William and Jane, Re [2010] NSWSC 1435 (6 December 2010)

Last Updated: 15 December 2010

NEW SOUTH WALES SUPREME COURT







CITATION:



William and Jane, Re [2010] NSWSC 1435











JURISDICTION:



Equity Division



Adoption List







FILE NUMBER(S):



A171/2010







HEARING DATE(S):



In Chambers on the papers







JUDGMENT DATE:



6 December 2010







PARTIES:



Director-General, NSW Department of Human Services, by her Delegate, the Principal Officer, Adoptions, Barnardos Australia (Applicant)



William (child)



Jane (child)







JUDGMENT OF:



Palmer J







LOWER COURT JURISDICTION:



Not Applicable







LOWER COURT FILE NUMBER(S):



Not Applicable







LOWER COURT JUDICIAL OFFICER:



Not Applicable















COUNSEL:



n/a







SOLICITORS:



I.V. Knight, Crown Solicitor (Applicant)











CATCHWORDS:



ADOPTION – SAME SEX COUPLE – Application for adoption of two children by same sex couple – whether, in the particular factual circumstances of the case, it is in the best interests of the children to be adopted – principles discussed – whether consents of birth parents should be dispensed with.







LEGISLATION CITED:



- Adoption Act 2000 (NSW) – s 7, s 8, s 23, s 52, s 67, s 72, s 90, s 180



- Adoption Amendment (Same Sex Couples) Act 2010 (NSW)



- Anti-Discrimination Act 1977 (NSW)



- Births, Deaths and Marriages Registration Act 1995 (NSW) – Pt 8



- Interpretation Act 1987 (NSW) – s 21C



- Marriage Act 1961 (Cth) – s 5(1), s 88EA



- Relationships Register Act 2010 (NSW) – s 5, s 6, s 7







CATEGORY:



Principal judgment







CASES CITED:











TEXTS CITED:











DECISION:



Adoption orders made.















JUDGMENT:





A171/2010 Re William and Jane







JUDGMENT



6 December, 2010







Introduction





1 This is the first adoption application by a same sex couple to be heard in this State since the Adoption Amendment (Same Sex Couples) Act 2010 took effect on 15 September 2010. The adoptive parents, both male, sought to adopt two children, a boy aged nine and a girl aged five. The adoption application was not contested. On 6 December 2010, I made the orders sought in the application in the presence of the children, the adoptive parents and their families and friends.

2 It is not usual for the Court to publish reasons for making adoption orders if the adoption application is not actively opposed. However, because this is the first adoption application by a same sex couple in this State and because there has been considerable debate in the community as to whether same sex couples should be allowed to adopt, it is important for the Court to explain the reasons for its decision, not only to the parties but to the community at large.

3 In accordance with the anonymity requirements of s 180 Adoption Act, I will refer to the parties by pseudonyms, viz, to the boy as William, to the girl as Jane, to the children’s mother as Ms White, to William’s father as Mr Ford, to Jane’s father as Mr Green, and to the adoptive parents as Mr Smith and Mr Jones.

The orders sought





4 By s 52 Adoption Act, the Court must not make an adoption order unless consent has been given by each parent of the child. Ms White has not given her consent to the adoption of the children. Jane’s father, Mr Green, has given his consent to her adoption; William’s father, Mr Ford, has not given his consent.

5 Section 67 Adoption Act relevantly provides:

“(1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption ... if the Court is satisfied that:

(a) the person cannot, after reasonable inquiry, be found or identified, or

...

(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child:

(i) the child has established a stable relationship with those carers, and

(ii) the adoption of the child by those carers will promote the child’s welfare, ...”

6 Section 72 relevantly provides:

“(1) The Court must not make a consent dispense order on the application of any person unless notice of the application has been given to the person whose consent is sought to be dispensed with at least 14 days before the order is made.

(2) Subsection (1) does not apply if:

(a) the person cannot, after reasonable inquiry, be found or identified, ...”

7 The application for adoption is made by the Director General, NSW Department of Human Services, by her Delegate, the Principal Officer, Barnardos. The application seeks:

– orders under s 67(1)(d) Adoption Act dispensing with the consent of Ms White to the adoption of her children;

– an order under s 67(1)(d) dispensing with the consent of Mr Ford to William’s adoption;

– orders under s 72(2)(a) dispensing with giving notice to Ms White and Mr Ford of the applications under s 67(1)(d);

– orders for the adoption of William and Jane by Mr Smith and Mr Jones.

8 Ms White has had no contact with Barnardos or with William and Jane since 29 January 2010. I am satisfied by the evidence that, despite every reasonable enquiry, Barnardos has been unable to locate Ms White in order to give her notice of the adoption application and of the application to dispense with her consent to the adoption.

