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Australian Gay & Lesbian Law Blog – "Family Court case: was father gay?" by Stephen Page

August 5, 2008 Leave a comment

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called “Australian Gay and Lesbian Law Blog“. [Ed – Rodney Cruise]

In the recent Family Court case of Craven & Crawford-Craven, Justice Warnick, sitting as the Full Court, had to consider the question of the father saying that he was unfairly branded by the trial judge as a homosexual. The father had sought equal time to the parties’ child G, which was rejected by the trial judge, finding that the child should spend more time with the mother.

What was apparent from the trial was that the father and mother had separated and the father now resided with his partner, a Mr J.

The father considered that the issue of homosexuality might be important to the parenting orders that were the subject of the appeal.

In his grounds of appeal, the father said:

“That in considering the lifestyle of the [father] as a homosexual as the Federal Magistrate did ……… and describing the father as homosexual in the key words to the reasons for judgment, the Federal Magistrate erred in that he made that determination when there was no evidence that justified such determination.”

The Federal Magistrate said:

“The homosexuality of the father does not, of itself, disqualify him from fully enjoying and fulfilling his role as a parent.”

“I accept that the father and his partner are able to provide for [G]’s needs and to parent him effectively. However, as [G] grows older, issues may arise that the father has to deal with in explaining to his son his personal circumstances. That does not mean that [G] should not continue to spend significant time with his father.

“I do, however, think that the separation of [G] from the mother and his sister for extended periods would not be in his best interests. It would prove to be disjointed for [G]. He would be part of the larger family unit for some of the time and would then be effectively an only child in the father’s household whilst he spent time with him. This may prove difficult for [G] to adjust to. This difficulty is highlighted by the fact that it will be only him who is moving between two households whilst his sister stays with the mother. In my view this concern leads me to conclude that the child should spend more time with the mother than with the father, and it would not be in the child’s best interests to spend equal time in both households.”

Counsel for the father stated:

“The finding [of homosexuality], whilst not having of itself any consequence, is a finding that was not open to the Trial Judge on the evidence that was before the Court, that is, that the father had a homosexual preference, if that finding reflects upon the determinations which the Trial Judge made….”

Justice Warnick noted that the finding as to homosexuality could not be seen to have affected any relevant determination that the Federal Magistrate made. Indeed, it was clear from the discussion that followed the sentence containing the reference to the homosexuality of the father, that the trial judge saw no relevance in it in the case before him.

Moreover, the trial judge noted that the father may have to, in the future, explain his personal circumstances to his son. Indeed, in the last sentence of the paragraph, he especially rejected any such consequence.

In the following paragraph, the trial judge “set out the basis for rejecting an equal sharing of time between parents. The father’s sexual orientation was not a factor.
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 bisexual, 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 for his cohabitation with Mr J.”

[Link: Original Article]

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Categories: Family Court, gay

Australian Gay & Lesbian Law Blog – "English Court of Appeal case: child can have three parents" by Stephen Page

August 2, 2008 Leave a comment

Stephen Page from Brisbane, Queensland, Australia is a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. He writes a wonderful blog called “Australian Gay and Lesbian Law Blog“. [Ed – Rodney Cruise]

In the recent English Court of Appeal case of
In the matter of:
Re A (A Child: Joint Residence/Parental Responsibility), the court affirmed an earlier English decision that a child can have more than two parents.

The question arose when, after the commencement of bitter litigation and the obtaining of a family report that recommended a joint residence between the mother and her former partner, the mother then said that she wasn’t sure that her former partner was the father, and it could have been another man, and yes indeed the DNA test showed the other man was A’s father.

Not surprisingly, the mother was criticised for her behaviour, as was the former partner, in his case for having set up CCTV in their home without her knowledge!

The interesting legal point was as to what constitutes a “parent”. This is of particular relevance in Australia given that the Family Law Act does not adequately define “parent”.

Section 4 of the Family Law Act defines “parent” thus:

“parent” , when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.

However, section 60B, in looking at the objects of Part VII, which deals with parenting issues, talks about “both of their parents” and “both their parents” and section 60CC(2) refers to “both of the child’s parents”. Subsection (3) in various places talks of “each of the child’s parents” and (4A)”if the child’s parents have separated” again indicating that there can only be two- presumably the biological parents.

The English Court of Appeal, in rejecting the appeal, said that the mother’s former partner was a “parent”, meaning the children had three parents.

The court followed the decision of the House of Lords in In re G (children), in which Baroness Hale said that there were three types of natural parents:

There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is “his” child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (An Infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child’s mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase “psychological parent” gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

“A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child’s psychological needs for a parent, as well as the child’s physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.”

Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.

But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others.

