Sunday, 10 August 2008

Family Court case: was father gay?

In the recent Family Court case of Craven v 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."

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