Submission: Adoption by same-sex couples under Victorian law 

Meredith Doig / 11 April 2015

In March 2015, the Victorian Government initiated a review to consider changing the law to permit adoption of children by same sex couples. The RSA argues that any legislative amendments should be based on the presumption that the best interests of a child are not determined by the sex of his or her parents.

The Rationalist Society (RSA) is Australia’s oldest free-thought organisation, established in 1906.  Over the past 100 years or so, the RSA has promoted reason and evidence-based decision making in public policy, independent of theological creeds and dogma. One of the major aims of the RSA is to raise awareness among the public of the value of Reason and the benefits of a rationalist approach to life and living.

The RSA welcomes the commitment of the Victorian Government to remove discrimination against same sex families and their children under adoption laws. It also welcomes the independent involvement of Mr Eamonn Moran PSM QC, as a Law Reform Commissioner, to consider the legislative amendments required to permit adoption by same-sex couples.

Indeed, it was in 2007 that the Victorian Law Reform Commission recommended that the Adoption Act (1984) (Vic) be amended to allow same-sex couples to adopt in its final report on Assisted Reproductive Technology.

The purpose of this submission is to support legislative amendment in this area and propose the legislation in New South Wales as an appropriate model.

Whilst the Victorian Law Reform Commission was considering the Adoption Act, the Human Rights and Equal Opportunity Commission’s (HREOC) report Same Sex Entitlements was released in May 2007. It highlighted some of the consequences of non-recognition across a wide range of areas of law. The HREOC report recommended changes to a wide variety of laws. Numerous laws were in fact reformed in 2008 at a state and federal level to address the discrimination inherent in non-recognition of same-sex relationships. Victoria has lagged behind in same-sex adoption laws.

The Federal Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act was passed in 2008. The Explanatory Memorandum to that Act at page 2 states that the amendments were required because differential treatment prevents same-sex couples from accessing many of the benefits available to opposite-sex couples and relieves them of obligations.

The Explanatory Memorandum then states at page 3 that the amendments are required to ensure recognition is given to children of same-sex relationships to ensure these children are not disadvantaged because of their family structure. The RSA submits that the Victorian legislative amendments should also aim to eliminate such disadvantage.

In 2009, the New South Wales Standing Committee on Law and Justice, in its Final Report on Adoption by Same-Sex Couples, recommended that same-sex adoption be allowed. The Committee considered to be very significant the findings of research favouring family functioning regardless of the parents’ gender or sexuality (p 95). The Committee also considered to be very significant the finding that sexual orientation is not an indicator of parental fitness or ability (p 86).

The RSA submits that the Victorian legislative amendments should be based on the presumption that the best interests of a child are not determined by the sex of his or her parents.

The NSW Parliament enacted amendments to the NSW Adoption Act 2000 in 2010 under the amending legislation of the Adoption Amendment (Same Sex Couples) Act 2010. Under s23 of the NSW Adoption Act, a New South Wales court was given jurisdiction to make an order for the adoption of a child solely in favour of one person or jointly in favour of a couple.

It is noted in that section that ‘couple’ is defined in the Dictionary to mean two persons who are married to each other or who are de facto partners of each other. ‘De facto partner’ for the purposes of this Act is taken from section 21C (1) of the Interpretation Act 1987:

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.

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.

In determining whether two persons have a relationship as a couple, all the circumstances of the relationship are taken into account, including any of the following matters:

– the duration of the relationship,

– the nature and extent of their common residence,

– whether a sexual relationship exists,

– the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

– the ownership, use and acquisition of property,

– the degree of mutual commitment to a shared life,

– the care and support of children,

– the performance of household duties,

– the reputation and public aspects of the relationship.

It is evident the Victorian Adoption Act 1984 has significantly lagged behind advances in our thinking as a community about same-sex relationships. By contrast to the NSW legislation, section 11 of the Victorian Adoption Act 1984 provides that an adoption order may only be made in favour of a man and a woman. The man and the woman may be either married or live in a de facto relationship for not less than two years.

The RSA submits that it is time for legislative change in the best interests of the children of Victoria and for that change to be reflected in legislation that is modelled on the NSW Adoption Act 2000. 

Dr Meredith Doig


March 2015

All the more reason.