How LGBTIQ people fare in the Family Law Courts

How LGBTIQ people fare in the Family Law Courts

On Friday I spoke at the inaugural conference of the Australian chapter of the Association of Family and Conciliation Courts about how LGBTIQ people fare in the Family Law Courts. Overt discrimination has gone. There has been a remarkable change over a generation. Much needs to be done, mostly as to societal attitudes, but the future is looking good. Here is my paper:
AFCC Australian Chapter
By Stephen Page[1]
Harrington Family Lawyers
Alphabet Soup[2]
It’s easy to label people as being different.  We seem at times keen to label people because we perceive them to be different. This is especially the case when it comes to someone’s sexuality. However, a person who might seem to fit one label might take great objection to being given that label, or even any label. They may see themselves as themselves, and that’s the end of that from their point of view. For example, a gay man may have had sex from time to time with women over the years, but still identify as being gay, not bisexual. A married man with children might go to beats at the local park to have sex with other men- but identify as straight. Or a woman might only have had sex with men, and be married- but identify as bisexual. Or a woman might have had sex with men and women, and trans people and identify as being pansexual.
Originally the label that applied was merely that of gaythen extended to lesbian, then a realisation that there were people who were bisexualand trans.  Most of  the people to whom I’ve spoken who have either transitioned from male to female or female to male have preferred to be called trans, not transgendered or transsexual.
Then there are those who are born neither totally male nor female and may have been as children arbitrarily selected by the parents and/or surgery to be one or the other (which may be inconsistent with how they identify) who are intersex.
Some people who might be considered to be trans identify themselves as gender queer.  And others who do not identify as one of the tags above identify themselves as queer. And as you saw, some may identify as being across the spectrum, being pansexual.
It is apparent that great offence can be caused by labelling someone with the wrong label.  This was seen, for example in Craven & Crawford-Craven (2008)[3]where the father was said by the Federal Magistrate to be bisexual, to which he took great offence and formed part of the subject of his appeal.   Warnick J noted that the Federal Magistrate was at least not arguably incorrect because the father in being bisexual as the reference to his homosexuality, that being one part of his orientation, currently forming a basis for his cohabitation with Mr J.
Then and Now
My first LGBTIQ client was in 1992.  It was the kind of matter that regularly fit a pattern at that time, namely a woman who escaped a violent husband.  She came out of the closet and identified as lesbian.  There were then issues about domestic violence and parenting arrangements.
Those types of cases seem to be much rarer litigated these days. With the changing nature of  society in relationships the types of cases that are more commonly litigated seem to be those between same sex couples or between sperm donors and lesbian couples over children.
Then …
There were a series of cases commencing in 1977, principally involving women who as lesbians having separated from their husbands, in which the court was insistent that the women have no overt display of affection, or give an undertaking not to resume a lesbian relationship because, self-evidently at the time, it was a risk to the children.  In two of those cases the undertaking was breached.
I have summarised the cases in this table:
N & N
(1977) FLC 20-208
Denial of lesbian relationship
(1977) FLC 20-271
No overt affection
(1977) FLC 90-300
Fine but competed with drunken husband
(1977) FLC 302
No mention to the children
(1977) FLC 90-325
No overt display
(1978) FLC 90-435
Breach of undertaking not to resume lesbian relationship
(1979) FLC 90-685
Lesbian, undertaking
(1979) FLC 90-729
Husband gay wife lesbian then became Christian – child to father
(1983) FLC 91-353
Doyle & Doyle
(1992) FLC 92-286
Custody to homosexual father
The highpoint of this approach was taken by Baker J in L&L (1983) FLC 91-353   where his Honour set out guidelines:
            “Where a homosexual parent is seeking custody or access, the matters to be            considered are –
1.    Whether children raised by the homosexual parent may themselves become             homosexual, or whether such an event is likely.
2.    Whether the child of a homosexual parent could be stigmatised by peer        groups, particularly if the parent is known in the community as a homosexual.
3.    Whether a homosexual parent would show the same love and responsibility as         a heterosexual parent.
4.    Whether homosexual parents will give a balanced sex education to their children and          take a balanced approach to sexual matters.
5.    Whether or not children should be aware of their parent’s sexual preferences.
6.    Whether children need a parent of the same sex to model upon.
7.    Whether children need both a male and a female parent figure.
8.    The attitude of the homosexual parent to religion, particularly if the doctrines, tenets            and beliefs of the parties’ church are opposed to homosexuality.”
It is fair to say that this is not the current law.  As a part of the change in society concerning its views towards homosexuality, the standout event was Nick Toonen’s case to the UN Human Rights Commission and its aftermath.
Human Rights (Sexual Conduct) Act 1994 (Cth)
Nick Toonen was a gay man living in Tasmania.  At the time Tasmania was the only State with anti-sodomy laws, the other States having repealed the laws.  In 1991 Mr Toonen complained to the United Nations Human Rights Committee that the Tasmanian laws were a violation of his right to privacy under article 17 of the International Covenant on Civil and Political Rights, distinguishing between people on the base of sexual activity, sexual orientation and identity and a violation of article 26 and, therefore it meant that gay men in Tasmania were unequal before the law.
In responding to the complaint Australia contended that there was now a general Australian acceptance that no individual should be disadvantaged on the basis of his or her sexual orientation[4].  Australia acknowledged that a complete prohibition on sexual activity between men was unnecessary to sustain the moral fabric of Australian society and did seek to claim that the challenged laws were based on reasonable and objective criteria.
The Human Rights Committee found that the prohibition against private homosexual behaviour constituted an arbitrary interference with Mr Toonen’s privacy and were not a reasonable means of proportionate measure to achieve the aim of preventing the spread of HIV/Aids.  The committee did not consider whether there had also been a violation of article 26 of the covenant[5].
Australia responded to the decision by passing the Human Rights (Sexual Conduct) Act 1994 (Cth).  Section 4 is clear:
(1)   “Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17of the International Covenant on civil and Political Rights.
