Thursday, 15 October 2009

Gay men allowed to go to court about their friend's child

The complexities of gay and lesbian parenting have been brought home in the recent Federal Magistrates Court case of Halifax and Fabian. The case involved:
  • a lesbian couple, Ms Halifax and Ms Fabian, who had been together for 7 years, but who had split up a year before the court decision
  • their two kids, X and Y. Ms Halifax is the mother of Y, a girl aged 7, and Ms Fabian is the mother of X, a girl aged 3.
  • The father of Y was Mr Dalton. X's father was an anonymous sperm donor.
  • Mr Dalton had partnered a Mr Ballard.
  • There were three houses for the kids- Ms Halifax's, Ms Fabian's and the men's house.

Ms Fabian decided that she wanted to move to NSW from south-east Queensland with X.

The preliminary question for the court was whether the men, who had no genetic connection with X had a right to go to court, on the basis that they were people concerned with the "care, welfare and development" of X. Federal Magistrate Purdon-Sully held that the preliminary threshold had been met.

Her Honour found:

Whilst it is clear that historically the relationship between Ms Fabian and Mr
Dalton and Mr Ballard was not as close as that enjoyed by Ms Halifax... and
whilst it is clear the mother was less committed to the particular type of
non-traditional family arrangement enthusiastically embraced by her former
partner, ..... and whilst there may be some merit in the submission of counsel
for Ms Fabian, Ms Brasch, that it was a life-style choice ultimately imposed
upon her as a consequence of her relationship with Ms Halifax and her commitment
to their parenting of [Y], the evidence is that Ms Halifax and Ms Fabian made a
decision to parent their children together, without differentiation and Ms
Fabian knew that Mr Dalton (and his partner) would be involved in the parenting
paradigm.

The evidence showed:

  • The men were involved in the parenting of both children. They had established a home to accommodate the development of the relationship and had made employment and residential adjustments to that end.
  • Decisions were made prior to conception of both children including with respect to religion, education, circumcision, discipline, all four adults agreeing to remain living in south-east Queensland.
  • The men accepted Ms Fabian's invitation to attend her twelve week pregnancy scan.
  • The men visited the hospital the day of X’s birth and daily thereafter and cared for Y until X was brought home.
  • The men were introduced as “daddy” to the friends and family of the applicant and mother. X referred to her mother and Ms Halifax as “Mummy” and “Mama” and to the Mr Dalton as “Daddy” and “[Mr Ballard] [first name omitted]” (and possibly “Daddy [first name omitted]” on the evidence of Mr S.)
  • The children developed a close attachment to each other and to the men. The family report writer observed that the children were strongly attached and affectionate with both mothers and affectionate and secure with both men. Ms Fabian acknowledged that the men loved [X], that [X] was comfortable with them and that they had a bond with her and should spend time with her, her complaint being that they should not be permitted to assume a parental-decision making role.
  • The men spent regular time with the children including on weekends and week days and they were also asked to babysit from time to time.
  • Whilst Ms Fabian's refusal to agree to overnight time caused some angst and created problems, on their evidence, with [Y]’s arrangements, on one occasion Ms Fabian did agree to this to enable [X] to spend time with her grandmother, Mr Ballard’s mother who was visiting.
  • The men exchanged gifts with the children on birthdays, special occasion, on Father’s Day and at Christmas, including in 2008 after Ms Halifax and Ms Fabian had separated.
  • The men and women socialised, attended activities, celebrated special occasions and had holidays together.
  • The men attended with the children and Ms Fabian at the annual gay pride parade marching in the family section of the parade.
  • The men established a separate bedroom for [Y] and [X] with a bed that converted to two singles beds to accommodate any overnight stays and did so with the knowledge and without objection from the applicant or the mother.
  • [X] had a photo of the two men in her bedroom.
  • The men were listed by Ms Halifax as emergency contacts in 2006 and 2007 at [X]’s day-care centre.
  • Ms Fabian consulted Mr Dalton about some medical issues to do with [X] given his medical background.

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