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
MELBOURNE
15 AUGUST 2014
NOT HIV OF
THE MIND
HOW LGBTIQ
PEOPLE FARE IN THE FAMILY LAW COURTS
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 gay
then extended to lesbian, then a
realisation that there were people who were bisexual
and 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:
|
Then
|
N
& N
|
(1977)
FLC 20-208
|
Denial
of lesbian relationship
|
|
|
Spry
|
(1977)
FLC 20-271
|
No
overt affection
|
|
|
O’Reilly
|
(1977)
FLC 90-300
|
Fine
but competed with drunken husband
|
|
|
Cartwright
|
(1977)
FLC 302
|
No
mention to the children
|
|
|
Brook
|
(1977)
FLC 90-325
|
No
overt display
|
|
|
Kitchener
|
(1978)
FLC 90-435
|
Breach
of undertaking not to resume lesbian relationship
|
|
|
Schmidt
|
(1979)
FLC 90-685
|
Lesbian,
undertaking
|
|
|
Shepherd
|
(1979)
FLC 90-729
|
Husband
gay wife lesbian then became Christian – child to father
|
|
|
L&L
|
(1983)
FLC 91-353
|
Guidelines
|
|
|
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.”
Marriage
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.
Porn
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.
Fetishes
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.
HIV/Aids
|
HIV
|
|
|
|
|
|
|
J
& W
|
1999
|
|
Fear
that child would be infected
|
|
|
Wendall
& Jones
|
2000
|
|
From
blood
This
is the same case as J & W
|
|
|
Bracken
& Kinder
|
2007
|
|
Mother
has the view that she had HIV of the mind
|
|
|
SCVG
& KLD
|
2007
|
|
Not
exposed to anyone in the house as the mother’s brother in the house was gay
|
|
|
Hoover
|
2009
|
|
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.”
Bisexual
|
Bisexual
|
||||
|
|
Craven
& Crawford-Craven
|
2008
|
|
Father
named as homosexual but appealed as was bisexual
|
|
|
Brodie
& Denton
|
2009
|
|
Sleeping
with girls is like sleeping with animals
|
|
|
Gueye
Sane & Sane Daramy
|
2012
|
|
Depression/suicide
ideation due to internalised
homophobia – bisexual
|
|
|
Isles
& Spurr
|
2012
|
|
Not
bisexual – but sex with men and women
|
|
|
Smith
& Jones
|
2013
|
|
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
|
|
KAD
& SJG&KH
|
2007
FMCAfam 443
|
Gay
porn – boyfriend
|
|
Lindsay
& Baker
|
[2007]
|
Gay
paedophile
|
|
Bond
|
[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.
|
|
Grandhouse
|
[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”
|
|
Davidson
|
2010
|
Fathers
brother gay/cross dressing
|
|
Tourna
& Tourna
|
[2010]
FMCAfam 584
|
Mother
a slut and lesbian
|
|
|
|
|
|
Beasley
& Jeffreys
|
[2011]FMCAfam
713
|
HIV
+
|
|
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
|
|
Ogden
|
2012
|
See
lesbian/frigid
|
|
Hacker
|
2012
|
Abuse
to daughter
|
|
Field
& Bowers
|
[2012]FamCA
189
|
Lesbian
|
|
Deledio
& Deledio
|
2012
|
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 X
the 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
|
2014
|
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.”
Parenting
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 Act
preventing 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 Act
which 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.
Conclusion
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
spage@harringtonfamilylawyers.com
[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 http://www1.umn.edu/humanrts/undocs/html/vws488.htm viewed on 25 7 2014
[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
[39]
[2013]FCWA7
[40]
[2013]FamCA143
[41]
[2013]FamCA424
[42]
[2013]FamCA430
[43]
[2013]FamCCA658
[44]
[2013]FCCA2040
[45]
[2002]FamCA193
[46]
[2005]FamCA763
[47]
[2009]
FMCAfam 92
[48]
At [145]
[49]
[2011]FMCAfam55
[50]
[2011]
NSWDC100
[51]
[2014] QSC 111
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