(Note: Article 17 of the International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1996.
(2)   For the purposes of this section, an adult is a person who is 18 years old or more.”
… and now
The current position is probably best summarised in Morales & Morales where Le Poer Trench J stated:[6]
            “The mother has lived in a lesbian relationship.  Her brother, with whom she lives, is         openly homosexual.  From time to time he has a homosexual friend stay with him in           the house occupied by the mother and the child.  During the trial nothing was made of the contrast between a homosexual household and a heterosexual household as an             environment in which the child may be raised.  I do not take that matter further.”
As set out clearly in Kevin & Jennifer[7]there are clear guidelines set out as to the marriage of trans people.  No longer was the test as to who they were genetically, but instead who they were by identification.  Chisolm J stated, as affirmed by the Full Court:
(1)   “For the purpose of ascertaining the validity of the marriage under Australian law, the question whether a person is a man or a woman is to be determined as at the date of the marriage.
(2)   There is no rule or presumption that the question whether a person is a man or a woman for the purpose of marriage law is to be determined by reference to circumstances at the time of birth.  Anything to the contrary in Corbett v Corbett (otherwise Ashley) [1971] P 83 3 does not represent Australian law.
(3)   Unless the context requires a different interpretation, the words man and woman when used in legislation have their ordinary contemporary meaning according to Australian usage.  That meaning includes post-operative trans- sexuals as men and/or women in accordance with their sexual reassignment.
(4)   The context of marriage law, and in particular the rule that the parties to a valid marriage must be a man and a woman, does not require any departure from ordinary current meaning according to Australian usage of the word “man”.
(5)   There may be circumstances in which a person, who at birth had female chromosomes, gonads, and genitals, may nevertheless be a man at the date of a marriage.  In this respect, the decision in Corbett does not represent Australian law.
(6)   In the present case, the husband at birth had female chromosomes, gonads and genitals but was a man for the purpose of the law of marriage at the time of his marriage, having regard to all the circumstances and particularly the following:
a)      He had always perceived himself to be a male;
b)      He was perceived by those who knew him to have had male characteristics since he was a young child;
c)      Prior to the marriage he went through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners;
d)      At the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues;
e)      He was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF programme, and in relation to such events occurring after the marriage, there was evidence that his characteristics at the relevant times were no different from his characteristics at the time of the marriage;
f)        His marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.”
Chisholm J concluded that a transsexual meant a person who had some or all of the physical or biological characteristics of one sex, who experiences himself or herself as being of the opposite sex, and has undergone hormonal and surgical treatments to change some of the physical characteristics in order to conform more closely to the opposite sex.
His Honour pointed to the problem arising from the fact that the word “transsexual” suggested a sexual transition, passing from one sex to the other, but he said that this did not convey the fact that transsexual people normally experience themselves as belonging to the other sex from birth and therefore before, as well as after, the hormonal or surgical procedures.  The Full Court shared the concerns of Chisholm J that using the word “transsexual” as a noun might tend to have a dehumanising effect, but Chisholm J felt in the absence of any suitable alternative he would have to adopt it.
Independent children’s Lawyer
The Guidelines in Re K (1994)[8]are well known as to when an independent children’s lawyer should be appointed. Guideline (v) provides:
            “Where the sexual preferences of either or both of the parents or some other person            having significant contact with the child are likely to impinge upon the child’s welfare [1998] disputes of this kind typically raise claims to the homosexual parent and/or the   new partner is unfit by virtue of that factor alone.  It is clear, however, following             cases… that the nature of a party’s sexual relationships is relevant to the Court’s     proceedings only to the extent that it affects parenting abilities or the welfare of a      child in a particular case…
            (99) The particular kind of acrimony which arises in such cases, considered together          with the Court’s obligation to make a decision from the viewpoint of a child’s best     interests, may warrant the appointment of a separate representative.  This is so that           the impact, if there is any, of a party or partner’s sexual preference can be properly      and dispassionately assessed for its relevance to the courts inquiry into the best        interests of the child.”            
Domestic Violence
Regrettably domestic violence is not isolated to heterosexual couples.  A clear example of that was the unfortunate circumstance of the mother in Harvey and Maloney [2010][9].  Aside from her violence to the father, the mother had had two abusive relationships with boyfriends before her relationship with the father (in which the central issue for the trial was as to domestic violence) and after her relationship with the father, she suffered an abusive lesbian relationship.  The mother’s female partner was prosecuted for an assault upon the mother shortly following their separation in 2009.
Hemiro & Sinla(2009)[10]       
Soon after separation the mother arranged for the father’s computer to be unlocked and discovered a large number of pornography files.  None of the pornography was child pornography but a good deal of it was so called teen sites.  It seems that Brown J had the misfortune to see much of this as her Honour said:
            None genuinely look as young as they may have sought to appear and none appear           pre-pubescent.  Other images tendered are of older women. And those images which           include a man, the common theme could be said to be an emphasis on male genital      size.  A few chat rooms are noted, inclusion in Asian chat and gay chat.” 
The mother tendered voluminous computer printouts of files.  The pornographic images tendered were mainly, but not exclusively taken from teen sites.  The file lists record many such sites but many others, including a few gay and bisexual sites and sites with titles such as “men” and “pissed”.
The mother maintained that the father’s use of pornography was sexually deviant.  Brown J said that was not a finding the evidence would allow the court to make.  The mother obsessed about the father’s behaviour including his ownership of a penis pump.  The evidence of the expert about the purchase of the penis pump included: “the father may have thought it a good idea at the time”.
Her Honour restrained the husband from accessing or viewing pornography in any form during periods the child was in his care and from allowing the child to be exposed to any form of pornography.
In the context of this paper it would appear that there was no greater significance in the father having viewed gay or bisexual pornography sites than viewing a multitude of so called teen sites or having purchased a penis pump.
