Discharging an adoption order
Under the Adoption Act 2009 a person may apply for the discharge of a final adoption order by making an application to the Supreme Court.
To discharge an adoption order means to undo or reverse the legal effect of an adoption order. When the Supreme Court discharges an adoption, the legal effects are as though the adoption order was never made. The birth parent/s become the legal parents again and the adoptive parents are no longer the legal parents.
A new birth certificate containing the person’s birth name and name/s of the birth parent/s is issued; the adoptive parent’s names are no longer listed. This becomes the person’s legal birth certificate and may be used for official purposes.
The effects of discharging an adoption order can be extremely profound, and an application should only be made after full consideration of what the outcome will involve. Consideration should be given to the changes in legal relationships that will occur with family members such as any adoptive siblings, grandparents etc.. This also applies to any children the person may have.
The person making the application will also need to consider how this may impact on legal documents such as a marriage certificate or a child’s birth certificate (where applicable).
On what grounds can a final adoption order be discharged?
Section 219 of the Adoption Act 2009 states that for a final adoption order to be discharged, the Supreme Court must be satisfied that one of the following grounds exists:
- 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 the person acted fraudulently or used undue influence on another person; or
- in another improper way;
- a consent required for the adoption was not given freely and voluntarily by a person with the capacity to give consent;
- there are other exceptional circumstances that warrant the discharge.
The Supreme Court can only discharge a final adoption order if it is satisfied these grounds exist.
Who can apply for a discharge?
A person may apply for the discharge of an adoption order if they are:
- an adopted person (adult)
- a birth parent of the adopted person
- and adoptive parent of the adopted person
- the chief executive who is a delegated officer of the Department of Child Safety, Youth and Women (CSYW).
If an adopted person was born in an overseas country and adopted by Australian citizens, it will be important for the adopted person to seek appropriate advice on how a discharge of their adoption may impact them personally.
It is also highly recommended that the person wishing to apply to discharge an adoption order links in with Post Adoption Support Queensland (PASQ) or another post adoption support service to help provide them with emotional support.
How do I make an application to the Queensland Supreme Court?
The person is able to make an application to the Supreme Court on their own, however, there are services available in Queensland which can provide legal support and advice – some of the services can be offered free of charge. A legal service provider may lodge the application on the person’s behalf and attend the hearing as their advocate.
If the person chooses to apply for a discharge of an adoption order without legal support, they will need to complete and lodge a Form 4 application with the Queensland Supreme Court.
An affidavit is required to accompany the application being made and it must be completed in accordance with the Adoption Act 2009 (s219 and s220). Please contact the Queensland Supreme Court Registry on phone (07) 3247 4313 for further information or advice on locating the required documents.
The person’s affidavit should be witnessed by a Justice of the Peace (JP) before they attend the Registry of the Queensland Supreme Court with their documents.
An application for the discharge of an adoption can be made without the permission of other parties, such as birth parents or adoptive parents.
However, other parties to the adoption will need to be served with copies of the application. This includes the adoptive parents, birth parents and the adopted person. The Department of Children, Youth Justice and Multicultural Affairs (the department) must also be served and may become a party to the court proceedings.
A discharge of an adoption order may be still made even if the other parties do not respond to the application and/or do not attend the court hearing.
Other parties to the adoption have a right to oppose the application for the discharge of an adoption order. In such cases the application may proceed to a contested hearing in the Court.
For further information about how to apply, please see section 221 of the Adoption Act 2009.
What happens after an adoption order is discharged?
After an adoption order has been discharged by the courts, the courts will notify the department and provide a copy of the discharge order. The department will update all the relevant information it holds and the original adoption order will no longer be legally valid.
The department will notify the Registry of Births, Deaths and Marriages (BDM) of the discharge and that the adoption is no longer in place. BDM will update the birth register with the information and will issue a new, legal, birth certificate, essentially returning to the details contained in the original birth registration.
The person whom the discharge refers to is then legally returned to their birth name and their legal parents are those who were registered as their parents at birth. The adoptive parents’ names will no longer appear on the person’s official birth certificate.
Where to get support?
Legal advice or representation
The information contained on this page is not legal advice. However, it is highly recommended that the person considering applying for the discharge of an adoption order seeks independent legal advice and/or representation. The following services can provide them with support, which can sometimes be provided pro bono (for free).
Legal Aid Queensland
Legal Aid Queensland provides legal help to financially disadvantaged Queenslanders about criminal, family and civil law matter.
Telephone: 1300 65 11 88 for the cost of a local call (from a landline in Australia)
Queensland Law Society
The Queensland Law Society can offer advice on all matters relating to the law and can provide assistance to search for a solicitor.
Telephone: 1300 367 757
Caxton Legal Centre
Caxton Legal Centre is an independent community organisation that provides legal advice and, in some cases, legal representation for people who are disadvantaged or on a low income. If unable to support individual needs, Caxton Legal Centre may also make a referral to another available legal service.
Telephone: (07) 3214 6333
Aboriginal and Torres Strait Islander Legal Service
The Aboriginal and Torres Strait Islander Legal Service provides legal help to Aboriginal and Torres Strait Islander peoples about criminal, family and civil law matters.
Telephone: (07) 3025 3888
Community Legal Centres Queensland
Support and advocacy may be accessed from a local Community Legal Centre.
Post Adoption Support Services
Applying for a discharge of an adoption order can be a very stressful and emotional process, which can raise many issues regarding a person’s sense of their own identity and place within their family and their community. There are several post adoption-specific support services available within Queensland providing professional and peer support, advice (not legal advice) and counselling.
Post Adoption Support Queensland (PASQ)
PASQ – part of the Benevolent Society – provides support and counselling to people who have been affected by adoption. PASQ is based in Brisbane but can provide their services by phone or Skype.
Telephone: 1300 914 819 or (07) 3170 4600
Jigsaw Queensland’s Forced Adoption Support Service (FASS) delivers information, referral and support, provides emotional support, assists with record searches and family tracing, and offers face-to-face delivery of information where appropriate and possible. Professional staff put clients in touch with trained peer-support volunteers.
Telephone: 1900 210 313 (within Queensland only) or (07) 3358 6666
For more information please contact the CSYW Post Adoption team at Adoption and Permanent Care Services.
Telephone: (07) 3097 5100