Family Court: lesbian couple can be “family”
The Family Court has recently stated that a lesbian couple can be a “family” within the Family Law Act. It was said in the context that the mother of a child, known as “R” who was born a month before the couple started living together (they split up when the child was 3 1/2 ), said that her former partner was not a “parent” within the Family Law Act, should therefore have no involvement with the child, and therefore they were not a “family” within the meaning of the Family Law Act.
The child had as one of her names the surname of the mother’s former partner. The mother agreed to the former partner spending time with the child after they split up, until one day she opposed it.
In the case, Bagley and Snell, the mother stated that she was dominated and intimidated by her former partner. The mother argued that she did not concede the right of parenthood to her former partner. She argued that the court should have an additional or different focus in the case than “between the usual situation of a contest between two parents”. She argued that that different focus is as a result of the “different legal nature” of the relationship between the child and her former partner.
The trial judge, Federal Magistrate McGuire, said that the former partner was not a “parent” within the Family Law Act, but should have contact with the child. He stated:
with the plethora of allegation, counter-allegation, issues of credit and disputed fact, what can I extract or what do I know about [R]’s circumstances. I know that [R] is very young. She is not yet four … I know that she has for the best part of her life had a relatively consistent presence of both [parties] in her life. I know that there is a dispute as to the status each sought for the other in [R]’s life. But that there is no dispute of the fact of the presence of both in [R]’s life.
The mother’s lawyer stated:
“Family” is not defined in the Family Law Act. It is submitted that the Federal Magistrate erred in importing the notion of family structure so as to consider the two parties as equally significant in the life of this child necessitating orders to preserve equally the relationship between the child and each of the parties.
Justice Warnick on appeal stated:
As to [the mother’s barrister’s] criticism of the Federal Magistrate’s use of the term “family structure”, I do not think his Honour’s use of that term inappropriate to the topic he was discussing. Even if he was applying it to the household of these parties and child – which literally he did not – I would not, on the view he took of the history of the mother, [her former partner] and the child – regard that as inappropriate….
Emphasising the best interests principle, Justice Warnick stated:
The focus of the enquiry [should be] as to what time the child should spend with [the former partner], the answer to which is essentially, that time which is in [the child’s] best interests.