9 Barnardos has had no contact with Mr Ford since 2 December 2009. I am satisfied by the evidence that, despite every reasonable enquiry, Barnardos has not been able to locate Mr Ford either to give him notice of the adoption application or to give him notice of the application to dispense with his consent.

10 Accordingly, as permitted by s 72(2)(a) I will proceed to deal with the applications to dispense with the consents of Ms White and Mr Ford despite the absence of notice to them of the applications.

How the children came into the Department’s care





11 I will not recount in detail the circumstances which led to the Department taking William and Jane into care. It would be very unfortunate indeed if William and Jane, later in life, came to read in this judgment of events in their early childhood which evoked painful memories and caused them anguish. It would also be highly undesirable if anything in this judgment became an obstacle to the future development of good relationships between the children’s birth families and their adoptive families. For those reasons I will give only the barest outline, noting that the evidence in the Department’s records amply justified it in taking the children into temporary care and amply justified the Children’s Court in making a final order, which the birth parents did not contest, that the children remain in the care of the Minister until the age of eighteen years.

12 William and Jane are the first and third of Ms White’s three children, each of whom has a different father. Ms White’s second child, “Adam”, has been in the care of his paternal grandparents from an early age.

13 Ms White, who is now twenty-seven years of age, has a history of substance abuse. For many years, she has had no security of residence, employment or relationship.

14 William’s father, Mr Ford, is now thirty years of age. He was born in Fiji. Very little is known about him. His relationship with Ms White was not long lasting and William now has little, if any, memory of him. He cannot now be located.

15 Jane’s father, Mr Green, is now thirty-three years old. He was born in Samoa. His relationship with Ms White was brief and she, at first, did not acknowledge him as Jane’s father. DNA testing has recently proved Mr Green’s paternity. He has never met Jane.

16 Mr Green is at present living with his own family in rural New South Wales. Mr Green has another child, now two years old.

17 William was born in February 2001. He first came to the attention of the Department when he was not quite three years of age. Records in the Department’s file show grounds for serious concern that William was suffering physically and emotionally due to Ms White’s inability to take care of him.

18 Jane was born in April 2005 and was immediately placed in the hospital’s special care unit.

19 Between February 2006 and late May 2006, the Department received a number of reports to the effect that William and Jane were at risk of harm due to neglect.

20 On 8 June 2006, the Department removed William and Jane from Ms White and placed them in temporary foster care. As I have noted, the evidence available to the Department fully justified that decision.

21 On 17 October 2006, the Children’s Court made final orders placing William and Jane under the parental responsibility of the Minister until they turned eighteen years of age, and they were then referred to Barnardos Find-a-Family for permanent placement.

22 The children remained with temporary carers until April 2007 when they came into the care of Mr Smith and Mr Jones.

The damage suffered by the children





23 Soon after coming into the care of the Department, William was enrolled at school. He exhibited highly disruptive behaviours: he was aggressive and violent with other children, easily distracted and demanding.

24 In September 2006, a paediatrician who examined William found that he may well have underlying significant problems such as Oppositional Defiant Disorder and that he might be severely emotionally disturbed. The paediatrician recommended:

“Long term foster placement will be important so that a stable environment can be offered for [William] to establish more healthy relationships with adult carers. He will require a considerable degree of emotional support and appropriate long-term support for carers will be an ongoing need as well.”

25 The same paediatrician examined Jane, then seventeen months of age. She was found to have temper tantrums, with head banging and unsettled sleep patterns. However, because of her age, she was not so deeply affected as William.

26 An assessment of the children was carried out in October 2006 by a clinical psychologist, who also interviewed William’s teachers and the children’s temporary foster carers, a husband and wife with children of their own. The psychologist reported:

“Due to his past history, ... [William] is a boy with high needs in terms of his social, emotional and behavioural development. ... [William] would benefit from a placement that can give him stability in the long term. He requires stable, consistent carers on which he can depend to meet his emotional needs.”

27 It is clear that, as a result of the neglect which they had suffered in their infancy, both William and Jane needed long term carers who were exceptionally loving and supportive and who were able to deal effectively with their difficult behaviours.

Mr Smith and Mr Jones





28 As is the case with every adoption application, Mr Smith and Mr Jones have been carefully assessed as prospective adoptive parents by psychologists and case workers. Observations have been made as to their suitability as parents and as to how they have related to William and Jane after the children were placed with them. As is normal in every adoption application, full investigations have been made into their histories and background. The following is a summary of what appears in the assessment reports and in the other affidavits which are in evidence.

