The Youth Court of South Australia has the power to discharge an adoption order on the grounds that it is in the best interests of the adopted person to do so.

'Discharge of an adoption order' means the undoing or removing of the legal effect of an adoption order.

An application for an order to discharge an adoption order may be made regardless of the age of the adopted person.

If the Court makes an order to discharge an adoption order, then the adoption ceases to exist and the person is no longer an adopted person or legally connected to the family that adopted them. They become legally reconnected to their birth family.

Section 14 of the Adoption Act 1988 provides for the discharge of adoption orders. The Youth Court (Adoption) Rules 2018 made under the Youth Court Act 1993 provide for how applications for an order discharging an adoption order may be applied for and made.

  • What are the circumstances that could lead to the discharge of an adoption order?

    Adoption orders may be discharged by the Court on the grounds that to do so is in the best interests of the adopted person, taking into account their rights and welfare.

    An adoption order may also be discharged where the order, or consent to the order, was obtained by fraud, duress or other improper means.

    If you are considering applying for a discharge order it is recommended that you seek independent legal advice before doing so.

  • Who can apply for the discharge of an adoption order?

    An application for a discharge order can be made by an 'eligible person'.

    An 'eligible person' is defined in the Adoption Act 1988 as:

    1. the adopted person to whom an adoption order relates
    2. a birth parent of the adopted person
    3. an adoptive parent of the adopted person
    4. the Chief Executive of the Department for Child Protection.

    The Court will arrange for independent legal representation of adopted persons under the age of 18 years, who are subject of an order to discharge their adoption whether or not they are the applicant.

  • Can I apply for a discharge order if the adoption order was made under the 1966 Adoption Act or an older Act?

    Yes. This provision applies to any adoption order granted in South Australia under any Adoption Act that was the law at the time.

  • I am an adopted person. Do I have to tell my adoptive parents or my birth parents that I want to discharge my adoption order, and do I need their consent?

    The consent of birth parents and adoptive parents is not required for the Court to make a discharge order. However, the other parties to the adoption may oppose the application for the discharge of an adoption order. In such cases the application may proceed to a contested hearing in the Court.

    You will need to serve the other parties to the adoption with any application made to the Court to discharge an adoption order. This includes your adoptive parents and birth parents.

    It is recommended that you seek independent legal advice in relation to making an application to discharge an adoption order.

  • If my adoption order is discharged, what happens to my birth certificate? Do I need to get a new one? Who is named as my parents?

    If your adoption order is discharged, this will mean that your birth parents will once again become your legal parents, and your adoptive parents will cease to be your legal parents.

    You will need a new birth certificate because your post-adoption birth certificate is no longer correct or valid, as the adoptive parents are no longer your parents at law.

    On making a discharge order, the Court may make orders in relation to your entry on the Register of Births and to your name.

    If the adoption order is discharged by the Court, you may also seek an order from the Court for your birth certificate to be amended to reflect this change.

    It is recommended that you seek independent legal advice about how discharging your adoption order may impact on your situation.

  • I am an intercountry adoptee. Can my adoption order be discharged? Will this affect my citizenship?

    If you are an intercountry adoptee and your adoption order was granted in South Australia, you can apply for the discharge of your adoption order. There may be particular legal issues depending on what country you were adopted from.

    If your adoption order was granted outside of Australia, you cannot apply to have your order discharged because the order was granted in another country and Australia has no jurisdiction to change the order.

    If an order to discharge your adoption is granted in the Youth Court, anything that lawfully occurred as a result of your adoption, such as obtaining Australian citizenship, should not be affected by your adoption order being discharged.

    It is recommended that you seek independent legal advice about how discharging your adoption order may impact on your situation.

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

    A formal application (Form A3) needs to be made to the Youth Court. Application forms are available from the Court website.

    When an application for an order to discharge an adoption order is lodged in the Court, the other parties must be served notice of the application. Parties to an adoption are:

    • the adopted person
    • the birth parents
    • the adoptive parents.

    Notice is served by providing each of these other parties with a completed copy of the application form.

    The Court will also require evidence that the applicants have served notice of the application on the other parties. This is in the form of an affidavit. Affidavit of Service forms are available on the website of the Youth Court (Form A6). Copies of this completed affidavit must be attached to the application.

    It is possible to apply to the Court to dispense with service of an application on a child or other party and this may be granted if the Court considers that there is a proper reason to do so. Examples of proper reasons are:

    1. if the party is a birth parent who resides outside Australia; or
    2. if the child or other party is too young to understand the purpose or implications of the application or accompanying documents, or it is otherwise inappropriate in the circumstances to serve the documents on them.

    Once the Court accepts the application, a date for a hearing will be provided. The applicant must attend the hearing and the other parties may attend.

    During the hearing, the Court may determine that the Department for Child Protection must conduct an investigation about the application and prepare a report for the Court’s consideration. This means that there will be a second hearing at which the information in the report will be taken into account before the Court makes a determination about the application.

    If an investigation is required by the Court, the Court will notify the Department for Child Protection. A Social Worker from the Department will make contact with the person making the application to arrange a meeting as part of the investigation into the grounds for the application. The Social Worker may contact several people where appropriate to complete the report for the Court. This may include members of the adopted person's birth and adoptive families, and other significant people in their lives.

    The purpose of the investigation is to help the Court determine how the proposed discharge of the adoption order may impact the adopted person's welfare, interests and rights.

  • Fees

    There is no fee payable to the Department for Child Protection for the preparation of a report for the Court for an application for an order to discharge an adoption order.

    A fee of $184 is payable to the Youth Court of South Australia (as at 1 July 2019).

  • Who can I talk to about the possible discharge of my adoption order?

    If you want to talk to someone from Adoption Services in the department about applying to have your adoption order discharged, you can call (08) 8463 3666.

    You can also talk with someone at the Post Adoption Support Services (Relationships Australia SA) on (08) 8245 8100.

    We recommend that you seek independent legal advice in relation to discharging an adoption order.

Disclaimer

This content contains information in relation to adoptions in South Australia. It is intended to provide general guidance only and does not constitute legal advice. It is not intended to be a substitute for the official version of any Act, Regulation, or other instruments. This content was prepared in July 2019 and may refer to legislation that has been amended or repealed and/or Government policy that has subsequently changed.  When considering the information contained in this content you should always inform yourself about the current applicable laws and policies, and you should seek your own independent legal advice.

Although every effort has been made to ensure the information contained in this publication is free from error and/or omissions, no warranty, express or implied, is given as to the completeness, correctness, accuracy, reliability or currency of the information contained in this content. The Crown in the right of the State of South Australia does not accept any responsibility and will not be held liable to any recipient of the information for any loss or damage, however caused and whether in whole or in part, which may be directly or indirectly suffered as a consequence of the use of this content.

Adoption support

To talk to someone about getting support for how these changes might affect you, you can contact:

Post Adoption Support Services (non-government)

Emailpassinfo@rasa.org.au
Phone: (08) 8245 8100

Department for Child Protection Adoption Services (government)

Emailadoptions@sa.gov.au
Phone: 1800 512 355

The Youth Court of South Australia

Email: youthcourt@courts.sa.gov.au
Phone: (08) 8204 0331
The Youth Court website