A court has allowed a four-year-old girl to be adopted by a same-sex couple despite her birth parents' opposition on the basis of their Catholic faith.
The girl was taken from her birth mother at four days old due to the mother's long history of drug use and conviction for the manslaughter of her infant son seven years earlier.
The seven-month boy died from methadone and benzodiazepine poisoning and while his mother was found guilty over giving the boy the drugs causing his death, she continues to blame her then-partner for administrating the fatal drugs.
A same-sex couple who have cared for the girl – known for legal reasons as CJD – since she was six months old wished to legally adopt her.
However, the birth mother opposed the adoption because the foster parents would not commit to raising the child as a Catholic.
The NSW Supreme Court heard the birth mother was "a practising Catholic and she is not comfortable with the placement of CJD with the proposed adoptive parents because of her upbringing and religious values".
The lesbian couple, who are both university educated, have been in a stable and loving relationship for almost a decade. However, they told the court they couldn't raise CJD as a Catholic given the religion's longstanding opposition to homosexual relationships.
The birth father told the court he was from a Catholic family and wanted his daughter to be raised in that faith.
He said if the birth mother wasn't granted care of the girl, he wanted to, because he was "deprived of the opportunity to be a father" when the child was taken away by social services.
Justice John Sackar found both the mother and father, who has significant mental health issues and learning difficulties, were incapable of caring for the girl, who has some behavioural challenges, likely caused by her mother's drug use in pregnancy.
He said while the law required cultural and religious ties to be preserved "as far as possible", those concerns should not predominate alongside the child's best interests.
"Religion of course is only one of a multitude of factors the court is to consider in determining CJD's best interests," he said.
"While the birth parents' religious beliefs must be respected, the proposed adoptive parents' attitude to the Catholic faith requires equal respect."
The adoption agency Barnardos, acting on behalf of the Department of Family and Community Services, submitted it wasn't in CJD's best interests to be baptised or christened because the adoptive parents "would not be able to facilitate her involvement and development with Catholicism due to their sexual orientation".
"They do not want to go to church, stand up and commit to raising CJD as a Catholic when they could not commit to doing so," the agency said.
Justice Sackar said most concerning was the birth mother's refusal to accept responsibility for her son's death. She was granted parole after 3½ years but returned to jail after failing drug tests. Furthermore, the birth father did not accept his former partner was a risk to their child.
Numerous experts testified that CJD saw the two women who had cared for her since infancy as her family and to break that attachment would cause her psychological harm.
The couple have committed to continuing regular contact visits with the birth parents and said they could facilitate involvement with the Christian faith through scripture classes and Bible stories. They also said they would allow CJD to be involved in a religion if she wanted to in the future.
Justice Sackar also agreed the child's surname should be changed to that of her adoptive parents'.
NSW changed the law in 2010 to allow same-sex couples to adopt children.