State

Grounds for a discharge of adoption – Comparison by State Legislation

ACT

1993

39L

*the adoption order or any consent to the adoption was obtained by fraud, duress, or other improper means, or

* 1 (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.

NSW

2000

Part 10

93-95

93(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.

93(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).

94 Investigation of application for discharge

The Court may require the Secretary to investigate the circumstances of any application for a discharge order and report to it.

NT

1994

Section 44

Discharge of adoption orders

    (1)     Subject to subsection (2), the Minister may apply to the Court for an order discharging an order for the adoption of a child, and the Court may make such an order if it is satisfied that:

        (a)     the adoption order was obtained by fraud, duress or other improper means; or

        (b)     a person’s consent to the adoption required under Division 4 was obtained by fraud, duress or other improper means.

    (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; or

        (b)     the making of the order would be prejudicial to the welfare and interests of the child.

Qld

2009

Part 3

Division 7

Sect 219-226

Sect 219 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.

SA Adoption Act 1988 (part b was added in 2018)

(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.

(2) If an application is made under subsection (1), the Court must, if satisfied that there may be grounds on which a discharge order may be made, direct that an investigation be made into the circumstances relating to the application.

(3) The Chief Executive and (if the Court so directs) a person nominated by the Attorney-General must conduct an investigation under subsection (2).

(4) If, after consideration of a report of an investigation carried out under subsection (3), the Court is satisfied that a discharge order should be made, the Court will make the discharge order, unless it appears to the Court that to do so would be prejudicial to the rights, welfare and

interests of the adopted person.

Tas

1988

Division 2

Section 28

(2)(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.

From (1) 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 (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.

Vic

1984

Sect  19

      (1) (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.

( a reference to special circumstances includes a reference to an irretrievable breakdown of the relationship between the adoptive parents and the adopted person – 2(b))

  (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 and Regulation.

    (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.

WA

1994

Part 3

Sect 77

(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.