The leading case here is TF & JF and Children’s Representative (2005)[11].  The matter came before O’Reilly J.  The father admitted that he suffered a sexual addiction.  He was diagnosed with two diagnosable sexual conditions namely fetishism and transvestic fetishism, the latter of which involved a predilection for cross-dressing, including the wearing of women’s underwear and lipstick.  The father admitted to accessing internet adult pornography websites and to having engaged in anonymous male sex in public toilets.  The evidence of the psychiatrist included:
“Homosexuality is not a diagnosable condition but his consorting in public toilets represents aberrant behaviour.  His interest in pornography has been judged by his wife to be excessive.  He also has an interest in women’s underwear and enjoys cross-dressing.  The latter activities come under the DSM IV heading or paraphilia.  He would qualify for the diagnosis of fetishism and also transvetic fetishism.  Interest in pornography and excessive masturbation are not listed in DSM IV but the accounts given indicate his level of interest in these areas exceed (sic) reasonable bounds.  Taken in totality it fits the description of ‘sex addiction’.  This is not a formal DSM IV diagnosis but a generally recognised entity characterised by excessive compulsive sexual behaviour, often involving high-risk behaviours, involving an inordinate amount of time and interfering with general functioning despite attempts to curb the behaviours.”
The mother believed that the father had attempted to kill her.  The Full Court ordered that the father’s time with the children be supervised, primarily because of the potential impact on the mother if the father were to have unsupervised time.
J & W
Fear that child would be infected
Wendall & Jones
From blood
This is the same case as J & W
Bracken & Kinder
Mother has the view that she had HIV of the mind
Not exposed to anyone in the house as the mother’s brother in the house was gay
Anti-vilification order
In J & W (1999)[12]the mother attempted to prevent or limit contact between the father and the child, asserting that the father was a paedophile and begged the court not to allow unsupervised contact because she regarded it as a death sentence.  The father had Aids. The mother was convinced that the father would deliberately infect the child with HIV.  The report writer said that it was not likely that any rational or logical approach to this matter would succeed in changing her mind about those matters.  The mother stated: “my primary concerns relate to the fathers sexual proclivities and his Aids virus.”   The mother had previously abducted the child.  At trial the mother resiled from her belief that the father would deliberately infect the child with Aids.
The Full Court said that Dawe J was faced with a dilemma.  It was open for her Honour on the material before her to conclude that there was significant risk that the mother might yet again abscond with the child.  Further there was the significant risk that, even if she did not abscond with the child the mother would continue to make disparaging remarks relating to the father in the presence of the child.  Her Honour identified that the existence of such a risk raised questions about the mother’s capacity to provide for the emotional needs of the child and raised the prospect that the court needed him to protect the child from psychological or emotional harm which maybe caused to her by being exposed to the mother’s allegations about the father and any further attempt to hide from the father and authorities.  The Full Court stated that her Honour properly recognised there was a risk to the child’s wellbeing by being deprived of her mother’s caregiving and that the father may behave irresponsibly towards the child in circumstances where he is an HIV/Aids sufferer.  Her Honour balanced those risks and elected to leave the child with the father pending further hearing.  The Full Court said that there was no appellable error.[13]
In Wendall & Jones (2000)[14], which is J & W revisited, the father had contracted HIV from a blood transfusion.  The mother and child tested negative for HIV.  Following diagnosis the mother refused the father further contact with the child.  At trial the father denied that he had engaged in IV drugs, denied that he had at any time had homosexual relationships or that he’d had sexual experiences in jail.  In the file of the medical centre in one entry the father denied “same sex contact” but in a second entry admitted to “same sex contact”.  There was no cross-examination about the entries.  The mother’s case was that the father had full blown Aids.  The case set out evidence about HIV[15].  The evidence was that the father might be hospitalised one to three times in the next ten years with complications and should recover almost fully from each of those and during the next 7 – 10 years would be living at home working and maintaining his life. 
Robinson J ordered that the child live with the father.  The father’s evidence included about the side effects of his condition and the drugs he took.  He suffered from peripheral neuropathy in his feet and legs.  He had poor circulation with ongoing pain and cramps in his legs.  It was difficult for him to get going in the morning.  At some point he has also suffered from loss of sensation and pins and needles in his fingers.  He has emphysema but did not think he suffered from Aids related dementia.  He was completely aware of the need for a strict hygiene regime to prevent his blood coming into contract with someone else’s blood.  This included keeping his shaving gear and tooth brush out of reach of the child.  They did not share crockery and cutlery.  The child had her own tooth brush and mug.  The father said he was aware that he must comply strictly with the medical advice given to him.
In Bracken & Kinder (2007)[16]which I make note as a Brisbane Lawyer was a Brisbane case Barry J described the mother’s evidence as bizarre, one example of which was that she believed that she could have HIV of the mind.  She said she was tested as to whether she was HIV positive and the test result indicated this was not the case.  Apparently her former husband (not the father in the case) was unfaithful during the period of the relationship and she was of the view that this had caused some form of HIV of the mind.
In SCVG & KLD (2007)[17]the mother’s brother was gay.  One of the abusive messages that the father sent the mother or her family was one asserting that the child would have reduced immunity, that her life would be at severe risk if she were to sleep in the house with HIV/Aids and a further message asking that the children will not be exposed to any person with HIV or Aids.
I note incidentally there was a follow up in this case in SCV G & KLD (2013)[18]in which it was noted that the criminal proceedings concerned the father involving officers and former officers of the Family Court have now concluded and he is on a good behaviour bond, which involves his commitment to and requirement for continued medical assistance and medication. 
In Hoover & Hoover (2009)[19], Faulks DCJ made a number of anti-vilification orders including:
“Each of the parties be and is hereby restrained from in the presence of the child or allowing any person in the presence of the child to incite hatred towards, serious contempt for or serious ridicule of a person or group of persons on the ground of the race or sexuality of a transsexuality or HIV/Aids status or religious belief of that person or members of the group.”
