NO FAULT DISCHARGE
Authors: William Hammersley and Elizabeth Edwards
There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and says “What the hell is water?”
This is Water some thoughts delivered on a significant occasion about living a compassionate life (David Foster Wallace 20/11/ 2014 Quotes Published in “Good Reads”
In our society, the importance of kin and ancestry is so deeply embedded that often it’s unrecognisable to those with the privilege of the unique combination of recognised social and genetic connections with their family group. This is the ‘water’ most are in, but adopted people are swimming in a very different substance. It’s partly why some of the concepts are so difficult to get across to non-adopted people, and from the adoptee point of view, our voices have certainly not been heard in the area of discharge.
i) No fault discharges
An adopted person can apply to the Victorian County Court for a discharge of an adoption order made under section 19(1) of the Adoption Act 1984. There are two grounds under which an application can be made, these are:
(a) That the adoption order or 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 (this includes a reference to an irretrievable breakdown of the relationship between the adoptive parents and the adopted person).
Adoption Origins Victoria believes what is needed is the option for adopted adults to be able to apply for the reverse of the adoption with a straightforward discharge that carries no determination of fault. Adoption Origins Victoria proposes that this is a discharge where the adopted person over the age of 18 years applies to the court and obtains the discharge with very little interrogation, if any, by the court as to the reasons why that person seeks a discharge.
Adoption Origins Victoria believes that the only legislative precondition to the granting of the no fault discharge should be service on the adopted parents and that legal advice has been given as to the impact of the discharge at law. Some adopted adults will not ever consider a discharge but Adoption Origins Victoria believes that many adopted adults would benefit from the right to seek a no fault discharge.
Adoption Origins Victoria believes that all adopted adults should have available to them to the ability to apply to discharge the adoption order without having to prove fraud, duress or that the adoption was improperly obtained or that special circumstances exist, and that the Adoption Act 1984 (Vic) should be immediately amended to reflect this.
As set out in section 19, there is a discharge available under ‘special circumstances’. This of course is analysed on a case by case basis but usually requires ‘irreconcilable differences’ between the adoptee and the adopters and almost always requires that the adoptee has suffered abuse that they may not wish to share with a case manager and the court.
To many adopted adults who would seek a discharge, the relationship with the adopters is irrelevant to their right to live as the person they were when they were born and have the ancestry they had when they were born. Technically, no fault discharges are available on the ‘special circumstances’ ground. However, Adoption Origins Victoria believes it would be more appropriate to create an explicit no fault ground under section 19 of the Adoption Act 1984 (Vic).
Adoption Origins Victoria believes that currently section 19 ignores the rights of adopted adults to extract them rather than be bound beyond death to a contract they did not consent to in the name of their ‘welfare’ and section 19 ignores the rights of adopted adults to their initial identity at birth and ancestry.
Adoption Origins Victoria does not believe that the intent of a ‘Special Circumstances’ discharge which relies on an ‘irretrievable breakdown’ of the relationship with the adopters, allows the Court to give equitable consideration with regards to wider, rights-based discharges, where the quality of the relationship with the adopters is irrelevant. The imposition by the Court of an investigation and case manager is an invasion of privacy which equates to anthologizing something which is not abnormal; that is the right of the adopted child then adult, to resume their original legal identity.
Adoption Origins Victoria believes that no matter what good intentions there are regarding the ‘paramountcy of the welfare of the child’, there are long-term consequences for the child now an adult which arise from the obliteration of their natural family ties by law.
A common thread of experienced among adopted people when advocating for their need for annulment, discharge, termination of the adoption, a true birth certificate and reinstatement of their identity is the absolute lack of choice – the fact that they are subject to a contract for life and beyond death to which they did not agree.
For some adopted adults, having the choice to reclaim their identity and the ancestry they lost (whether or not they have a social relationship with those of their family who are living) is of extreme importance to them and their children and their children’s children and generations to follow.
“The prevailing legal belief is that adoptees are not a party to their own adoption, only the parties who originally brought the petition to court are. An analogy would be that a consumer may return an item they bought back to the store if they are displeased with it for some reason, but the object may never return itself, no matter how displeased the object may be with the arrangement.
