LawWorks News

Same-Sex Couple Adoption? - December 2008

The Adoption Act 1955 (“the Act”) is widely accepted to be out-of-date legislation that does not reflect modern families and that is desperately in need of reform.  The Act allows adoption applications to be made either by sole applicants (subject to further restrictions for example, a sole male applicant is not permitted to adopt a female child, unless he is the father of the child or there are special circumstances) or by spouses as joint applicants. 


The word spouse is not defined by the Act, however until recently it was accepted that the term referred to a married husband and wife.  In the late 80s and early 90s there were a series of cases in which the Family Court extended the definition of the word spouse to include de facto couples who were living together in enduring and stable relationships.  This was reversed in 1998 by Judge Inglis QC in Re R (Adoption). In Re R the Judge found that the words of the Act precluded adoption by any joint applicants who were not married to each other. He considered that the word spouse was used consistently throughout the legislation and in 1955 the ordinary, natural meaning of the word spouse was two people who were lawfully married to one another.


The tide now seems to be turning again in favour of de facto couples, with the November 2007 case of Re C.  Re C was an application for adoption by the genetic parents of a child who had been born through a (non-commercial) surrogacy arrangement.  Although the genetic parents, the applicants had no legal status in respect of the child.  Judge Walsh in his decision referred to the Relationships (Statutory References) Act 2005 (“the Statutory References Act”), which is the Act that was introduced to give effect to the Civil Union Act 2005. The Statutory References Act was noteworthy because it did not amend the term spouse in the Adoption Act, even though it amended most other Acts that referred to the term spouse.  Notwithstanding that the Statutory References Act made no change to the exclusion of non-married couples from being able to adopt,  Judge Walsh granted the Adoption Order giving a range of reasons for his decision including the following:


·                     Marital status is a prohibited ground of discrimination under the Human Rights Act 1993;


·                     The United Nations Convention on the Rights of the Child states that the best interests of the child shall be the paramount consideration, including in adoption systems;


·                     De facto relationships have been given explicit recognition in a number of pieces of legislation recently;


·                     Persistent calls for reform of the Adoption Act; and


·                     Adoption laws in other jurisdictions (including most Australian states and territories) allow de facto couples to adopt.


Judge Walsh made specific reference to same sex couples in his decision, which while peripheral to his decision in this case, is significant nonetheless.  Judge Walsh stated that same sex de facto couples should be treated in the same way as different sex de facto couples and that in his opinion they should also be permitted to jointly adopt children and to be considered spouses under the Adoption Act.


Judge Walsh may have extended the criteria for the definition of spouse to include de facto couples but he did not do so in respect of civil union couples, as the applicants before him were not in a civil union. It is worth noting that if de facto couples are able to adopt jointly, and couples in civil unions are not, civil union couples would end up in a disadvantaged position vis-à-vis de facto couples.  However, if de facto couples continue to be able to adopt children this may be extended to include civil union couples, despite the Statutory References Act omitting to amend the Act, on the basis that couples in civil unions are in stable and enduring relationships.


One practical difficulty that de facto or civil union couples may face is the policy of Child, Youth and Family Services (“CYFS”) (who administer the non-kin adoption service). The policy continues to exclude non-married couples from the pool of eligible adoptive parents.  CYFS has taken a cautious approach to amending policy, which may be a result of concern that if non-married couples were supported in adoption applications and the law does an about turn to again prevent de facto couples from adopting, the adoptions that took place by non-married couples may be void and the children adopted would be left in legal limbo.


Emily Stenhouse-White

October 2008


<< Back to News