Craven & Crawford-Craven
Father named as homosexual but appealed as was bisexual
Brodie & Denton
Sleeping with girls is like sleeping with animals
Gueye Sane & Sane Daramy
Depression/suicide ideation due to internalised  homophobia – bisexual
Isles & Spurr
Not bisexual – but sex with  men and women
Smith & Jones
Father said that mothier lied about being bisexual
In Craven & Crawford-Craven (2008)[20]the father appealed from the decision of Wilson FM because he was found by Wilson FM in that he was a homosexual, whereas he said he was bisexual.  Wilson FM found:
“That the homosexuality of the father does not, of itself, disqualify him from fully enjoying and fulfilling his role as a parent.”
Warnick J found that Wilson FM saw no relevance as to the father’s sexuality nor drew any conclusion against the father because he might have to in the future explain his person circumstances to his son and rejected any such consequence found that the fathers sexual orientation was not a factor in the case.
Warnick J stated[21]:
“In any event, while the husband deposed that psychologists and counsellors had identified him “firmly as bisexual” and therefore a more complete description of the circumstances presented at trial might have been that he was a bi-sexual, living in a homosexual relationship, it is at least arguable that a reference to the homosexuality of the father is not incorrect, that being one part of his orientation, currently forming a basis of his cohabitation with Mr J.”
In Brody & Denton (2009)[22] the 16 year old daughter reported to the father that she was likely bisexual.  The father’s response was allegedly “sleeping with girls is just like sleeping with animals.  Why don’t you just sleep with an animal?  The second child recalled that the father referred to the daughter as an animal and a slut.  The father, although he did not concede the precise words attributed to him, agreed with the general tenor of the conversation.  Austin J stated[23]:
Z was at that time raising with the father a very personal and sensitive subject.  It is difficult to conceive a more sensitive subject for a child to raise with a parent than sexual preference.  It ill-behoved the father to treat her so contemptuously.”
In Gueye Sane and Sane Daramy (2012)[24] The father was considering suicide because he had to live a lie, the lie being that he was bisexual.  This is a case in which is an illustration of a common phenomenon for LGBTIQ people namely of internalised homophobia, which then impacts on their self-esteem[25].
Isles & Spurr (2012)[26]shows the potential problems with labelling someone.  After separating from the mother the father formed a relationship with Ms B.  The father and Ms B temporarily separated in 2011 because Ms B thought that the father was behaving in an “over friendly way” with a male friend of hers.  It was put to the father that he was bisexual.  His response was that he “would not go that far” but he did agree that he engaged in sex with both males and females.
In Smith & Jones (2013)[27] the father in the course of his evidence said that he had taken material in the mother’s affidavit to mean that she was bisexual.  He went on to say that his conclusion was that she was bisexual.  He said this had been masked from the children.  He said that she had always lied and allowed him to believe that she was heterosexual.
Homophobia type cases
There are unfortunately many cases in which one of the parties has in the court case asserted that the other party was of low repute for example the mother saying that the father was gay and a paedophile or making some other assertion that the other parent was LGBTIQ, sometimes genuinely believed but other times design to harm the other party in the court or in the eyes of the child.  The cases are telling because they reveal that despite the great strides that have occurred within society as to equality, many people still believe that LGBTIQ people are aberrant, deviant, and a danger to children.
Fabrication and hatred cases
Lyris & Hatziantoniou
[1998] FamCA 1311
Lesbian and witch
D & N
[2002] FMCAfam 66
Gay and paedophile
McWatt & Easthope-McWatt
[2007] FamCA 392
Children’s home – the brainwashing lesbian cult
2007 FMCAfam 443
Gay porn – boyfriend
Lindsay & Baker
Gay paedophile
[2008] FamCA 708
Lesbian at refuge
Robertson & Robertson
[2008] FamCA 497
Gay porn
Bahl & Brandon
[2008]FMCAfam 630
Son not gay – to do karate not gymnastics
F & B
[2008]FCWA 15
Gay and lesbian pride parade – concern by mother as to nudity at parade.  Not a hate case.
[2010]FamCA 921
Do your parents know you are gay and a cocaine addict.  Have you come out in the open.  I was a trophy wife to a gay guy.  Now it all makes sense.  If he ever touched the child I will take action.
Cobb & Courtney – Wells
[2010]FamCA 1038
Problem Courtney Wells fathers allegations against mother and her lesbian partner as to sexual abuse – mother to have sole parental responsibility
Langmeil & Grange
[2010] FamCAFC 12
Projection – mother’s dislike of anal sex – hypothesised as accusing father of being gay paedophile
Scettera & Scettera & Scettera
[2010]FamCA 23
Fabricated evidence wife was a lesbian injunction not to call her that
McGlennan & Don
(No. 2)
[2010]FamCA 443
Father alleged to assert mother “doesn’t like me she hates me mum’s a lesbian
Fathers brother gay/cross dressing
Tourna & Tourna
[2010] FMCAfam 584
Mother a slut and lesbian
Beasley & Jeffreys
[2011]FMCAfam 713
Luckwell & Herridge
[2011]FamCA 52
Gay paedophile
Bosch & Rickard
[2011]FMCAfam 726
Man hunting lesbian because the mother is denying contact with the father
George & Kopek
[2011]FMCAfam 776
If not having sex call her a lesbian
Dickens & Dickens
[2011]FMCAfam 1421
Male nanny to be gay or paedophile
Smeeden & Wulandri
[2011] FamCA 619
Fear that son would become gay if he saw the father (who was straight)
Bartel & Schmuker (No 3)
[2012]FamCA 1094
Father viewing adult porn and gay porn
Craig & Hall
[2012]FamCA 88
Fag hag
See lesbian/frigid
Abuse to daughter
Field & Bowers
[2012]FamCA 189
Deledio & Deledio
Grandfather gay because not sleeping in same bed as grandmother, come to that conclusion by the father
Tyler & Sullivan
[2014]FamCA 178
Gay paedophile ring
Children’s transgender medical cases
Since Re Marion (1992)[28]it has been long recognised that in special medical procedures that court authorisation is required before any operation can be performed.