29 Mr Smith was born in 1965 and is the elder of two children. His parents had a long and stable marriage before his father died four years ago.

30 Mr Smith describes his mother as nurturing and caring, accepting and involved in her children’s lives. He says that she always offers practical and emotional support whenever needed.

31 Mr Smith has happy memories of his childhood, growing up in regional New South Wales in a street filled with children. He remembers a sense of community and a home in which friends were welcome. He attended local primary and secondary schools, where he made many friends and participated in sports and social activities. He left school in Year 10 to begin his working career.

32 In his early twenties, Mr Smith developed an interest in welfare and obtained work managing a group home for children with disabilities. He then worked for two years in the United Kingdom in a residential unit for children in out-of-home care.

33 On his return to Australia, Mr Smith obtained employment with a child welfare agency and worked there on a casual basis while he completed a Diploma in Community Welfare. Since his obtaining his Diploma in 1997, Mr Smith has worked full time in a variety of positions with the welfare agency. He took one year of leave when William and Jane were first placed and now works flexible hours four days a week so that he can be involved in the children’s activities.

34 Mr Jones was born in New Zealand in 1963. His parents are Maori. As is the normal practice in Maori culture, Mr Jones did not live with his parents in his early years but was placed with his god-parents. He says that they provided him with a caring and nurturing environment.

35 Mr Jones has fond memories of a childhood spent playing with other children in the area. Religion was important in the home and the family attended church on a regular basis. Family celebrations, such as birthdays and Christmas, were shared with both sets of parents. As Mr Jones’ god-parents lived very close to his parents, Mr Jones called both sets of parents “Mum and Dad”.

36 Mr Jones learned about his Maori culture from a young age, mainly through stories told by his grandparents, cousins and extended family members. He also became involved in story-telling and in cultural dance performed by his family.

37 At the age of seven, Mr Jones returned to live with his parents and four siblings. He describes his family life during this time as very happy.

38 Mr Jones completed high school, where he made many friends and had an active social life. He then undertook a law degree in Christchurch. He completed his degree in 1985, moved to Sydney and gained employment in a law firm.

39 Mr Jones now holds a senior position in Court administration. He works four days each week so that he can be involved in the children’s activities.

40 Neither Mr Smith nor Mr Jones is married and neither has biological children.

41 Mr Smith became aware of his homosexuality when he was in his early twenties. He says that his family is open minded and accepting of his sexuality. Mr Jones became aware of his homosexuality during early adolescence. His family accepts his sexuality and is supportive of his relationship with Mr Smith.

42 Mr Smith and Mr Jones met through friends and say that they were immediately attracted to each other. They began living together in 2001 and have not had any periods of separation since that time.

43 Mr Smith describes Mr Jones as a caring, gentle person with a good sense of humour. Mr Jones describes Mr Smith as a nurturing and practical man who grounds him and teaches him patience. They both say that they have a faithful, honest relationship with each other and are friends as well as partners. They say that their relationship is stable and that they lead a simple life with common goals. These statements about the relationship are corroborated by evidence to which I will come shortly.

44 Both Mr Smith and Mr Jones enjoy very good health. They exercise regularly and have no known medical conditions. They are financially well able to provide a good standard of living for William and Jane.

45 In 2002, Mr Smith and Mr Jones first applied to the Department to become respite foster carers. “Working with Children” checks were undertaken. Mr Smith’s employment with a welfare agency requires that he have an unquestioned, clear record of working with children. Checks into the history of both Mr Smith and Mr Jones – which are required in every application for adoption – show that there have never been allegations of abuse or mistreatment made against either of them and that neither has a criminal record.

46 Since 2002 Mr Smith and Mr Jones have provided foster care for two other children besides William and Jane through a respite care programme conducted by Barnardos. Their care of these two other children has been exemplary and they remain in touch with those children with the encouragement of their foster parents. Their experience with respite care has assisted Mr Smith and Mr Jones to manage the initial difficult behaviours of William and Jane.

The relationship between the children and the adoptive parents





47 From the time that the children first came into their care, both Mr Smith and Mr Jones have been acutely conscious that William and Jane have special needs due to early childhood trauma. As I have noted, Mr Smith took a year’s leave to ensure that he was able to devote himself full time to the children’s welfare. Mr Jones has also been able to devote considerable time to the children’s needs because he works four days a week.

48 Both children are now thriving and are in excellent health.

49 William’s behaviour at school was, at first, extremely difficult. School records show that, almost on a daily basis, William was disruptive and highly aggressive with other children. The records present a picture of a very disturbed child.

50 However, the records also show how intensely involved both Mr Smith and Mr Jones were with William’s teachers and the Barnardos case manager in discussing and implementing means of helping William. They sought appropriate counselling and medical advice at every stage.