Re G was a case involving a fight between a lesbian couple about their children. The biological mother, who had used an IVF clinic, tried to stop her former partner from having anything to do with the children. The case, on appeal, turned on the issue of whether the children should be removed from the mother and placed with her former partner. The mother was ultimately successful.

Baroness Hale concluded:

I am sad to see these two women, who deliberately brought these children into the world for them to share, and who both love and want the best for them, locking themselves into the same sort of battles that, sadly, we so often see between mothers and fathers. I hope that they can now move on from this dispute into a happier and more co-operative future for the sake of their children.

[Link: Original Article]

Categories: Family Court

Sydney Star Observer – "Rudd’s Broken Promise" by Emily Gray & Peter Johnson


In response to the 2007 pre-election survey from the Gay and Lesbian Rights Lobby and ACON, Kevin Rudd and the Australian Labor Party promised the following: “Labor is committed to equality for gay men, lesbians and same-sex couples and, if elected, will remove provisions which discriminate on the basis of sexuality, with the exception of the Marriage Act.”

Last week the federal government indicated that it would not be including the Family Law Act 1975 in its first raft of reforms to provide equality for same-sex couples. A few weeks ago the Rudd government announced its plans to introduce equal rights for lesbian and gay couples in many areas. We will have the same super benefits, tax breaks and access to healthcare as straight couples. The Rudd Labor government has decided not to include the Family Law Act 1975 at this time. If they continue to exclude it, this will be a broken promise.

The omission of the Family Law Act 1975 from the package of announced reforms will have a number of discriminatory impacts for our community. A lesbian co-mother will not be recognised as a “parent” in child-related court proceedings in the Family Court. This creates uncertainty for a child in the event of a relationship break-up. This also means that a birth mother cannot pursue child support through the Child Support Scheme from the co-mother in the event of a break-up. Already, lesbian parents have to go to enormous financial and personal costs to secure child support for their children and resolve conflicts on the breakdown of a relationship.

Leaving out this reform will also contribute to discrepancies between federal and state law, leaving couples uncertain about their rights and the rights of their children. We are talking about a significant number of people. An estimated 20 percent of lesbians have children and this figure is likely to be increasing. The 2006 Census recorded at least 4,386 children living in same-sex families in Australia. This change is necessary to ensure the majority of same-sex families are treated equitably. It is in the best interests of these thousands of children to have the economic and emotional security which comes with the legal recognition of their families

[Link: Original Article]

The Australian – "Childless de factos in Family Court win" by Patricia Karvelas

DE FACTO couples without children will be given access to the Family Court to settle property disputes after they split up under sweeping changes announced by the Rudd Government.

Current laws deny de facto heterosexual couples without children access to the Family Court.

A spokesman for Attorney-General Robert McClelland said the Government wanted to create a more consistent family law system.

De facto couples with children already have access to the Family Court but those who do not are confined to state Supreme Courts to settle property disputes.

“The Government’s platform is to ensure family law applies in a consistent and uniform way to de facto relationships across Australia,” Mr McClelland said.

The decision to grant de facto couples without children access to the Family Court for property disputes will cut their legal bills. Specialist Family Court mediators are available for tens of thousands of dollars less than in the Supreme Court system.

It is understood the Government will also extend access to the Family Court to same-sex couples on the basis that they will now be regarded as de facto couples on equal footing to heterosexuals.

This follows a push by former Family Court chief justice Alastair Nicholson, who has written to Mr McClelland to urge him also to consider giving gay and lesbian couples access to the Family Court.

The appeal to Mr McClelland comes as the Government introduces reforms giving equal financial and workplace entitlements to same-sex de facto partners.

“As a long-time supporter of equal legal treatment for same-sex couples and their families, I want to see the Government’s proposed reform remove as much discrimination as possible,” Professor Nicholson said in a statement.

“Like their heterosexual counterparts, same-sex partners should be able to settle property and maintenance disputes in the Family Court rather than be forced through the more cumbersome and expensive state Supreme Court system, as is currently the case.

“It’s also important for the Government to give state and territory civil union registries full and equal status in federal law so that same-sex couples can access federal entitlements through these schemes.”

The move will be fought by the Christian lobby, which does not want gay and lesbian couples to have access to the Family Court if they do not have children.

Greens senator Kerry Nettle said in a statement yesterday she would pursue the Government on the issue of same-sex access to courts during next week’s Senate estimates hearings.

“The Government needs to ensure that they include the recognition of registered same-sex relationships in their same-sex law reform package that we are due to see next week,” Senator Nettle said.

“Labor cannot have a bob each way on discrimination; either they support equal rights or they are for discrimination.”

[Link: Original Article]

Categories: Family Court, gay, Lesbian

SBS TV – "Greens back call for gay access to family court" by AAP


Greens Senator Kerry Nettle. (AAP)
The Australian Greens have backed calls by a former senior judge to extend Family Court protections to same-sex couples.