Therefore, adoptees are but legal chattel with no say in what happens regarding their own adoptions. This needs to be challenged. Nowhere else in law are competent, adult citizens permanently legally bound to contracts they did not sign and do not agree with.”
Julie Kelly 2014. Choosing Adoption. Or not Available at: http://www.thelostdaughters.com/2014/12/choosing-adoption-or-not.html
Furthermore, Adoption Origins Victoria draws the Commission’s attention to the comments of Julie Kelly:
“Once an individual is no longer in need of the courts or their parents to make decisions on their behalf, by virtue of being no longer incompetent by reason of minority, they should, by all rights, be entitled to take over making decisions for themselves.
Julie Kelly 2014. Choosing Adoption. Or not Available at: http://www.thelostdaughters.com/2014/12/choosing-adoption-or-not.html
Adoption Origins Victoria believes that Victoria has been a leader in Australia and the world in adoption reform at times. The opening of records which occurred here in Victoria during the 1980’s is what is still being fought for in most states of the USA. The majority of adoption rights advocates in the USA still believe that getting access to see their original birth certificates is the pinnacle of equal rights.
In Victoria, Adoption Origins Victoria believes that access to no fault discharges for adults is the logical next step in adoption if adoption is truly about the paramountcy of the welfare of the child (then adult). If this no fault discharge pathway is created some will take this up, but some will not. However, Adoption Origins Victoria believes that the very option will be significant and beneficial to all adoptees because of the respect afforded to them as adult human beings to have the equal right to agency over their lives in the same way non-adopted adults have, rather than being bound beyond death to a contract they did not consent to in the name of their ‘welfare’.
In the experience of Adoption Origins Victoria inheritance is often a major point of interest for the Court but usually a minor concern over all the others for the adopted person. Default formulas for property division are only used when a legal will is not left. If a legal will is left the deceased can leave an inheritance to whoever they like, As above, there should be a requirement that the person have received professional advice and be aware of the legal implications of being discharged from the adoption. The professional advice will presumably include that they are also terminating any of their adoptive claims on their adopted parents’ possessions and estate, and also include information on authority for medical decisions and next of kin rights. Adoption Origins Victoria believes whatever inheritance rights should not dictate the right to identity and be part of a child’s natural family.
Adoption Origins Victoria believes that currently, adoptees are discriminated against and not being treated equally to non-adoptees, in breach of section 8 of the Victorian Charter of Human Rights & Responsibilities 2006 (Vic). Adoption Origins Victoria is concerned that adoptees are not equal before the law and that adoptees are discriminated against because they cannot use their original birth certificates like everyone else, and adoptees are legally prevented from identifying as the person they were when they were born as is the right of every non adopted person.
For example, X was adopted as an infant in the 1950’s. X’s deepest and longest held dream since finding out her real parentage has been to explore and connect with her ancestry in New Zealand. The time has finally come, and first she needs a passport to travel to New Zealand. To get the passport to connect with her ancestry she is forced to lie. The form requires that she answer the question: mother’s name. If she lies, she gets her passport and can go to New Zealand. If she tells the truth she is treated as having lied and the passport is withheld. The distress and pain of this has previously prevented even the thought of doing it, and has immobilised the passport application for eight months, to date.
To prevent the ‘re-homing
• Transparent process and criteria for straightforward ‘no-fault divorce’ type Discharges of Adoption for adult adoptees only to be written into the Adoption Act.
• To prevent the ‘re-homing ‘situation prevalent in the US – that adopters should only be able to apply for a Discharge of Adoption under no wider grounds than “that the adoption order or a consent for the purposes of the adoption order was obtained by fraud, duress or other
• Recognition in the Act that ‘consent’ for the Adoption Order has already ceased to have effect when the Adopted Person has reached 18.
RE- HOMEING You would say this could never happen in Australia
However our current State Adoption Act1984 has a loophole that leaves the possibility WIDE OPEN.as the changes to the adoption act will remain in place for many years as time rolls on this clause could be taken advantage of .
