Family Law

I've lived in England now for almost sixteen years, but still get a swell of nationalistic pride when we take our lead here from Australian family justice reforms.  Silly, I know, but there it is.  And there is no shortage of examples, going back decades:  the principle of administratively assessed and enforced child maintenance; the concepts of "residence", "contact" and "parental responsibility"; compulsory mediation information sessions at the outset of litigation.  The list goes on...

But there are some aspects of Australian family justice that are less laudable.  One such area is adoption in my home State of Victoria - for constitutional reasons, each State is free to legislate on child protection questions (like adoption). 

As recently as August 2010, Australian media outlets were reporting on the adoption of a child by one of his gay foster parents.  What made the case newsworthy was that the adoption order was believed to be the first in Victoria in favour of a gay parent. 

The case, AB -v- Victorian Equal Opportunities and Human Rights Commission and Ors [2010] VCC AD-10-003 (6 August 2010), concerned an eleven year-old identified as "J".  J had lived with his (male) foster parents, AB and CD, since 2006.  They in turn had been in a committed relationship since 1997.  J was developmentally delayed due to neglect in early life, but grew to be confident and articulate in his foster fathers' care and was thriving.

But the Victorian Adoption Act 1984 did not permit both foster fathers to adopt, and only allowed courts to make an adoption order in favour of a couple if they were a married or cohabiting man and woman. 

AB therefore made the application, seeking an order in his favour alone.  Such applications are permissible in Victoria, but only if "special circumstances exist in relation to the child which make it desirable so to do".  It was unclear whether the casual homophobia in the drafting of the Adoption Act 1984 permitted an order in favour of a single homosexual applicant, and that was the question facing the court in Melbourne. 

AB contended that the application was permissible as a matter of simple and / or purposive statutory interpretation.  Further, he submitted that a narrow reading of the Adoption Act 1984 would be inconsistent with Victoria's human rights legislation.

Her Honour Judge Pullen decided Victoria's adoption legislation did not prevent a gay man from adopting a child as an individual, even if it were clear he was in a committed same-sex relationship.  Her Honour reached that conclusion as a matter of statutory interpretation, declining to look to the more principled human rights questions that arose.   

Undoubtedly the decision to allow J legally to join the family he had known and in which he had prospered over the previous four years was the right one.  The Judge deserves congratulations for making what some might have thought was a potentially controversial decision. 

But really, Victoria:  this was in August 2010:  not even two years ago!  Is there really still a debate about whether children can succeed and flourish if brought up by same-sex parents?

It would seem so....  Some local commentators spied trouble ahead for J.  One posed the question:  in a household comprising two fathers who shared a bed, would J grow up with a "skewed" view of gender and sexual orientation?  By selectively mining research, and throwing in some anecdotal material for good measure, it was suggested that J was more likely to "become" a homosexual if brought up by homosexual fathers.  Also offered was the opinion that the adoption might consign J to a life of misery.  If J was "turned" gay by his adoptive parents' example, he would be subject to the systematic vilification and discrimination young LGBT people report suffering due to their sexuality.  He might also be bullied for having two gay dads.

There are some signs that evolution is afoot in Victoria.  In 2007, the Victorian Law Reform Commission ("VLRC") reported there was no justification for concluding that "prohibiting same-sex couples from adopting is justified according to the principle of the best interests of the child".  In its report, Assisted Reproductive Technology and Adoption, it recommended reform to enable orders in favour of same-sex couples.  Same-sex adoptions are now permitted under the laws of three Australian States or Territories.  Assisted reproductive technology, IVF, altruistic surrogacy and parental rights have been legally available to Victorian same-sex couples since January 2010.  J's own case is proof of progress.

So Victoria is limping forward, but needs to do better.  Five years have passed since the VLRC reported on the reform needed, but still there is no firm commitment to take forward the recommendations.  Outmoded views about who is a suitable parent persist, meaning some vulnerable Victorian children continue to be denied the legal and emotional benefits that flow from adoption. 

Here's an opportunity for us to teach the Australians a trick.  Statistics published for the year to March 2011 recorded 3,050 adoptions in the previous year in England of children looked-after by Local Authorities.  Of those, 91% were adoptions by couples, and of those 4% were same-sex (either cohabitants or civil partners). 

The profound waffle back home in the aftermath of J's adoption about the possible risks to him from his same-sex family barely warrants a response.  There is at least as much empirical and peer-reviewed evidence against the proposition that homosexuality is learned or chosen as there is for it.  However, a consensus that is beyond serious debate amongst the global medical, psychological, and social welfare communities is that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexuals. 

As for the suggestion that adoption placements should take into account whether a child might be bullied due to his family life, the same line of reasoning would justify a child never being placed with mixed-race parents, because of the risk of racial taunts.  This specious argument would see children languish in State care because otherwise secure adoptive placements might give ammunition for  to bullying to a few small-minded idiots.

Here in the 21st Century, we don't address discrimination by organising our lives to appease bigots.  Instead, we confront it and we challenge it.  The VLRC Report included a quote from a boy (aged 14) who spoke about what it was like living with a gay couple; he said this:

"I was a bit homophobic in primary school.  Then we met Brett and Ian and that helped a fair bit.  Brett and Ian make me feel like I'm really special and it makes me feel good.  They're kind of like role models.  They tell me, ‘Be yourself, believe in yourself and try not to pollute the earth'"

Martino, W and Maria Pallotta-Chiarolli.  Boys' Stuff:  Boys Talking About What Matters.  Allen & Unwin.  2001.  Print. p.154

If a fourteen year-old can learn by experiencing a different family model that difference is something to be celebrated rather than ridiculed, then we ought not to lose all hope for some adults, too.  As the English experience has shown, the kind of narrow-mindedness demonstrated by some after J's adoption becomes marginalised and irrelevant pretty quickly. 

Come on Victoria:  get on with it!

Duncan Ranton is a Senior Associate at Russell Jones & Walker (part of Slater & Gordon Lawyers), part of the specialist childcare team based in the London office. 

He works exclusively in the field of family law, and with a particular emphasis on cases involving children. His expertise ranges from domestic cases involving disputes as to residence, contact and/or the attribution and exercise of parental responsibility all the way through to transnational cases that have raise extremely complex issues of private international law. 

Duncan is dual qualified in Australia, and is a member of Resolution's International Committee.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.