The Minister for Equality, Martin Foley, recently announced the Labour Government’s decision to commission a review, to be conducted by former Chief Parliamentary Counsel Eamonn Moran QC, to consider the legal changes required to permit adoption of children by same-sex couples under Victorian Law.

It is important to identify that the review is not being framed in the context of whether or not same-sex couples should be permitted to adopt but rather how best to legislate the change.

Victoria’s Adoption Act 1984 is seen to be outdated and lagging behind New South Wales, Western Australia, the Australian Capital Territory and Tasmania, who all have laws permitting adoption by same sex couples.

The review aims to ensure any legal changes are made with consideration to the best interests of the child.

Currently, section 11 of the Adoption Act provides:

1. An adoption order may be made in favour of a man and a woman—

• who are married to each other and have been so married for not less than two years; or
• whose relationship is recognized as a traditional marriage by an Aboriginal community or an Aboriginal group to which they belong and has been so recognized for not less than two years; or
• who are living in a de facto relationship and have been so living for not less than 2 years; or
• who have been living with each other in any combination of the relationships referred to in paragraphs (a) to (c) and have been so living for not less than 2 years— before the date on which the order is made.

Amending sections of the Adoption Act 1984, specifically section 11, to permit an adoption order to be made in favour of a same-sex couple and not just “a man and a woman,” will not, in itself, be a complex matter. However, consideration must be given to the policies, procedures and regulations which will also need to be amended as a result of the legislative changes. For example, how will birth certificates be amended to accommodate for the legislative changes? Will birth certificates list “mother” and “mother,” or “mother” and “parent”?

In conducting the review, Mr Moran must take account of a range of issues, including:

• The Victorian Law Reform Commission Final Report on assisted Reproductive Technology and Adoption (2007);

• Laws permitting adoption by same sex couples in Western Australia, the Australian Capital Territory, New South Wales and Tasmania; and
• Other relevant Commonwealth or State legislation and any relevant case law.

The submissions will be reviewed and reflected in a report which is to be handed to the Minister for Equality by 8 May, 2015. The proposed changes are likely to be introduced into parliament by the middle of the year.

Interested parties are invited to make submissions to the review by 23 March, 2015.

Nicholes Family Lawyers will be following the progress of the review and the legal changes so we are ready to assist same-sex couple with understanding and exercising their new legal rights.