51 As a result of the supportive and careful nurturing of William by Mr Smith and Mr Jones, William now has good relationships with teachers and classmates. He is doing well at school and enjoys a range of sporting and cultural activities. His school report for September 2009 reads:

“[William] has been a pleasure to teach this semester. He has shown great improvement academically, especially in guided reading. [William] is an enthusiastic learner who always involves himself in class discussion. He works well independently. However, he can become frustrated at times in group activities. [William’s] book work has improved over the semester and he is taking more pride in his work. He needs to slow down at times which will help him with his presentation. [William] is becoming a very caring and thoughtful peer inside the classroom and playground. Well done, [William]!”

52 The contrast between that report and reports of William’s behaviour at school in early 2007 could not be more stark.

53 Jane is reported to be an intelligent girl who now attends pre-school three days a week. Her intellectual development is quite normal and her social skills are well developed. She is said to be an independent and confident child who easily makes friends with her classmates. Initially, her behaviour at pre-school was stubborn and defiant, although to a less degree than William’s behaviour. However, as with William, Mr Smith and Mr Jones have been intensely engaged with teachers and carers at pre-school and with a consultant psychologist to devise and implement strategies to assist Jane. Jane is now reported to be progressing very well.

The observations of others





54 Two referees have given evidence as to the characters of Mr Smith and Mr Jones, their relationship with each other, their skills and abilities in parenting William and Jane and the relationship which has developed between the children, Mr Smith, Mr Jones and their extended family and friends.

55 The first referee is a university lecturer who has know Mr Smith for twenty-five years and Mr Jones for about ten years. The referee visits their home frequently with her own family. She says that Mr Smith and Mr Jones have a “committed, stable and extremely happy relationship”. She observes that the children have “fully bonded with [Mr Smith] and [Mr Jones]” and she says that Mr Smith and Mr Jones “are exemplary parents and have made their ongoing commitment to parenthood abundantly clear”.

56 The second referee is a chiropractor who has known Mr Smith for seventeen years and Mr Jones for nine years. He visits their home at least once a week and is closely involved with their family life and with their extended families. He describes Mr Smith and Mr Jones as getting on “extremely well” and having a “very close and stable” relationship with the children who “feel extremely secure and loved”.

57 These observations are confirmed by a consultant psychologist in a report to Barnardos made in August 2009. The psychologist had been providing on-going counselling support to assist Mr Smith and Mr Jones in managing the initial difficult behaviours of the children when they first came into care. The psychologist noted the great improvement which the children had shown and concluded:

“It has been an absolute pleasure and privilege to work alongside [Mr Smith] and [Mr Jones]. In our discussions together they present as extremely committed to the parenting of their children [William] and [Jane]. They are open and reflective throughout the sessions, actively seeking advice and support, and willing to experiment and try new ideas. It should be noted that whilst they are open to seeking support, they bring to the sessions a parenting style that presents as experienced, highly skilled and creative. Their parenting is oriented around the provision of nurturing, playfulness, consistency, with appropriate limit setting expectations of the children’s capacities. It is my opinion that their proactive and empathetic parenting style coupled with their committed and nurturing care giving is greatly assisting the children in their development of positive attachments and increasing their social, coping and regulatory capacities.”

58 All of this evidence was corroborated and, indeed, heightened by my own observation of Mr Smith, Mr Jones and the children when they, their families and friends attended Court for the formal making of the adoption orders. The love and trust between the children and Mr Smith and Mr Jones – whom the children call “Dad” and “Papa” – were palpable. The children, happy and outgoing, stood close to their new fathers, hugging them in moments of excitement and at other times unconsciously reaching for their hands.

59 The presence of so many family and friends to celebrate these adoptions was eloquent testimony of the stability, security and support which this new family of four enjoys.

60 In short, all of the evidence in this case shows that Mr Smith and Mr Jones are a close, loyal and mutually supportive couple, and that they are unquestionably capable of parenting these two children.

Eligibility of a same sex couple to adopt a child





61 Section 7 of the Adoption Act states that the first and foremost object of the legislation is “to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice”. In furtherance of this object, s 8(1)(a) of the Act provides that in making a decision about the adoption of a child, the Court is to have regard (as far as is practicable or appropriate) to the principle that the best interests of the child, both in childhood and in later life, must be the paramount consideration.

62 The Act emphasises that an adoption order is made for the benefit of, and in the interests of, the child and not for the benefit of, or in the interests of, the person seeking to adopt. Section 7(b) provides that amongst the objects of the Act are to make it clear that adoption is to be regarded as a service for the child concerned. Section 8(1)(c) provides:

“(c) no adult has a right to adopt the child ...”

