Richardson v Griffiths [2018] NZFC 3355

Published 18 April 2019

Adoption — definition of spouse — Adoption Act 1955, ss 3, 4 & 11 — New Zealand Bill of Rights Act 1990, ss 4, 6 & 19 — Human Rights Act 1993, s 21 — R v Hansen [2007] NZSC 7 — Re Application by AMM and KJO to adopt a child [2010] NZFLR 629 — Re Pierney [2016] NZFLR 53 — Re [case 1] [2016] NZFC 3575 — R v [case 2] [2015] NZFLR 87. The applicants applied to adopt 18 year old Layla. Layla had been put in their care by Child Youth and Family Services when she less than 3 years old. She has been parented by the applicants since, even though they divorced and both have since re-married. There was no doubt the applicants were fit and proper people to adopt Layla, and to make the adoption order would serve the best interests of Layla and align their legal relationship with reality. However, s 3(2) of the Adoption Act (the Act) provides that an adoption order may be made "on the application of 2 spouses jointly in respect of a child". Section 3(3) allows an adoption order to be made by 1 person (the mother or father of the child) alone. The Judge reviewed the law relating to spouses in the context of adoption. It was obvious that the Act as it was enacted in 1955 intended "spouse" to mean a heterosexual married couple. Over time this definition was expanded to include de facto couples, same sex couples and even two people who were separated but had not yet had their marriage dissolved. The applicants submitted that to decline the adoption would discriminate against them based on their marital status. It was decided this was discrimination but that to stretch the word spouse to include two divorced and re-married people would torture the definition of the word and overrule the law Parliament had created. The Judge noted the applicants could appeal to the High Court or Parliament could change the law so it was not discriminatory but the Family Court could not grant the adoption application. Judgment Date: 18 May 2018. * * * Note: Names have been changed to comply with legal requirements * * *