A M M and K J O Application Hc Wn

• Jurisdiction: New Zealand
• Judge: Wild J,Simon France J
• Judgment Date: 24 June 2010
• Neutral Citation: [2010] NZHC 977
• Date: 24 June 2010
• Court: High Court
• Docket Number: CIV 2010-485-328

[2010] NZHC 977

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Court:

Wild J, Simon France J

CIV 2010-485-328

In the Matter of the Adoption Act 1955

and

In the Matter of an application by A M M and K J O to adopt a child

Counsel:

C Geiringer and D W Milliken for Appellants

V E Casey and P D Marshall for Attorney-General (as intervenor)

Dr M G Gazley, Counsel to assist Court

JUDGMENT OF THE COURT

	Paragraph No.
Introduction	[1]
What the case is, and is not, about	[9]
Cutting to the chase	[12]
The correct approach to a s 6 BORA analysis	[21]
The case for a wider meaning of spouse	[33]
The case for s 4 BORA being the dominant provision	[56]
Decision	[67]

Introduction

1 AM and KO have been in a settled de facto relationship for nearly ten years. When the relationship began, AM had an 18 month old son, S, whom she had conceived through a sperm donor programme. Accordingly, S's natural father is unknown. KO has parented S for almost all of S's life, but he is not S's legal parent.

2 AM and KO would both like to be S's legal parents, just as they are with their daughter, D. KO can only become S's legal parent if he adopts S. However, if he makes an application on his own, and it is granted, the effect would be to terminate AM's status as mother, because that is what adoption does. It kills off any existing parental status in favour of the new parents. So even though AM is already S's mother, she needs to make a joint application with KO.

3 However, there is an impediment. Under the Adoption Act 1955, any individual can apply to adopt, but when it comes to couples, the Act is quite specific:

An adoption order may be made on the application of two spouses jointly in respect of a child.

4 And so then to the issue confronting the Court. Can the word “spouses”, which is normally used to refer to a married couple, be read to apply also to a de facto couple of the opposite sex?

5 The case comes to this Court by way of a case stated appeal. There are a number of Family Court decisions which differ on the capacity of couples other than married persons to make application to adopt. In the present case Judge Ellis followed an earlier decision of Judge Inglis QC which had analysed the Adoption Act 1955 and concluded a wider meaning was not possible.

6 Two variants on the case stated question are suggested. That proposed by counsel for the appellant was:

Does the word “spouse” in s 3(2) of the Adoption Act 1955 include couples living in a relationship in the nature of marriage, or is it limited to married couples?

7 That probably favoured by Judge Ellis was the question formed by Judge Inglis in his leading decision:

The central issue is therefore whether it is permissible to interpret the expression spouses in s 3 of the Adoption Act 1955 so as to include a man and a woman who are unmarried but in a stable and committed relationship.

8 For reasons that are addressed in the next section, we see this case as limited to consideration of the situation of a de facto couple of the opposite sex. Whilst the wording of the first question could be altered to make this limitation clear, we prefer the question as posed by Judges Inglis and Ellis and proceed against that background 1

What the case is, and is not, about

9 Everyone will be well aware that in New Zealand, as in most countries, there are laws which prohibit unjustified discrimination. If spouses is read to mean that only married couples may adopt, the law would seem to be discriminating against all the other types of relationships that are common place in New Zealand: de facto couples, and civil union couples of the same or opposite sex.

10 An unusual feature about the case is that the Attorney-General accepts that the law, without logic or justification, discriminates against de facto couples like AM and KO. The real issue in this case is whether the Court is able to do something about it, by giving “spouse” a wider meaning, or is it something that has to be left to Parliament? The Attorney-General's position, endorsed by Dr Gazley as amicus, is that it is a matter for Parliament. Whether this is so depends on whether s 6 of the New Zealand Bill of Rights Act 1990 (BORA) allows a more expansive meaning of the word to be taken that would allow this de facto couple to apply to adopt S.