63 I place these considerations at the forefront to emphasise that this case is not about the rights of same sex couples generally nor is it specifically about the rights of homosexual adults to adopt children. That is because adults – whether homosexual or heterosexual, whether married or single – have never had rights to adopt children, as s 8(1)(c) of the Adoption Act makes unequivocally plain.

64 What the Adoption Amendment (Same Sex Couples) Act 2010 addresses is not rights to adopt, but eligibilit y to adopt. Before the Amending Act, s 23(1) of the Adoption Act provided that the Court may make an adoption order “solely in favour of one person or jointly in favour of a couple”. The Act said nothing at all about the sex, or sexual orientation, of a single applicant for adoption. Accordingly, a single homosexual man or woman was just as eligible to adopt a child as was a single heterosexual man or woman. Sexual orientation affected eligibility only when the applicants were a “couple”, because “couple” was defined by the Dictionary in the Act as meaning:

“... a man and a woman who:

(a) are married, or

(b) have a de facto relationship.”

65 “Married” was, and still is, relevantly defined in the Dictionary as “a man and a woman who are actually married”. “Actually married” must mean “validly married in accordance with the laws of Australia”, i.e. validly married in a marriage which is recognised by the Marriage Act 1961 (Cth). Section 5(1) of the Marriage Act defines a marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. To make it clear beyond argument that same sex marriages can, by no means, be regarded as marriages valid under the law of Australia, as it is at present, s 88EA of the Marriage Act expressly forbids recognition of same sex marriages solemnised in other jurisdictions.

66 Prior to the Amending Act, a same sex couple could never have qualified as a “couple ... who are married” within the first limb of the definition of “couple” in the Dictionary. Neither could they have qualified as a “couple ... who have a de facto relationship” because the Dictionary definition required the couple to be a man and a woman.

67 In summary, prior to the passing of the Amending Act, a couple could only adopt if they were living together in an established heterosexual relationship, whether married or unmarried.

68 The Amending Act did not change the words of s 23(1) Adoption Act but it changed the definition of “couple” in the Dictionary to mean:

“... 2 persons who:

(a) are married to each other, or

(b) are de facto partners of each other.”

69 “De facto partner” is now defined in s 21C(1) Interpretation Act 1987 (NSW) as follows:

“For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if:

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

(b) the person is in a de facto relationship with the other person.”

“De facto relationship” is defined in s 21C(2) as follows:

“For the purposes of any Act or instrument, a person is in a de facto relationship with another person if:

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.”

Section 21C(3) provides:

“Determination of ‘relationship as a couple’

In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.”

70 It will be seen that the criteria for assessing a “relationship as a couple” in s 21C(3) Interpretation Act are modelled on what used to be regarded as the normal incidence of a conventional marriage between a man and a woman, even though a “couple” can now include same sex partners.

71 The new definition of “couple” in the Adoption Act incorporates, by reference, the definition of “de facto partner” in the Interpretation Act, which in turn provides that a couple are de facto partners if they are in a relationship registered under the Relationships Register Act 2010 (NSW) or corresponding legislation in other States. The Relationships Register Act 2010 came into effect on 1 July 2010. That Act provides only for the legal recognition of relationships, heterosexual or same sex, and does not set out the legal consequences of registration. Those consequences are to be found in other legislation such as, indirectly, the Adoption Act.

72 The registration of relationships under the Relationships Register Act is effected by the Registrar of Births, Deaths and Marriages by registration under Pt 8 of the Births, Deaths and Marriages Registration Act 1995 (NSW). Section 5 of the Relationships Register Act specifies those eligible to apply for registration:

“(1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship.

(2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.

(3) A relationship cannot be registered if:

(a) either adult is married, or (b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or (c) either adult is in a relationship as a couple with another person, or (d) the adults are related by family.”

73 Section 6 of the Relationships Register Act sets out the criteria by which the Registrar is to determine whether a relationship can be registered:

“An application for registration of a relationship is to be made in the form approved by the Registrar and must be accompanied by the following:

(a) a statutory declaration by each person in the relationship stating the following:

(i) that the person wishes to register the relationship, (ii) that the person is in a relationship as a couple with the other person, (iii) that the person is not married, (iv) that the person is not registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, (v) that the person is not in a relationship as a couple with a person other than the other applicant, (vi) that the person does or does not reside in New South Wales, (vii) that the person is not related to the other applicant by family.”

