aid ACT 1300 654 314

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.