ADOPTION BY SAME-SEX COUPLES BY: BRITNEY MARKS-SLATTERY

THE LAW

The Adoption Act (2009), prior to 2016, stated in section 76 (g[ii]) that a person is eligible to have his or her name entered or remain in the expression of interest register if they are not of the same gender as the person. Clause 13 of the bill amended such section to broaden the eligibility criteria to allow same-sex couples to be entered and remain in the expression of interest register. Section 92 (1h) of the Adoption Act (2009), prior to 2016, also stated that a person may apply to the chief executive to arrange an adoption by the person of a stated child if the person’s spouse is not the same gender as the person; this requirement was removed by clause 18 of the amendment. Furthermore, Section 89 (7bv), of the Adoption Act (2009), prior to 2016, regarded the selection to meet needs of the child, whereby the chief executive may select a person who is not listed in the expression of interest register only if, for a person who has a spouse, the spouse is not the same gender as the person. Clause 17 of the bill removed this section and replaced it with a new section, 89 (3A) which no longer includes the requirement that a person’s spouse must be of the same gender as the person, but rather they be assessed for suitability to be the adoptive parent(s). This, in addition, correlates with the best interests of the child as enshrined in the Family Law Act (1975) section 60CC which prescribes the factors of the best interest of a child and the Conventions of the Rights of the Child (1990) which prescribes children rights. It is proposed that there be no amending or reforming of the current law proceeding the amendment in 2016, and should ultimately be retained as it is a highly effective improvement, despite minor protest by stakeholders.

HYPOTHETICAL

In the given hypothetical, it is found that a same-sex couple, Sally and Sarah, have been unable to adopt due to the provisions of the Adoption Act (2009), previous to the amendment. Since the amendment in 2016 which same-sex couples are now eligible to apply and be assessed for suitability, there is a highly likely chance that Sally and Sarah will be able to adopt. Due to the expansion of the eligibility criteria of the registry Sally and Sarah have the ability to apply to adopt and be entered into the registry with an expression of interest. The same procedures for a heterosexual couple will be undertaken for this homosexual couple whereby they will be assessed to ultimately determine if they are suitable to adopt. According to the information prescribed in the case such as their relationship being that of eight years in length and stable, both that of exemplary citizens with secure, high income employment in government jobs and the owning of a home, demonstrating exceptional parenting skills and attitudes to parenting through the fostering of many children over the years and Sally’s ability to take time off work to look after the children, Sally and Sarah has a highly likely chance of adopting children of their own. This information about Sally and Sarah also links with the factors which demonstrate best interests of the child, found in section 60CC of the Family Law Act (1975). In contrast, if Sally and Sarah were to attempt to adopt under the laws prior to the amendment in 2016, they would not even be considered or allowed to express any interest or apply to the registry resulting in this couple not being able to adopt. However, due to the amendment that was made, the logical legal outcome if Sally and Sarah were to attempt to register to adopt in 2017, would be that the couple would be considered, assessed and given the chance to adopt their own child.

CASES

TOONEN V AUSTRALIA 1994: "In 1991, Nicholas Toonen, a homosexual man from Tasmania, sent a communication to the Human Rights Committee. At that time homosexual sex was criminalized in Tasmania. Toonen argued that this violated his right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR). He also argued that because the law discriminated against homosexuals on the basis of their sexuality, it violated Article 26. As a result of his complaint to the Human Rights Committee, Toonen lost his job as General Manager of the Tasmanian AIDS Council (Inc), because the Tasmanian Government threatened to withdraw the Council’s funding unless Toonen was fired. The Human Rights Committee did not consider Toonen’s communication until 1994, but it ultimately agreed that because of Tasmania’s law, Australia was in breach of the obligations under the treaty. In response to the Commission’s view, the Commonwealth Government passed a law overriding Tasmania’s criminalization of homosexual sex," (Australian Human Rights Commission, 2010).

RE PATRICK 2002: Parenting dispute between lesbian couple and the homosexual male sperm donor of the child. The judge granted shared parenting rights to the donor and lesbian couple. He recognizes the need for the law to treat such families equally to heterosexual families. The case involved competing applications concerning contact arrangements for Patrick, a two year-old boy. The proceedings were instituted by Patrick's mother and her lesbian partner co-parent. They jointly filed a Form 3 Application on 8 May 2001, that certain consent orders regarding contact arrangements be discharged. The applicants sought more limited contact between Patrick and his father (the respondent), and were agreeable to such contact taking place twice per year. The respondent, a homosexual sperm donor who had entered into an artificial insemination agreement with the mother, filed a Form 3A Response on 17 May 2001, in which he sought increased contact with Patrick. Guest J, in determining the issue, was required to bear in mind, amongst other considerations, s 65E of the Family Law Act 1975 (Cth)3 which provides: In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. As his Honour commented: the proceedings had "brought into stark relief the complexities surrounding donor insemination and its relationship with family law," (Austlii Journal Case Notes, 2002).

B v J 1996: His Honour Justice Fogarty in dicta considered that a same sex co-parent had no child support liability. He held that the man who donated sperm to a lesbian couple and was listed on the birth certificate as the father was not the father for the purposes of the Child Support (Assessment) Act 1989 (Cth). (Campbell, 2002).

W v G 1996:The Supreme Court of New South Wales enforced an implied promise by the co-parent to support the children. It ordered payment of a lump sum to the biological mother for the children’s future expenses. The Court also ordered that a copy of the judgment be sent to Centrelink. It is possible that in the future, the desire to protect the public purse may increase pressure to recognise same sex parenting at least in the area of financial responsibility (Campbell, 2002).

RE BUZZANCA 1998: The Californian Court of Appeal made a strong statement which is just as applicable to Australia: “A child cannot be ignored. Even if all the means of artificial reproduction were outlawed with draconian criminal penalties visited on the doctors and parties involved, courts would still be called upon to decide who the lawful parents are and who – other than the taxpayers – is obligated to provide maintenance and support for the child. These cases will not go away. Again we must call on the Legislature to sort out the parental rights an responsibilities of those involved in artificial reproduction. … Courts can continue to make decisions on an ad hoc basis without necessarily imposing some grand scheme … Or, the Legislature can act to impose a broader order which, even though it might not be perfect on a case-by-case basis, would bring some predictability to those who seek to make use of artificial reproductive techniques," (Campbell, 2002).

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