74 Section 6(a)(ii) requires evidence that the applicants for registration are “in a relationship as a couple”, i.e. that they are eligible to apply for registration under s 5(1). The phrase “in a relationship as a couple” is not defined in the Relationships Register Act but it appears in s 21C(3) Interpretation Act, set out above. There is no reason to suppose that the phrase has a different meaning in each Act.

75 Section 7 of the Relationships Register Act empowers the Registrar to require the applicants for registration to provide “any further information that the Registrar requires to determine the application”. By this means the Registrar is empowered to investigate the truth of the assertions in the applicants’ Statutory Declarations that they are in “a relationship as a couple”, ascertained by reference to the criteria set out in s 21C(3) Interpretation Act.

76 While persons who are in a de facto relationship, as defined by s 21C Interpretation Act, and persons who are in a registered relationship, as defined in the Relationships Register Act, may be in a heterosexual or same sex relationship with each other, there are significant differences between the two legal categories of relationship. A couple in a de facto relationship may include a partner who is, at the same time, legally married to a third person in a heterosexual relationship or is in a heterosexual or same sex registered relationship with a third person: s 21C(2) Interpretation Act. On the other hand, a party to a registered relationship under the Relationships Register Act cannot be legally married to a third party or living in a registered relationship with a third party or living in a de facto relationship with a third party. While the criteria for the two categories of relationship overlap to some extent, the requirements for a registered relationship are more restrictive than those for a de facto relationship.

77 To summarise, as the law in New South Wales presently stands, the following people are eligible to adopt a child:

– a single person of either sex, regardless of sexual orientation;

– a man and a women whose marriage to each other is recognised as valid under the Marriage Act;

– a man and a woman who are not married to each other but who are in a registered relationship;

– a man and a woman who are in a de facto relationship with each other, even if one them is still married to a third party or is still in a registered relationship with a third party, whether heterosexual or homosexual;

– a same sex couple who are in a registered relationship;

– a same sex couple who are in a de facto relationship with each other, even if one of them is still married to a third party or is still in a registered relationship with a third party, whether heterosexual or homosexual.

78 It hardly needs to be said that fulfilling the criteria in the legislation for eligibilit y as an adoptive parent is by no means the same thing as fulfilling the criteria for suitabilit y as an adoptive parent. In considering whether an adoption order should be made in favour of a person or couple eligible to adopt, the Court applies the criteria laid down by the Adoption Act, all of which are concerned with the best interests of the child and not with vindication of the aspirations of the applicant for adoption.

Are Mr Smith and Mr Jones a couple eligible to adopt





79 Mr Smith and Mr Jones do not suggest that they are a “couple” as defined in the Adoption Act because they are in a registered relationship within the meaning of the Relationships Register Act. Rather, they say that they are in a de facto relationship with each other, within the meaning of s 21C(2) Interpretation Act. In determining whether that is the case, I must have regard to all of the factual circumstances, including the matters referred to in s 21C(3) Interpretation Act. I will begin with my findings in relation to those matters, based on the evidence which I have recounted above.

80 I am satisfied that:

– Mr Smith and Mr Jones have been living together as a couple, to the exclusion of all others, for almost ten years;

– they are co-owners of the home in which they live and they contribute jointly to mortgage repayments and to other household expenses;

– they have a sexual relationship which is, and has always been, loyal and exclusive of others;

– they have, and have always had, a very strong mutual commitment to a shared life;

– for almost ten years they have been known to their families and to a wide circle of friends as living together as a couple to the exclusion of all others;

– they have, and have always had, a very strong mutual commitment to the care and support of William and Jane;

– they are, and have always been, mutually supportive and they share the duties of looking after the children, as well as other household duties;

81 I am satisfied that Mr Smith, Mr Jones and the children were permanently resident in New South Wales at the time that the application for adoption was filed. Accordingly, I am satisfied that the requirements of s 23(2) Adoption Act are fulfilled.

82 There are no other circumstances which I need to consider before concluding that the evidence fully justifies a finding that Mr Smith and Mr Jones are in a de facto relationship, as defined by s 21C(2) Interpretation Act, and that they are, therefore, a couple, as defined by the Adoption Act, who are eligible to apply for the adoption of William and Jane pursuant to s 23(1) of the Adoption Act.

What is in the best interests of the children





83 Section 8(1) Adoption Act provides that in making a decision about the adoption of a child, the Court is to have regard, as far as practicable or appropriate, to the following principles:

“(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b) adoption is to be regarded as a service for the child,

(c) no adult has a right to adopt the child,

(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare ...”

84 Section 8(2) relevantly provides:

“In determining the best interests of the child, the [Court] is to have regard to the following:

(a) any wishes expressed by the child,

(b) the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c) the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d) any disability that the child has,

(e) any wishes expressed by either or both of the parents of the child,

(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h) the nature of the relationship of the child with each proposed adoptive parent,

(i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

...

