Prior to the changes made by the Adoption (Review) Amendment Act 2016 (SA) from 15 December 2018, the grounds for discharging an adoption order in South Australia were very narrow, relating only to whether the adoption order was obtained by fraud, duress or other improper means. Applications may now be made on the grounds that it is in the best interests of the adopted person, taking into account their rights and welfare. The interests, rights and welfare of the adopted person now determine whether a discharge order is made on this grounds or any other, as well as whether any related orders are made.
Grounds for discharge order
From 15 December 2018, the adopted person, the birth parent, the adoptive parent or the Chief Executive of the Department for Child Protection may apply for an order discharging an adoption order on the ground that the discharge order is in the best interests of the adopted person, taking into account the rights and welfare of the adopted person [Adoption Act 1988 (SA) s 14(1)(b)]. It continues to be possible to apply for a discharge order on the ground that the adoption order or consent for the adoption order was obtained by fraud, duress or other improper means [s 14(1)(a)].
Investigation into case
If the Court is satisfied there may be grounds for a discharge order, the Court must direct the Chief Executive of the Department for Child Protection to carry out an investigation into the circumstances of the case. The Court may also direct another person nominated by the Attorney-General to carry out an investigation [s 14(2)-(3)]. If, after considering a report from an investigation, the Court is satisfied that the discharge order should be made and the discharge order would not be prejudicial to the rights, welfare and interests of the adopted person, then the Court will make the discharge order [s 14(4)].
Effect of discharge order
If the Court makes a discharge order, any consent for the adoption ceases to have effect [s 14(5)]. In addition, unless the Court otherwise orders, the rights, privileges, duties, liabilities and relationships of the formerly adopted person with all other persons will be the same as if the adoption order had never been made [s 14(7)]. However, this does not affect anything lawfully done, the consequences of anything unlawfully done or any proprietary right or interest that became vested in a person while the adoption order was in force [s 14(8)].
Other related orders
When making a discharge order the Court may also make other related orders it considers necessary taking into account the rights, welfare and interests of the adopted person [s 14(6)]. This may include orders relating to: