Wednesday, 17 March 2010

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.


  1. I wonder if you have kept up to date with this case? I understand why the G&L lobby would welcome a precedent on legal recognition of gay families but I urge you to look further into this case, for if you do you’ll see this judgement is INCORRECT in this particular case. I also ask where is the G&L lobby support for ‘Bagley’, the mother, as a lesbian single mother, indeed, a lesbian single mum who has allegedly been the victim of sustained pychological domestic abuse by another woman? Where is their support for her child who has been damaged by this drawn out legal process? Would this mother be in this legal situation if she had been involved with a man? Where is the legal and financial support by the G&L lobby for this blatant act of discrimination? And by the way, as I understand, the mother did not initially ‘oppose contact’ indefinitely, as your report incorrectly implies.

  2. Anonymous, why do you say this judgement is "INCORRECT"?

    The Gay and Lesbian lobby is not set up to provide "financial support" nor "legal" support for people in disputes. For those who can not afford legal costs, they may have access to Legal Aid schemes in each state or territory. Indeed, the Gay and Lesbian Rights lobbies in all states struggle with funding and are purely volunteer organisations. Please have a look at their websites to see what the "lobby" actually does and is intended to do. They serve a very important purpose with limited or little resources. It is important that as many people as possible become paid up members to assist them. I trust that you will/are one of them.

    I am ordinary member of the VGLRL and I believe that they deserve our support.

    Family disputes are never pleasant, but it is hardly the role of the Gay and Lesbian lobby to intervene.

    My 2 cents.