(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.”

85 Section 90 relevantly provides:

“Court to be satisfied as to certain matters

(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied:

(a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with ...

...

(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.”

86 It will be seen that many requirements of s 8 and s 90 overlap or are repeated without material difference in meaning. I will consider the substance of the requirements rather than discuss separately each paragraph of each section.

87 As to the wishes of the children: both William and Jane are too young to express any considered views as to their adoption, but I note that both were extremely happy to participate in the formal making of the adoption orders on 6 December 2010.

88 As to cultural identity: Ms White is Anglo-Australian, William’s father, Mr Ford, was born in Fiji, and Jane’s father, Mr Green, was born in Samoa. Mr Smith is Anglo-Australian and Mr Jones is Maori.

89 William and Jane did not experience any of the cultural heritage of their fathers as their fathers’ relationships with Ms White were brief and were terminated when the children were very young. Mr Smith and Mr Jones actively encourage the children to share in Mr Jones’ Maori cultural heritage. To the extent which is practicable in the circumstances, the cultural identities of the children are well served in their relationship with Mr Smith and Mr Jones.

90 As to family relationships: despite the persistent efforts of Barnardos to encourage Ms White to have contact with the children, they have only had one visit with their mother since they were taken into care in June 2006. That visit was in January 2010. Ms White cannot now be located. The children have never had any meaningful relationship with Mr Ford or his family and have never had any relationship at all with Mr Green or his family.

91 As to the children’s physical, emotional and educational needs: as I have recounted, when the children first came into the care of Mr Smith and Mr Jones, their emotional needs were very high. They had suffered some physical neglect, but it had not produced serious health problems. Although William was at an age at which children are normally enrolled in school or pre-school, he had not had either of those experiences so that settling into school was very difficult for him.

92 Despite the great progress which both children – and William in particular – have made, I am of the view that their emotional needs will remain high for some time and that Mr Smith and Mr Jones will be best able to meet those needs, as they have so successfully done up to the present time.

93 As to the wishes of the natural parents: Ms White was told in January 2010 of the adoption proposals in the course of her only contact visit with the children. She discussed the implications of an adoption by Mr Smith and Mr Jones with a Barnardos case worker. Ms White did not give her consent to the adoptions but she did not say that she was opposed. She knows that Mr Smith and Mr Jones are a same sex couple and she has no objection to the adoptions on that ground. Her attitude is that, while she acknowledges that the children are now very well cared for and she does not seek their return to her, she cannot, as their mother, bring herself to consent formally to their adoption.

94 Mr Green consents to Jane’s adoption by Mr Smith and Jones with full knowledge that they are a same sex couple. Mr Ford is aware that William has been placed with a same sex couple but his attitude to William’s adoption by them cannot be ascertained.

95 In October 2009, Barnardos arranged a contact visit between William, Jane and their half-brother, Adam, who is the second of Ms White’s children and who is living with his paternal grandparents. The visit was very successful and, with the full support of Mr Smith and Mr Jones, contact between the children and Adam will be arranged twice yearly in the future.

96 As noted above, Jane has never met Mr Green or her half-brother who is Mr Green’s son. Photographs of the children have been exchanged and, with the support of Mr Smith and Mr Jones, it is proposed that Jane have contact with Mr Green and her half-brother twice a year.

97 I am satisfied that the relationships between Jane, William and their birth families will be encouraged by Mr Smith and Mr Jones as far as is reasonably practicable.

98 As to the parenting capacities of Mr Smith and Mr Jones and their relationship with the children: what I have set out at paragraphs [47] to [60] shows that I am entirely satisfied that Mr Smith and Mr Jones are exemplary parents and that they and the children are now closely bonded as a family. I am satisfied that the children feel secure and that they know they are loved by Mr Smith and Mr Jones and their extended families. I am entirely satisfied that Mr Smith and Mr Jones are well able to provide for the emotional and intellectual needs of the children.

99 I am satisfied that an assessment report in accordance with the requirements of s 91 Adoption Act has been provided to the Court in respect of the proposed adoptions, and that the report strongly recommends that the adoptions proceed.

Special considerations in adoptions by same sex couples





100 I cannot pretend to be oblivious to the fact that many in the community have expressed, and continue to express, a strongly-held belief that adoption by same sex couples is, in its very nature, contrary to religion, to morality and to the best interests of the child, and that it undermines the long-established concept of the nature of a family. This ideological debate is not, however, the concern of this Court in deciding adoption cases because Parliament has now resolved the issue by enacting that same sex couples are lawfully eligible to adopt children.