Since Re Alex [2004] the court has authorised special medical procedures concerning gender dysphoria.  As seen in Re Sam & Terry and in Re Sarah authorisation is not always required. One of the issues that has arisen in the cases is whether the child was Gillick competent[29].
In Sydney Children’s Hospital Network v Xthe New South Wales Supreme Court held in effect that it could authorise such medical procedures as it retained parens patriae jurisdiction or indeed cross- vested jurisdiction under the Family Law Act.
Re Alex
[2004] FamCA 297
Re Bernadette
[2010] FamCA 94
Re Jamie
[2011] FamCA 248
Re Lucy
[2013] FamCA 518
Re Shane
[2013] FamCA 864
Re Sam & Terry
[2013] FamCA 563
Gender dysphoria GnHR Analogue treatment to achieve pubertal suppression is not required to be authorised.  Oestradiol Valerate to induce female puberty is required to be authorised.
The Sydney Children’s Hospital Network v X
[2013] NSWSC 368
NSWSC parens patriae/cross vested remains
Re Sarah
A gonadectomy – Turner Syndrome – 17 year old.  Treatment does not require Court authorisation
Whether a relationship exists
A number of cases have considered whether a relationship existed in a same sex de facto relationship.  Crowley & Pappas was significant in that the gay parties had an open relationship but nevertheless the Court determined that they had a de facto relationship within the meaning of the Family Law Act. I note that one of the bases for a de facto relationship of less than 2 years to be recognised is if the relationship has been registered under State based laws[30]– which has primarily happened with same-sex relationships.
Barry & Dalrymple
[2010] FamCA 1271
Crowley & Pappas
2013] FamCA 783
Taisha & Peng
[2012] FamCa 385
Kelly & Triple
[2011] FMCAfam 683
Volen & Backstrom
[2013] FamCA 40
Trans Cases
There have been two cases involving a party who was trans.  In Brown & Phillips [2014][31]the applicant was Mr Brown, formerly Ms Brown.  The respondent was Ms Phillips, the mother.  The parties had commenced a lesbian relationship in 2000, separated, recommenced cohabitation, had a commitment ceremony and within a month of that Mr Brown began identifying as transgender.  A few months later Mr Brown told the children separately without Ms Phillips being present that he intended to transition to being male.  The parties shortly separated.  There were two children aged 17 and 7.  Ms Phillips was the mother of both.  The father of the 17 year old boy had no involvement in his upbringing.
The parties agreed as to many orders.  They agreed that the 7 year old should spend time with Mr Brown on each father’s day.  Watts J stated:[32]
            Although the parties have agreed that they will let the child work out what she is    going to call the applicant in an evolutionary process, I find that it is likely on    balance that the child will see the applicant in the role of parent and because he has a beard she will in her mind probably over time accept him as a “father” or “dad”.  I             acknowledge the respondent currently is resistant to that as a notion, but is conceding         that the child spends time with the applicant on each father’s day.  I accept the      applicant’s and independent children’s lawyers’ proposal that the child spend the         whole father’s day weekend with the applicant.  On balance, I think it best to facilitate           the child seeing her maternal grandfather each second father’s day and accordingly,          in each second year the child should be returned to the respondent at 3.30pm.”
In Parer & Taub (No 2) [2012][33]the applicant Ms Parer was transitioning from male to female gender.  Harman FM stated:[34]
“At the commencement of the hearing of these proceedings I’d commented to the parties and in particular, to the Applicant, Ms Parer, that I appreciated and acknowledged that the decision that she had faced in transitioning from male to female gender had been difficult and brave.  Having now heard nine days of evidence and submissions on conscious that I may have been mistaken in that acknowledgement.  The decision made by Ms Parer has not been brave.  It has been the only decision available to her to enable her to live her life authentically as the person that she is.  With respect to the above, I note the sage advice of Lord Chesterfield to his son in 1774 (long before issues of transgender were spoken of ) that ‘no man is ridiculous for being what he really is, but for affecting to be what he is not.  The above quote is not intended to suggest or rely upon a specific gender denoted therein.  As has been observed by one of two report writers, Dr H:
‘Ms Parer’s gender transition is foremost among the many issues having significant bearing on this dispute.’”
It was evident from the case that it was very difficult for both Ms Parer and Ms Taub as to the impact of the transition.
His Honour stated:[35]
“Perhaps the seeds of disputation were sown by Ms Taub’s (and no doubt the children) initial affidavit … where Ms Taub had apprehended the gathering storm clouds of dispute and deposed:
            It has not been easy to always get X to go and see Mr Parer.  There have been times when X has run away from Mr Parer whiles she was staying with him …. I will continue to encourage her to go, but I don’t want to be in a position where I would break a court order if she does not go to spend time with her father.  On occasions, X has said to me, “I don’t want to go to dads.  I don’t like it that he is in a homosexual relationship.  I don’t like that’”.
Ms Taub’s evidence continued:[36]
“The children should not spend overnight time with their father.  I will not know where they are staying.  I do not know the condition of the premises where they are staying or its suitability for the children to stay there [Ms Parer being clear in her evidence that at this point she had moved to a “safe house” provided for her use by  the Gender Centre…]  I do not know who they may come into contact with.  The father has said he is teased and made fun of and taunted when he is in public.  He has said he fears for his safety and for the safety of the children when they are in public.  The father chose to transgender.  The children however are young and vulnerable.  It is my obligation to protect my children especially from aspects of life and ways of their father that will damage them, perhaps in ways I do not yet know.”
