Update on Foster Couple's Religious Discrimination Claim

The end of 2020 saw another milestone for Byron and Keira Hordyk, the Western Australian Christian couple rejected as “unsafe” to foster 0-5-year-old children because of their Christian beliefs on sexuality and gender, in what has been to date a four-year legal journey.

Early December saw the commencement of the State Administrative Tribunal hearing of their case against local WA foster care agency, Wanslea Community Services, for religious discrimination. The hearing was originally scheduled for eight days but the case was not completed in the allotted time. So it has been held over until late March 2021 with a decision from the Tribunal expected in late 2021.

While the case is not complete, there is much of interest that has come out of the first eight days of the hearing. Overall, the case has progressed well and has been a continuing testimony to the providence of God. As can be seen from the update below, there is much blessing to be thankful for, but still much work to be done and much to pray about. Because the hearing is not finished yet, we are only able to give a limited update on progress.

The Hordyks commenced their case in 2017 when Wanslea terminated their foster care application on the basis that the Hordyks’ religious beliefs about sexuality made them “unsafe” to care for children. This was despite the fact that the Hordyks only applied to provide temporary care for children between 0 and 5 years old, situations in which issues of sexuality and gender are unlikely to arise.

On the path to the West Australian State Administrative Tribunal hearing, the Hordyks have taken their claim through conciliation in the Equal Opportunity Commission (which was unsuccessful), an application by Wanslea, the foster care agency, to have their claim dismissed (also unsuccessful) numerous mediations and the preparation of evidence, witness statements, legal arguments and submissions on all elements of the Case.

In the week leading up to the hearing, the State Solicitors Office of WA gave notice of their intention to participate in the hearing. Sarah Keighery of the State Solicitors Office appeared at the hearing to make submissions in opposition to the Hordyks’ claim of religious discrimination and to put forward the position of the Department of Communities and Child Services about how the fostering laws should work.

The hearing was presided over by a panel of three Tribunal members, including Justice Janine Pritchard, the President of the Tribunal and a Supreme Court judge, Judge Kathleen Glancy, Deputy President of the Tribunal and a District Court Judge and sessional member Susan Gillett, a former social worker with much Tribunal experience.

HRLA has been blessed with the pro bono services of Steven Penglis SC, one of Western Australia’s most experience trial lawyers, who led the case for all eight days. He was assisted by Clinton Russell, and Samantha Nadilo - two young up-and-coming barristers who have put in countless time and effort in the preparation and running of the case.  All of this assistance has been provided to the Hordyks completely for free by top lawyers in their field, which is a cause for much praise and thanks.

So far, the hearing has heard evidence from both the Hordyks and their witnesses and Wanslea and their witnesses. For the Hordyks, the following experts took the stand and gave evidence:

  • Dr Wes Bredenhof – Pastor, Missionary and Lecturer in Theology and Church History – Dr Bredenhof provided evidence about the history, theology and practice of the Free Reformed Church in Australia – the Hordyks’ church denomination – and the integral role played by the denomination’s theology of marriage and sexuality in church practice.
  • Dr Mark Durie – Theologian, Linguist and Lecturer in Comparative Religion – Dr Durie provided evidence about the variety of Christian denominations in Australia, their differing structures of church governance and their views on sexual orientation and gender identity as these have affected their historical practice and current doctrinal positions.
  • Prof Philip Hughes – Research Professor and Sociologist of Religion – Prof Hughes provided a statistical analysis of the Australian population with reference to religious affiliation, attitudes toward homosexuality and the intersection of the two.
  • Dianna Kenny – Psychologist, Psychotherapist and Professor of Psychology at the University of Sydney – Dr. Kenny provided evidence about child psychology, specifically the likelihood of children in the 0-6-year age bracket considering and needing to discuss issues of sexual orientation and gender identity.

All of the expert witnesses for the Hordyks gave excellent evidence under cross-examination -as did Mr. and Mrs. Hordyk which will be of great assistance to the Tribunal in coming to their decision. Each of these witnesses are essential for helping the Hordyks to establish that they satisfy the legal tests for religious discrimination, and to support their claim that their treatment by Wanslea was unreasonable.

Once all of the witnesses for the Hordyks had given evidence and faced scrutiny from Wanslea’s lawyers, Wanslea put their witnesses on the stand. Wanslea did not lead any expert evidence on issues of religion or child psychology but relied on the evidence of the Wanslea CEO and the employees who assessed the Hordyks’ application in 2017. Steven Penglis SC and the other barristers cross-examined these witnesses extensively about the standards that apply to foster carer assessment, the treatment of the Hordyks and whether the Hordyks received differential treatment than other applicants.

All parties have now finished giving evidence. However, Wanslea has given very late notice that it might try to reopen the case and obtain expert evidence of their own in response to that provided by Dr. Kenny about the relevance of sexuality and gender issues for children between the ages of 0-5. To put forward new expert evidence right before the end of the hearing is highly irregular and will require the Tribunal’s permission. Because of the costs, delay and disruption this would cause to the timetable of the rest of the hearing if the application is granted, Wanslea faces a steep challenge to convince the Tribunal.

We’d like to thank all HRLA supporters for their words of encouragement, prayers, support and attention as we have conducted this case. This is the first major end-to-end litigation for the Human Rights Law Alliance since establishment. We ask for your continued prayers going forward for the following points:

  1. Thank God for His many blessings on this case and the progress of the hearing in the Tribunal so far.
  2. Thank God for the willingness of senior barristers in WA to give generously of their time and talents for this case. Even though they are not Christians and don’t share the Hordyks’ beliefs, they have been willing to help out with the case.
  3. Pray for the Hordyks, that the Lord will grant them peace as this trial moves toward its conclusion despite unexpected delays.
  4. Pray for the legal team as they finish off the case and prepare closing submissions for March 2021.
  5. Pray for the President and other officers of the Tribunal as they consider our case, that they would make a just decision in God’s good timing.

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