101 Nevertheless, the Court must be conscious that, perhaps for some little time to come, a significant proportion of the community will continue to regard as an oddity a child who, purely as a matter of legal construction, has two mothers and no father or two fathers and no mother. Should the Court take this circumstance into consideration in determining whether adoption by a same sex couple is in the best interests of the child? Should the Court apply any special test to adoptions by same sex couples?

102 Some would say that to apply a special test in same sex adoptions is to discriminate unlawfully against persons of a particular orientation, so that the Court should take no account at all of whether the adoptive parents are a married couple, an unmarried heterosexual couple or a same sex couple. In the context of the policy of the Anti-Discrimination Act 1977 (NSW), this view is perfectly understandable.

103 However, the policy of the Adoption Act is not subordinated to the policy of the Anti-Discrimination Act. On the contrary, the Adoption Act requires that the interests of the child, not the rights of aspiring adoptive parents, are to be the paramount consideration. The primacy of the individual child’s interests in a particular adoption case should, therefore, never be diminished by considerations of general social policy.

104 However, in considering the best interests of the child, the Court must be aware that adoption by a same sex couple may, in certain cases, be capable of causing problems for the child in terms of the way in which he or she perceives himself or herself as fitting into the community at large. To take an extreme hypothetical example, a same sex couple may be militantly hostile to the opposite sex in general and their circle of friends and acquaintances may be confined exclusively to members of their own sex. To permit the adoption of a child by such a couple would be as inimical to the child’s ability to develop normal relationships within the community at large as it would be to permit adoption of the child by a married couple with vehemently expressed homophobic beliefs.

105 Accordingly, the Court will be concerned to see that adoptive parents, regardless of sexual orientation, have stable, supportive and balanced family and social relationships. The Court can then be assured that the adopted child will not be isolated, that the parents will be supported and that the child will be introduced successfully to social intercourse. This concern is not focussed upon adoptions by same sex couples: it apples equally to all adoptions.

106 Doubtless the Court and the community will grapple for some time with the novelty of same sex couple adoptions. However, novelty does not justify the imposition of any special test for same sex couple adoption applications, nor does it warrant a specially cautious approach by the Court to such applications. That is because the Adoption Act prescribes only one test for all adoption applications: in the particular factual circumstances of every case, what is in the best interests of the child? The assessment procedures and the policies of the Adoption Act as they presently stand are perfectly adequate to ensure that, regardless of sexual orientation, only those who are able to promote the best interests of the child will be approved as adoptive parents.

Whether adoption is clearly preferable





107 As required by s 90(3) Adoption Act, I now consider whether an adoption order is clearly preferable in the best interests of the children to any other action which could be taken by law in relation to their care.

108 As I have noted, the Children’s Court has placed the children in the care of the Minister until they are eighteen years of age. I am satisfied that the Children’s Court, in making that order, rightly considered that there was no realistic prospect of the children being returned to the care of Ms White. I observe, in any event, that Ms White has never actively sought the return of the children to her care. Neither Mr Ford, Mr Green nor any member of their families seek that the children be placed in their care.

109 Accordingly, the only courses of action open for the care of the children in the future are to do nothing – i.e. to leave them in the foster care of Mr Smith and Mr Jones until they are eighteen years old – or to make an adoption order. A decision as to which course of action should be taken should not be delayed: see s 8(1)(e1) Adoption Act.

110 I consider that making an adoption order for the children in favour of Mr Smith and Mr Jones is clearly preferable to simply leaving them in foster care. The importance to children – particularly children who have suffered emotional trauma and instability in early childhood – of the security and permanence of adoption is well recognised by psychologists and social workers. Children wish to have their own families; they wish their identities as members of their families to be unquestioned and unquestionable. Child psychologists say that sometimes children in long term foster care who are not adopted by their foster families question, later in life, why they were not adopted and whether it was because they themselves were not really worthy of love. These doubts and questions can seriously affect a person’s self esteem.

111 In my opinion, William and Jane are in special need of the devoted care of Mr Smith and Mr Jones as parents and they are in special need of security, stability and reassurance in their parental relationship. I am satisfied that it is clearly preferable in the best interests of the children to make orders for their adoption.

Orders





112 For these reasons, on 6 December 2010:

– pursuant to s 67(1)(d) and s 72(2)(c) Adoption Act, I made orders dispensing with the consents of Ms White and Mr Ford to the adoptions, although notice of the consent dispense applications had not been given to them in accordance with s 72(1);

– pursuant to s 23(1) Adoption Act, I made orders for the adoption of William and Jane in favour of Mr Smith and Mr Jones jointly as a couple.

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14 December 2010