VICTORIAN ADOPTION ACT 1984 – SECT 19
Discharge of adoption orders
(1) An eligible person may apply to the Court for an order discharging an order for the adoption of a child made under this Act
(a) “eligible person” means the adopted child to whom the adoption order relates, a natural parent of the adopted child, an adoptive parent of the adopted child, the Secretary or the principal officer of the approved agency by which the adoption was arranged;
Changes are necessary we completely oppose adopters having rights to discharge an adoption other than fraud. That the adoption order or consent for the purposes of the adoption order was obtained by fraud, duress or other improper means”
So- if the adoption order was obtained by fraud (i.e. the adopters were misled)
– If not it will almost always be in the best interests of the adoptee to be unadapted by people who don’t want them. It gives the adopters too much of an out. What happens to the child then?
We argue giving adopters greater rights commodifies children because it means they can be “returned” if the adopters can make an argument that it’s in the child’s best interests
The Governments who have this legislation are trying to keep the adoptees, natural parents and adopters THE SAME but because it involves children they are NOT THE SAME.
VIC Law Reform Commissions response and Recommendations
Discharge of adoption orders
Current law and practice
14.147Adoption orders are considered more permanent than orders under the CYF Act169 and Family Law Act,170 as they do not automatically expire when an adopted child turns 18. However, adoption orders can be discharged by the court.
14.148An adopted child or adult, a natural parent, an adoptive parent, or the Secretary or principal officer, may apply to the court to discharge an adoption order, if:171
the order, or consent given for that order, was obtained by fraud, duress or other improper means, or
special circumstances exist for the order to be discharged.
14.149The term ‘special circumstances’ is defined in the Adoption Act to include ‘an irretrievable breakdown of the relationship between the adoptive parents and the adopted person’.172
14.150The court can direct an investigation into the circumstances of an application (known as a section 19(3) investigation).173 The investigation can be undertaken by the Secretary, or a nominated person from the Department of Justice and Regulation, who makes enquiries and files a confidential report with the court.174
14.151The court must be satisfied that ‘the welfare and interests of the child would be promoted by the discharge of the adoption order’.175
The effect of a discharge order
14.152 The effect of a discharge order is that:
any consent given to the adoption ceases to have effect176
the ‘rights, privileges, duties, liabilities and relationships of the child and of all other persons’, shall be as if the adoption order had not been made.177
14.153 The discharge of an adoption order severs an adopted person’s legal relationship with their adoptive family and reinstates their legal relationship with their family of origin.178 It also reinstates their original birth certificate, their rights of inheritance from their natural parents and their legal relationship with any biological siblings or wider family.
14.154 Children and those over the age of 18 are both subject to the same legal test.179 The Adoption Act does not provide for a ‘no fault’ discharge or reflect a person’s autonomy to choose their identity once they are an adult.
14.155From 2010 to 2016 there were 17 applications for discharge. All applications were made by adults and all were granted by the court. In 16 cases, the court directed a section 19(3) investigation.180
14.156 The Commission was told that the grounds upon which an application to discharge an adoption order can be made should be amended.
14.157 Some submissions stated that it was ‘virtually impossible’ to discharge an adoption order.181 Others stated that it should be a person’s ‘right’ to seek a discharge of their adoption order and restore their original birth certificate.182
14.158 Adoption Origins Victoria proposed that the Adoption Act should contain a ‘no fault’ discharge to enable adoptive persons over the age of 18 years to easily apply to discharge their own order. Adoption Origins Victoria explained that the requirement in the Adoption Act of ‘special circumstances’ almost always requires that the person has suffered abuse. It submitted that:
To many adopted adults who seek a discharge, the relationship with the adopters is irrelevant to their right to live as the person they were when they were born and have the ancestry they had when they were born.183
14.159Adoption Origins Victoria considered that the Adoption Act ‘ignores the rights of adopted adults’ and binds them to a contract that they did not consent to.184
14.160Judicial oversight is required to ensure that the discharge of an adoption order would be in the best interests of a child. The current legal threshold set out in section 19 is appropriate for applications to discharge an order in relation to an adopted child.
14.161The tests set out in sections 19(1)¬–(2) and 19(5A) should remain for applications to discharge an order in relation to an adopted child.
