Discharges - A Quick summary of the main points

ADOPTION DISCHARGES

Availability of discharges of adoption, state by state

  • All 8 States/Territories have discharge legislation of some kind.
  • NT’s is unclear, and seems to rule out discharges for over 18 year olds.
  • Out of the 7 remaining States/Territory minus NT ALL allow the adopted adult to apply for a discharge of the adoption.
  • Out of the 7 remaining States/Territory minus NT ALL except WA allow the adopter to apply for a discharge of adoption.

– A bit hypocritical when you look at the claims to the permanency of adoption and how it’s supposed to be so secure for the adoptee! It’s only secure while the ADOPTER wants it to be.

With many Australian states (and the Federal government) pushing adoption “US style” with increasing adoptions, and large financial incentives, the same problems of Re-homing adoptees are likely to occur in Australia with these avenues open.

  • Discharge (except under grounds of Fraud, Duress, Improper Means) should only be available to the adopted adult. 
  • The adopter has entered into the contract and already given consent by applying for and going through the process of adoption.
  • The adopted person is the only one who was not a party to the original contract, and so should be the only one to be able to access this type of discharge.

Legislated grounds for discharges of adoption, state by state:

  • All States/Territories have the ground of ‘fraud, duress, improper means’
  • NSW, WA & Qld have additional grounds of a requirement for some type of “Exceptional Circumstances”
  • Vic and Tas have “Special Circumstances”
  • ACT has “Other Circumstances”
  • SA’s cites “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 to be made.”
  • NSW’s states the Court must not make a discharge if the application is made by the “child” & motivated by emotional or other considerations that do not affect the welfare of the child arising out of the relationship formed because of the child’s access to information or contact with a person under Chapter 8 [their family in an open adoption]!!
  • ACT’s states “Other Circumstances” – that a breakdown in the relationship between the adopted person and the adopters “must not be taken to constitute a circumstance justifying a discharging order”
  • And in a completely opposite approach, Vic & Tas cite “Special Circumstances” with an “irretrievable breakdown” in the relationship being the reason to allow an adoption discharge!!

SA’s appears to be the least intrusive in terms of the adoptee needing to be put on trial for wanting a discharge – BUT it still requires ‘case management’.

ALL of them imply that there is something wrong with the adopted person who either needs support from a social worker, or that they need to prove that something went exceptionally wrong with the adoption – not that it is a normal state of affairs for human beings to want to be considered to be related to their genetic kin and ancestry, and to be able to use a true birth certificate as the basis of their identity.

 

” Not intended to be a substitute for legal advice and should not be relied upon as such. “