Dispensing Justice or Creating Anomalies?: an Analysis of Re Application by Amm and Kjo to Adopt a Child

Abstract

The decision in Re Application by AMM and KJO to adopt a child represents a significant shift in the Courts’ attitude to adoption law reform. Prior to this case, the Family Court was divided over whether the term “spouse” in s 3(2) could be given a wider meaning in the context of the Adoption Act 1955, or whether it was confined to married couples. Ultimately, the High Court concluded that “spouse” could be extended to encompass opposite-sex couples in a de facto relationship of a sufficiently stable and committed nature. However, although the Court’s approach was bold given Parliamentary inaction in this area, the validity of its approach to statutory interpretation is debatable. This paper analyses whether the Court’s approach in AMM and KJO was correct and the potential implications of the decision in the wider context of family law. It is submitted that in its efforts to achieve “justice”, the High Court exacerbated existing inconsistencies in the law, as well as creating new ones.