14.162A number of people can bring an application to the court to discharge an adoption order, including the adopted person, the adoptive parents and natural parents.185
14.163The tests in section 19 are appropriate for applications to discharge an order in relation to an adopted person who is over the age of 18, if the application is filed by a person186 who is not the adopted person.
14.164For example, an adoptive parent should not be able to apply to discharge an order without establishing, to the court’s satisfaction, that there has been fraud, duress or improper means, or that there are special circumstances to warrant an application, as the effect of the discharge would be to legally exclude their adopted adult child from their family, a decision that may not be in the adopted person’s welfare and interests.
14.165The Adoption Act should apply a different test to applications to discharge an adoption order filed by an adopted person over the age of 18.
Application filed by an adopted adult
14.166To apply for a discharge of an adoption order, section 19(1) requires that the order or consent was obtained by fraud, duress or other improper means. This is a high threshold for an adult adopted person to meet. Alternatively, they must establish ‘special circumstances’ which justify that the order be discharged, such as an irretrievable breakdown or abuse in their relationship with their adoptive parents.187
14.167It is not clear whether the current tests in section 19(1) are difficult to satisfy, as judicial reasons are not published. In any case, the Commission considers that these tests do not reflect an adopted adult’s autonomy to choose who they are. A person adopted as an infant had no say in their parentage or in the change of their identity. Adopted adults may wish to discharge their adoption order for a wide range of reasons. They should have greater access to the court for this purpose.
14.168The Commission considers that the tests set out in sections 19(1) and 19(5A) should not apply to an application brought by an adopted person over 18.
14.169The Adoption Act should not impose a barrier to an adult adoptee applying to the court for a discharge of an adoption order but should require the court to be satisfied that the discharge of an adoption order is appropriate and desirable in all the circumstances.
14.170The Commission acknowledges that discharging an adoption order has implications such as reinstating a person’s right to inherit from their natural parents and severing their right to inherit from their adoptive parents. It is open to the court to make any orders relating to the ownership of property.188 The court should continue to have the ability to make ancillary orders when discharging an adoption order.189
14.171The Commission observes that the court has made 17 such orders in the previous six years. Its recommendation does not change the consequence of discharge orders.
Parties to an application to discharge an adoption order
14.172Under section 19(9) of the Adoption Act, the child, the natural parents, the adoptive parents, the Secretary or principal officer, and any other person who the court determines has a sufficient interest in the matter, may appear and be heard at the hearing of an application to discharge an adoption order.
14.173The Commission recommends that the Adoption Act should prescribe the parties to proceedings rather than it be discretionary. This should ensure that parties, including the natural parents and adopted parents, are advised of any application to discharge an adoption order and permit them the right to appear and be heard by the court in relation to an application.
14.174 It is important that all parties understand the legal effect and the possible consequences of discharging an adoption order. The court should ensure that they are advised of those consequences when they are notified of proceedings.
14.175 The Adoption Act should differentiate between parties to the discharge of an adoption order which relates to an adopted child or to an adopted person over the age of 18.
14.176 Parties to an application in relation to an adopted adult should include the adopted person, the natural parents and the adopted parents.
14.177 Parties to an adoption plan or the Secretary or principal officer should not be parties to proceedings for a discharge of an adoption order that relates to an adopted person over the age of 18. The terms of any adoption plan190 or conditions under an adoption order cease to have effect once an adopted person is over the age of 18,191 and the views of the Secretary or principal officer are no longer relevant.
69 The Adoption Act should:
a.define the parties to an application to discharge an adoption order:
i. in relation to an adopted person over 18, to include the adopted person, the natural parents, the adoptive parents, and any other person the court determines has a sufficient interest in the matter
ii. in relation to an adopted child, to include the adopted child, the natural parents, the adoptive parents, the Secretary or principal officer, any party to an adoption plan, and any other person the court determines has a sufficient interest in the matter.
b. require that the parties are advised of the legal effect of discharging an adoption order, when they are notified of proceedings.
70 The Adoption Act
should provide that an application to discharge an adoption order filed by an adopted person over the age of 18 should only require the court to be satisfied that the discharge of the order is appropriate and desirable in all the circumstances.