Saturday, February 26, 2011

Family Court allows de facto adoption by a lesbian couple

The Family Court yesterday allowed the de facto adoption by a lesbian couple of a 9 month old Torres Strait Islander girl. The couple were not Torres Strait Islanders.

Newly appointed Justice Forrest, in one of his first decisions, found that it was in the best interests of the baby that she live with the couple and that they have parental responsibility. The orders made were with the agreement of the mother. The father of the child was unknown. At the time of conception, the mother had been extensively partying and drinking and had had a number of unknown sexual partners. before he was prepared to make the orders, Justice Forrest insisted on the mother obtaining independent legal advice (which she obtained) and her setting out on oath why the father was unknown. If the father were known, then he ought to have been told of the court case.

When the mother was 3 months pregnant, she decided that she did not want to keep the child, did not want to have an abortion, did not want to adopt to an unknown family through the child welfare authorities, but wanted to have her child grow up in a  loving family. She had known of the lesbian couple for many years and considered that they were that family. The couple then agreed to care for the child and raise her as if she were their own, provided that she was aware of and was proud of her Torres Strait Islander culture, that she could be aware of who her mother was, and if her father were ever discovered, to have contact with him.

Informal adoptions of this kind are well known in Torres Strait Islander culture, being known as Kupai Omasker.

Shortly after birth, the mother contacted the couple again, and asked them to come and take her child. They did so, and continued to care for the child from that day. The mother chose not to see the child, except for the purposes of an assessment by a social worker, who said that the proposed care of the child by the couple was in the child's best interests.

Red tape came into it, however. Because there was no order to say that the child was in their care, until the order was made, the child was not entitled to be on the couple's Medicare card.

The couple wanted to adopt the child, but because of Queensland's red tape, they could not. Here were their four options:

   1. Adopt
They couldn't, because the Adoption Act Qld says they can't. The Adoption Act Qld specifically discriminates against same sex couples, something that politicians said at the time was in the "best interests of children" as I have blogged before.


    2. Go to the Supreme Court for an adoption

In legal theory, the couple could have gone to the Supreme Court of Qld and tried to use its inherent power (the power it has had since ancient times being a superior court of record), what is sometimes called the parens patriae jurisdiction, to allow the adoption. Great for lawyers, not for clients. While in theory the Supreme Court would have the power to allow the adoption, there is some doubt when the Adoption Act covers the field, specifically discriminates against same sex couples, and the same Department that upholds that Act, the Department of Communities (Child Safety Services) would have to be a respondent to the adoption application.

    3. Get the Department of Communities (Child Safety Services) obtain a child protection order naming the couple as long term guardians

This was an obvious choice, but the Department wasn't interested. The couple reported the matter to the Department. The Department considered it a private matter.

4. Go to the Family Court

Although this was the option of last resort, it was in effect the only legal option open to the couple.


Information: I and my colleague Karen Gough acted for the couple. The case is unreported. I will blog about the case further once the judgment shows up online.

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