11 That then is what the case is about. What it is not about is whether “spouses” can be interpreted to cover any other type of relationship such as a same sex couple. A favourable decision for these appellants might open the door for people in other forms of relationship to apply. That possible consequence is a factor the Court must take into account. But, in the end, if the decision in this case were to open that door, what the answer will be for those other couples will have to await another day. The Attorney-General's concession is specifically limited to de facto couples of the opposite sex. Here the appellants are only concerned about their situation and we are of the view the case can be approached in that limited way.

Cutting to the chase

12 We consider this case resolves itself down to one narrow, but very difficult, point, namely whether, under's 6 of BORA, “spouses” can be given that wider meaning. That being so we propose to move to that point quickly. What follows in this section is somewhat of a truncated preamble.

13 In Hansen v R2 a majority of the Supreme Court set out a usual approach to interpretation tasks when compliance with BORA is in issue. To paraphrase the summary given by Tipping J 3

• • ascertain Parliament's intended meaning of the word [here “spouses”];

• • decide if that meaning is apparently inconsistent with a relevant right or freedom [here the discrimination provisions of the New Zealand Bill of Rights Act 1990];

• • decide if an apparent inconsistency is a justified limit on the right in question. If so, no breach of the New Zealand Bill of Rights Act 1990 exists;

• • if the apparent inconsistency is not a justified limit, examine whether it is reasonably possible to give the word in question [spouse] a meaning consistent or less inconsistent with the relevant right or freedom;

• • if it is, such meaning must be adopted. If it is not, then s 4 of the Bill of Rights mandates that Parliament's intended meaning be adopted.

14 Ms Geiringer urged us to take a different approach which would involve a more expansive exercise at step one. To put it less elegantly than her submissions, the suggestion is that the task of ascertaining the ordinary meaning of the word “spouse” should be carried out using all the common law presumptions and all the ordinary rules of interpretation. This would include having regard to the rights protected by BORA, and to other well known rules such as giving paramountcy to the best interests of the child. If all this was brought to bear on the meaning of spouse, it is submitted that it would be found that “spouse” naturally included de facto couples, and no further BORA analysis would be needed.

15 We accept that the approach identified in Hansen is not obligatory, and that in other cases a different analysis may be preferable. However, the recommended approach has the advantage in this case that it quickly moves one to the crucial issue. We are also of the view that whatever the analytical structure adopted, the case will resolve itself down to the same key question.

16 So we cut to the chase and explain how it is that the first three steps rapidly resolve themselves. The Act became law in 1955. The predominant relationship in society at that time was marriage, and it is no surprise that the language within the Act suggests that “spouse” refers to married persons. For example, in s 7(2) the Act deals with a single person application by someone who is married. It describes this married applicant as a “spouse” and says that the spouse's “husband or wife” must consent. This is a clear example of the intended meaning of spouse within the Act. There are other examples, but they only reinforce the reality of an Act drafted in its own time, and an Act which on its face plainly contemplated that joint applications would, and could, be made only by married persons 4

[17] To be fair, though, as regards the word “spouse”, we do not consider that language has particularly changed since the Act was passed. In our view it remains a word that is still ordinarily used to refer only to married persons. If something else is meant, it is inevitably qualified to explain that. The most common example is “de facto spouse”. Counsel had, properly, trolled various dictionaries for insight and the results uniformly reinforce this view. Spouse is inevitably defined to refer to a married person.

18 There really is nothing in the language of the Act, or in common usage, to suggest that the ordinary meaning of spouse, as used in s 3 of the Adoption Act 1955, refers to anyone other than a married person.

19 The next step in the analytical sequence set out by Tipping J would be to consider whether giving “spouse” such a limited meaning would be apparently inconsistent with a protected right, namely freedom from discrimination. Then, if it is apparently inconsistent, to ask whether it is a justified limit? However, these two steps need not detain, because the Attorney-General accepts it is inconsistent with the right to be free from discrimination, and that it is not a justified limit. We agree and can accordingly move on to the key issue of whether it is open to the Court, because of this discriminatory effect, to give the word a different broader meaning than it would normally have and thereby eliminate or reduce the inconsistency with a fundamental right.

20 Before doing so, we record that we were somewhat...