His Honour went on to say[37]:
            “It was then suggested to Ms Parer that the transgender issues were, indeed complex          and thus too complex to raise with these children. Ms Parer agreed as regards     complexity and suggested that they were, in fact, very complex.  However, it was then   suggested that the children, and in particular Y and Z, were far too young to be             shown a film dealing with transgenderism.  Ms Parer did not accept this proposition           and, I accept, appropriately so.  A dramatic and tasteful representation (indeed in an         Academy Award nominated and Golden Globe winning performance by Ms F             portraying a transgender father[38]) of the issues that these children face in their             relationship with their father would not, in my mind, create confusion for them and             would, conversely, be a potentially useful tool to assist them. These children have a             father who loves them and who has transitioned to who or authentic gender as a        woman.  That is a complex concept for a child or young person (or any person             perhaps unless it is their lived experience).  But it is not an abstract concept for these             children.  It is a lived reality and one which, without understanding an acceptance by          them (and by others within their family and life) will impact negatively upon their relationship with their father and upon them.  I do not accept that to share a filmatic       entertainment with the children which portrays an aspect of their life is inappropriate or forcing the issue on them.  The issue is before them and within them as their father          is a woman.  That is a reality that may, at times, be confronting (and I accept it has       been and is confronting for Ms Taub) but it is the family that these children have.  Not          talking about it with their father (that is, their transgender parent) will neither aid            their understanding and acceptance of their circumstance not their relationship with             their father.  Indeed, by reference to s.65DAA(3) one would think that the children’s            relationship with their father, Ms Parer, is and would be all the more meaningful        from sharing this significant and fundamental part of Ms Parer’s life and life            experience… for these children to comprehend, let alone understand, the transition         that their father has made is, indeed, very complex.  Further, I have complete          understanding and empathy for the difficulties that Ms Taub would no doubt have          faced in seeking to comprehend and understand such transition (in which I will turn     to when discussing her evidence).  However, it is a transition that is not undertaken      lightly and is intended to place Ms Parer into the position in gender which she         genuinely occupies and desires to occupy, that is, as a woman.”
The nature of conception for gay and lesbian intended parents is such that either:
·         Gay men will rely on surrogacy and egg donors; or
·         Lesbians will rely on  sperm donors.
What is apparent is that despite provisions such as s.60H of the Family Law Act which were intended to ensure that both members of a lesbian couple are recognised as the parents of a child, the law in this area is remarkably complex and at times inconsistent.
There are three potential ways that the law could identify someone as the parent of a child (where the child was not conceived naturally):
(1)   By genetics
(2) By intention
(3) By birth.
Part of the difficulty is that State legislation, being Status of Children legislation adopts the birth approach.  For those undertaking surrogacy overseas the usual approach to obtain citizenship under section 16 of the Australian Citizenship Act 2007 (Cth) is to rely on genetics, but at least in some cases intent has been used to define who is a parent.
As an illustration, four cases in 2013 demonstrate the difficulties and contrasting approaches of the court:
Case 1
Re Blake & Anor[39]
A gay couple undertook surrogacy in India.  Mr Marston entered into the surrogacy contract with the surrogate and her husband.  He was named as the intended father.  Twins were born.  Mr Blake, who was Mr Marston’s partner, and Mr Marston obtained Australian citizenship for the children and they returned home.  Crisford J determined that the Artificial Conception Act 1995 (WA) although on its face found that the surrogate and her husband were the parents did not prevent a finding that the reality of the parenting was undertaken by Mr Blake and Mr Marston, who were then determined to be the parents.
Case 2
Carlton & Bissett & Anor[40]
Mr Carlton was a South African resident and citizen.  He obtained an order in South Africa authorising surrogacy before the surrogacy arrangement proceeded.  The effect of the order was that when the child was born he was the parent of the child under South African laws.  Mr Carlton fell in love with Mr Bissett and with the baby migrated to Australia.  Ryan J found that under South African law as Mr Carlton was a resident of South Africa and therefore treated as a parent in South Africa he ought to be treated as a parent in Australia.
Case 3
Mason & Mason[41]
Mr Mason and Mr Mason were a gay couple who went to India for surrogacy.  They sought parentage orders on return from the Family Court.  Ryan J declined to find that they were parents of the child because she found that there was a scheme of the Family Law Act with the Status of Children legislation such that parenting presumptions under the Family Law Act were those under the Status of Children legislation.  As the Status of Children legislation provided that the person who gave birth was the parent i.e. the surrogate and therefore the surrogate’s husband, neither of the intended parents were parents of the child.
Case 4
Groth & Banks[42]
Mr Groth was in a relationship with Ms Banks.  Well and truly after they separated Ms Banks asked Mr Groth to provide some sperm so that she could have a child.  He did so through an IVF clinic.  Subsequently he asked to be found that he was the father of the child.  Ms Banks relied on the Status of Children Act (Vic) to argue that as she had given birth and was single she was the only parent.  Cronin J found in effect that the intention of the parties was to father a child and that as Mr Groth was one of the two biological progenitors, who were recognised under the Family Law Act and there was no specific provision of the Family Law Actpreventing his role as a parent (as opposed to say section 60H of the Family Law Act) he was a parent of the child.  His Honour specifically ignored the form provided to the IVF clinic to state that Mr Groth was a donor not a parent because he said that was executed under State law, which was therefore rendered irrelevant for the purposes of the case by virtue of the Family Law Act overriding the Status of Children Act. 
Sperm donation agreement
It is my view that it is always preferable when there are known sperm donors to have a sperm donor agreement.  These agreements are not legally binding.  I advocate for them because:
(a)    They reflect the intention of the parties.
(b)   Hopefully by putting matters into writing parties will reflect upon what they have agreed and therefore reduce the chances of dispute later on (and therefore avoid train wreck cases like Wilson & Roberts (2010) and Halifax and Fabian (2010).
(c)    Hopefully at the time they will obtain counselling from an experienced fertility counsellor who will again get them to reflect upon what they wish so that there is less chance of dispute.
One can see different approaches from two recent cases.  Packer & Irwin (2013)[43]was a dispute between a lesbian couple concerning their children.  The non-biological mother was seeking various parenting orders.  Ultimately she was unsuccessful.
Judge Turner took into account the existence of the sperm donation agreement.  The sperm donor intervened in the proceedings, supporting the respondent mother (my client).  Her Honour adopted the position of the family report writer that the children in effect had three parents, as the sperm donor had a closer relationship with the children than the non-biological mother, and was in all respects the father of the child, although none called him that.
