In the matter of an Application pursuant to s 11(3) Adoption Act (Vic) 1984
AB and Victorian Equal Opportunity & Human Rights Commission and Department of Human Services and Separate Representative of J  VCC AD-10-003 (6 August 2010)
A recent decision of the Victorian County Court has opened the door – albeit only slightly – for gay men and women to adopt children in Victoria. Although the decision certainly represents a positive development, it is also problematic in a number of important respects – most significantly, in its level of engagement with the Victorian Charter of Human Rights and Responsibilities Act 2006.
By relying on a technical loophole in the Adoption Act 1984, her Honour Judge Pullen missed a valuable opportunity to expressly address the discriminatory operation of Victorian laws relating to adoption.
The applicant (AB) applied to adopt his 11-year-old foster child (J). AB was in a same-sex relationship with his life partner (CD). Notwithstanding this relationship, he applied as an individual to circumvent the current laws in place in Australia prohibiting same-sex couples from adopting a child as a couple. Section 11(3) of the Adoption Act 1984 provides that ‘subject to this section, where the Court is satisfied that special circumstances exist in relation to the child which makes it desirable so to do, the Court may make an adoption order in favour of one person’.
The question for the Court was whether s 11(3) would permit the adoption of J by AB, when it was clear that he was in a committed same-sex relationship with CD.
In a persuasive submission, Counsel for the applicant, Kristen Walker, argued that there are three approaches to interpreting s 11(3), all of which support an interpretation that would permit the adoption in this particular case: first, textual; second, purposive; and third, an interpretation guided by the Charter.
In the context of the Charter, Ms Walker referred to the interpretative obligation in s 32(1) and the recent decision of the Court of Appeal in R v Momcilovic  VSCA 50. Ms Walker relied on s 8 of the Charter (the right to equality and non-discrimination) and s 17 (the right of every child to such protection as is in his or her best interests). It was submitted that to preclude AB from adoption on the basis that he was in a same-sex relationship would be to treat him less favourably on the basis of his sexual orientation, and thereby be discriminatory under s 8 of the Charter. Further, it was submitted that a narrow reading of s 11(3) of the Adoption Act 1984 would not provide for the protection of a child’s best interests and would therefore be inconsistent with s 17 of the Charter.
The Court held that s 11(3) of the Adoption Act 1984 did not prohibit a gay man from adopting a child as an individual, even where it was clear that the individual was in a committed same-sex relationship.
In reaching its decision, the Court applied a strictly literal approach of the Adoption Act 1984, concluding that its proper construction ‘permits one person in a same sex couple to adopt’. In taking this route, the Court avoided the more complex question of whether precluding the applicant from adoption on the basis that he was in a same-sex relationship would amount to discrimination.
Her Honour Judge Pullen concluded that having interpreted the statutory provision in a way that is consistent with the relevant human rights, it was not strictly necessary to address the Charter – a point made by Counsel for the Victorian Equal Opportunity and Human Rights Commission. Notwithstanding this, however, her Honour might have gone that one step further – if only in obiter – and considered how the Charter might have applied in this case.
The facts of this case provided an invaluable opportunity for a Court to comment on the discriminatory operation of the Adoption Act 1984, an opportunity that seems to have been, at least to some extent, missed.
In addition to amounting to blatant discrimination against same-sex couples, the present position in Victoria is entirely devoid of logic. At present, same-sex couples can be approved as short-term and permanent carers for foster children. Indeed, many foster-care agencies actively target same-sex couples. In 2007, the Victorian Law Reform Commission (‘VLRC’) remarked on this inconsistency in treatment, stating:
It makes no sense that people in same-sex relationships are able to be approved as permanent and short-term carers of children in need, but cannot assume the full range of legal parental powers and responsibilities for these children.
As a consequence of this most recent decision it seems that, in the case of a same-sex couple, the State might allow one – but certainly not both – of the individuals to assume those powers and responsibilities.
How can this possibly be considered to be in the best interests of the child? The logic is deeply flawed. The VLRC acknowledged the concerns of some members of the community that same-sex parenting is contrary to the best interests of a child. These concerns were encapsulated by former Prime Minister John Howard in 2004: ‘Children ideally should be brought up by a mother and a father who are married. That's the ideal’.
‘Ideals’ aside, the VLRC concluded that there was no evidence that parenting by same-sex couples is in itself harmful to children. The VLRC’s final recommendation was that the eligibility criteria under the Adoption Act 1984 be expanded so that a same-sex couple can adopt children in all circumstances in which heterosexual couples can.
Three years after the VLRC report, we have had little more than vague commitments for further consultation. Meanwhile, some of Victoria’s most vulnerable children continue in a state of limbo and are expressly excluded from the legal and material benefits that flow from adoption, and the emotional security and stability that derive from a recognised legal status.
The current prohibition on adoption by same-sex couples is anachronistic, deeply divisive and in many cases, contrary to the best interests of the child. It is time that the Victorian Government followed the lead of Western Australia, the ACT and now New South Wales and provided same-sex couples equal access to the adoption process.
The decision is available here.
Jason Pobjoy, PhD candidate, University of Cambridge