Professor Alastair Nicholson, a former chief justice of the court, has called on the Rudd government to allow same-sex couples access to the Family Court to settle property disputes.

He also has asked the government to recognise state civil union registries in federal law.

Greens Senator Kerry Nettle intends pursuing the government on the issue during next week’s senate estimates hearings.

The measures should be included in reforms the government was drafting that would remove same-sex discrimination from federal laws, she said.

“The government needs to ensure that they include the recognition of registered same-sex relationships in their same-sex law reform package that we are due to see next week,” Senator Nettle said in a statement.

“Labor cannot have a bob each way on discrimination – either they support equal rights or they are for discrimination.”

[Link: Original Article]

Categories: Family Court, gay, Lesbian

The Age – "’Family Court is for gays, too’" by Misha Schubert

ONE of the country’s most senior former judges has advocated giving gay couples access to the Family Court to settle property disputes after a break-up — a move that faces stiff resistance from the conservative Christian lobby.

On the eve of moves to end discrimination against gay couples across a range of federal laws, former Family Court chief justice Alastair Nicholson has written to federal Attorney-General Robert McClelland to urge a further shift in family law.

The reform would give gay couples access to the cheaper specialist court and its mediators — instead of being forced to spend tens of thousands of dollars to resolve disputes in the Supreme Court.

Under current laws, de facto heterosexual couples are also denied access to the Family Court. In the letter, obtained by The Age, Professor Nicholson argues the reform would ensure more cases are settled at mediation without trial.

“To force same-sex couples to continue to rely on State Supreme Courts, which are often more expensive and whose personnel have less experience in family law matters, would be a continuing breach of the human rights of lesbians and gay men and their families,” he wrote.

Professor Nicholson also urges the Federal Government to give automatic recognition to gay couples listed on state relationships registers. He says they are different from de facto heterosexual couples, because the partners have taken a decision to formalise the relationship.

In practical terms, such a move would also cut the amount of paperwork gay couples need to provide to federal agencies to prove their relationship was genuine.

Australian Coalition for Equality spokesman Rodney Croome backed the move, arguing the specialist family court should be open to all couples.

“State Supreme Courts are not set up to handle these matters, and many same-sex partners forced to resolve their disputes in this way find it cumbersome, time-consuming and very expensive,” he said.

But Australian Christian Lobby chief Jim Wallace said he had strong concerns about giving Family Court access to gay couples without children because it undermined the traditional model of family. But he said there was a case for gay couples with children to have access to the specialist court to ensure the best interests of the child were protected.

“The expertise for dealing with children in family break-ups lies with practitioners in the Family Court and we wouldn’t want to disadvantage children,” he said. “(But to give access in childless cases) would be the wrong signal because we believe we need to hold up the traditional model of family.

“It just removes a nuance of the fact that family is mother, father and children.

“We would want to preserve that definition in all law as much as possible.”

Gary Singer, the deputy Lord Mayor of Melbourne who is in the midst of a high-profile court battle after a break-up with his gay partner, said the reforms were urgent to protect privacy and end inequality for both gay and de facto couples. His case became public because Supreme Court documents are not covered by the same privacy protections as Family Court cases.

“One of the problems with being under state law is that your file is open to the public so anyone can access your file and read the affidavits and material in your file,” he said. “When people break up, they say nasty things about each other — that exposure doesn’t happen to other people.”
KEY POINTS
Gay couples should be able to settle property disputes in the Family Court.
Forcing gays to use the Supreme Court is costly and compromises their privacy.

[Link: Original Article]

Categories: Family Court, gay, Lesbian

The Age – "Push to open Family Court to gay couples" by AAP

May 21, 2008 1 comment

Gay couples who are separating should be allowed access to the Family Court to settle property disputes, the court’s former chief justice has urged.

In a letter to federal Attorney-General Robert McClelland, former Family Court chief justice Alastair Nicholson said Family Court protection should be extended beyond married couples, Fairfax newspapers reported on Thursday.

Under current laws, homosexual couples and heterosexual de facto couples must rely on state supreme courts to settle property matters.

But married couples have access to the specialist Family Court and its team of mediators, which were available for tens of thousands of US dollars less.

In the letter, obtained by Fairfax, Prof Nicholson said the change would ensure more cases are settled at mediation without a trial.

“To force same-sex couples to continue to rely on state Supreme Courts, which are often more expensive and whose personnel have less experience in family law matters, would be a continuing breach of the human rights of lesbians and gay men and their families,” he wrote.

Australian Coalition for Equality spokesman Rodney Croome backed the proposal.

But Australian Christian Lobby chief Jim Wallace said while giving Family Court access to gay couples without children undermined the traditional family model, those with children had a case for Family Court access to ensure the best interests of their children were protected.

[Link: Original Article]