By contrast in Reiby & Meadowbank[44]Judge Small noted that the parties had entered into a sperm donor agreement,  but her Honour specifically ignored it, saying that the intention of the parties was irrelevant as to her carrying out consideration of statutory criteria.
In that case the sperm donor sought that he have shared parental responsibility with the lesbian couple and equal time, later changing at trial to a 9 day 5 day proposal in favour of the couple.  They proposed that he have vague daytime contact with the child.  Her Honour ordered that the couple have shared parental responsibility between them (but not with him) and the child spend daytime contact with him, graduating upwards.
The case is an illustration of a problem seen since Re Patrick [2002][45]that a sperm donor may consider that he wishes to be a parent but a lesbian couple may think he is only a sperm donor and whilst agreement might be reached before the child is born, sometimes after the child is born and warm and fuzzy feelings abound, the dynamic can change  In Re Patrick the sperm donor was found not to be a parent but to be someone concerned with the care, welfare and development of the child and that it was in the best interests of the child that there be contact with the donor.  The mother was so distraught as to the outcome that she committed suicide.
Dynamics of Lesbian Relationships
There is unfortunately a tendency in the creation of a child as your own alter ego to see the child as your own possession.  We as family law practitioners have seen this far too long and far too often.
In Verner & Vine (2005[46])Ms Verner and Ms Vine lived together. At one stage they had been like foster sisters, and later had a sexual relationship. They had a joint bank account and owned a house together.  They went to an IVF clinic and told the clinic that they wanted to have a child together because they were in a lesbian relationship.  Ms Vine subsequently married and had two children with her husband.  Ms Verner came to court seeking to have contact with the child.  She was unsuccessful. Lawrie  J stated:
“31. Whatever the nature of the relationship at the time “A” was conceived, the relationship is now very different from a close friendship or a love affair. The applicant maintains a lesbian identification. The mother does not. She is married, and has two children with her husband.
32. The applicant not only sought through the proceedings to have the respondent “admit” to her lesbian past, but there is a real possibility that she wishes to tell the child about it as well. In her submissions she said for example that, “I believe the truth and not denying the reality will help her not have any psychological issues in the future.” The truth, she asserts, is that the mother was in a lesbian relationship in which she was the co-parent of the child.
33. The cross-examination of the mother and her husband by the applicant was far more focussed on the adult relationships than on the child. The applicant denigrated the respondent, and sought to upset and unsettle the husband during her cross-examination of him, raising a conviction that the respondent had for petty theft, suggesting to him that she had lied to him, suggesting that she had had affairs and relationships of which he was ignorant. Her attitude to them both was hectoring and sarcastic. She was self-centred; some questions put to the respondent included, “Are you jealous and angry I am no longer with you?”; “Do you despise my happiness?”; “Are you jealous I am achieving my goals?”; “Are you trying to do what you can to destroy my life because you are vengeful because I left you?”
34. The state of the relationship between these former friends which exists today makes it clear that it would be extremely unpleasant for the mother to be in a position where she was required to have any further contact with the applicant.
I am satisfied that it would impinge on her and her family’s need for peace and tranquillity and cause upset in the child’s home which would not be in the child’s interest.
35. The child, the mother and her husband are in a particularly difficult situation. “A” is severely handicapped through having spastic quadriplegia cerebral palsy with athetoid movements. As summarised in the S Centre file, she needs maximal assistance in all activities of daily living.
36. The applicant dismisses the child’s problems. She claims to have had her for fortnightly contact on a regular basis and that there were no difficulties in caring for her and no special equipment required. The mother says in the past she minded her for some hours on a few occasions, but that assistance came to an end when she tried to retain her, and the child was retrieved through the intervention of the police.
37. I accept the version of events given by the mother. The applicant was not able to describe the child’s regime, which is involved with a considerable amount of equipment and with skills required on the part of the carer which she does not have. The applicant has recently obtained a job with the S Centre as a carer in a facility which deals with adults, and put herself forward as someone who would therefore have no difficulty in caring for the child. I do not think the experience of caring for the child on occasions for a few hours when the child was younger and smaller has given her any insight into the demands of caring for the child.
38. The records indicate that the mother and her husband are devoted parents to the child. It is extremely demanding, particularly with the other two small children. The mother’s husband says, and I accept, that he treats them all as his own.
As he said, “I may not be her father but I am her Dad.” I was very impressed with the mother’s husband, and as far as parenting of the child was concerned, very impressed with the mother.
39. It would not be in the child’s interests for the mother and her husband to be placed under any further stress. The thought that the applicant had any control over their lives and was able to intrude into their family when they did not want to have an ongoing relationship with her would be very stressful.
40. It would not be in the child’s interests to be told that she is different from the other children in the family, or to be treated differently from the other children. It would not be in the child’s interests to be exposed to any criticism of, or hostility towards, her mother or her stepfather. Orders in favour of the applicant would be likely to lead to all of these things.
41. I am satisfied that the significance of the applicant in the child’s life is now a matter of history, namely the participation in the IVF process, and the occasional assistance she offered as the mother’s friend when the child was younger. There will be no benefit to the child in seeing her, and considerable risk of harm.”
I note that the facts of that case now may result in a  different decision given the enactment of section 60H of the Family Law Actwhich would recognise both those women as parents (and similar Status of Children Legislation).
As decided in Keaton & Aldridge[47]timing as to when a lesbian couple live together when trying IVF is essential.  If the parties were together at the time of the implantation then they were parents under the Family Law Act.  If they weren’t together at that time then the mother was the only parent.  That was not the end of it.  Ms Keaton although not a parent was still somewhat concerned with the care welfare and development of the child, having formed the de facto relationship with Ms Aldridge after conception.
Because Ms Keaton was not a parent, then[48]:
“There is no presumption in this case in favour of the applicant being allocated equal shared parental responsibility or in fact any parental responsibility. This will be determined by reference to the relevant provisions of the Act and of paramount importance the best interests of the child.”
Pascoe CFM determined that the sperm donor (who had been a donor through the IVF clinic and apparently otherwise anonymous to the parties) did not need to be served.
An example of the dynamic was that of Lusito & Lusito (2011)[49], in which I was the independent children’s lawyer.  The older Ms Lusito desperately wanted to have a child.  She was unable to and after her repeated requests the younger Ms Luisito agreed to have a child on her behalf, using an anonymous sperm donor.
During the course of the case the law changed in Queensland to allow the recognition of the non-biological mother as a parent on the child’s birth certificate.  I wrote to both the parties seeking that the non-biological mother be recognised on the birth certificate.  This was opposed by the younger Ms Luisito who was the biological mother of the child.
At trial the mother said that she was opposed to the non-biological mother being named on the birth certificate because, in respect of their son:
(a)    To have two women’s names on the birth certificate might lead to discrimination in education and employment for their son;
(b)   Would allow their son on his turning 18 to locate his father if he so wished and to have his father’s name placed on the birth certificate.
The non-biological mother changed her tune during the trial to say that she was not so concerned about having her name on the birth certificate but rather having a relationship with her son.
A dynamic I certainly saw in that case was that the maternal bond appeared to be strongest between the biological mother and the child, who considered that the non-biological mother was not the other mother but another parent and did not have the special bond that the biological mother who had been pregnant and breastfed the child had.
Purdon-Sully FM also required that procedural fairness be shown to the sperm donor, which was evidenced eventually by a letter from the fertility clinic stating that the sperm donor was anonymous.
Throwing dad off the birth certificate
There have been at least two cases where a lesbian couple have successfully removed the father from the birth certificate, that in AA v Registrar of Births, Deaths and Marriages and BB (2011)[50]and B v C [2014][51].
In the latter case the lesbian couple came to the Supreme Court of Queensland seeking a declaration that B was a parent of both of the children by virtue of section 19C of the Status of Children Act 1978 and that therefore the father, C should be removed from the birth register.
Clearly A and B were a relevant couple for the purposes of section 19C of the Status of Children Act and were presumed to be parents and therefore the sperm donor was presumed to be not a parent.  The orders were made.
The application was brought in the context of  C having instituted proceedings in the Federal Circuit Court to have contact with the children, with whom he had had no contact for 4 years.  The legislation allowing B to be recognised on the birth certificate had been in place in Queensland for approximately 4 years.  One wonders if the timing of the application was intended at least to demonstrate that in the Federal Circuit Court proceedings that C was not a parent of the children under the Family Law Act, and furthermore as he had had no contact with the children for four years, even though he was the genetic parent and a known donor that he was not someone concerned with the care, welfare and development of the children, and therefore did not have standing to bring an application in relation to the children.
It may seem obvious but it would appear either by way of judgment under the parens patriae jurisdiction of the Supreme Courts or the Family Court, or by statutory intervention; in the unique cases of their being sperm donors with a lesbian couple who parent a child, there ought to be recognition of three parents but with appropriate recognition of the unique role of the  donor as opposed to the lesbian couple.
LQBTIQ people are still worried about homophobia from lawyers, independent children’s lawyers, report writers and judges.  The road to parenthood for gay and lesbian parents has been particularly complex.  The laws imposed by our Parliaments have not kept pace with society and in particular the roles of sperm donors and the needs of gay men undertaking surrogacy.   It would appear that Australians are the highest per capita users of overseas commercial surrogacy despite commercial surrogacy being banned in all jurisdictions other than the Northern Territory, and there being specific extra-territorial bans in Queensland, New South Wales and the ACT.
Disputes concerning gay and lesbian parents have become mainstream over the last generation.  Those involving trans-parents are now being litigated, and in an enlightened manner.
While there is much to do, the future looks bright.
Stephen Page
Harrington Family Lawyers
3 August 2014
Phone: 07 3221 9544
Fax: 07 3221 9969

[1]Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is an accredited family law specialist He was admitted as a solicitor in 1987, has been an accredited family law specialist since 1996 and is author of the Australian surrogacy and Adoption Blog.
[2]Thank you to Dr Sujay Kentlyn as to the term Alphabet soup
[3][2008] Fam CAFC 93
[4]Which compares with the decision in L & L and like cases.
[5]Decision can be viewed at viewed on 25 7 2014
[6][2010] Fam CA 435[145 – 146]
[7]In Re Kevin(validity of marriage of transsexual) [2001] Fam CA 1074; and the Attorney General for the Commonwealth & Kevin and Jennifer & Human Rights and Equal Opportunity Commission [2003] Fam CA 94;(2001) FLC 93-087; [2001] 28 Fam LR 158
[8][1994]FAM CA 21; (1994 ) FLC 92-461
[9][2010]FAM CA 936
[10]2009 FAM CA 181
[11][2005] FAM CA 294 (2005) FLC 93-227
[12][1999] FAM CA 1002
[13]At [52 – 55]
[14][2000] FamCA 963
[15]Commencing at [170]
[16][2007] FamCA 1537
[17][2007] FamCA 478
[18][2013]  FamCA 565
[19][2009] FamCA 267
[20][2008] FamCA FC 93
[21]At [25]
[22][2009[ FamCA 993
[23]At [169]
[24][2012[ FamCA 1054
[25]Although correctly in this case it would be internalised biphobia
[26]2012 FAM CA 22
[27]2013 FAM CA 517
[28][1992] HCA 15; (1992) 175 CLR 218
[29]I.e. had the necessary capacity and maturity
[30]S.90SB Family Law Act 1975 (Cth); Reg 15AB Family Law Regulations 1984(Cth)
[31][2014]FamCA 9
[32]At [76]
[33][2012] FMCA Fam 1250
[34]At [1] – [4]
[35]At [71]
[36]At [87]
[37]At [114] – [121]
[38]Transamerica, with Felicity Hoffman in the title role
[47][2009] FMCAfam 92
[48]At [145]
[50][2011] NSWDC100
[51][2014] QSC 111
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